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360 U.S. 219
79 S.Ct. 1034
3 L.Ed.2d 1186
Park H. MARTIN, Successor to Joseph Lawler as Secretary of Highways of the Commonwealth of Pennsylvania, et al., Appellants,v.J. K. CREASY, William W. McNamee, Jack C. Marshell, et al.
No. 157.
Argued April 2, 1959.
Decided June 8, 1959.
Miss Anne X. Alpern, Pittsburgh, Pa., for appellants.
Mr. Edward P. Good, Pittsburgh, Pa., for appellees.
Opinion of the Court by Mr. Justice STEWART, announced by Mr. Justice WHITTAKER.
1
This action was instituted in the District Court for the Western District of Pennsylvania by owners of property abutting a section of highway which runs between downtown Pittsburgh and the Greater Pittsburgh Airport. The commplaint stated that the Secretary of Highways and the Governor of Pennsylvania were about to designate that section of the road a 'limited access highway' under authority of a Pennsylvania statute. Claiming that such action would deprive them of their property without due process of law, since the Pennsylvania statute allegedly did not provide compensation for loss of access to the highway, the plaintiffs asked for injunctive relief and for a judgment declaring the statute unconstitutional.
2
The legislation under which it was asserted the state officials were planning to act is the Pennsylvania Limited Access Highways Act of 1945.1 The Act defines a limited access highway as 'a public highway to which owners or occupants of abutting property or the traveling public have no right of ingress or egress to, from or across such highway, except as may be provided by the authorities responsible therefor.'2 It authorizes the Secretary of Highways, with the approval of the Governor, to declare any highway, or part thereof, to be a limited access highway.3 Section 8 of the statute, as amended in 1947, provides:
3
'The owner or owners of private property affected by the construction or designation of a limited access highway * * * shall be entitled only to damages arising from an actual taking of property. The Commonwealth shall not be liable for consequential damages where no property is taken * * *.'
4
The latter section was specifically attacked by the plaintiffs, who claimed that in the light of the Pennsylvania courts' interpretation of other statutes, this provision would be construed to mean that compensation was to be paid only if land were taken. The Limited Access Highways Act itself had never been construed by the courts of Pennsylvania.
5
The district judge issued a temporary restraining order. Thereafter a three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284. After stipulations of fact were filed, the District Court entered an order staying proceedings to permit the parties to seek a determination of their rights under the statute in the courts of Pennsylvania.
6
Theeup on the plaintiffs filed an equitable proceeding in the Common Pleas Court of Dauphin County, Pennsylvania. That court pointed out that the plaintiffs were asking for a determination of 'whether or not a taking of property has occurred and what damages shall be awarded therefor, and that, if the depriving them of access is found to be a taking of a compensable property right, that plaintiffs' legitimate interests will be constitutionally safeguarded by a resort to viewers proceedings and, if necessary, by later appeals to the courts.' Creasy v. Lawler, 8 Pa.Dist. & Co.R.2d 535, 537.
7
As a court of equity, the county court found it proper to determine only the last of these questions, and its answer was unequivocal:
8
'All of plaintiffs' rights can be protected and secured in a proceeding before viewers, as is provided in section 8 of The Limited Access Highways Act of May 29, 1945. * * * Here the legislature, in The Limited Access Highways Act, * * * has provided a way in which every property owner may have it decided whether he is entitled to compensation and, if so, when, for what, and in what amounts. * * * Should the Commonwealth proceed, then at that time plaintiffs will have the right to proceed before viewers on the question of their right to damages. In the orderly course of the procedure provided by The Limited Access Highways Act, they will have a right of appeal to the common pleas court and a jury trial, and still later to have their rights adjudicated in the appellate courts. At all times their constitutional rights, whatever they may be, will be guarded and protected.' 8 Pa.Dist. & Co. R.2d 538—539.
9
This decision was affirmed per curiam by the Supreme Court of Pennsylvania, which explicitly adopted the lower court's opinion. 389 Pa. 635, 133 A.2d 178.
10
Further proceedings were then had in the District Court. Although stating its awareness 'that the federal courts should be reluctant to exercise jurisdiction in cases where the plaintiffs' constitutional rights will be properly protected in the state tribunal and where the statute under attack has not yet been construed by the State Courts,' nevertheless the District Court proceeded to adjudicate the merits of the controversy, believing that the plaintiffs might be irreparably harmed during the period required to determine their rights in the state courts. 'Without venturing to predict the ultimate decision of the Pennsylvania Courts on the issue of compensation,' the District Court was of the view that the Pennsylvania Legislature did not intend to compensate abutting landowners 'whose right of access to an existing highway is destroyed by the designation of that highway as a limited-access highway.' For that reason the court found the statute repugnant to the Due Process Clause of the Fourteenth Amendment. A final decree was issued, permanently enjoining, in the most sweeping terms, the Secretary of Highways and the Governor from proceeding. Creasy v. Stevens, D.C., 160 F.Supp. 404, 409.4 The case is here by way of a direct appeal, 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, of which this Court noted probable jurisdiction. 358 U.S. 807, 79 S.Ct. 38, 3 L.Ed.2d 53.
11
It was the clear pronouncement of the Pennsylvania courts that the state statute provides a complete procedure to guar an d protect the plaintiffs' constitutional rights 'at all times.' In the light of this pronouncement it is difficult to perceive the basis for the District Court's conclusion that the plaintiffs would be irreparably harmed unless the state officers were enjoined from proceeding under the statute. There is no question here of the State's right to create or designate a limited access highway. The only question is the plaintiffs' right to compensation. It must be assumed that the courts of Pennsylvania meant what they said in stating that the plaintiffs will be afforded a procedure through which the full measure of their rights under the United States Constitution will be preserved. Assuming, however, that there was a basis to support intervention by a court of equity, the District Court, we think, should nevertheless have declined to adjudicate this controversy.
12
The circumstances which should impel a federal court to abstain from blocking the exercise by state officials of their appropriate functions are present here in a marked degree. The considerations which support the wisdom of such abstention have been so thoroughly and repeatedly discussed by this Court as to require little elaboration. Railroad Comm. 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 Co. 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; Government and Civic Employees Organizing Committee, C.I.O. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894. See also Alabama Public Service Comm. v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002. Reflected among the concerns which have traditionally counseled a federal court to stay its hand are the desirability of avoiding unseemly conflict between two sovereignties, the unnecessary impairment of state functions, and the premature determination of constitutional questions. All those factors are present here.
13
At least one additional reason for abstention in the present case is to be found in the complex and varying effects which the contemplated state action may have upon the different land owners. Some of them may be completely deprived of access; others may have access to existing roads or service roads to be constructed; still others may have access to the highway itself through points of ingress and egress established under the statute. In the state court proceedings the case of each landowner will be considered separately, with whatever particular problems each case may present.
14
There is no reason to suppose that the Commonwealth of Pennsylvania will not accord full constitutional scope to the statutory phrase 'actual taking of property.'5 If, after all is said and done in the Pennsylvania courts, any of the plaintiffs believe that the Commonwealth has deprived them of their property without due process of law, this Court will be here.
15
Reversed.
16
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE joins, concurring.
17
A District Court's abstention from the exercise of its properly invoked jurisdiction is justified, in my view, 'only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve one of two important countervailing interests: either theavo idance of a premature and perhaps unnecessary decision of a serious federal constitutional question, or the avoidance of the hazard of unsettling some delicate balance in the area of federal-state relationships.' Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 32, 79 S.Ct. 1074 (dissenting opinion). Both of these circumstances in which abstention is justified are present in this case. If the District Court directs the parties to the Pennsylvania courts, those courts may interpret the cutting off of access rights as a taking of property requiring the payment of compensation under Pennsylvania law. Such an interpretation would obviate any need for determination of the serious constitutional issue raised in the District Court.
18
Furthermore, the District Court's action has halted at the threshold the carrying out of a large-scale highway program before the state courts have had an opportunity to interpret the statute creating that program. This constitutes an unnecessary interference with state domestic policy creating undesirable friction in federal-state relationships.
19
Therefore, I concur in the judgment of the Court.
20
Mr. Justice DOUGLAS, dissenting in part.
21
We are all agreed that the District Court improperly enjoined the enforcement of the Pennsylvania statute. But I believe that these property owners are entitled to a declaratory judgment by the federal court, determining whether access to a highway is a property right, compensable under the Fifth Amendment (and made applicable to the States through the Fourteenth, Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979).
22
Congress has granted the District Courts jurisdiction over cases arising 'under the Constitution,' 28 U.S.C. § 1331, 28 U.S.C.A. § 1331, as this one does. That jurisdiction need not be exercised where it would be obstructive of state action and lead to needless interference with state agencies. Alabama Public Service Comm. v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002. It likewise need not be exercised where the resolution of state law questions—which are complex or unsettled—may make it unnecessary to reach a federal constitutional question. Spector Motor Service Co. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; City of Chicago v. Fieldcrest Dairies, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873. And these principles are applicable in the main to declaratory judgment actions as well as to those where injunctions are sought. Great Lakes Dredge and Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407.
23
In my view these cases are irrelevant here. We have at bottom in this case a question whether access to a highway is a property right which is compensable under the Fifth and Fourteenth Amendments. If it is compensable, as the District Court ruled, see 160 F.Supp. 404, 410—412, this is the most appropriate time to make the announcement. Particularly is this so when appellees in this case sought a declaration by the state court of their rights under the statute and were told that 'their constitutional rights, whatever they may be, will be guarded and protected.' Such a ruling by the District Court would not halt the highway program. But it might have an effect on engineering designs for new local service roads to provide substitute means of access to the highways; and it would make clear to the local authorities what the scope of their financial commitments in the undertaking is.
24
A determination of appellees' property rights would not be a premature decision because of the inability to forecast how the State will effect its goal of limiting access to its highway. Whether or not the landowners will be left landlocked or given access to substitute service roads goes only to the question of the amount of property 'taken,' if any. It has nothing to do with the question of the landowner's property right in access to highway abutting his land.
25
We have witnessed in recent times a hostility to the exercise by federal courts of their power to declare what a citizen's rights are under local law in diversity cases (Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070) and in cases where federal rights are invoked. Public Service Comm. of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291; Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025. I think the federal courts, created by the First Congress, are today a haven where rights can sometimes be adjudicated even more dispassionately than in state tribunals. At least Congress in its wisdom has provided since 1875 (18 Stat. 470) that the lower federal courts should be the guardian of federal rights. The judicial intolerance of diversity jurisdiction, noted by my Brother Brennan in his dissent in Louisiana Power & Light Co. v. City of Thibodaux, supra, seems to be spreading to other heads of federal jurisdiction as the decisions in this case and in Harrison v. NAACP,1 supra, suggest. True it is, that the exercise of that power in some cases would be so utterly disruptive of state-federal relations as to make it undesirable. As a general rule, however, the federal courts should be responsible for the exposition of federal law. It should be their responsibility in cases properly before them under heads of jurisdiction prescribed by Congress to construe federal statutes and the Federal Constitution. There is no more appropriate occasion for the exercise of that jurisdiction than the present case which involves the question whether or not access rights constitute 'property' in the constitutional sense.2 That question concerns not state law but a concept imbedded in the Bill of Rights. It is in no way entangled with local law. The Supremacy Clause of the Constitution makes all local projects bow to that concept of 'property.' And in my view there is no more appropriate tribunal for an adjudication of that issue than the Federal District Court, which in this case acted at the very threshold of this engineering project and made a ruling that informs the local authorities of the full reach of their responsibilities. This is not intermeddling in state affairs nor creating needless friction. It is an authoritative pronouncement at the beginning of a controversy which saves countless days in the slow, painful, and costly litigation of separate individual lawsuits in state viewers proceedings.
1
1945, May 29, P.L. 1108, No. 402, § 1 et seq., as amended, 1947, June 10, P.L. 481, No. 213, and 1957, May 31, P.L. 234, No. 111, 36 Purdon's Pa.Stat.Ann. § 2391.1 et seq.
2
36 Purdon's Pa.Stat.Ann. § 2391.1.
3
36 Purdon's Pa.Stat.Ann. § 2391.2.
4
The language of the court's order was as follows: 'Now, therefore, it is finally Determined, Ordered, Adjudged and Decreed that the defendants, Lewis M. Stevens, Secretary of Highways of the Commonwealth of Pennsylvania, and George M. Leader, Governor of the Commonwealth of Pennsylvania, be and they hereby are permanently enjoined from enforcing or otherwise complying with the Pennsylvania 'Limited-Access Highways Act,' 1945, May 29, P.L. 1108, § 1 et seq., as amended, 36 Purdon's Pa.Stat.Ann. § 2391.1 et seq., so as to interfere with or deprive the plaintiffs of their right of ingress or egress to, from or across the 'Airport Parkway' in Allegheny County, Pennsylvania.'
5
See Bowie, Limiting Highway Access, 4 Md.L.Rev. 219 (1940); Clarke, The Limited-Access Highway, 27 Wash.L.Rev. 111 (1952); Cunnyngham, The Limited-Access Highway from a Lawyer's Viewpoint, 13 Mo.L.Rev. 19 (1948); Duhaime, Limiting Access to Highways, 33 Ore.L.Rev. 16 (1953); Enfield and McLean, Controlling the Use of Access, National Academy of Sciences, National Research Council, Highway Research Board Bulletin No. 101 (1955), p. 70; and Reese, Legal Aspects of Limiting Highway Access, National Academy of Sciences, National Research Council, Highway Research Board Bulletin No. 77 (1953), p. 36.
1
The Harrison case invoked federal jurisdiction not only under 28 U.S.C. § 1331 and § 1332, 28 U.S.C.A. §§ 1331, 1332 (diversity) but also under § 1343 (civil rights).
2
Title 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, permits a federal court to declare a party's rights in the case of an actual controversy. There is such a controversy here. Appellants have expressed their intention to declare the highway on which appellees' properties abut to be a limited access highway, and have consistently argued that appellees have no right to compensation, although they may be denied access to the highway which they previously had. This is enough to create an actual controversy which a federal court may settle if its processes are, as here, properly invoked.
| 89
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360 U.S. 25
79 S.Ct. 1070
3 L.Ed.2d 1058
LOUISIANA POWER & LIGHT COMPANY, Petitioner,v.CITY OF THIBODAUX.
No. 398.
Argued April 2, 1959.
Decided June 8, 1959.
Mr. J. Raburn Monroe, New Orleans, La., for petitioner.
Mr. Louis Fenner Claiborne, New Orleans, La., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
The City of Thibodaux, Louisiana, filed a petition for expropriation in one of the Louisiana District Courts, asserting a taking of the land, buildings, and equipment of petitioner Power and Light Company. Petitioner, a Florida corporation, removed the case to the United States District Court for the Eastern District of Louisiana on the basis of diversity of citizenship. After a pre-trial conference in which various aspects of the case were discussed, the district judge, on his own motion, ordered that 'Further proceedings herein, therefore, will be stayed until the Supreme Court of Louisiana has been afforded an opportunity to interpret Act 111 of 1900 (LSA—R.S. 19:101 et seq.),' the authority on which the city's expropriation order was based. 153 F.Supp. 515, 517—518. The Court of Appeals for the Fifth Circuit reversed, holding that the procedure adopted by the district judge was not available in an expropriation proceeding, and that in any event no exceptional circumstances were present to justify the procedure even if available. 255 F.2d 774. We granted certiorari, 358 U.S. 893, 79 S.Ct. 154, 3 L.Ed.2d 120, because of the importance of the question in the judicial enforcement of the power of eminent domain under diversity jurisdiction.1
2
In connection with the first decision in which a closely divided Court considered and upheld jurisdiction over an eminent domain proceeding removed to the federal courts on the basis of diversity of citizenship, Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 257, 25 S.Ct. 251, 258, 49 L.Ed. 462, Mr. Justice Holmes made the following observation:
3
'The fundamental fact is that eminent domain is a prerogative of the state, which on the one hand, may be exercised in any way that the state thinks fit, and, on the other, may not be exercised except by an authority which the state confers.'
4
While this was said in the dissenting opinion, the distinction between expropriation proceedings and ordinary diversity cases, though found insufficient to restrict diversity jurisdiction, remains a relevant and important consideration in the appropriate judicial administration of such actions in the federal courts.
5
We have increasingly recognized the wisdom of staying actions in the federal courts pending determination by a state court of decisive issues of state law. Thus in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499, 61 S.Ct. 643, 644, 85 L.Ed. 971, it was said:
6
'Had we or they (the lower court judges) no choice in the matter but to decide what is the law of the state, we should hesitate long before rejecting their forecast of Texas law. But no matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination.'
7
On the other hand, we have held that the mere difficulty of state law does not justify a federal court's relinquishment of jurisdiction in favor of state court action. Meredith v. City of Winter City of Chicago v. Fieldcrest Dairies, 88 L.Ed. 9.2 But where the issue touched upon the relationship of City to State, City of Chicago v. Fieldcreat Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355, or involved the scope of a previously uninterpreted state statute which, if applicable, was of questionable constitutionality, Leiter Minerals, Inc., v. United States, 352 U.S. 220, 229, 77 S.Ct. 287, 292, 1 L.Ed.2d 267, we have required District Courts, and not merely sanctioned an exercise of their discretionary power, to stay their proceedings pending the submission of the state law question to state determination.
8
These prior cases have been cases in equity, but they did not apply a technical rule of equity procedure. They reflect a deeper policy derived from our federalism. We have drawn upon the judicial discretion of the chancellor to decline jurisdiction over a part or all of a case brought before him. See Railroad Commission of Texas v. Pullman Co., supra. Although an eminent domain proceeding is deemed for certain purposes of legal classification a 'suit at common law,' Kohl v. United States, 91 U.S. 367, 375—376, 23 L.Ed. 449, it is of a special and peculiar nature. Mr. Justice Holmes set forth one differentiating characteristic of eminent domain: it is intimately involved with sovereign prerogative. And when, as here, a city's power to condemn is challenged, a further aspect of sovereignty is introduced. A determination of the nature and extent of delegation of the power of eminent domain concerns the apportionment of governmental powers between City and State. The issues normally turn on legislation with much local variation interpreted n l ocal settings. The considerations that prevailed in conventional equity suits for avoiding the hazards of serious disruption by federal courts of state government or needless friction between state and federal authorities are similarly appropriate in a state eminent domain proceeding brought in, or removed to, a federal court.
9
The special nature of eminent domain justifies a district judge, when his familiarity with the problems of local law so counsels him, to ascertain the meaning of a disputed state statute from the only tribunal empowered to speak definitively—the courts of the State under whose statute eminent domain is sought to be exercised—rather than himself make a dubious and tentative forecast. This course does not constitute abnegation of judicial duty. On the contrary, it is a wise and productive discharge of it. There is only postponement of decision for its best fruition. Eventually the District Court will award compensation if the taking is sustained. If for some reason a declaratory judgment is not promptly sought from the state courts and obtained within a reasonable time, the District Court, having retained complete control of the litigation, will doubtless assert it to decide also the question of the meaning of the state statute. The justification for this power, to be exercised within the indicated limits, lies in regard for the respective competence of the state and federal court systems and for the maintenance of harmonious federal-state relations in a matter close to the political interests of a State.
10
It would imply an unworthy conception of the federal judiciary to give weight to the suggestion that acknowledgment of this power will tempt some otiose or timid judge to shuffle off responsibility. 'Such apprehension implies a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.' Kerotest Mfg. Co. v. C—O—Two Fire Equipment Co., 342 U.S. 180, 185, 72 S.Ct. 219, 222, 96 L.Ed. 200. Procedures for effective judicial administration presuppose a federal judiciary composed of judges well-equipped and of sturdy character in whom may safely be vested, as is already, a wide range of judicial discretion, subject to appropriate review on appeal.
11
In light of these considerations, the immediate situation quickly falls into place. In providing on his own motion for a stay in this case, an experienced district judge was responding in a sensible way to a quandary about the power of the City of Thibodaux into which he was placed by an opinion of the Attorney General of Louisiana in which it was concluded that in a strikingly similar case a Louisiana city did not have the power here claimed by the City. A Louisiana statute apparently seems to grant such a power. But that statute has never been interpreted, in respect to a situation like that before the judge, by the Louisiana courts and it would not be the first time that the authoritative tribunal has found in a statute less than meets the outsider's eye. Informed local courts may find meaning not discernible to the outsider. The consequence of allowing this to come to pass would be that this case would be the only case in which the Louisiana statute is construed as we would construe it, whereas the rights of all other litigants would be thereafter governed by a decision of the Supreme Court of Louisiana quite different from ours.
12
Caught between the language of an old but uninterpreted statute and the pronouncement of the Attorney General of Louisiana, the district judge determined to solve his conscientious perplexity by directing utilization of the legal resources of Louisiana for a prompt ascertainment of meaning through the only tribunal whose interpretation could be controlling—the Supreme Court of Louisiana. The District Court was thus exercising a fair and well-considered judicial discretion in staying proceedings pending the institution of a declaratory judgment action and subsequent dcis ion by the Supreme Court of Louisiana.
13
The judgment of the Court of Appeals is reversed and the stay order of the District Court reinstated. We assume that both parties will cooperate in taking prompt and effective steps to secure a declatory judgment under the Louisiana Declaratory Judgment Act, La.Rev.Stat., 1950, Tit. 13, §§ 4231—4246, L.S.A., and a review of that judgment by the Supreme Court of Louisiana. By retaining the case the District Court, of course, reserves power to take such steps as may be necessary for the just disposition of the litigation should anything prevent a prompt state court determination.
14
Reversed.
15
Judgment of Court of Appeals reversed and stay order of District Court reinstated.
16
Mr. Justice STEWART, concurring.
17
In a conscientious effort to do justice the District Court deferred immediate adjudication of this controversy pending authoritative clarification of a controlling state statute of highly doubtful meaning. Under the circumstances presented, I think the course pursued was clearly within the District Court's allowable discretion. For that reason I concur in the judgment.
18
This case is totally unlike County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, except for the coincidence that both cases involve eminent domain proceedings. In Mashuda the Court holds that it was error for the District Court to dismiss the complaint. The Court further holds in that case that, since the controlling state law is clear and only factual issues need be resolved, there is no occasion in the interest of justice to refrain from prompt adjudication.
19
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
20
Until today, the standards for testing this order of the District Court sending the parties to this diversity action to a state court for decision of a state law question might have been said to have been reasonably consistent with the imperative duty of a District Court, imposed by Congress under 28 U.S.C. §§ 1332 and 1441, 28 U.S.C.A. §§ 1332, 1441, to render prompt justice in cases between citizens of different States. To order these suitors out of the federal court and into a state court in the circumstances of this case passes beyond disrespect for the diversity jurisdiction to plain disregard of this imperative duty. The doctrine of abstention, in proper perspective, is an extraordinary and narrow exception to this duty, and abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve one of two important countervailing interests: either the avoidance of a premature and perhaps unnecessary decision of a serious federal constitutional question, or the avoidance of the hazard of unsettling some delicate balance in the area of federal-state relationships.
21
These exceptional circumstances provided until now a very narrow corridor through which a District Court could escape from its obligation to decide state law questions when federal jurisdiction was properly invoked. The doctrine of abstention originated in the area of the federal courts' duty to avoid, if possible, decision of a federal constitutional question. This was Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. There this Court held that the District Court should have stayed its hand while state issues were resolved in a state court when an injunction was sought to restrain the enforcement of the order of a state administrative body on the ground that the order was not authorized by the state law and was violative of the Federal Constitution. The Court reasoned that if the state courts held that the order was not authorized under state law there could be avoided 'the friction of a premature constitutional adjudication.' 312 U.S. at page 500, 61 S.Ct. at page 645. Numerous decisions since then have sanctioned abstention from dcid ing cases involving a federal constitutional issue where a state court determination of state law might moot the issue or put the case in a different posture. See, e.g., City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562; Government & Civic Employees Organizing Committee v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894; Leiter Minerals, Inc., v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; Shipman v. Du Pre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355.1 Abstention has also been sanctioned on grounds of comity with the States—to avoid a result in 'needless friction with state policies.' Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971. Thus this Court has upheld an abstention when the exercise by the federal court of jurisdiction would disrupt a state administrative process, Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; Commonwealth of Pennsylvania v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841, interfere with the collection of state taxes, Toomer v. Witsell, 334 U.S. 385, 392, 68 S.Ct. 1156, 1160, 92 L.Ed. 1460; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407, or otherwise create needless friction by unnecessarily enjoining state officials from executing domestic policies, Alabama Public Service Commission v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002; Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610.
22
But neither of the two recognized situations justifying abstention is present in the case before us. The suggestion that federal constitutional questions lurk in the background is so patently frivolous that neither the District Court, the Court of Appeals, nor this Court considers it to be worthy of even passing reference. The Power and Light Company's only contention under the Federal Constitution is that the expropriation of its property would violate the Due Process and Impairment of the Obligation of Contract Clauses, Const. Amend. 14; Art. 1, § 10, even though just compensation is paid for it, because the property sought to be taken is operated by the company under a franchise granted by the Parish and confirmed by the City. This claim is utterly without substance. Long Island Water-Supply Co. v. City of Brooklyn, 166 U.S. 685, 17 S.Ct. 718, 41 L.Ed. 1165; West River Bridge Co. v. Dix, 6 How. 507, 12 L.Ed. 535. Certainly the avoidance of such a constitutional issue cannot justify a federal court's failure to exercise its jurisdiction. To hold the contrary would mean that a party could defeat his adversary's right to a federal adjudication simply by alleging a frivolous constitutional issue. Furthermore, no countervailing interest would be served by avoiding decision of such an issue.
23
The Court therefore turns the holding on the purported existence of the other situation justifying abstention, stating the bald conclusion that: 'The considerations that prevailed in conventional equity suits for avoiding the hazards of serious disruption byfed eral courts of state government or needless friction between state and federal authorities are similarly appropriate in a state eminent domain proceeding brought in, or removed to, a federal court.' But the fact of the matter is that this case does not involve the slightest hazard of friction with a State, the indispensable ingredient for upholding abstention on grounds of comity, and one which has been present in all of the prior cases in which abstention has been approved by this Court on that ground. First of all, unlike all prior cases in which abstention has been sanctioned on grounds of comity, the District Court has not been asked to grant injunctive relief which would prohibit state officials from acting. This case involves an action at law,2 initiated by the City and removed to the District Court under 28 U.S.C. § 1441, 28 U.S.C.A. § 1441. Clearly decision of this case, in which the City itself is the party seeking an interpretation of its authority under state law, will not entail the friction in federal-state relations that would result from decision of a suit brought by another party to enjoin the City from acting. Secondly, this case does not involve the potential friction that results when a federal court applies paramount federal law to strike down state action. Aside from the patently frivolous constitutional question raised by the Power Company, the District Court in adjudicating this case would be applying state law precisely as would a state court. Far from disrupting state policy, the District Court would be applying state policy, as embodied in the state statute, to the facts of this case. There is no more possibility of conflict with the State in this situation than there is in the ordinary negligence or contract case in which a District Court applies state law under its diversity jurisdiction. A decision by the District Court in this case would not interfere with Louisiana administrative processes, prohibit the collection of state taxes, or otherwise frustrate the execution of state domestic policies. Quite the reverse, this action is part of the process which the City must follow in order to carry out the State's policy of expropriating private property for public uses. Finally, in this case the State of Louisiana, represented by its constituent organ the City of Thibodaux, urges the District Court to adjudicate the state law issue. How, conceivably, can the Court justify the abdication of responsibility to exercise jurisdiction on the ground of avoiding interference and conflict with the State when the State itself desires the federal court's adjudication? It is obvious that the abstention in this case was for the convenience of the District Court, not for the State. The Court forgets, in upholding this abstention, that 'The diversity jurisdiction was not conferred for the benefit of the federal courts or to serve their convenience.' Meredith v. City of Winter Haven, 320 U.S. 228, 234, 64 S.Ct. 7, 11, 88 L.Ed. 9.
24
The Court of Appeals, in my view, correctly considered, in reversing the action of the District Court, that there is not shown a semblance of a countervailing interest which meets the standards permitting abstention. The standard utilized by the Court of Appeals in reviewing the District Court's order was not whether the district judge abused his discretion in staying the proceedings; rather it was whether he had any discretion to abstain from deciding this case in which the federal court's jurisdiction was properly invoked. This approach was correct in light of the teaching of all prior cases, which delimit the narrow area in which abstention is permissible and hold that jurisdiction must be exercised in all other situations. It would obviously wreak havoc with federal jurisdiction if the exercise of that jurisdiction was a matter for the ad hoc discretion of the DistrictCou rt in each particular case.
25
Despite the complete absence of the necessary showing to justify abstention, the Court supports its holding simply by a reference to a dissenting opinion in which it was said 'that eminent domain is a prerogative of the state.'3 Thus the Court attempts to carve out a new area in which, even though an adjudication by the federal court would not require the decision of federal constitutional questions, nor create friction with the State, the federal courts are encouraged to abnegate their responsibilities in diversity cases. In doing so the Court very plainly has not made a responsible use of precedent. First of all, not only does the Court cite no cases where abstention has been approved in the absence of a showing of one of the only two countervailing interests heretofore required to justify abstention, but the Court ignores cases in which this Court has refused to refer state law questions to state courts even though that course required a federal constitutional decision which resulted in affirmative prohibitions against the State from carrying out sovereign activities. Surely eminent domain is no more mystically involved with 'sovereign prerogative' than a city's power to license motor vehicles, City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174, a State's power to regulate fishing in its waters, Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460, its power to regulate intrastate trucking rates, Public Utilities Commission of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470, and a host of other governmental activities carried on by the States and their subdivisions which have been brought into question in the Federal District Courts without a prior state court determination of the relevant state law. Furthermore, the decision in Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, long recognized as a landmark in this field, is squarely contrary to today's holding. For there the petitioners sought in a Federal District Court an injunction prohibiting the City of Winter Haven from redeeming certain bonds without paying deferred interest charges on them. The only issues in the case were whether the City was authorized under the Florida Constitution and statutes to issue the bonds without a referendum, and, if the bonds were not validly issued, what recovery the bondholders were entitled to receive. Federal jurisdiction was based solely on diversity of citizenship. Although there was present the obvious irritant to state-federal relations of a federal court injunction against City officials, which is not present in this case, this Court in Winter Haven held that it was incumbent on the Federal District Court to perform its duty and adjudicate the case. I am unable to see a distinction, so far as concerns noninterference with the exercise of state sovereignty, between decision as to the City of Winter Haven's authority under Florida's statutes and constitution to issue deferred-interest bonds without a referendum, and decision as to the City of Thibodaux's authority under Louisiana's statutes and constitution to expropriate the Power and Light Company's property. Since the Court suggests no adequate basis of distinction between the two cases, it should frankly announce that Meredith v. City of Winter Haven is overruled, for no other conclusion is reasonable.4
26
In the second place, the Court, in its opinion, omits mention of the host of cases, many in this Court, which have approved the decision by a federal court of precisely the same kind of state eminent domain question which the District Court was asked by the City of Thibodaux to decide in this case. Years of experience in federal court adjudication of state eminent domain cases have conclusively demonstrated that this practice does not entail the hazard of friction in federal-state relations. See County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060. The Court, despite the lesson taught by this experience and despite the fact that it is impossible to show any actual friction that might develop from a federal court adjudication in this case, rests its holding on a conclusive presumption that friction will develop because of 'the special nature of eminent domain.' This presumption is totally at war with the Court's holding today in County of Allegheny v. Frank Mashuda Co., which orders a District Court to exercise its diversity jurisdiction even though such a course will require decision as to the power of a County under the state law of eminent domain to expropriate certain property. Thus the Court's decision is explicable to me for two other reasons, neither of which is articulated in the Court's opinion, probably because both are wholly untenable.
27
The first is that the only real issue of law in the case, the interpretation of Act 111, presents a difficult question of state law. It is true that there are no Louisiana decisions interpreting Act 111, and that there is a confusing opinion of the State's Attorney General on the question. But mere difficulty of construing the state statute is not justification for running away from the task. 'Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.' Cohens v. Commonwealth of Virginia, 6 Wheat, 264, 404, 5 L.Ed. 257. Difficult questions of state law to which the federal courts cannot give definitive answers arise every day in federal courts throughout the land. Chief Justice Stone, in his opinion for the Court in Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, settled that this difficulty can never justify a failure to exercise jurisdiction. The Chief Justice said:
28
'But we are of opinion that the difficulties of ascertaining what the state courts may hereafter determine the state law to be do not in themselves afford a sufficient ground for a federal court to decline to exercise its juisd iction to decide a case which is properly brought to it for decision.
29
'The diversity jurisdiction was not conferred for the benefit of the federal courts or to serve their convenience. Its purpose was generally to afford to suitors an opportunity in such cases, at their option, to assert their rights in the federal rather than in the state courts. In the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in exceptional cases warrant its non-exercise, it has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions of state law whenever necessary to the rendition of a judgment. * * * When such exceptional circumstances are not present, denial of that opportunity by the federal courts merely because the answers to the questions of state law are difficult or uncertain or have not yet been given by the highest court of the state, would thwart the purpose of the jurisdictional act.' 320 U.S. at pages 234—235, 64 S.Ct. at page 11.
30
The cases are legion, since Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, in which the federal courts have adjudicated diversity cases by deciding issues of state law, difficult and easy, without relevant state court decisions on the point in issue. And this Court has many times, often over dissents urging abstention, decided doubtful questions of state law when properly before us. Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480; Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288; Estate of Spiegel v. Commissioner, 335 U.S. 701, 69 S.Ct. 301, 93 L.Ed. 330; Williams v. Green Bay & Western R. Co., 326 U.S. 549, 553—554, 66 S.Ct. 284, 286, 90 L.Ed. 311; Markham v. Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256; Risty v. Chicago, R.I. & P.R. Co., 270 U.S. 378, 46 S.Ct. 236, 70 L.Ed. 641; McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762.
31
The second possible reason explaining the Court's holding is that it reflects is distaste for the diversity jurisdiction. But distaste for diversity jurisdiction certainly cannot be reason to license district judges to retreat from their responsibility. The roots of that jurisdiction are inextricably intertwined with the roots of our federal system. They stem from Art. III, § 2 of the Constitution and the first Judiciary Act, the Act of 1789, 1 Stat. 73, 78.5 I concede the liveliness of the controversy over the utility or desirability of diversity jurisdiction, but it has stubbornly outlasted the many and persistent attacks against it and the attempts in the Congress to curtail or eliminate it.6 Until Congress speaks otherwise, the federal judiciary has no choice but conscientiously to render justice for litigants from different States entitled to have their controversies adjudicated in the federal courts. 'Whether it is a sound theory, whether diversity jurisdiction is necessary or desirable in order to avoid possible unfairness by state courts, state judges and juries, against outsiders, whether the federal courts ought to be relieved of the burden of diversity litigation,—these are matters which are not my concern as a judge. They are the concern of those whose business it is to legislate, not mine.' Burford v. Sun Oil Co., 319 U.S. 315, 337, 63 S.Ct. 1098, 1109, 87 L.Ed. 1424 (dissenting opinion).
32
Not only has the Court departed from any precedential basis or its action, but the decision encourages inefficiency in administration of the federal courts and leads to unnecessary delay, waste and added expense for the parties. This is particularly the stark truth in the instant case. The City of Thibodaux brought this proceeding in a Louisiana court to expropriate lands of the Power and Light Company for public purposes. The Power and Light Company, a Florida corporation, removed the action to the District Court, as was its privilege under 28 U.S.C. § 1441, 28 U.S.C.A. § 1441. The crucial issue in the case is whether Louisiana Act 111 of 1900 empowers the City to exercise the State's right of eminent domain.7 Because the District Court rebuffed the City's plea to decide its authority under Act 111, and this Court sustains the District Court, the City must go back to the state court, not in the action originally brought there by the City, but in a new action to be initiated under Louisiana's declaratory judgment law. The Power and Light Company, which escaped a state court decision by removing the City's action to the District Court, is now wholly content with the sua sponte action of the District Court. This is understandable since the longer decision is put off as to the City's power to expropriate its property, the longer the Power and Light Company will enjoy the possession of it. Resolution of the legal question of the City's authority, already delayed over two years due to no fault of the City, will be delayed, according to the City's estimate in its brief, a minimum of two additional years before a decision may be obtained from the State Supreme Court in the declaratory judgment action. Even if the City obtains a favorable decision, the City must suffer still further delay while the case comes back to the District Court for a decision upon the amount of damages to be paid the Power and Light Company. Thus at best the District Court will finally dispose of this case only after prolonged delay and considerable additional expense for the parties. Moreover, it is possible that the State Supreme Court will, for one reason or another, conclude that it will not render the parties this advisory opinion. All of this delay should have been avoided, and would have been, had the District Court performed what I think was its plain duty, and decided the question of the City's power when that question was ripe for decision a few months after the case was removed to the District Court. I think it is more than coincidence that both in this case and in Mashuda the party supporting abstention is the one presently in possession of the property in question. I cannot escape the conclusion is these cases that delay in the reaching of a decision is more important to those parties than the tribunal which ultimately renders the decision. The Court today upholds a procedure which encourages such delay and prevents 'that promptness of decision which in all judicial actions is one of the elements of justice.' Forsyth v. City of Hammond, 166 U.S. 506, 513, 17 S.Ct. 665, 668, 41 L.Ed. 1095. One must regret that this Court's departure from the long-settled criteria governing abstention should so richly fertilize the Power and Light Company's strategy of delay which now has succeeded, I dare say, past the fondest expectation of counsel who conceived it. It is especially unfortunate in that departure from these criteria fashions an opening wedge for District Courts to refer hard cases of state law to state courts in even the routine diversity negligence and contract actions.
33
I would affirm the judgment of the Court of Appeals.
1
In the petition for certiorari there was also raised the question of the appealability of the District Court's order. In our grant of the writ we eliminated this question by limiting the scope of review. 358 U.S. 893, 79 S.Ct. 154, 3 L.Ed.2d 120.
2
The issue in Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, is, of course, decisively different from the issue now before the Court. Here the issue is whether an experienced district judge, especially conversant with Louisiana law, who, when troubled with the construction which Louisiana courts may give to a Louisiana statute, himself initiates the taking of appropriate measures for securing construction of this doubtful and unsettled statute (and not at all in response to any alleged attempt by petitioner to delay a decision by that judge), should be jurisdictionally disabled from seeking the controlling light of the Louisiana Supreme Court. The issue in Winter Haven was not that. It was whether jurisdiction must be surrendered to the state court. At the very outset of his opinion Mr. Chief Justice Stone stated this issue:
'The question is whether the Circuit Court of Appeals, on appeal from the judgment of the District Court, rightly declined to exercise its jurisdiction on the ground that decision of the case on the merits turned on questions of Florida constitutional and statutory law which the decisions of the Florida courts had left in a state of uncertainty.' 320 U.S. at page 229, 64 S.Ct. at page 8.
In Winter Haven the Court of Appeals directed the action to be dismissed. In this case the Court of Appeals denied a conscientious exercise by the federal district judge of his discretionary power merely to stay disposition of a retained case until he could get controlling light from the state court.
1
But when questions of state law are not cloudy the District Court should decide them, even though such a course necessitates decision of a federal constitutional issue. City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed. 1174; Public Utilities Commission of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470; Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460.
2
Expropriation proceedings such as this one are recognized to be suits at law. Kohl v. United States, 91 U.S. 367, 376, 23 L.Ed. 449.
3
Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 257, 25 S.Ct. 251, 258, 49 L.Ed. 462. The District Court did not rest its actions on this theory, but relied upon Leiter Minerals, Inc., v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267, as authority for the stay order. That decision, which came down shortly before the District Court's order in this case, modified an order of the same district judge and provided for a reference to the Louisiana courts of a question of Louisiana law because the state court's interpretation of stae l aw might well have mooted a federal constitutional issue or cast it in a different posture. The simple fact that there is no constitutional question of any substance to avoid in this case makes Leiter inapposite.
4
It is true that this Court in Meredith v. City of Winter Haven was reviewing an order dismissing federal jurisdiction, whereas the District Court order in this case retains jurisdiction pending the state court determination. However, it is significant that the Court in Winter Haven, rather than remanding the case with instructions that the District Court retain jurisdiction but abstain from deciding the state law issues, ordered the District Court to adjudicate those issues. It is perfectly clear that Winter Haven did not turn on any difference between an abstention and a dismissal, nor on the fact that it was a Court of Appeals rather than a District Court which initially decided to refrain from adjudicating the state issues. Neither did it turn on this Court's ideas about the competence or experience of the judges below. Meredith v. City of Winter Haven rested squarely on the Court's conclusion that, no matter how intimately related to a State's sovereignty a case is, the District Court must adjudicate it if jurisdiction is properly invoked and that adjudication would not entail decision of a serious constitutional question or disruption of state-policy.
5
See, for a discussion of this subject, Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv.L.Rev. 483; Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction, 79 U. of Pa.L.Rev. 869, 873—876; Frank, Historical Basis of the Federal Judicial System, 13 Law & Contemp.Prob. 3, 22 28.
6
See Burford v. Sun Oil Co., 319 U.S. 315, 337—338, 63 S.Ct. 1098, 1109, 87 L.Ed. 1424 (dissenting opinion); Hart and Wechsler, The Federal Courts and the Federal System, 893—894.
7
The Act, now § 101 of Part III of Title 19 of the Louisiana Revised Statutes of 1950, LSA, provides in pertinent part:
'Any municipal corporation of Louisiana may expropriate any electric light, gas, or waterworks plant or property whenever such a course is thought necessary for the public interest by the mayor and council of the municipality. When the municipal council cannot agree with the owner thereof for its purchase, the municipal corporation throgh the proper officers may petition the judge of the district court in which the property is situated, describing the property necessary for the municipal purpose, with a detailed statement of the buildings, machinery, appurtenances, fixtures, improvements, mains, pipes, sewers, wires, lights, poles and property of every kind, connected therewith, and praying that the property described be adjudged to the municipality upon payment to the owner of the value of the property plus all damages sustained in consequence of the expropriation. Where the same person is the owner of both gas, electric light, and water works plants, or of more than one of any one kind of plant, the municipal corporation may not expropriate any one of the plants without expropriating all of the plants owned by the same person.'
| 89
|
360 U.S. 72
79 S.Ct. 1040
3 L.Ed.2d 1090
Willard UPHAUS, Appellant,v.Louis C. WYMAN, Attorney General, State of New Hampshire.
No. 34.
Argued Nov. 17, 18, 1958.
Decided June 8, 1959.
Rehearing Denied Oct. 12, 1959.
See 80 S.Ct. 40.
Messrs. Royal W. France and Leonard B. Boudin, New York City, for appellant.
Mr. Louis C. Wyman, Manchester, N.H., for appellee.
Mr. Justice CLARK delivered the opinion of the Court.
1
This case is here again on appeal from a judgment of civil contempt entered against appellant by the Merrimack County Court and affirmed by the Supreme Court of New Hampshire. It arises out of appellant's refusal to produce certain documents before a New Hamphir e legislative investigating committee which was authorized and directed to determine, inter alia, whether there were subversive persons or organizations present in the State of New Hampshire. Upon the first appeal from the New Hampshire court, 100 N.H. 436, 130 A.2d 278, we vacated the judgment, 355 U.S. 16, 78 S.Ct. 57, 2 L.Ed.2d 22, and remanded the case to it for consideration in the light of Sweezy v. State of New Hampshire, 1957, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311. That court reaffirmed its former decision, 101 N.H. 139, 136 A.2d 221, deeming Sweezy not to control the issues in the instant case. For reasons which will appear, we agree with the Supreme Court of New Hampshire.
2
As in Sweezy, the Attorney General of New Hampshire, who had been constituted a one-man legislative investigating committee by Joint Resolution of the Legislature,1 was conducting a probe of subversive activities in the State. In the course of his investigation the Attorney General called appellant, Executive Director of World Fellowship, Inc., a voluntary corporation organized under the laws of New Hampshire and maintaining a summer camp in the State. Appellant testified concerning his own activities, but refused to comply with two subpoenas duces tecum which called for the production of certain corporate records for the years 1954 and 1955. The information sought consisted of: (1) a list of the names of all the camp's nonprofessional employees for those two summer seasons; (2) the correspondence which appellant had carried on with and concerning those persons who came to the camp as speakers; and (3) the names of all persons who attended the camp during the same periods of time. Met with appellant's refusal, the Attorney General, in accordance with state procedure, N.H.Rev.Stat.Ann., c. 491, §§ 19, 20, petitioned the Merrimack County Court to call appellant before it and require compliance with the subpoenas.
3
In court, appellant again refused to produce the information. He claimed that by the Smith Act,2 as construed by this Court in Com. of Pennsylvania v. Nelson, 1956, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, Congress had so completely occupied the field of subversive activities that the States were without power to investigate in that area. Additionally, he contended that the Due Process Clause precluded enforcement of the subpoenas, first, because the resolution under which the Attorney General was authorized to operate was vague and, second, because the documents sought were not relevant to the inquiry. Finally, appellant argued that enforcement would violate his rights of free speech and association.
4
The Merrimack County Court sustained appellant's objection to the production of the names of the nonprofessional employees. The Attorney General took no appeal from that ruling, and it is not before us. Appellant's objections to the production of the names of the camp's guests were overruled, and he was ordered to produce them. Upon his refusal, he was adjudged in contempt of court and ordered committed to jail until he should have complied with the court order. On the demand for the correspondence and the objection thereto, the trial court made no ruling but transferred the question to the Supreme Court of New Hampshire. That court affirmed the trial court's action in regard to the guest list. Concerning the requested production of the correspondence, the Supreme Court entered no order, but directed that on remand the trial court 'may exercise its discretion with respect to the entry of an order to enforce the command of the subpoena for the production of correspondence.' 100 N.H. at page 448, 130 A.2d at page 287. No remand having yet been effected, the trial court has not acted upon this phase of the case, and there is no final judgment requiring the appellant to produce the letters. We therefore do not treat with that question. 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. See Radio Station WOW v. Johnson, 1945, 326 U.S. 120, 123—124, 65 S.Ct. 1475, 1477—1478, 89 L.Ed. 2092. We now pass to a consideration of the sole question before us, namely, the validity of the order of contempt for refusal to produce the list of guests at World Fellowship, Inc., during the summer seasons of 1954 and 1955. In addition to the arguments appellant made to the trial court, he urges here that the 'indefinite sentence' imposed upon him constitutes such cruel and unusual punishment as to be a denial of due process.
5
Appellant vigorously contends that the New Hampshire Subversive Activities Act of 19513 and the resolution creating the committee have been superseded by the Smith Act, as amended.4 In support of this position appellant cites Com. of Pennsylvania v. Nelson, supra. The argument is that Nelson, which involved a prosecution under a state sedition law, held that 'Congress has intended to occupy the field of sedition.' (350 U.S. 505, 76 S.Ct. 481.) This rule of decision, it is contended, should embrace legislative investigations made pursuant to an effort by the Legislature to inform itself of the presence of subversives within the State and possibly to enact laws in the subversive field. The appellant's argument sweeps too broad. In Nelson itself we said that the 'precise holding of the court * * * is that the Smith Act * * * which prohibits the knowing advocacy of the overthrow of the Government of the United States by force and violence, supersedes the enforceability of the Pennsylvania Sedition Act which proscribes the same conduct.' (Italics supplied.) 350 U.S. at page 499, 76 S.Ct. at page 478, 100 L.Ed. 640. The basis of Nelson thus rejects the notion that it stripped the States of the right to protect themselves. All the opinion proscribed was a race between federal and state prosecutors to the courthouse door. The opinion made clear that a State could proceed with prosecutions for sedition against the State itself; that it can legitimately investigate in this area follows a fortiori. In Sweezy v. State of New Hampshire, supra, where the same contention was made as to the identical state Act, it was denied sub silentio. Nor did our opinion in Nelson hold that the Smith Act had proscribed state activity in protection of itself either from actual or threatened 'sabotage or attempted violence of all kinds.' In footnote 8 of the opinion it is pointed out that the State had full power to deal with internal civil disturbances. Thus registration Statutes, quo warranto proceedings as to subversive corporations, the subversive instigation of riots and a host of other subjects directly affecting state security furnish grist for the State's legislative mill. Moreover, the right of the State to require the production of corporate papers of a state-chartered corporation in an inquiry to determine whether corporate activity is violative of state policy is, of course, not touched upon in Nelson and today stands unimpaired, either by the Smith Act or the Nelson opinion.
6
Appellant's other objections can be capsuled into the single question of whether New Hampshire, under the facts here, is precluded from compelling the production of the documents by the Due Process Clause of the Fourteenth Amendment. Let us first clear away some of the underbrush necessarily surrounding the case because of its setting.
7
First, the academic and political freedoms discussed in Sweezy v. State of New Hampshire, supra, are no pr esent here in the same degree, since World Fellowship is neither a university nor a political party. Next, since questions concerning the authority of the committee to act as it did are questions of state law, Dreyer v. People of State of Illinois, 1902, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79, we accept as controlling the New Hampshire Supreme Court's conclusion that '(t)he legislative history makes it clear beyond a reasonable doubt that it (the Legislature) did and does desire an answer to these questions.' 101 N.H. at page 140, 136 A.2d at pages 221—222. Finally, we assume, without deciding, that Uphaus had sufficient standing to assert any rights of the guests whose identity the committee seeks to determine. See National Association for Advancement of Colored People v. State of Alabama, 1958, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. The interest of the guests at World Fellowship in their associational privacy having been asserted, we have for decision the federal question of whether the public interests overbalance these conflicting private ones. Whether there was 'justification' for the production order turns on the 'substantiality' of New Hampshire's interests in obtaining the identity of the guests when weighed against the individual interests which the appellant asserts. National Association for Advancement of Colored People v. State of Alabama, supra.
8
What was the interest of the State? The Attorney General was commissioned5 to determine if there were any subversive persons6 within New Hampshire. The obvious starting point of such an inquiry was to learn what persons were within the State. It is therefore clear that the requests relate directly to the Legislature's area of interest, i.e., the presence of subversives in the State, as announced in its resolution. Nor was the demand of the subpoena burdensome; as to time, only a few months of each of the two years were involved; as to place, only the camp conducted by the Corporation; nor as to the lists of names, which included about 300 each year.
9
Moreover, the Attorney General had valid reason to believe that the speakers and guests at World Fellowship might be subversive persons within the meaning of the New Hampshire Act. The Supreme Court of New Hampshire found Uphaus' contrary position 'unrelated to reality.' Although the evidence as to the nexus between World Fellowship and subversive activities may not be conclusive, we believe it sufficiently relevant to support the Attorney General's action. The New Hampshire definition of subversive persons was born of the legislative determination that the Communist movement posed a serious threat to the security of the State. The record reveals that appellant had participated in 'Communist front' activities and that '(n)ot less than nineteen speakers invited by Uphaus to talk at World Fellowship had either been members of the Communist Party or had connections or affiliations with it or with one or more of the organizations cited as subversive or Communist controlled in the United States Attorney General's list.' 100 N.H. at page 442, 130 A.2d at page 283. While the Attorney General's list is designed for the limited purpose of determining fitness for federal employment, Wieman v. Updegraff, 1952, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, and guilt by association remains a thoroughly discredited doctrine, it is with a legislative investigation—not a criminal prosecution that we deal here. Certainly the investigatory power of the State need not be constricted until sufficient evidence of subversion is gathered to justify the institution of criminal proceedings.
10
The nexus between World Fellowship and subversive activities disclosed by the record furnished adequate justification for the investigation we here review. The Attorney General sought to learn if subversive persons were in the State because of the legislative determination that such persons, statutorily defined with a view toward the Communist Party, posed a serious threat to the security of the State. The investigation was, therefore, undertaken in the interest of self-preservation, 'the ultimate value of any society,' Dennis v. United States, 1951, 341 U.S. 494, 509, 71 S.Ct. 857, 867, 95 L.Ed. 1137. This governmental interest outweighs individual rights in an associational privacy which, however real in other circumstances, cf. National Association for Advancement of Colored People v. State of Alabama, supra, were here tenuous at best. The camp was operating as a public one, furnishing both board and lodging to persons applying therefor. As to them, New Hampshire law requires that World Fellowship, Inc., Maintain a register, open to inspection of sheriffs and police officers.7 It is contended that the list might be 'circulated throughout the states and the Attorney Generals throughout the states have cross-indexed files, so that any guest whose name is mentioned in that kind of proceeding immediately becomes suspect, even in his own place of residence.' Record, p. 7. The record before us, however, only reveals a report to the Legislature of New Hampshire made by the Attorney General in accordance with the requirements of the resolution. We recognize, of course, that compliance with the subpoena will result in exposing the fact that the persons therein named were guests at World Fellowship. But so long as a committee must report to its legislative parent, exposure—in the sense of disclosure—is an inescapable incident of an investigation into the presence of subversive persons within a State. And the governmental interest in self-preservation is sufficiently compelling to subordinate the interest in associational privacy of persons who, at least to the extent of the guest registration statute, made public at the inception the association they now wish to keep private. In the light of such a record we conclude that the State's interest has not been 'pressed, in this instance, to a point where it has come into fatal collision with the overriding' constitutionally protected rights of appellant and those he may represent. Cantwell v. State of Connecticut, 1940, 310 U.S. 296, 307, 60 S.Ct. 900, 905, 84 L.Ed. 1213.
11
We now reach the question of the validity of the sentence. The judgment of contempt orders the appellant confined until he produces the documents called for in the subpoenas. He himself admitted to the court that although they were at hand, not only had he failed to bring them with him to court, but that, further, he had no intention of producing them. In vew of appellant's unjustified refusal we think the order a proper one. As was said in Green v. United States, 1958, 356 U.S. 165, 197, 78 S.Ct. 632, 650, 2 L.Ed.2d 672 (dissenting opinion):
12
'Before going any further, perhaps it should be emphasized that we are not at all concerned with the power of courts to impose conditional imprisonment for the purpose of compelling a person to obey a valid order. Such coercion, where the defendant carries the keys to freedom in his willingness to comply with the court's directive, is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.'
13
We have concluded that the committee's demand for the documents was a ligitimate one; it follows that the judgment of contempt for refusal to produce them is valid. We do not impugn appellant's good faith in the assertion of what he believed to be his rights. But three courts have disagreed with him in interpreting those rights. If appellant chooses to abide by the result of the adjudication and obey the order of New Hampshire's courts, he need not face jail. If, however, he continues to disobey, we find on this record no constitutional objection to the exercise of the traditional remedy of contempt to secure compliance.
14
Affirmed.
15
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
16
The Court holds today that the constitutionally protected rights of speech and assembly of appellant and those whom he may represent are to be subordinated to New Hampshire's legislative investigation because, as applied in the demands made on him, the investigation is rationally connected with a discernible legislative purpose. With due respect for my Brothers' views, I do not agree that a showing of any requisite legislative purpose or other state interest that constitutionally can subordinate appellant's rights is to be found in this record. Exposure purely for the sake of exposure is not such a valid subordinating purpose. Watkins v. United States, 354 U.S. 178, 187, 200, 77 S.Ct. 1173, 1179, 1185, 1 L.Ed.2d 1273; Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311; N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. This record, I think, not only fails to reveal any interest of the State sufficient to subordinate appellant's constitutionally protected rights, but affirmatively shows that the investigatory objective was the impermissible one of exposure for exposure's sake. I therefore dissent from the judgment of the Court.
17
I fully appreciate the delicacy of the judicial task of questioning the workings of a legislative investigation. A proper regard for the primacy of the legislative function in its own field, and for the broad scope of the investigatory power to achieve legislative ends, necessarily should constrain the judiciary to indulge every reasonable intendment in favor of the validity of legislative inquiry. However, our frame of government also imposes another inescapable duty upon the judiciary, that of protecting the constitutional rights of freedom of speech and assembly from improper invasion, whether by the national or the state legislatures. See Watkins v. United States, supra; Sweezy v. State of New Hampshire, supra; N.A.A.C.P. v. State of Alabama, supra. Where that invasion is as clear as I think this record discloses, the appellant is entitled to our judgment of reversal.
18
Judicial consideration of the collision of the investigatory function with constitutionally protected rights of speech and assembly is a recent development in our constitutional law. The Court has often examined the validity under the Federal Constitution of federal and state statutes and executive action imposing criminal and other traditional sanctions on conduct alleged to be protected by the guarantees of freedom of speech and of assembly. The role of the state-imposed sanctions of imprisonment, fines and prohibitory injunctions directed against association or speech and their limitations under the First and Fourteenth Amendments has been canvassed quite fully, beginning as early as Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; and Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. And other state action, such as deprivation of public employment and the denial of admission to a profession, has also been recognized as being subject to the restraints of the Constitution. See, e.g., Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; cf. Schware v. Board of Bar Examiners of State of N.M., 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796.
19
But only recently has the Court been required to begin a full exploration of the impact of the governmental investigatory function on these freedoms.1 Here is introduced the weightly consideration that the power of investigation, whether exercised in aid of the governmental legislative power, see Watkins v. United States, supra, or in aid of the governmental power to adjudicate disputes, see N.A.A.C.P. v. State of Alabama, supra, is vital to the functioning of free governments and is therefore necessarily broad. But where the exercise of the investigatory power collides with constitutionally guaranteed freedoms, that power too has inevitable limitations, and the delicate and always difficult accommodation of the two with minimum sacrifice of either is the hard task of the judiciary and ultimately of this Court.
20
It was logical that the adverse effects of unwanted publicity of exposure—as concomitants of the exercise of the investigatory power, should come to be recognized, in certain circumstances, as invading protected freedoms and offending constitutional inhibitions upon governmental actions. For in an era of mass communications and mass opinion, and of international tensions and domestic anxiety, exposure and group identification by the state of those holding unpopular and dissident views are fraught with such serious consequences for the individual as inevitably to inhibit seriously the expression of views which the Constitution intended to make free. Cf. Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. We gave expression to this truism in N.A.A.C.P. v. State of Alabama: 'This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. * * * Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.' 357 U.S. at page 462, 78 S.Ct. at page 1171, 2 L.Ed.2d 1488.
21
Of course, the considerations entering into the weighing of the interests concerned are different where the problem is one of state exposure in the area of assembly and expression from where the problem is that of evaluating a state criminal or regulatory statute in these areas. Government must have freedom to make an appropriate investigation where there appears a rational connection with the lawmaking process, the processes of adjudication, or other essential governmental functions. In the investigatory stage of the legislative process, for example, the specific interest of the State and the final legislative means to be chosen to implement it are almost by definition not precisely defined at the start of the inquiry, and due allowance must accordingly be made. Also, when exposure is evaluated judicially as a governmental sanction, there should be taken into account the differences between it and the more traditional state-inflicted pains and penalties. True it is, therefore, that any line other than a universal subordination of free expression and association to the asserted interests of the State in investigation and exposure will be difficult of defintion; but this Court has reghtly turned its back on the alternative of universal subordination of protected interests, and we must define rights in this area the best we can. The problem is one in its nature calling for traditional case-by-case development of principles in the various permutations of circumstances where the conflict may appear. But guide lines must be marked out by the courts. 'This is the inescapable judicial task in giving substantive content, legally enforced, to the Due Process Clause, and it is a task ultimately committed to this Court.' Sweezy v. State of New Hampshire, 354 U.S. 234, 267, 77 S.Ct. 1203, 1220, 1 L.Ed.2d 1311 (concurring opinion). On the facts of this case I think that New Hampshire's investigation, as applied to the appellant, was demonstrably and clearly outside the wide limits of the power which must be conceded to the State even though it be attended by some exposure. In demonstration of this I turn to the detailed examination of the facts which this case requires.
22
The appellant, Uphaus, is Executive Director of a group called World Fellowship which runs a discussion program at a summer camp in New Hampshire, at which the public is invited to stay. Various speakers come to the camp primarily for discussion of political, economic and social matters. The appellee reports that Uphaus and some of the speakers have been said by third persons to have a history of association with 'Communist front' movements, to have followed the 'Communist line,' signed amnesty petitions and amicus curiae briefs, and carried on similar activities of a sort which have recently been viewed hostilely and suspiciously by many Americans. A strain of pacifism runs through the appellant's thinking, and the appellee apparently would seek to determine whether there should be drawn therefrom an inference of harm for our institutions; he conjectures, officially, whether 'the advocacy of this so-called peace crusade is for the purpose of achieving a quicker and a cheaper occupation by the Soviet Union and Communism.' There is no evidence that any activity of a sort that violates the law of New Hampshire or could in fact be constitutionally punished went on at the camp. What is clear is that there was some sort of assemblage at the camp that was oriented toward the discussion of political and other public matters. The activities going on were those of private citizens. The views expounded obviously were minority views. But the assemblage was, on its face, for purposes to which the First and Fourteenth Amendments give constitutional protection against incursion by the powers of government. Cf. Sweezy v. State of New Hampshire, supra, 354 U.S. at pages 249—251, 77 S.Ct. at pages 1211—1212.
23
The investigation with which this case is concerned was undertaken under authority of a 1953 Resolution of the New Hampshire General Court, N.H.Laws 1953, c. 307, and extended by an enactment in 1955, N.H.Laws, 1955, c. 197. The Resolution directed the Attorney General of the State (appellee here) to make a 'full and complete investigation' of 'violations of the subversive activities act of 1951'2 and to determine whether 'subversive persons as defined in said act are presently located within the state.' Under New Hampshire law, this constituted the Attorney General (who is ordinarily the chief law-enforcement official of the State) a one-man legislative committee. The sanctions of prosecution of individuals and dissolution of organizations for violation of the 1951 law seem to have been discarded, with the passage of the Resolution, in favor of the sanction of exposure. A provision of the 1951 Act providing for confidentil t reatment of material reflecting on individuals' loyalty was made inapplicable to the investigation the Attorney General was directed to conduct, and the Attorney General was authorized in sweeping terms to give publicity to the details of his investigation. A report to the Legislature of the fruits of the investigation was to be made on the first day of the 1955 legislative session; the 1955 extension called for a similar report to the 1957 session.3 Efforts to obtain from the appellant the disclosures relative to World Fellowship in controversy here began during the period covered by the 1953 Resolution, but his final refusal and the proceeding for contempt under review here occurred during the extension.
24
The fruits of the first two years of the investigation were delivered to the Legislature in a comprehensive volume on January 5, 1955. The Attorney General urges this report on our consideration as extremely relevant to a consideration of the investigation as it relates to appellant. I think that this is quite the case; the report is an official indication of the nature of the investigation and is, in fact, the stated objective of the duty assigned by the Resolution to the Attorney General. It was with this report before it that the Legislature renewed the investigation, and it must be taken as characterizing the nature of the investigation before us. The report proper is divided into numerous sections. First is a series of general and introductory essays by various authors entitled 'Pertinent Aspects of World Communism Today.' Essays discuss 'The Nature of the Russian Threat'; 'The Role of the Communist Front Organizations'; 'Some Important Aspects of Marxism and Marxism-Leninism'; 'The Test of a Front Organization'; and 'Communism s. Religion.' General descriptive matter on the Communist Party in New Hampshire follows. It hardly needs to be said that this introductory material would focus attention on the whole report in terms of 'Communism' regardless of what was said about the individuals later named. Next comes a general section titled 'Communist Influence in a Field of Education' which is replete with names and biographical material of individuals; a similar section on 'Communist Influence in the Field of Labor'; and one more generically captioned 'Organizations,' in which various details as to the appellant, his organization, and others associated in it are presented. Last comes a section entitled 'Individuals' in which biographical sketches of 23 persons are presented.
25
The introductory matter in the volume, to put the matter mildly, showed consciousness of the practical effect of the change of policy from judicial prosecution to exposure by the Attorney General of persons reported to be connected with groups charged to be 'subversive' or 'substantially Communist-influenced.' Virtually the entire 'Letter of Transmittal' of the Attorney General addressed itself to discussing the policy used in the report in disclosing the names of individuals. The Attorney General drew a significant distinction as to the names he would disclose: 'Persons with past membership or affiliation with the Communist Party or substantially Communist-influenced groups have not been disclosed in this report where those persons have provided assistance to the investigation. It is felt that no good reasons exist requiring a listing of names of cooperative witnesses in these categories.' A 'Foreword' declared that '(t)his report deals with a controversial subject,' and, concentrating on the fact that the report contained an extensive list of persons, their addresses, and miscellaneous activities and associations attributed to them, made several disclaimers. The report was not to be considered an indictment of any individual, the Attorney General suitably pointing out that a grand jury was the only authority in New Hampshire having the formal power of indictment. Nor was it 'the result of an inquisition. No witness in this investigation has ever, at any time, been treated other than courteously.' Finally, the Attorney General stressed that '(t)he reporting of facts herein does NOT (nor should it be taken to by any reader) constitute a charge against any witness.' He observed that 'facts are facts * * *. Conclusions of opprobrium relative to any individual, while within the privilege of personal opinion, are neither recommended nor intended to be encouraged by any phraseology of this report.' In fact, the listing of names might well contain the names of many innocent people, implied the Attorney General. This was permissible, he believed, because, as interpreted in the courts of New Hampshire, 'the scope of relevant questioning in the investigation goes far beyond the requirements of individual felonious intention. In fact, the General Court has directed that inquiry be made to determine the extent of innocent or ignorant membership, affiliation or support of subversive organizations * * *.'
26
The report certainly is one that would be suggested by the quoted parts of the foreword. No opinion was, as a matter of course, expressed by the Attorney General as to whether any person named therein was in fact a 'subversive person' within the meaning of the statute. The report did not disclose whether any indictments under the 1951 Act would be sought against any person. Its sole recommendations for legislation were for a broad evidentiary statute to be applied in trials of persons under the State Act as 'subversive,' which cannot really be said to have been the fruit of the investigation, being copied from a then recent Act of Congress,4 and which made apparently no change in the 1951 law's standard of guilt, and for an immunity measure calculated to facilitate future investigations. The report, once the itro ductory material on Communism is done with, contains primarily an assorted list of names with descriptions of what had been said about the named persons. In most cases, the caveat of the Attorney General that the information should not be understood as indicating a violation of the New Hampshire Subversive Activities Act was, to say the least, well-taken, in the light of the conduct ascribed to them. Many of the biographical summaries would strike a discerning analyst as very mild stuff indeed. In many cases, a positive diligence was demonstrated in efforts to add the names of individuals to a list and then render a Scotch verdict of 'not proven' in regard to them. The most vivid example of this is the material relating to the appellant's group, World Fellowship. After some introductory pages, there comes extensive biographical material relating to the reported memberships, associations, advocacies, and signings of open letters on the part of certain speakers at the World Fellowship camp. A very few had admitted membership in the Communist Party, or had been 'identified' as being members by third persons generally not named. Others were said to be or to have been members of 'Communist influenced,' 'front,' or 'officially cited' groups. Some were said to have signed open letters and petitions against deportations, to have criticized the Federal Bureau of Investigation, to have given free medical treatment to Communist Party officials, and the like. Finally the report addresses itself to the remainder of the speakers: 'Information easily available to this office does not indicate records of affiliation with or support of Communist causes on the part of these people. However, due to the burden of work imposed on the staff of the House Committee on Un-American Activities by thousands of such requests received from all over the country, it has not been possible to check each of these persons thoroughly. Inasmuch as no committee or public agency can hope to have all the information in its files concerning all subversive activity all over this country, it is not possible for this office to guarantee that the following individuals do not have such activity in their backgrounds. Therefore, it is necessary to report their identities to the General Court, with the explanation that based upon what information we have been able to assemble, the following individuals would appear at this time to be the usual contingent of 'dupes' and unsuspecting persons that surround almost every venture that is instigated or propelled by the 'perennials' and articulate apologists for Communists and Soviet chicanery, but of this fact we are not certain. This list does not include the many persons who were merely guests. * * *' The names of 36 persons with their addresses then followed.5
27
The emphasis of the entire report is on individual guilt, individual near-guilt, and individual questionable behavior. Its flavor and tone, regardless of its introductory disclaimers, cannot help but stimulate readers to attach a 'badge of infamy,' Wieman v. Updegraff, 344 U.S. 183, 190—191, 73 S.Ct. 215, 218, 97 L.Ed. 216, to the persons named in it. The authorizing Resolution requested that the Attorney General address himself to ascertaining whether there were 'subversive persons' in New Hampshire, and the report indicates that this was interpreted as the making of lists of persons who were either classifiable in this amorphous category, or almost so, and the presenting of the result, as a public, official document, to the Legislature, and to the public generally. The main thrust of the Resolution itself was in terms of individual behavior—violation of the 1951 Act and the presence, in the State, of 'subversive persons,' were the objects of investigation. The collection of such data, and of data having some peripheral reference to it, with explicit detail as to names and places, was what the Attorney General set himself to doing in response to it. As the report itself stated, 'A very considerable amount of questioning is absolutely essential to separate the wheat from the chaff in applying the legislative formula to individual conduct which involves that part of the spectrum very close to the line of subversive conduct. Only through such questioning is it possible to be able to report to the Legislature whether the activity o a given individual has been subversive or not subversive; whether or not intentionally so or knowingly so on his part.' One must feel, on reading the report, that the first sentence—'A very considerable amount of questioning is absolutely essential * * * in applying the legislative formula to individual conduct which involves that part of the spectrum very close to the line of subversive conduct'—is a serious overstatement, because in the usual citation of a person in the report no expression of his innocence or guilt, or his precise coloration in the Attorney General's spectrum was given. But still the report was made in terms of the activity of named individuals. Of course, if the Attorney General had information relating to guilt under the statute, he was empowered to seek indictment and conviction of the offenders in criminal proceedings, in which of course the normal rights afforded criminal defendants and the normal limitations on state prosecution for conduct related to political association and expression, under the Constitution, would apply. The citation of names in the book does not appear to have any relation to the possibility of an orthodox or traditional criminal prosecution, and the Attorney General seems to acknowledge this. The investigation in question here was not one ancillary to a prosecution—to grand jury or trial procedure. If it had been, if a definite prosecution were undertaken, we would have that narrowed context in which to relate the State's demand for exposure. Cf. N.A.A.C.P. v. State of Alabama, supra, 357 U.S. at pages 464—465, 78 S.Ct. at pages 1172—1173. This process of relation is part and parcel of examining the 'substantiality' of the State's interest in the concrete context in which it is alleged. But here we are without the aid of such a precise issue and our task requires that we look further to ascertain whether this legislative investigation, as applied in the demands made upon the appellant, is connected rationally with a discernible general legislative end to which the rights of the appellant and those whom he may represent can constitutionally be subordinated.
28
The Legislature, upon receiving the report, extended the investigation for a further two years. It was during this period that the refusals of the appellant to furnish information with which we are now concerned took place. The Attorney General had already published the names of speakers at the World Fellowship camp. Now he wanted the correspondence between Uphaus and the speakers. The Attorney General admitted that it was unlikely that the correspondence between Uphaus and the speakers was going to contain a damning admission of a purpose to advocate the overthrow of the government (presumably of New Hampshire) by force and violence. He said that it might indicate a sinister purpose behind the advocacy of pacifism—'the purpose of achieving a quicker and a cheaper occupation by the Soviet Union and Communism.' The guest list, the nonavailability of which to the Attorney General was commented on in the passage from the 1955 report quoted above,6 was also desired. Appellant's counsel, at the hearing in court giving rise to the contempt finding under review, protested that appellant did not want to allow the Attorney General to have the names to expose them. The Attorney General also wished the names of the nonprofessional help at the camp—the cooks and dishwashers and the like. It was objected that the cooks and dishwashers were hired from the local labor pool and that if such employment were attended by a trip to the Attorney General's office and the possibility of public exposure, help might become hard to find at the camp. This last objection was sustained in the trial court, but the other two inquiries were allowed and appellant's failure to respond to the one relating to the guest list was found contemptuous.
29
First. The Court seems to experience difficulty in discerning that appellant has any standng to plead the rights of free speech and association he does because the material he seeks to withhold may technically belong to World Fellowship, Inc., a corporation, and may relate to the protected activities of other persons, rather than those of himself. In N.A.A.C.P. v. State of Alabama, supra, a corporation was permitted to represent its membership in pleading their rights to freedom of association for public purposes. Here appellant, as a corporate officer if one will, seeks to protect a list of those who have assembled together for public discussion on the corporation's premises. Of course this is not technically a membership list, but to distinguish N.A.A.C.P. v. State of Alabama on this ground is to miss its point. The point is that if the members of the assemblage could only plead their assembly rights themselves, the very interest being safeguarded by the Constitution here could never be protected meaningfully, since to require that the guests claim this right themselves would 'result in nullification of the right at the very moment of its assertion.' Id., at page 459, 78 S.Ct. at page 1170, 2 L.Ed.2d 1488. I do not think it likely that anyone would deny the right of a bookseller (including a corporate bookseller) to decline to produce the names of those who had purchased his books. Cf. United States v. Rumely, 345 U.S. 41, 57, 73 S.Ct. 543, 551, 97 L.Ed. 770 (concurring opinion), and the opinion below in that case, 90 U.S.App.D.C. 382, 197 F.2d 166, 172.7
30
Second. In examining the right of the State to obtain this information from the appellant by compulsory process, we must recollect what we so recently said in N.A.A.C.P. v. State of Alabama:
31
'Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. De Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment which embraces freedom of speech. See Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138; Palko v. State of Connecticut, 302 U.S. 319, 324, 58 S.Ct. 149, 151, 82 L.Ed. 288; Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213; Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.' 357 U.S. at pages 460—461, 78 S.Ct. at page 1171, 2 L.Ed.2d 1488.
32
And in examining the State's interest in carrying out a legislative investigation, as was said in a similar context in United States v. Rumely, supra, 345 U.S. at page 44, 73 S.Ct. at page 545, we must strive not to be 'that 'blind' Court, against which Mr. Chief Justice Taft admonished in a famous passage, * * * that does not see what '(a)ll others can see and understand." The problem of protecting the citizen's constitutional rights from legislative investigation and exposure is a practical oe, and we must take a practical, realistic approach to it.
33
Most legislative investigations unavoidably involve exposure of some sort or another. But it is quite clear that exposure was the very core, and deliberately and purposefully so, of the legislative investigation we are concerned with here. The Legislature had passed a broad and comprehensive statute, which included criminal sanctions. That statute was, to say the least, readily susceptible of many applications in which it might enter a constitutional danger zone. See Yates v. United States, 354 U.S. 298, 319, 77 S.Ct. 1064, 1077, 1 L.Ed.2d 1356. And it could not be applied at all insofar as it amounted to a sanction for behavior directed against the United States. Com. of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. Therefore, indictment would be fraught with constitutional and evidentiary problems of an obvious and hardly subtle nature. This may suggest the reason why the pattern of application of the Subversive Activities statute in New Hampshire was not through the processes of indictment. The Resolution was cast in terms of an investigation of conduct restricted by this existing statute. The Resolution and the Attorney General's implementation of it reveal the making of a choice. The choice was to reach the end of exposure through the process of investigation, backed with the contempt power and the making of reports to the Legislature, of persons and groups thought to be somehow related to offenses under the statute or, further, to an uncertain penumbra of conduct about the proscribed area of the statute. And, as was said of the same investigation in Sweezy v. State of New Hampshire, by Wyman, supra, 354 U.S. at page 248, 77 S.Ct. at page 1210, 1 L.Ed.2d 1311: '(T)he program for the rooting out of subversion * * * (was) drawn without regard to the presence or absence of guilty knowledge in those affected.' The sanction of exposure was applied much more widely than anyone could remotely suggest that even traditional judicial sanctions might be applied in this area.
34
One may accept the Court's truism that preservation of the State's existence is undoubtedly a proper purpose for legislation. But, in descending from this peak of abstraction to the facts of this case, one must ask the question: What relation did this investigation of individual conduct have to legislative ends here? If bills of attainder were still a legitimate legislative end, it is clear that the investigations and reports might naturally have furnished the starting point (though only that) for a legislative adjudication of guilt under the 1951 Act. But what other legislative purpose was actually being fulfilled by the course taken by this investigation, with its overwhelming emphasis on individual associations and conduct?
35
The investigation, as revealed by the report, was overwhelmingly and predominantly a roving, self-contained investigation of individual and group behavior, and behavior in a constitutionally protected area. Its whole approach was to name names, disclose information about those named, and observe that 'facts are facts.' The New Hampshire Supreme Court has upheld the investigation as being a proper legislative inquiry, it is true. In Nelson v. Wyman, 99 N.H. 33, 38, 105 A.2d 756, 762, 763, it said: 'No sound basis can exist for denying to the Legislature the power to so investigate the effectiveness of its 1951 act even though, as an incident to that general investigation, it may be necessary to inquire as to whether a particular person has violated the act. * * * When the investigation provided for is a general one, the discovery of a specific, individual violation of law is collateral and subordinate to the main object of the inquiry.' In evaluating this, it must be admitted that maintenance of the separation of powers in the States is not, in and of itself, a concern of the Federal Constitution. Sweezy v. State of New Hampshire, supra, 354 U.S. at page 255, 77 S.Ct. at page 114, 1 L.Ed.2d 1311; Crowell v. Benson, 285 U.S. 22, 57, 52 S.Ct. 285, 295, 76 L.Ed. 598. But for an investigation in the field of the constitutionally protected freedoms of speech and assemblage to be upheld by the broad standards of relevance permissible in a legislative inquiry, some relevance to a valid legislative purpose must be shown, and certainly the ruling made below, that under the state law the Legislature has authorized the inquiry, Wyman v. Uphaus, 100 N.H. 436, 445, 130 A.2d 278, 285, does not conclude the issue here. The bare fact that the Legislature has authorized the inquiry does not mean that the inquiry is for a valid legislative end when viewed in the light of the federal constitutional test we must apply. Nor, while it is entitled to weight, is the determination by a state court that the inquiry relates to a valid legislative end conclusive. It is the task of this Court, as the Court recognizes in theory today, to evaluate the facts to determine if there actually has been demonstrated a valid legislative end to which the inquiry is related. With all due respect, the quoted observations of the New Hampshire Supreme Court in the case of Nelson v. Wyman bear little relationship to the course of the inquiry, as revealed by the report published after that decision. The report discloses an investigation in which the processes of lawmaking and law-evaluating were submerged entirely in exposure of individual behavior—in adjudication, of a sort, however much disclaimed, through the exposure process.8 If an investigation or trial, conducted by any organ of the State, which is aimed at the application of sanctions to individual behavior is to be upheld, it must meet the traditional standards that the common law in this country has established for the application of sanctions to the individual, or a constitutionally permissible modification of them. Cf. Kilbourn v. Thompson, 103 U.S. 168, 195, 26 L.Ed. 377. As a bare minimum there must be general standards of conduct, substantively constitutionally proper, applied to the individual in a fair proceeding with defined issues resulting in a binding, final determination. I had not supposed that a legislative investigation of the sort practiced here provided such a framework under the Constitution.
36
It is not enough to say, as the Court's position I fear may amount to, that what was taking place was an investigation and until the Attorney General and the Legislature had in all the data, the precise shape of the legislative action to be taken was necessarily unknown. Investigation and exposure, in the area which we are here concerned with, are not recognized as self-contained legislative powers in themselves. See Watkins v. United States, supra, 354 U.S. at page 200, 77 S.Ct. at page 1185. Cf. N.A.A.C.P. v. State of Alabama, supra. Since this is so, it hardly fulfills the responsibility with which this Court is charged, or protecting the constitutional rights of freedom of speech and assembly, to admit that an investigation going on indefinitely in time, roving in subject matter, and cumulative in detail in this area can be in aid of a valid legislative end, on the theory that some day it may come to some point. Even the most abusive investigation, the one most totally committed to the constitutionally impermissible end of individual adjudication through publication, could pass such a test. At the stage of this investigation that we are concerned with, it continued to be a cumulative, broad inquiry into the specific details of past individual and associational behvio r in the political area. It appears to have been a classic example of 'a fruitless investigation into the personal affairs of individuals.' Kilbourn v. Thompson, supra, 103 U.S. at page 195. Investigation appears to have been a satisfactory end product for the State, but it cannot be so for us in this case as we evaluate the demands of the Constitution. Nor can we accept the legislative renewal of the investigation, or the taking of other legislative measures to facilitate the investigation, as being themselves the legislative justification of the inquiry. The report indicates that it so viewed them; in requesting legislation renewing the investigation and an investigation immunity statute, the Attorney General significantly stated that if the renewal legislation or some investigatory substitute were not passed, it 'would mean no further investigation, no continuing check upon Communist activities * * *.' This is just to admit the continuing existence of the investigation as a self-contained justification for the inquiry. However much the State may be content to rely on the investigation as its own sanction, I think it perfectly plain that it cannot be regarded as a justification here. Nor can the faint possibility that an already questionably broad criminal statute might be further broadened, if constitutionally permissible, be considered the subordinating legislative purpose here, particularly in the light of what the investigation was in fact as revealed by its report. Of course, after further investigation and further reports, legislation of some sort might eventuate, or at least be considered. Perhaps it might be rejected because of serious doubts as to its constitutionality—which would, I think, underline the point I am making. But on such airy speculation, I do not see how we can say that the State has made any showing that this investigation, which on its surface has an overwhelming appearance of a simple wide-ranging exposure campaign, presents an implementation of a subordinating law making interest that, as the Court concedes, the State must be shown to have.
37
This Court's approach to a very similar problem in N.A.A.C.P. v. State of Alabama, supra, should furnish a guide to the proper course of decision here. There the State demonstrated a definite purpose which was admittedly within its competence. That purpose was the ascertainment whether a foreign corporation was unlawfully carrying on local activities within Alabama's borders, because not qualified to do business in the manner required by state law. In a judicial proceeding having this as its express stated purpose, the State sought to obtain the membership list of the corporation. This Court carefully recognized the curbing of associational freedom that the disclosure called for by this inquiry would entail. It then analyzed the relationship between the inquiry and this purpose, and, concluding that there was no rational connection, it held the inquiry constitutionally impermissible. Here the situation is even more extreme; there is no demonstration at all of what the legislative purpose is, outside of the investigation of violations, suspicions of violations, and conduct raising some question of violation of an existing statute.9 It is anomalous to say, as I fear the Court says today, that the vaguer the State's interest is, the more laxly will the Court view the matter and indulge a presumption of the existence of a valid subordinating state interest. In effect, a roving investigation and exposure of past associations and expressions in the political field is upheld because it might lead to some sort of legislation which might be sustained as constitutional, and the entire process is said to become the more defensible rather than the less because of the vagueness of the issues. The Court says that the appellant cannot argue against the exposure because this is an investigation and the exposure may make the investigation lead somewhere, possibly to leisl ative action. But this is just to say that an investigation, once under state law it is classified as 'legislative,' needs no showing of purpose beyond its own existence. A start must be made somewhere, and if the principles this Court has announced, and to which the Court today makes some deference, are to have any meaning, it must be up to the State to make some at least plausible disclosure of its lawmaking interest so that the relevance of its inquiries to it may be tested. Then the courts could begin to evaluate the justification for the impact on the individual's rights of freedom of speech and assembly. But here not only has the State failed to begin to elucidate such an interest; it has positively demonstrated, it appears to me, through its Resolution, the Attorney General's and the state courts' interpretation of it, and the Resolution's re-enactment, that what it is interested in is exposure, in lieu of prosecution, and nothing definable else.
38
The precise details of the inquiry we are concerned with here underlines this. The Attorney General had World Fellowship's speaker list and had already made publication of it in the fashion to which I have alluded. He had considerable other data about World Fellowship, Inc., which he had already published. What reason has been demonstrated, in terms of a legislative inquiry, for going into the matter in further depth? Outside of the fact that it might afford some further evidence as to the existence of 'subversive persons' within the State, which I have endeavored to show was not in itself a matter related to any legislative function except self-contained investigation and exposure themselves, the relevance of further detail is not demonstrated. But its damaging effect on the persons to be named in the guest list is obvious. And since the only discernible purpose of the investigation on this record is revealed to be investigation and exposure per se, and the relevance of the names to that purpose alone is quite apparent, this discloses the constitutional infirmity in the inquiry which requires us to strike down the adjudication of contempt in question here.
39
The Court describes the inquiry we must make in this matter as a balancing of interests. I think I have indicated that there has been no valid legislative interest of the State actually defined and shown in the investigation as it operated, so that there is really nothing against which the appellant's rights of association and expression can be balanced. But if some proper legislative end of the inquiry can be surmised, through what must be a process of speculation, I think it is patent that there is really no subordinating interest in it demonstrated on the part of the State. The evidence inquired about was simply an effort to get further details about an activity as to which there already were considerable details in the hands of the Attorney General. I can see no serious and substantial relationship between the furnishing of these further minutiae about what was going on at the World Fellowship camp and the process of legislation, and it is the process of legislation, the consideration of the enactment of laws, with which ultimately we are concerned. We have a detailed nqu iry into an assemblage the general contours of which were already known on the one hand, and on the other the remote and speculative possibility of some sort of legislation—albeit legislation in a field where there are serious constitutional limitations. We have this in the context of an inquiry which was in practice being conducted in its overwhelming thrust as a vehicle of exposure, and where the practice had been followed of publishing names on the basis of a 'not proven' verdict. We are not asked to hold that the State cannot carry on such fact-finding at all, with or without compulsory process. Nor are we asked to hold that as a general matter compulsory process cannot be used to amass facts whose initial relevance to an ultimate legislative interest may be remote. Cf. McGrain v. Daugherty, 273 U.S. 135, 176—180, 47 S.Ct. 319, 329—330, 71 L.Ed. 580.10 We deal with a narrow and more subtle problem. We deal here with inquiries into the areas of free speech and assemblage where the process of compulsory disclosure itself tends to have a repressive effect. Cf. Speiser v. Randall, supra. We deal only with the power of the State to compel such a disclosure. We are asked, in this narrow context, only to give meaning to our statement in Watkins v. United States, supra, 354 U.S. at page 198, 77 S.Ct. at page 1185, 'that the mere semblance of a legislative purpose would not justify an inquiry in the face of the Bill of Rights.' Here we must demand some initial showing by the State sufficient to counterbalance the interest in privacy as it relates to freedom of speech and assembly. On any basis that has practical meaning, New Hampshire has not made such a showing here. I would reverse the judgment of the New Hampshire Supreme Court.
40
Mr. Justice BLACK, and Mr. Justice DOUGLAS would decide this case on the ground that appellant is being deprived of rights under the First and Fourteenth Amendments, for the reasons developed in Adler v. Board of Education of City of New York, 342 U.S. 485, 508, 72 S.Ct. 380, 392, 96 L.Ed. 517 (dissenting opinion); Beauharnais v. People of State of Illinois, 343 U.S. 250, 267, 284, 72 S.Ct. 725, 736, 744, 96 L.Ed. 919 (dissenting opinions). But they join Mr. Justice BRENNAN'S dissent because he makes clear to them that New Hampshire's legislative program resulting in the incarceration of appellant for contempt violates Art. I, § 10 of the Constitution which provides that 'No state shall * * * pass any bill of attainder.' See United States v. Lovett, 328 U.S. 303, 315—318, 66 S.Ct. 1073, 1078—1080, 90 L.Ed. 1252, and cases cited; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 142—149, 71 S.Ct. 624, 633—636, 95 L.Ed. 817 (concurring opinion).
1
'Resolved by the Senate and House of Representatives in General Court convened:
'That the attorney general is hereby authorized and directed to make full and complete investigation with respect to violations of the subversive activities act of 1951 and to determine whether subversive persons as defined in said act are presently located within this state.' N.H.Laws, 1953, c. 307.
The investigation authorized by this resolution was continued by N.H.Laws, 1955, c. 197.
2
18 U.S.C. § 2385 (1956), 18 U.S.C.A. § 2385.
3
N.H.Rev.Stat.Ann., 1955, c. 588, §§ 1—16.
4
Note 2, supra.
5
Note 1, supra.
6
Section 1 of the Subversive Activities Act, N.H.Rev.Stat.Ann., 1955, c. 588, §§ 1—16, defines 'subversive person':
"Subversive person' means any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches, by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the state of New Hampshire, or any political subdivision of either of them, by force, or violence; or who is a member of a subversive organization or a foreign subversive organization.'
7
Since 1927, there has been in effect the following statute in New Hampshire:
'All hotel keepers and all persons keeping public lodging houses, tourist camps, or cabins shall keep a book or card system and cause each guest to sign therein his own legal name or name by which he is commonly known. Said book or card system shall at all times be open to the inspection of the sheriff or his deputies and to any police officer. * * *' N.H.Rev.Stat.Ann., 1955, c. 353, § 3.
The Attorney General represents that the public camp of World Fellowship, Inc., is clearly within the purview of this statute. Although the lists sought were more extensive than those required by the statute, it appears that most of the names were recorded pursuant to it.
1
The two leading earlier cases relate generally to the congressional power to investigate, and were not required to explore it in the contexts of freedom of speech and of assembly. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580. See the opinion in the latter case, ibid., at pages 175—176, 47 S.Ct. at page 329, 71 L.Ed. 580.
2
The Act was c. 193 of the Laws of New Hampshire, 1951. After an extensive preamble, § 1 provided various definitions, including definitions of 'subversive organization' and 'foreign subversive organization'; the definition of 'subversive person,' also provided, was: 'any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches, by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the state of New Hampshire, or any political subdivision of either of them, by force, or violence; or who is a member of a subversive organization or a foreign subversive organization.' For a discussion of the breadth of this definition, see Sweezy v. State of New Hampshire, supra, at pages 246—247, 77 S.Ct. at pages 1209—1210.
Section 2 of the Act defines the crime of sedition. The definition is based on the quoted definition of 'subversive person,' except that the final 'membership clause' is omitted and a 'clear and present danger' test is introduced in regard to advocacy, abetting, advising and teaching. Assisting in the formation of a subversive organization or foreign subversive organization, managing one, contributing to its support, destroying its papers, or hiding its funds, 'knowing said organization to be a subversive organization or a foreign subversive organization' also constitutes the offense, which is punishable by twenty years' imprisonment or a fine of $20,000, or both. Those who become or remain members of a subversive organization or a foreign subversive organization, after certain dates, 'knowing said organization to be a subversive organization or a foreign subversive organization,' under § 3, are liable to five years' imprisonment or a $5,000 fine, or both. Section 4 disqualifies those convicted under § 2 or § 3 from public office or employment, and § 9 erects a similar disqualification in the case of all 'subversive persons.' Section 5 provides for the dissolution of subversive organizations and foreign subversive organizations functioning in New Hampshire.
3
None appears to have been made.
4
The Communist Control Act of 1954, § 5, c. 886, 68 Stat. 776, 50 U.S.C. § 814, 50 U.S.C.A. § 814.
5
Although the nature of the investigation of individuals in difficult to convey without reproduction of the full report, two individual write-ups from other sections of the book (the names are used in the report but not here) are illustrative.
A two-page item is entitled 'The Matter of * * * (X).' It begins: 'In recent years there has been opposition to legislative investigations in some academic circles. Charges have been made, usually without an accompanying scintilla of evidence, that 'hysteria' rules the country
and that teachers are afraid to teach 'the truth' because of the 'witch hunters.' This line is repeated ad infinitum in the Communist 'Daily Worker.'
'In New Hampshire, during the course of this investigation, a case did arise where rumors were circulated concerning a teacher. * * *'
The report proceeds: 'The teacher concerning whom the rumors were circulated was (X), a teacher in the (Y city) public school system. When the rumors concerning Mr. (X) came to the attention of this office, he was invited to testify. * * *'
The report relates that X appeared 'voluntarily' and testified 'ull y' that he was not a member of any organization on the Attorney General's list, and never had been. 'This office was prepared to make full investigation of the facts and to make public the results of such an investigation if it would effectuate the purposes of the current probe. (X) resigned and secured employment outside the state. Had (X) not decided to submit his resignation, such a course of action would have been taken, but facilities were not available for inquiring into moot problems. * * *'
The report, after noting that none of its available usual informants had anything damaging to say about X, concludes its discussion of this 'matter': 'It should be clear to factions who oppose per se any legislative investigation into subversion that such investigations can serve the purpose of insuring legitimate academic interests against unfounded rumor or gossip.' We are left to conjecture whether Mr. X would subscribe to the Attorney General's conclusion.
An 11-page write-up is the story of Y, a Chief of Police in a New Hampshire municipality. Y admitted having been a Communist from 1936 till 1944, but said that he withdrew then, and currently regarded the Communist Party as something on a par with Hitler. A witness said that Y's name was on a secret Communist Party list after then. Pages of the details of inconclusive statements and counterstatements in this regard follow, including a 'confrontation' of Chief Y and a witness in the Attorney General's office, at which were present the Board of Selectmen of the town for which he was Police Chief. The report then lists various 'situations in which Chief (Y) was not able to be of assistance to this investigation' and finally comes to the 'Conclusion': 'Due to the conspiratorial,
clandestine, and currently underground nature of the Communist Party, as well as the inability to force witnesses to testify concerning subversive activities, the above conflicts in testimony here have not been resolved and are presented as they exist on the record, without further comment. * * *'
The usual individual biography is shorter and less detailed than this; many just state the individual's name and street address, set forth a reference to him in the Daily Worker or an 'identification' with the Communist Party at some date or with a 'front' group, and state that the subject invoked or took refuge in the privilege against self-incrimination when questioned before the Attorney General.
6
See, 79 S.Ct. at page 1052, supra.
7
The Court, apparently, draws some support from the New Hampshire lodging house registration statute for its conclusions about the lack of substantiality of the guests' interests in nondisclosure. Since the statute admittedly would not cover what the Attorney General desired to obtain and since the New Hampshire courts themselves did not rest on it, it is difficult to find any basis for this reliance. It would be time enough to deal with a production order based on that statute when it arose.
8
While as a general matter it is true that a State can distribute its governmental powers as it sees fit, as far as the Federal Constitution is concerned, it is also true that (regardless of what organ exercises the functions) different constitutional tests apply in examining state legislative and state adjudicatory powers. See Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372.
9
Cf. the address of Mr. William T. Gossett, Vice-President and General Counsel of Ford Motor Company at the Annual Brotherhood Dinner, Detroit, Michigan, November 20, 1958, in which he said:
'We must urge upon our law-makers a scrupulous exactness, particularly in the exercise of their investigative powers. When we are frustrated by the feeling that certain people—suspected subversives, gangsters or labor racketeers, for example—have flaunted society with impunity, it is tempting to pillory them through prolonged public exposure to hearsay testimony, intemperate invective and other forms of abuse. But to try by such means to destroy those whom we are unable to convict by due process of law may destroy instead the very safeguards that protect us all against tyranny and arbitrary power.'
10
McGrain v. Daugherty found legislative justification in a congressional inquiry which presented a rather strong element of exposure of past wrongdoing, to be sure. But the possibility of legislation was much more real than is the case here, and the legislative subject matter—control and regulation of the structure and workings of an executive department—was one not fraught with the constitutional problems presented by legislation in the field of political advocacy and assembly. And the inquiry itself, most significantly, was not directed at private assembly and discussion, but at the conduct of a public official in office; it did not have the inhibitory effect on basic political freedoms that the inquiry we are here concerned with presents. Cf. Watkins v. United States, supra, 354 U.S. at page 200, note 33, 77 S.Ct. at page 1185. The Daugherty case is basically, then, one relating to the distribution of powers among branches of the Federal Government.
| 23
|
360 U.S. 45
79 S.Ct. 985
3 L.Ed.2d 1072
Louise LASSITER, Appellant,v.NORTHAMPTON COUNTY BOARD OF ELECTIONS.
No. 584.
Argued May 18, 19, 1959.
Decided June 8, 1959.
Mr. Samuel S. Mitchell, Raleigh, N.C., for appellant.
Mr. I. Beverly Lake, Raleigh, N.C., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This controversy started in a Federal District Court. Appellant, a Negro citizen of North Carolina, sued to have the literacy test for voters prescribed by that State declared unconstitutional and void. A three-judge court was convened. That court noted that the literacy test was part of a provision of the North Carolina Constitution that also included a grandfather clause. It said that the grandfather clause plainly would be unconstitutional under Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340. It noted, however, that the North Carolina statute which enforced the registration requirements contained in the State Constitution had been superseded by a 1957 Act and that the 1957 Act does not contain the grandfather clause or any reference to it. But being uncertain as to the significance of the 1957 Act and deeming it wise to have all administrative remedies under that Act exhausted before the federal court acted, it stayed its action, retaining jurisdiction for a reasonable time to enable appellant to exhaust her administrative remedies and obtain from the state courts an interpretation of the statute in light of the State Constitution. Lassiter v. Taylor, D.C., 152 F.Supp. 295.
2
Thereupon the instant case was commenced. It started as an administrative proceeding. Appellant applied for registration as a voter. Her registration was denied by the registrar because she refused to submit to a literacy test as required by the North Carolina statute.1 She appealed to the County Board of Elections. On the de novo hearing before that Board appellant again refused to take the literacy test and she was again denied registration for that reason. She appealed to the Superior Court which sustained the Board against the claim that the requirement of the literacy test violated the Fourteenth, Fifteenth, and Seventeenth Amendments of the Federal Constitutio. P reserving her federal question, she appealed to the North Carolina Supreme Court which affirmed the lower court. 248 N.C. 102, 102 S.E.2d 853. The case came here by appeal, 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), and we noted probable jurisdiction. 358 U.S. 916, 79 S.Ct. 294, 3 L.Ed.2d 236.
3
The literacy test is a part of § 4 of Art. VI of the North Carolina Constitution. That test is contained in the first sentence of § 4. The second sentence contains a so-called grandfather clause. The entire § 4 reads as follows:
4
'Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language. But no male person who was, on January 1, 1867, or at any time prior thereto, entitled to vote under the laws of any state in the United states wherein he then resided, and no lineal descendant of any such person, shall be denied the right to register and vote at any election in this State by reason of his failure to possess the educational qualifications herein prescribed: Provided, he shall have registered in accordance with the terms of this section prior to December 1, 1908. The General Assembly shall provide for the registration of all persons, entitled to vote without the educational qualifications herein prescribed, and shall, on or before November 1, 1908, provide for the making of a permanent record of such registration, and all persons so registered shall forever thereafter have the right to vote in all elections by the people in this State, unless disqualified under section 2 of this article.'
5
Originally Art. VI contained in § 5 the following provision:
6
'That this amendment to the Constitution is presented and adopted as one indivisible plan for the regulation of the suffrage, with the intent and purpose to so connect the different parts, and to make them so dependent upon each other, that the whole shall stand or fall together.' But the North Carolina Supreme Court in the instant case held that a 1945 amendment to Article VI freed it of the indivisibility clause. That amendment rephrased § 1 of Art. VI to read as follows:
7
'Every person born in the United States, and every person who has been naturalized, twenty-one years of age, and possessing the qualifications set out in this Article, shall be entitled to vote.'
8
That court said that 'one of those qualifications' was the literacy test contained in § 4 of Art. VI; and that the 1945 amendment 'had the effect of incorporating and adopting anew the provisions as to the qualifications required o a voter as set out in Article VI, freed of the indivisibility clause of the 1902 amendment. And the way was made clear for the General Assembly to act.' 248 N.C. at page 112, 102 S.E.2d at page 860.
9
In 1957 the Legislature rewrote General Statutes § 163—28 as we have noted.2 Prior to that 1957 amendment § 163—28 perpetuated the grandfather clause contained in § 4 of Art. VI of the Constitution and § 163—32 established a procedure for registration to effectuate it.3 But the 1957 amendment contained a provision that 'All laws and clauses of laws in conflict with this Act are hereby repealed.'4 The federal three-judge court ruled that this 1957 amendment eliminated the grandfather clause from the statute. 152 F.Supp. at page 296.
10
The Attorney General of North Carolina, in an amicus brief, agrees that the grandfather clause contained in Art. VI is in conflict with the Fifteenth Amendment. Appellee maintains that the North Carolina Supreme Court ruled that the invalidity of that part of Art. VI does not impair the remainder of Art. VI since the 1945 amendment to Art. VI freed it of its indivisibility clause. Under that view Art. VI would impose the same literacy test as that imposed by the 1957 statute and neither would be linked with the grandfather clause which, though present in print, is separable from the rest and void. We so read the opinion of the North Carolina Supreme Court.
11
Appellant argues that that is not the end of the problem presented by the grandfather clause. There is a provision in the General Statutes for permanent registration in some counties.5 Appellant points out that although the cut-off date in the grandfather clause was December 1, 1908, those who registered before then might still be voting. If they were allowed to vote without taking a literacy test and if appellant were denied the right to vote unless she passed it, members of the white race would receive preferential privileges of the ballot contrary to the command of the Fifteenth Amendment. That would be analogous to the problem posed in the classic case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, where an ordinance unimpeachable on its face was applied in such a way as to violate the guarantee of equal protection contained in the Fourteenth Amendment. But this issue of discrimination in the actual operation of the ballot laws of North Carolina has not been framed in the issues presented for the state court litigation. Cf. Williams v. State of Mississippi, 170 U.S. 213, 225, 18 S.Ct. 583, 588, 42 L.Ed. 1012. So we do not reach it. But we mention it in passing so that it may be clear that nothing we say or do here will prejudice appellant in tendering that issue in the federal proceedings which await the termination of this state court litigation.
12
We come then to the question whether a State may consistently with the Fourteenth and Seventeenth Amendments apply a literacy test to all voters irrespective of race or color. The Court in Guinn v. United States, supra, 238 U.S. 366, 35 S.Ct. 931, disposed of the question in a few words, 'No time need be spent on the question of the validity of th literacy test, considered alone, since, as we have seen its establishment was but the exercise by the state of a lawful power vested in it not subject to our supervision, and indeed, its validity is admitted.'
13
The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, Pope v. Williams, 193 U.S. 621, 633, 24 S.Ct. 573, 576, 48 L.Ed. 817; Mason v. State of Missouri, 179 U.S. 328, 335, 21 S.Ct. 125, 128, 45 L.Ed. 214, absent of course the discrimination which the Constitution condemns. Article I, § 2 of the Constitution in its provision for the election of members of the House of Representatives and the Seventeenth Amendment in its provision for the election of Senators provide that officials will be chosen 'by the People.' Each provision goes on to state that 'the Electors in each State shall the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.' So while the right of suffrage is established and guaranteed by the Constitution (Ex parte Yarbrough, 110 U.S. 651, 663—665, 4 S.Ct. 152, 158, 159, 28 L.Ed. 274; Smith v. Allwright, 321 U.S. 649, 661—662, 64 S.Ct. 757, 763—764, 88 L.Ed. 987) it is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress acting pursuant to its constitutional powers, has imposed. See United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368. While § 2 of the Fourteenth Amendment, which provides for apportionment of Representatives among the States according to their respective numbers counting the whole number of persons in each State (except Indians not taxed), speaks of 'the right to vote,' the right protected 'refers to the right to vote as established by the laws and constitution of the state.' McPherson v. Blacker, 146 U.S. 1, 39, 13 S.Ct. 3, 12, 36 L.Ed. 869.
14
We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345—347, 10 S.Ct. 299, 301—302, 33 L.Ed. 637) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters. The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot. Literacy and illiteracy are neutral on race, creed, color, and sex, as reports around the world show.6 Literacy and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet in our society where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise. Cf. Franklin v. Harper, 205 Ga. 779, 55 S.E.2d 221, appeal dismissed 339 U.S. 946, 70 S.Ct. 804, 94 L.Ed. 1361. It was said last century in Massachusetts that a literacy test was designed to insure an 'independent and intelligent' exercise of the right of suffrage.7 Stone v. Smith, 159 Mass. 413—414, 34 N.E. 521. North Carolina agrees. We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards.
15
Of course a literacy test, fair on its face, may be employed to perpetuate that discrimination which the Fifteenth Amendment was designed to uproot. No such influence is charged here. On the other hand, a literacy test may be unconstitutional on its face. In Davis v. Schnell, D.C., 81 F.Supp. 872, 873, affirmed 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093, the test was the citizen's ability to 'understand and explain' an article of the Federal Constitution. The legislative setting of that provision and the great discretion it vested in the registrar made clear that a literacy requirement was merely a device to make racial discrimination easy. We cannot make the same inference here. The present requirement, applicable to members of all races, is that the prospective voter 'be able to read and write any section of the Constitution of North Carolina in the English language.' That seems to us to be one fair way of determining whether a person is literate, not a calculated scheme to lay springes for the citizen. Certainly we cannot condemn it on its face as a device unrelated to the desire of North Carolina to raise the standards for people of all races who cast the ballot.
16
Affirmed.
1
This Act, passed in 1957, provides in § 163—28 as follows:
'Every person presenting himself for registration shall be able to read and write any section of the Constitution of North Carolina in the English language. It shall be the duty of each registrar to administer the provisions of this section.'
'Sections 163—28.1, 163—28.2, and 163—28.3 provide the administrative remedies pursued in this case.
2
Note 1, supra.
3
Section 163—32 provided:
'Every person claiming the benefit of section four of article six of the Constitution of North Carolina, as ratified at the general election on the second day of August, one thousand nine hundred, and who shal b e entitled to register upon the permanent record for registration provided for under said section four, shall prior to December first, one thousand nine bundred and eight, apply or registration to the officer charged with the registration of voters as prescribed by law in each regular election to be held in the State for members of the General Assembly, and such persons shall take and subscribe before such officer an oath in the following form, viz.:
'I am a citizen of the United States and of the State of North Carolina; I am —- years of age. I was, on the first day of January, A.D. one thousand eight hundred and sixty-seven, or prior to said date, entitled to vote under the constitution and laws of the state of _ _ in which I then resided (or, I am a lineal descendant of _ _, who was, on January one, one thousand eight hundred and sixty-seven, or prior to that date, entitled to vote under the constitution and laws of the state of _ _, wherein he then resided).'
4
N.C.Laws 1957, c. 287, pp. 277, 278.
5
Section 163—31.2 provides:
'In counties having one or more municipalities with a population in excess of 10,000 and in which a modern looseleaf and visible registration system has been established as permitted by G.S. 163—43, with a full time registration as authorized by G.S. 163—31, such registration shall be a permanent public record of registration and qualification to vote, and the same shall not thereafter be cancelled and a new registration ordered, either by precinct or countywide, unless such registration has been lost or destroyed by theft, fire or other hazard.'
6
World Illiteracy at Mid-Century, Unesco (1957).
7
Nineteen States, including North Carolina, have some sort of literacy requirement as a prerequisite to eligibility for voting. Five require that the voter be able to read a section of the State or Federal Constitution and write his own name. Arizona Rev.Stat. § 16—101; West's Ann.Cal.Election Code § 220; Del.Code Ann., Tit. 15, § 1701; Me.Rev.Stat., c. 3, § 2; Mass.Gen.L.Ann., c. 51, § 1. Five require that the elector be able to read and write a section of the Federal or State Constitution. Ala.Code, 1940, Tit. 17, § 32; N.H.Rev.Stat.Ann. § 5 5:10 to 55:12; N.C.Gen.Stat. § 163—28; Okla.Stat.Ann., Tit. 26, § 61; S.C.Code § 23—62. Alabama also requires that the voter be of 'good character' and 'embrace the duties and obligations of citizenship' under the Federal and State Constitutions. Ala.Code, Tit. 17, § 32 (1955 Supp.).
Two States require that the voter be able to read and write English. N.Y. Election Law § 150; Ore.Rev.Stat. § 247.131. Wyoming (Wyo.Comp.Stat.Ann. § 31—113) and Connecticut (Conn.Gen.Stat. § 9 12) require that the voter read a constitutional provision in English, while Virginia (Va.Code § 24—68) requires that the voting application be written in the applicant's hand before the registrar and without aid, suggestion or memoranda. Washington (Wash.Rev.Code § 29.07.070) has the requirement that the voter be able to read and speak the English language.
Georgia requires that the voter read intelligibly and write legibly a section of the State or Federal Constitution. If he is physically unable to do so, he may qualify if he can give a reasonable interpretation of a section read to him. An alternative means of qualifying is provided: if one has good character and understands the duties and obligations of citizenship under a republican government, and he can answer correctly 20 of 30 questions listed in the statute (e.g., How does the Constitution of Georgia provide that a county site may be changed?, what is treason against the State of Georgia?, who are the solicitor general and the judge of the State Judicial Circuit in which you live?) he is eligible to vote. Ga.Code Ann. §§ 34—117, 34—120.
In Louisiana one qualifies if he can read and write English or his mother tongue, is of good character, and understands the duties and obligations of citizenship under a republican form of government. If he cannot read and write, he can qualify if he can give a reasonable interpretion of a section of the State or Federal Constitution when read to him, and if he is attached to the principles of the Federal and State Constitutions. LSA—R.S., Tit. 18, § 31.
In Mississippi the applicant must be able to read and write a section of the State Constitution and give a reasonable interpretation of it. He must also demonstrate to the registrar a reasonable understanding of the duties and obligations of citizenship under a constitutional form of government. Miss.Code Ann. § 3213.
| 12
|
360 U.S. 19
79 S.Ct. 944
3 L.Ed.2d 1054
UNITED STATES of America, Appellant,v.ATLANTIC REFINING COMPANY et al.
No. 210.
Argued April 22, 1959.
Decided June 8, 1959.
Mr. Robert A. Bicks, Washington, D.C., for the appellant.
Messrs. David W. Peck, New York City, and David T. Searls, Houston, Tex., for the appellees.
Mr. Justice BLACK delivered the opinion of the Court.
1
The Elkins Act, 32 Stat. 847, as amended, 49 U.S.C. §§ 41, 43, 49 U.S.C.A. §§ 41, 43, and the Interstate Commerce Act, 24 Stat. 380, as amended, 49 U.S.C. § 6(7), 49 U.S.C.A. § 6(7), make it unlawful for a common carrier to grant rebates to individual shippers by any device whatsoever, or to discriminate in favor of any shipper directly or indirectly. In 1941 the United States brought a complaint against appellees and several other major oil companies and their common carrier pipeline subsidiaries claiming that the pipelines were granting illegal transportation rebates to their shipper-owners under the guise of paying dividends. Although the Government charged that no dividends at all could lawfully be granted in the same year in which a shipper-owner sent products over a pipeline, the suit was settled in late 1941 by a consent decree containing a provision which allowed a shipperowner to receive a dividend equal to 'its share of 7 percentum (7%) of the valuation' of the common carrier pipeline's property. Any dividend in excess of this figure, however, was forbidden.1 That provision of the decree is before us for interpretation today.
2
From 1941 to 1957 appellees computed allowable dividends by taking 7% of the valuation of pipeline property and then giving each owner a proportion of this sum equal to the percentage of stock it owned. In 1957, however, the Government brought this suit against appellees claiming that the pipelines were giving, and the shipper-owners were receiving, dividends in excess of those allowed by the decree. The Government did not contest the valuation figures used, but argued, despite the language of the decree, that only a part of 7% of the valuation could actually be made available as dividends to stockholders. The total allowable 'dividends,' it claimed, would have to be shared between stockholders and creditors. The stockholder's (shipperowner's) 'share' of the carrier valuation, so the argument ran, was to be the proportion which stock-investment in the carrier bore to the carrier's total invested capital (including debt owed to third persons). Seven percent stockholder-dividends could only be computed out of this 'share' of the sum, and could then be distributed to each shipper-owner in proportion to its individual stock interest. Only in this way, the Government contended, could the consent decree's aim of preventing disguised rebates be accomplished. For only in this way would dividends be limited to a 'fair' sum: 7% of the current value of what each owner had invested in its subsidiary. The trial court rejected the Government's interpretation, and the United States brought a direct appeal under 32 Stat. 823, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29, 49 U.S.C. § 45, 49 U.S.C.A. § 45.
3
On consideration of the language and the history of this decree we agree with the trial court. If the decree had meant to limit dividends to 7% of the current value of a parent company's actual investment in a subsidiary, as the Government claims, one can hardly think of less appropriate language in which to couch the restriction. Admittedly, by reading the word 'share' to refer to a proportion of total capitalization rather than to the percentage of stock owned by a parent company, the language can be made to support the United States' contention.2 But that is surely a strained construction, and cannot be reconciled with the consisent reading given to the decree, by both the United States and appellees, from the date it was entered until 1957—about 16 years.
4
In 1942, less than a year after the decree was issued, the United States consented to a supplemental order affecting one of the pipeline companies. This order approved a plan of recapitalization for the pipeline which would at least have been highly suspect under the reading the Government today gives the decree. Significantly the supplemental order, which was agreed to by the official who had represented the Government in drafting the original decree, expressly stated that the plan did not violate that judgment.
5
There are also other indications that the Government's interpretation of the decree did not, originally, differ from the one appellees urge today. For example, the 1941 decree required annual reports from each pipeline showing total earnings available to owners or stockholders and actual dividends paid. For 16 years the reports made by the pipelines indicated that the dividends were not computed on the basis of 7% of the current value of the owners' investment but on the total valuation of the carriers' properties. For that 16 years the Government accepted this interpretation without challenge. Yet today it renounces this long-standing acquiescence and claims that the decree imposed limits it had not previously sought to enforce.
6
The Government contends that the interpretation it now offers would more nearly effectuate 'the basic purpose of the Elkins and Interstate Commerce Acts that carriers are to treat all shippers alike.' This may be true. But it does not warrant our substantially changing the terms of a decree to which the parties consented without any adjudication of the issues.3 And we agree with the District Court that accepting the Government's present interpretation would do just that. Cf. Hughes v. United States, 342 U.S. 353, 72 S.Ct. 306, 96 L.Ed. 394.
7
We do not decide the case on any question of laches or estoppel, nor do we comment on any possible modifications of the decree which might appropriately be made under Clause X of the judgment, which continues the jurisdiction of the District Court. We merely hold that where the language of a consent decree in its normal meaning supports an interpretation; where that interpretation has been adhered to over many years by all the parties, including those government officials who drew up and administered the decree from the start;4 and where the trial court concludes that this interpretation is in fact the one the parties intended, we will not reject it simply because another reading might seem more consistent with the Government's reasons for entering into the agreement in the first place. Accordingly, the judgment below is affirmed.
8
Affirmed.
9
Mr. Justice DOUGLAS dissents.
10
Mr. Justice CLARK and Mr. Justice HARLAN took no part in the consideration or decision of this case.
1
This consent decree is discussed in detail in Hearings, Antitrust Subcommittee of the House Committee on the Judiciary, 85th Cong., 1st Sess., Part I.
2
Assuming a carrier has an I.C.C. 'valuation' of $10,000,000, $2,000,000 of which represents stock investments of $1,000,000 by each of two shipper oil companies, and $8,000,000 of which represents debt because of money borrowed by the carrier from others, on the appellee-companies' interpretation of the decree, each of the two shipper-owners would be entitled to 'dividends' of one-half ($1,000,000/$2,000,000) of 7% of $10,000,000 of $350,000. On the Government's new interpretation instead, each shipper-owner's 'share' would be one-tenth ($1,000,000/$10,000,000) of 7% of $10,000,000 or $70,000, this being 7% of each one's actual investment of $1,000,000 in the company.
3
The consent decree reads: '(A)ll parties hereto (have) severally consented to the entry of this final judgment herein without trial or adjudication of any issue of fact or law herein and without admission by any party in respect of any such issue and in final settlement of all claims herein in issue. * * *'
4
Cf. Fawcus Machine Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 145, 75 L.Ed. 397, 'contemporaneous construction by those charged with the administration of the act * * * are * * * entitled to respectful consder ation, and will not be overruled, except for weighty reasons.'
| 78
|
360 U.S. 185
79 S.Ct. 1060
3 L.Ed.2d 1163
COUNTY OF ALLEGHENY, Petitioner,v.FRANK MASHUDA COMPANY, a Partnership, Frank Mashuda, Stanley Mashuda, et al.
No. 347.
Argued April 2, 1959.
Decided June 8, 1959.
Rehearing Denied Oct. 12, 1959.
See 80 S.Ct. 41.
[Syllabus from pages 185-186 intentionally omitted]
Mr. Philip Baskin, Pittsburgh, Pa., for petitioner.
Mr. Harold R. Schmidt, Pittsburgh, Pa., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case presents the question whether a District Court may abstain from exercising its properly invoked diversity jurisdiction in a state eminent domain case in which the exercise of that jurisdiction would not entail the possibility of a premature and perhaps unnecessary decision of a serious federal constitutional question, would not create the hazard of unsettling some delicate balance in the area of federal-state relationships, and would not even require the District Court to guess at the resolution of uncertain and difficult issues of state law. We hold that in such circumstances a District Court cannot refuse to discharge the responsibility, imposed by Congress under 28 U.S.C. §§ 1332 and 1441, 28 U.S.C.A. §§ 1332, 1441 to render prompt justice in cases where its diversity jurisdiction has been properly invoked.
2
The Board of County Commissioners of Allegheny County, Pennsylvania, invoked the applicable eminent domain statutes of the State to appropriate certain property of respondents, citizens of Wisconsin, for the alleged purpose of improving and enlarging the Greater Pittsburgh Airport. The Board adopted the required resolution of taking, and thereafter petitioned the Court of Common Pleas of Allegheny County for appointment of a Board of Viewers to assess damages for the taking. A Board of Viewers was convened and awarded the respondents $52,644 in compensation for their property. Both parties appealed this award to the Common Pleas Court pursuant to the state procedure, and that proceeding is now pending. Subsequent to the time when the County obtained possession respondents learned that their property had been leased to Martin W. Wise, Inc., allegedly for its private business use. The applicable Pennsylvania substantive law is clear: 'It is settled law in Pennsylvania that private property cannot be taken for a private use under the power of eminent domain.' Philadelphia Clay Co. v. York Clay Co., 241 Pa. 305, 308, 88 A. 487; see also Winger v. Aires, 371 Pa. 242, 89 A.2d 521; Lance's Appeals, 55 Pa. 16.
3
On the basis of this settled law respondents brought suit in the United States District Court for the Western District of Pennsylvania, alleging that 'at the time of the taking the only definite plan and purpose of the County with regard to said land was that the same would be leased to defendant Martin W. Wise, Inc., for the benefit of the said lessee and for no public use,' and seeking a judgment of ouster against the County and Martin W. Wise, Inc., damages, and, in the alternative, an injunction restraining the County from proceeding further in the pending state court damage proceeding.1 The District Court, although recognizing that its diversity jurisdiction had been properly invoked, dismissed the suit on the ground that it 'should not interfere with the administration of the affairs of a political subdivision acting under color of State law in a condemnation proceeding.' 154 F.Supp. 628, 629. The Court of Appeals reversed, holding that a challenge to the validity of a taking such as respondents make in this case may, and perhaps must, be brought in an independent suit different from the Board of Viewers proceeding to assess damages, and that such an independent suit based on diversity of citizenship could therefore be maintained in the District Court. 256 F.2d 241. We granted certiorari because of the important question presented as to whether the District Court had discretion to abstain from the exercise of jurisdiction in the circumstances of this case. 358 U.S. 872, 79 S.Ct. 113, 3 L.Ed.2d 103.
4
The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisditio n, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest. Since no exceptional circumstances justifying abstention appear in this case we think that the Court of Appeals was correct in holding that the District Court should have adjudicated the respondents' claim.
5
This Court has sanctioned a federal court's postponement of the exercise of its jurisdiction in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law. See, e.g., City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562; Government and Civic Employees Organizing Committee, C.I.O. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894; Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; Shipman v. DuPre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741; American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101; City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355; Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. But there are no federal constitutional questions raised in this case.
6
This Court has also upheld an abstention on grounds of comity with the States when the exercise of jurisdiction by the federal court would disrupt a state administrative process, Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; Commonwealth of Pennsylvania v. Williams, 294 U.S. 176, 55 S.Ct. 380, 79 L.Ed. 841, interfere with the collection of state taxes, Toomer v. Witsell, 334 U.S. 385, 392, 68 S.Ct. 1156, 1160, 92 L.Ed. 1460; Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407, or otherwise create needless friction by unnecessarily enjoining state officials from executing domestic policies, Alabama Public Service Commission v. Southern R. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002; Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610. But adjudication of the issues in this case by the District Court would present no hazard of disrupting federal-state relations. The respondents did not ask the District Court to apply paramount federal law to prohibit state officials from carrying out state domestic policies, nor do they seek the obvious irritant to state-federal relations of an injunction against state officials. The only question for decision is the purely factual question whether the County expropriated the respondents' land for private rather than for public use. The District Court would simply be acting as would a court of the State in applying to the facts of this case the settled state policy that a County may not take a private citizen's land under the State's power of eminent domain except for public use.
7
It is true that a decision by the District Court returning the land to respondents on the ground that the taking was invalid would interfere with the proceeding to assess damages now pending in the state court in the sense that the damage proceeding would be mooted since the County would no longer have the land. But this interference, if properly called interference at all, cannot justify abstention since exactly the same suit to contest the validity of the taking could be brought in a state court different from the one in which the damage proceeding is now pending. It is prfe ctly clear under Pennsylvania law that the respondents could have challenged the validity of the taking, on the ground that it was not for public purposes, in a suit brought in a Court of Common Pleas independent of the damage proceedings pending on appeal from the Board of Viewers. The Court of Appeals' opinion instructs us as to the state procedure which would have applied if respondents had chosen the state forum: 'These (Pennsylvania) authorities establish the propriety, if not the necessity, of testing the validity of a condemnation in a proceeding in the Pennsylvania courts independent of that in which compensation is awarded.' 256 F.2d at page 243. Again the Court of Appeals stated: 'the question involved before the federal court need not, and perhaps cannot, be raised in the pending state action * * *.' Ibid. We, of course, usually accept state law as found by the Court of Appeals, see Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480; The Tungus v. Skovgaard, 358 U.S. 588, 596, 79 S.Ct. 503, 508, 3 L.Ed.2d 524, and we have no hesitancy in doing so here where there is no indication that its conclusion as to the state law is not correct.2 The issues of validity and damage are triable separately not because federal jurisdiction has been invoked, but because they are triable separately under the Pennsylvania law. Respondents, it bears repetition, could have brought this very suit in a state court different from the one in which the damage proceeding is pending and an adjudication of that validity suit by the state court would have the same effect on the pending damage proceeding as will the federal court adjudication. Instead of bringing such a suit in the state court, respondents exercised their right under 28 U.S.C. § 1332, 28 U.S.C.A. § 1332 to institute the equivalent suit in the District Court based on diversity of citizenship. Certainly considerations of comity are satisfied if the District Court acts toward the pending state damage proceeding in the same manner as would a state court.
8
It is suggested, however, that abstention is justified on grounds of avoiding the hazard of friction in federal-state relations any time a District Court is called on to adjudicate a case involving the State's power of eminent domain, even though, as in this case, the District Court would simply be applying state law in the same manner as would a state court. But the fact that a case concerns a State's power of eminent domain no more justifies abstention than the fact that it involves any other issue related to sovereignty. Surely eminent domain is no more mystically involved with 'sovereign prerogative' than a State's power to regulate fishing in its waters, Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460, its power to regulate intrastate trucking rates, Public Utilities Commission of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470, a city's power to issue certain bonds without a referendum, Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, its power to license motor vehicles, City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174, and a host of other governmental activities carried on by the States and their subdivisions which have been brought into question in the Federal District Courts despite suggestions that those courts should have stayed their hand pending prior state court determination of state law.
9
Furthermore, the federal courts have been adjudicating cases involving issues of state eminent domain law for many years, without any suggestion tha th ere was entailed a hazard of friction in federal-state relations. A host of cases, many in this Court, have approved the decision by a federal court of precisely the same kind of state eminent domain question which the District Court was asked to decide in this case. This Court approved such a decision as early as 1878,3 in Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206. There the petitioner, a private corporation authorized to utilize the State's power of eminent domain, moved in a state court to condemn respondent's land. Both parties appealed from an award by Commissioners, as provided by the relevant state statute, to a state court for a trial de novo. At this point, respondent removed the case to a federal court on the basis of diversity of citizenship. This Court, while recognizing that eminent domain is 'an exercise by the State of its sovereign right * * * and with its exercise the United States * * * has no right to interfere * * *,' held that the removal was proper and that the federal court correctly adjudicated the issues involved. The Court concluded: 'But notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance. If that inquiry take the form of a proceeding before the courts between parties, * * * there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from the sovereignty of the State.' 98 U.S., at page 406. This rationale was subsequently applied by this Court to uphold adjudication of state eminent domain proceedings involving suits between diverse parties in the federal courts even though the procedures available would not be the same as those provided by the state practice, Searl v. School District No. 2, 124 U.S. 197, 8 S.Ct. 460, 31 L.Ed. 415, and even though the case involved the power of the condemning authority to take the property, Pacific Railroad Removal Cases, 115 U.S. 1, 17—23, 5 S.Ct. 1113, 1121—1124, 29 L.Ed. 319.
10
It is now settled practice for Federal District Courts to decide state condemnation proceedings in proper cases despite challenges to the power of the condemning authority to take the property. his Court has approved of the practice many times. East Tennessee, Va. & Ga. R. Co. v. Southern Telegraph Co., 112 U.S. 306, 5 S.Ct. 168, 28 L.Ed. 746; Clinton v. Missouri P.R. Co., 122 U.S. 469, 7 S.Ct. 1268, 30 L.Ed. 1214; Upshur County v. Rich, 135 U.S. 467, 475—477, 10 S.Ct. 651, 653—654, 34 L.Ed. 196 (dictum); Martin's Adm'r v. Baltimore & Ohio R. Co., 151 U.S. 673, 683, 14 S.Ct. 533, 537, 38 L.Ed. 311 (dictum); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 S.Ct. 251, 49 L.Ed. 462; Mason City and Fort Dodge R. Co. v. Boynton, 204 U.S. 570, 27 S.Ct. 321, 51 L.Ed. 629; Commissioners of Road Imp. Dist. No. 2 of Lafayette County, Ark. v. St. Louis Southwestern R. Co., 257 U.S. 547, 42 S.Ct. 250, 66 L.Ed. 364 (dictum); City of Cincinnati v. Vester, 281 U.S. 439, 50 S.Ct. 360, 74 L.Ed. 950. Cf. Risty v. Chicago, R.I. & P.R. Co., 270 U.S. 378, 46 S.Ct. 236, 70 L.Ed. 641. Trial of state eminent domain cases has become a common practice in the federal courts.4 Indeed, Rule 71A of the Federal Rules of Civil Procedure, 28 U.S.C.A., adopted by the Court in 1951, provides a detailed procedure for use in eminent domain cases in the Federal District Courts and specifically provides, in subsection (k), 'The practice as herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, provided that if the state law makes provision for trial of any issue by jury, or for trial of the issue of compensation by jury or commission or both, that provision shall be followed.' This Rule makes perfectly clear, as do the Notes of the Advisory Committee on Rules pertaining to it,5 that this Court, when it adopted the Rule, intended that state eminent domain cases, including those which raised questions of authority to take land, would be tried in the Federal District Courts if jurisdiction was properly invoked. This was confirmed by this Court's opinion in Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 74 S.Ct. 290, 98 L.Ed. 317. Although holding that the respondent could not remove a state condemnation case to the Federal District Court on diversity grounds because he was the plaintiff in the state proceeding, the Court clearly recognized that the defendant in such a proceeding could remove in accordance with § 1441 and obtain a federal adjudication of the issues involved.
11
There is no suggestion that the state eminent domain proceedings tried in the federal courts, both before and after promulgation of the Rule 71A procedures, have resulted in misapplication of state law, inconvenience, or friction with the States. Rule 71A was adopted only after a thorough investigation of eminent dmai n practice in the federal courts,6 and its provision for trying state eminent domain cases in the District Courts necessarily reflects a conclusion that this practice is unobjectionable.
12
Aside from the complete absence of any possibility that a District Court adjudication in this case would necessitate decision of a federal constitutional issue or conflict with state policy, the state law that the District Court was asked to apply is clear and certain. All that was necessary for the District Court to dispose of this case was to determine whether, as a matter of fact, the respondents' property was taken for the private use of Martin W. Wise, Inc. The propriety of a federal adjudication in this case follows a fortiori from the established principle that Federal District Courts should apply settled state law without abstaining from the exercise of jurisdiction even though this course would require decision of difficult federal constitutional questions. City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed.2d 1174; Public Utilities Commission of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470; Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460.
13
The undesirability of a refusal to exercise jurisdiction in the absence of exceptional circumstances which clearly justify an abstention is demonstrated by the facts of this case. Respondents have consumed considerable time and expense in pursuing their claim that their property has been unlawfully taken. To order them out of the federal court would accomplish nothing except to require still another lawsuit, with added delay and expense for all parties. This would be a particular hardship for the respondents, who, besides incurring the added expense, would also suffer a further prolonged unlawful denial of the possession of their property if ultimately they prevail against the County and its lessee. It exacts a severe penalty from citizens for their attempt to exercise rights of access to the federal courts granted them by Congress to deny them 'that promptness of decision which in all judicial actions is one of the elements of justice.' Forsyth v. City of Hammond, 166 U.S. 506, 513, 17 S.Ct. 665, 668, 41 L.Ed. 1095.
14
Two other contentions raised by the County can be disposed of quickly. The County argues that the Board of Viewers has established jurisdiction over the land in question and thus the rule applies that when one court has assumed jurisdiction over a res, no other court will undertake to enter a judgment which might be incompatible with the disposition ultimately to be made by the first court. The short answer to this contention is that the Board of Viewers under Pennsylvania law does not have in rem jurisdiction over property. This is apparent from the fact that an independent proceeding lies to question the validity of the taking of property which is the subject of a Board of Viewers' proceeding. The 'damage' proceeding is simply an in personam suit to determine what the State must pay for property it appropriates; it does not require or contemplate control of the res by the Board of Viewers.
15
The County also urges that a decision by the District Court holding the taking to be invalid would be barred by 28 U.S.C. § 2283, 28 U.S.C.A. § 2283. That section provides:
16
'A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.'
17
The County's theory is that a holding that the taking was invalid and an order reconveying the land to respondents would be res judicata on the parties in the Board of Viewers' proceedings. Since the County would no longer have the land, that proceeding to determie t he compensation due for the taking of the land would be mooted. But it has been firmly established under the language of s 2283, which has, in substance, been in force since first enacted in § 5 of the Act of March 2, 1793,7 that a federal suit is not barred merely because a holding in the case might be res judicata on the same parties litigating the same issue in a state court and thereby moot the state proceeding. Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, settled the governing principle. In that case diversity jurisdiction had been invoked to adjudicate an alleged breach of contract. The defendant in the federal court proceeding had initiated a suit in a state court to adjudicate the same issue. The Court of Appeals ruled that the Federal District Court should have issued a requested injunction to stay the state court proceedings. This Court held that a statute similar to present § 2283 barred the injunction, but that the District Court could adjudicate the breach of contract issue even though its holding would be decisive of the state case. The Court stated that 'the rule * * * has become generally established that where the action first brought is in personam and seeks only a personal judgment, another action for the same cause in another jurisdiction is not precluded.' 260 U.S. at page 230, 43 S.Ct. at page 81. Congress in enacting § 2283 expressed no intention to modify this firmly established principle. Thus there is no reason to expand the plain wording of § 2283 which bars only injunctions designed to stay state court proceedings. The respondents' suit in the District Court was for a judgment of ouster. They abandoned the claim for an injunction against the state court and against the County. It follows that § 2283 would not bar the relief requested in the District Court.
18
Affirmed.
19
Mr. Justice CLARK, with whom Mr. Justice BLACK, Mr. Justice FRANKFURTER, and Mr. Justice HARLAN join, dissenting.
20
The Court says that under the peculiar facts of this case the trial judge has abused his discretion in abstaining from trying the issue involved here, which is presently pending in a previously filed state case between the same parties. I see nothing in the facts that reveals any clear abuse of discretion. In fact, the disruption of the State's processes by the refusal of the Court in the circumstances of this case to permit the application of modern businesslike procedures in the administration of the federal diversity jurisdiction requires my dissent.
21
Allegheny County, a subdivision of the State of Pennsylvania, took action under its state law to acquire property owned by respondents which was allegedly necessary for the enlargement of its greater Pittsburgh Airport. The respondents made no effort to remove that action to the federal court. If that had been done, the entire case would have been subject to trial in the federal court. Instead, however, the respondents appeared in the state case and contested the issue of damages for the taking, but raised no objection whatever to its validity. Both parties appealed from anaward of $52,644 in damages and demanded a trial de novo in the State's Court of Common Pleas. The County thereupon entered upon the property and began its improvement. A year later respondents filed this suit in the federal court attacking the validity of the County's taking in the state suit.1 The Court requires the County to litigate that sole issue in the federal court while the state court holds in abeyance the original case involving the taking as well as the damages therefor.
22
Thus the state suit is split; the validity of the taking being involved in the federal court as well as the state proceeding, while the amount of damages remains for the state court alone. Admittedly the federal court cannot obtain jurisdiction over the latter. As a result, the County now has two lawsuits on its hands, one involving half of its state case, will be tried in the federal court, while the remainder pends in the state court. If it finally prevails in the federal court, after two or three more years of delay incident to trial and appeal, still it must go back to its state case and try the issue of damages. If the County loses in the federal court, it must nevertheless go back to the state court and start all over again with a new action or an amendment of the old one. This is true because the plans, as shown in the record, indicate clearly that the County will be obliged to take respondents' property because it is situated adjacent to the old entrance to the airport and would be necessary for the proposed enlargement. The latter course would inevitably lead to greater damages, as well as additional years of delay, all of which would be occasioned by the action today.
23
The Court describes this needless merry-go-round of technical procedures as preventing 'added expense (and) * * * further prolonged unlawful denial of the possession of their (respondents') property * * *.' Obviously just the opposite is true. The respondents, by not removing the case to the federal court, but rather by waiting a year before filing the present suit, have now delayed the County for over three years,2 and bid fair to extend that period for at least two more under the ruling of this Court. On the other hand, if the Court required respondents to proceed in the state suit, all of the issues between the parties would be settled in the one suit, even if respondents persisted—as the Court holds is their right—in filing a separate suit in the state court over the validity of the taking. That suit could easily be consolidated with the original case, and the validity of the taking as well as the damages therefor could be settled at one trial. This, of course, cannot be done when one of the cases is in the federal court and the other in the state. This points up the fallacy of the Court's conclusion that 'considerations of comity are satisfied if the (Federal) District Court acts toward the pending state damage proceeding in the same manner as would a state court.' It is, indeed, a poor way to administer justice, especially where a subdivision of the State is involved.
24
In short, I say that under the peculiar facts of this case the 'exceptional circumstances' of which the majority speaks are present. An 'order to the parties to repair to the state court would clearly serve an important countervailing interest,' namely, the orderly and businesslike administration of justice, as well as the comity due Pennsylvania's courts.
25
As to the latter consideration, the Court bottoms its decision to make the County split its case between the two jurisdictions on the proposition that respondents 'abandoned the claim for an injunction against the state court and against the County.' But the reality of the situation is that the state court, which has already abstained for three years at the urging of respondents may now decide that it should proceed to hear and determine both the issues of validity and damages which are and have been pending in the state case. If it did so, there would result an unseemly race between the forums and a head-on collision between the state and federal courts. The latter would be moving by way of ejectment and the former by way of condemnation over the same property and involving the same parties. Still, since, as the majority says, 'the plain wording of § 2283 * * * bars * * * injunctions,' this unseemly spectacle could not be stopped and would result in 'needless friction with state policies.' Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed. 971. In view of these circumstances, peculiar to this case, there is nothing here to show that the trial court clearly abused its discretion and I would therefore reverse the Court of Appeals and reinstate the judgment of the trial judge.
1
The prayer for injunctive relief was expressly abandoned in oral argument before this Court.
2
The Court of Appeals' conclusion as to the Pennsylvania law is amply supported by Pennsylvania authorities. E.g., Spann v. Joint Boards of School Directors, 381 Pa. 338, 113 A.2d 281; Pioneer Coal Co. v. Cherrytree & D.R. Co., 272 Pa. 43, 116 A. 45; Philadelphia Clay Co. v. York Clay Co., 241 Pa. 305, 88 A. 487. See also 14 Standard Pa.Practice, c. 71, §§ 230, 231, 233, 235.
3
The basis for federal court adjudication of state eminent domain proceedings was established even before this. In Suydam v. Broadnax, 14 Pet. 67, 10 L.Ed. 357; President, Directors & Co. of Union Bank of Tennessee v. Jolly's Adm'rs, 18 How. 503, 15 L.Ed. 472; and Hyde v. Stone, 20 How. 170, 15 L.Ed. 874, this Court held that the federal courts would decide diversity cases even though they involved issues, such as the validity of a will, which were peculiarly within the State's competence to regulate. The principles were clearly settled in Gaines v. Fuentes, 92 U.S. 710, 23 L.Ed. 524. That case concerned a suit 'to annul (a will) * * * as a muniment of title, and to limit the operation of the decree admitting it to probate.' 92 U.S. at page 20. The case, originally brought in a state court, was removed to a federal court on the basis of diversity of citizenship. This Court upheld the removal on the ground that, although the State had authority to establish the substantive law relevant to the validity of wills and the procedure by which wills were to be contested, if, under the scheme developed by the State, a controversy arose between citizens of different States, the federal courts would adjudicate that controversy. These principles were further articulated in Chicot County v. Sherwood, 148 U.S. 529, 13 S.Ct. 695, 37 L.Ed. 546. This Court has often upheld federal court determinations of state law concerning wills, e.g., Ellis v. Davis, 109 U.S. 485, 3 S.Ct. 327, 27 L.Ed. 1006; Hess v. Reynolds, 113 U.S. 73, 5 S.Ct. 377, 28 L.Ed. 927, even when the State itself claimed the decedent's property by escheat, McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762.
4
E.g., Wabash R. Co. v. Duncan, 8 Cir., 170 F.2d 38; Franzen v. Chicago, M. & St. P.R. Co., 7 Cir., 278 F. 370; In re Bensel, 2 Cir., 206 F. 369; Broadmoor Land Co. v. Curr, 10 Cir., 142 F. 421; South Dakota Cent. R. Co. v. Chicago, M. & St. P.R. Co., 8 Cir., 141 F. 578; Chicago, R.I. & P.R. Co. v. 10 Parcels of Real Estate Located in Madison County, Iowa, D.C., 159 F.Supp. 140; Williams Live Stock Co. v. Delaware, L. & W.R. Co., D.C., 285 F. 795; Deepwater R. Co. v. Western Pocahontas Coal & Lumber Co., C.C., 152 F. 824; Union Terminal R. Co. v. Chicago, B. & Q.R. Co., C.C., 119 F. 209; Kirby v. Chicago & N.W.R. Co., C.C., 106 F. 551; Sugar Creek, P.B. & P.C.R. Co. v. McKell, C.C., 75 F. 34; Kansas City & T.R. Co. v. Interstate Lumber Co., C.C., 37 F. 3; Mineral Range R. Co. v. Detroit & Lake Superior Copper Co., C.C., 25 F. 515; City of Chicago v. Hutchinson, C.C., 15 F. 129. Cf. Kaw Valley Drainage District of Wyandotte County, Kan. v. Metropolitan Water Co., 10 Cir., 186 F. 315; Fishblatt v. Atlantic City, C.C., 174 F. 196; Adams v. City of Woburn, C.C., 174 F. 192; Kansas City v. Hennegan, C.C., 152 F. 249. See also 7 Moore's Federal Practice (2d ed.) § 71A.11; 6 Nichols on Eminent Domain (3d ed.) § 27.8(2).
5
Note to Subdivision (k), Notes to Rule 71A of Advisory Committee on Rules, printed at 28 U.S.C.A. Rule 71A.
6
See Notes to Rule 71A of Advisory Committee on Rules, note 8, supra; see also 7 Moore's Federal Practice (2d ed.) § 71A. 120; 64 Yale L.J. 600.
7
The language of 28 U.S.C. § 2283, 28 U.S.C.A. § 2283 has been retained substantially unchanged from its original form in § 5 of the Act of March 2, 1793, 1 Stat. 334—335. For a discussion of its origin and history, see Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100.
1
The grounds are obviously frivolous. Respondents urge that the County's leasing to itscon tractor of a strip 75 150 out of the 8 acres condemned amounts to an abandonment of its taking for 'public use.' The record shows that the lease was made in order to permit the contractor to use this small strip for storage and concentration of supplies of the contractor in the performance of his duties under the contract with the County for the improvement and enlargement of the Greater Pittsburgh Airport.
2
The record does not reveal whether the County has proceeded with its improvements or not. If it has not, the respondents' action in filing this suit, and which the Court approves, has delayed a muchneeded improvement for over three years. If it has proceeded to complete the improvement, the County has still been delayed in obtaining final title to the property for all these years, all because of this frivolous action of the respondents.
| 89
|
360 U.S. 230
79 S.Ct. 980
3 L.Ed.2d 1193
Henry J. MILLS and Osmond J. Litolff, Petitioners,v.STATE OF LOUISIANA. August J. MILLS, Sr., Petitioner, v. STATE OF LOUISIANA.
Nos. 74, 75.
Argued April 22, 1959.
Decided June 8, 1959.
Rehearing Denied Oct. 12, 1959.
See 80 S.Ct. 40.
Eugene Stanley, New Orleans, La., for petitioners Henry J. Mills and another.
Milo B. Williams, New Orleans, La., for petitioner August J. Mills.
M. E. Culligan and J. David McNeill, New Orleans, La., for State of Louisiana.
PER CURIAM.
1
The judgments are affirmed. Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393.
2
Mr. Justice BRENNAN joins the Court's opinion, reiterating his belief, expressed in Knapp v. Schweitzer, 357 U.S. 371, 381, 78 S.Ct. 1302, 1308, 2 L.Ed.2d 1393, that reconsideration of the holding in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, is inappropriate in this case. He aso reiterates his belief that nothing in this decision forecloses reconsideration of the Feldman holding in a case presenting the issue presented by Feldman.
3
Mr. Chief Justice WARREN, with whom Mr. Justice BLACK and Mr. Justice DOUGLAS concur, dissenting.
4
In Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393, the Court left open the question whether in the case of collaboration between state and federal officers a witness could successfully assert the federal privilege against self-incrimination in a state proceeding. In my view, that question should be answered here, for the records in these cases show such collaboration. Yet the majority of the Court ignores the question in affirming without opinion. Therefore, although I agree with and join the dissenting opinion of Mr. Justice DOUGLAS, I add these additional views.
5
The petitioners in these cases were held in contempt for failure to answer questions before a state grand jury investigating the bribery of police officials of New Orleans by persons conducting lottery operations within that city. From the nature of the questions asked petitioners, it is evident that they were suspected of engaging in lotteries and giving bribes. The District Attorney of the Parish of Orleans, under authority granted by state statute, offered petitioners full immunity from state prosecution for crimes, other than perjury, uncovered by the questioning. Nevertheless, petitioners refused to answer questions relating to bribery and their connections with lottery operations, pleading in justification of this refusal the federal privilege against self-incrimination.
6
The contempt proceedings and the state court reviews were had upon an agreed statement of facts. These stipulations recited that during the pendency of the state grand jury investigation 'the Intelligence Division, Internal Revenue Service of the United States, the United States Attorney for the Eastern District of Louisiana and the United States Grand Jury (had) been for several months and (were then) engaged in investigating some of the members of the New Orleans Police Department for income tax evasion, a felony under the laws of the United States.' In addition, the parties agreed that these investigations were well publicized and that, at the time of the instant proceedings, a number of federal income tax indictments had been returned against police officers. Further, it was established that each of the petitioners had been requested to execute, and had executed, waivers of the statute of limitations on his federal tax liabilities for most of the years in question. Lastly, the parties stipulated:
7
'That there has existed, and now exists (at the time of the State proceeding), cooperation and collaboration between the District Attorney for the Parish of Orleans and the United States Attorney for the Eastern District of Louisiana and the Internal Revenue Service of the United States of America and its investigators, as well as with the Police Bureau of Investigation of the City of New Orleans in reference to members of the New Orleans Police Department regarding public bribery and income tax evasion and that the Honorable Leon D. Hubert, Jr., District Attorney for the Parish of Orleans, has held conferences with the United States Attorney for the Eastern District of Louisiana regarding public bribery on the part of certain members of the New Orleans Police Department and income tax evasion, felonies under the law of the United States of America and the State of Louisiana.'
8
In Knapp v. Schweitzer, supra, which decided that the federal privilege against self-incrimination may not ordinarily be raised in a state proceeding, the Court said:
9
'Of course the Federal Government may not take advantage of this recognition of the States' autonomy in order to evade the Bill of Rights. If a federal officer should be a party to the compulsion of testimony by state agencies, the protection of the Fifth Amendment would com in to play. Such testimony is barred in a federal prosecution, see Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520. Whether, in a case of such collaboration between state and federal officers, the defendant could successfully assert his privilege in the state proceeding, we need not now decide, for the record before us is barren of evidence that the State was used as an instrument of federal prosecution or investigation. Petitioner's assertion that a federal prosecuting attorney announced his intention of cooperating with state officials in the prosecution of cases in a general field of criminal law presents a situation devoid of legal significance as a joint state and federal endeavor.' 357 U.S. at page 380, 78 S.Ct. at page 1308.
10
I dissented from that decision on the ground that the state court had decided that the federal privilege did not obtain on the seemingly false premise that information adduced in the state proceeding could not be used against the petitioner in a subsequent federal prosecution. But even accepting, for the purpose of argument, the validity of the Knapp result, I am of the view that the question which was not answered there should be considered here and resolved in favor of the petitioners.
11
The Knapp decision when taken in conjunction with Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, means that a person can be convicted of a federal crime on the basis of testimony which he is compelled to give in a state investigation. This opens vast opportunities for calculated efforts by state and federal officials working together to force a disclosure in a state proceeding and to convict on the basis of that disclosure in a federal proceeding. Such opportunities will not go unused unless the courts are vigilant to protect the rights of persons who find themselves faced with such coaction of federal and state prosecuting agencies. Such vigilance becomes increasingly required as the Federal Government, through prosecuions for tax evasion, moves into the criminal areas regulated by the States.*
12
In the instant case the record shows clearly that state and federal authorities had launched a coordinated investigation into the suspected bribery by gamblers of New Orleans' police officers. The State was interested primarily in the enforcement of its public bribery statutes. The Federal Government sought to apprehend tax evaders. The state and federal agencies involved in this twofold investigation collaborated to obtain desired ends. Policemen suspected of taking bribes and gamblers suspected of giving them were called for questioning. Both were in jeopardy of prosecution: the police under state statute for taking bribes and under federal statute for income tax evasion; the gamblers under state statute for giving bribes and under federal statutes for income tax evasion and for failure to pay the special stamp and excise taxes levied on gambling operations. Doubt which might have existed conerning federal interest in petitioners' possible tax evasions was removed when petitioners were induced to waive the state of limitations for relevant tax years.
13
The opinion in the Knapp case states that the protection of the Fifth Amendment comes into play if a federal officer is a party to the compulsion of testimony by a state agency. 357 U.S. 371, 380, 78 S.Ct. 1302, 1308, 2 L.Ed.2d 1393. The threshold question then is whether the requisite relationship existed between the State District Attorney and the United States Attorney and Internal eve nue agents. The stipulation, when read in the light of the known facts, adequately shows that federal officers participated in the state action which sought to compel the testimony of petitioners. That stipulation, signed by the state prosecutor, admits of 'cooperation,' 'collaboration,' and 'conferences.' These terms viewed against the background of contemporaneous investigations by a federal grand jury, a state grand jury, the Police Bureau of Investigation of the City of New Orleans, and the Intelligence Division of the Internal Revenue Service, all pointed at a group of persons which included petitioners, require the conclusion that the State was used as an instrument of federal investigation.
14
I come then to the question left open in the Knapp case: whether, where, as here, a State is used as an instrument of federal investigation, witnesses can successfully assert their federal privilege against self-incrimination in state proceedings. Knapp v. Schweitzer, supra, suggests that where testimony is compelled in such circumstances, the testimony would be inadmissible in a subsequent federal prosecution. See Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520. See also Feldman v. United States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408. But this is only partial protection. To compel testimony in a federal investigation, a witness must be assured at the outset complete immunity from any prosecution which might result from his compelled disclosures. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170; Ullmann v. United States, 350 U.S. 422, 430, 76 S.Ct. 497, 502, 100 L.Ed. 511. There is no indication that such protection obtains here—that petitioners are protected from federal prosecutions which might result from their testimony even though that testimony is not admissible in the subsequent proceeding. Byars v. United Staes, supra, merely prohibits the introduction of illegally seized evidence and Knapp v. Schweitzer, supra, and Feldman v. United States, supra, speak merely of the non-use of the compelled testimony in a subsequent federal prosecution. None of these cases deals with the fruits of the compelled testimony, and defendants, like petitioners, who are forced to testify under circumstances similar to those here present, are left without the protection against self-incrimination intended by the Constitution. These cases, in my opinion, should be extended to prohibit any prosecution resulting from disclosures compelled under circumstances similar to those which exist here. But this is not an established principle and a witness is entitled to more than hopes of immunity when federal agencies seek to compel incriminatory testimony. Therefore, in my view, petitioners properly invoked their federal privilege against self-incrimination in the present proceeding and the contempts should be discharged. Cf. Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233; Bartkus v. People of State of Illinois, 359 U.S. 121, 164, 79 S.Ct. 676, 703, 3 L.Ed.2d 684 (dissenting opinion).
15
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
16
Petitioners in these cases were summoned before a state grand jury in New Orleans and interrogated concerning bribery of public officials and income tax evasion. They were at the time being investigated by the Federal Internal Revenue Service. Accordingly, they objected to the questions, invoking the Fifth Amendment and stating that the answers to the questions would tend to incriminate them. Their objections were overruled and they were held in contempt for refusal to answer. The Supreme Court of Louisiana refused writs of certiorari, mandamus, and prohibition, finding 'no error of law in the ruling complained of.' The cases are here on certiorari. 358 U.S. 810, 79 S.Ct. 22, 3 L.Ed.2d 55.
17
It has been the prevalin g view since Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, that the guaranty of the Fifth Amendment that no person 'shall be compelled in any criminal case to be a witness against himself' is not made applicable to the States through the Fourteenth Amendment. Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 1674, 91 L.Ed. 1903. Under the Twining rule, the Louisiana courts, therefore, need not bow to the Fifth Amendment as a requirement read into state law by the Bill of Rights.
18
That is not, however, the end of our problem. For the question remains whether a state court can override a claim of federal right seasonably raised in the state proceeding, when the failure to recognize the federal right will result in its destruction or nullification.
19
The classical case involves a federal right in the conduct of a business, as in the case of the contractor in Leslie Miller, Inc. v. State of Arkansas, 352 U.S. 187, 77 S.Ct. 257, 1 L.Ed.2d 231, who, having been the successful bidder for federal construction work, could not be subjected to conflicting state licensing requirements. Related cases are in the class of Service Storage & Transfer Co. v. Commonwealth of Virginia, 359 U.S. 171, 79 S.Ct. 714, 3 L.Ed.2d 717, and Castle v. Hayes Freight Lines, 348 U.S. 61, 75 S.Ct. 191, 99 L.Ed. 68, which hold that an interstate motor carrier certificate issued by the Interstate Commerce Commission could not be overridden in state proceedings. Litigants asserting federal rights as the basis of a claim (Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967) or as a defense to a claim under state law (Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129) may do so in state courts which must recognize and protect the federal rights. Chief Justice White stated it as the 'duty resting upon' state and federal courts 'to protect and enforce rights lawfully created, without reference to the particular government from whose exercise of lawful power the right arose.' Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 223, 36 S.Ct. 595, 599, 60 L.Ed. 961. Litigants, resting on a federal right, need not resort to federal courts to protect those rights where those rights are put in jeopardy in state proceedings.
20
There is no more apt illustration of that principle than the present case. The Fifth Amendment to the Constitution reserves a twofold federal guarantee for every citizen. It protects him from being forced to give testimony in any federal proceeding, criminal or civil (Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110; McCarthy v. Arndstein, 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023; 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158), judicial, investigative or administrative (Quinn v. United States, 349 U.S. 155, 161, 75 S.Ct. 668, 672, 99 L.Ed. 964; Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264), which might tend to incriminate him. And it also assures that no incriminating information adduced from a defendant involuntarily by anyone, anywhere, may be admitted into evidence against him in any federal prosecution. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568; Ziang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131. It was to this second principle that the ruling of this Court in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, was unfaithful. As long as that decision is adhered to, the evidence obtained in a state proceeding such as the one in this case can be used in a federal prosecution. It is, therefore, too late to protect the federal right if one waits for action by the federal court. The federal right is lost irretrievably, if it is not saved by the state court. As stated by the Supreme Court of Michigan in People v. Den Uyl, 318 Mich. 645, 651, 29 N.W.2d 284, 287, 2 A.L.R.2d 625:
21
'It seems like a travesty on verity to say that one is not subjected to self-incrimination when compelled to give testimony in a Statejud icial proceeding which testimony may forthwith be used against him in a Federal criminal prosecution.'
22
If the dissent in Feldman v. United States, supra, had prevailed and testimony compelled from a witness in a state proceeding had been barred from use against him when he became a defendant in a federal proceeding, protection of the federal right against self-incrimination could be left to the federal courts. But Feldman, until it is overruled, controls the regimes under which state investigations are made and federal prosecutions conducted. As long as it is on the books the only place a witness, who is being examined in state proceedings about matters that may incriminate him under federal laws, can protect his rights against self-incrimination under the Fifth Amendment is in the state courts.
23
Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393, is contrary to the disposition I would make of the present cases. But it is not a principled decision that addressed itself to the proposition that unless the federal right is protected in the state proceeding it is lost forever. The opinion in that case was concerned with maintaining the vitality of state investigations. Not once did it mention Feldman v. United States, supra, nor address itself to the dilemma created by that decision. Nowhere does it explain how in light of Feldman v. United States the federal right can be protected and the vitality of state investigations also maintained. I have said enough to indicate that both cannot be done by affirming these judgments. As long as Feldman v. United States stands on the books, the state courts should be required to recognize the federal right against self-incrimination—lest it be lost forever.
*
Cf. Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752; Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833; United Satates v. Calamaro, 354 U.S. 351, 77 S.Ct. 1138, 1 L.Ed.2d 1394; Rollinger v. United States, 8 Cir., 208 F.2d 109; Berra v. United States, 8 Cir., 221 F.2d 590; Schira v. Commissioner, 6 Cir., 240 F.2d 672; United States v. Wampler, D.C., 5 F.Supp. 796; United States v. Iozia, D.C., 104 F.Supp. 846.
| 01
|
360 U.S. 167
79 S.Ct. 1025
3 L.Ed.2d 1152
Albertis S. HARRISON, Jr., Attorney General of Virginia, et al., Appellants,v.NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, a Corporation, and NAACP Legal Defense and Educational Fund, Incorporated.
No. 127.
Arged March 23, 24, 1959.
Decided June 8, 1959.
Messrs. J. Segar Gravatt, Blackstone, Va., and David J. Mays, Richmond, Va., for appellants.
Mr. Thurgood Marshall, New York City, for appellees.
Mr. Justice HARLAN delivered the opinion of the Court.
1
In this case a three-judge District Court was convened pursuant to 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, to hear federal constitutional challenges against five Virginia statutes. It declared three invalid under the Fourteenth Amendment, and permanently enjoined the appellants from enforcing them against the appellees; the other two statutes it found vague and ambiguous and accordingly retained jurisdiction pending a construction by the state courts. 159 F.Supp. 503. Only the former disposition was appealed. The appeal raises two questions: First, whether in the circumstances of this case the District Court should have abstained from a constitutional adjudication, retaining the cause while the parties, through appropriate proceedings, afforded the Virginia courts an opportunity to construe the three statutes in light of state and federal constitutional requirements. Second, if such an abstention was not called for, whether the District Court's constitutional holdings were correct. Because of our views upon the first question we do not reach the second.
2
National Association for the Advancement of Colored People (NAACP) and NAACP Legal Defense and Educational Fund, Incorporated (Fund), appellees herein, are organizations engaged in furthering the rights of colored citizens. Both are membership corporations organized under the laws of New York, and have registered under the laws of Virginia as foreign corporations doing business within the State. NAACP's principal relevant activities in Virginia are appearing before legislative bodies and commissions in support of, or opposition to, measures affecting the status of the Negro race within the State, and furnishing assistance to Negroes concerned in litigation involving their constitutional rights. Fund performs functions similar to those of NAACP in the field of litigation, but is precluded by its charter from attempting to influence legislation. The revenues of NAACP are derived both from membership dues and general contributions, those of Fund entirely from contributions.
3
NAACP and Fund brought this action against the Attorney General of Virginia and a number of other Commonwealth officials, appellants herein, for declaratory and injunctive relief with respect to Chapters 31, 32, 33, 35 and 36 of the Acts of the Virginia Assembly, passed in 1956. 4 Va.Code, 1958 Supp., §§ 18 349.9 to 18—349.37; 7 Va.Code, 1958, §§ 54—74, 54—78, 54—79. The complaint, alleging irreparable injury on account of these enactments, sought a declaration that each infringed rights assured under the Fourteenth Amendment and an injunction against its enforcement. Jurisdiction was predicated upon the civil rights statutes, 42 U.S.C. §§ 1981, 1983, 42 U.S.C.A. §§ 1981, 1983, 28 U.S.C. § 1343, 28 U.S.C.A. § 1343, diversity of citizenship, 28 U.S.C. § 1332, 28 U.S.C.A. § 1332, and the presence of a federal question, 28 U.S.C. § 1331, 28 U.S.C.A. § 1331.
4
The Attorney General and his codefendants moved to dismiss the action on the ground, among others, that the District Court should not 'exercise its jurisdiction to enjoin the enforcement of state statutes which have not been authoritatively construed by the state courts.' The District Court, recognizing 'the necessity of maintaining the delicate balance between state and federal courts under the concept of separate sovereigns,' stated that 'the constitutionality of state statutes requiring special competence in the interpretation of local law should not be determined by federal courts in advance of a reasonable opportunity afforded the parties to seek an adjudication by the state court,' but considered that relief should be granted where 'the statute is free from ambiguity and there remains no reasonable interpretation which will render it constitutional * * *.' 159 F.Supp. at pages 522, 523. On this basis, the court, one judge dissenting, held Chapters 31, 32, and 35 unconstitutional, and permanently enjoined their enforcement against NAACP and Fund. Chapters 33 and 36, on the other hand, the court unanimously found vague and ambiguous. It accordingly retained jurisdiction as to those Chapters, without reaching their constitutionality, allowing the complaining parties a reasonable time within which to obtain a state interpretation.
5
The Commonwealth defendants, proceeding under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, appealed to this Court the lower court's disposition of Chapters 31, 32, and 35. We noted probable jurisdiction. 358 U.S. 807, 79 S.Ct. 33, 3 L.Ed.2d 53. NAACP and Fund did not appeal the disposition of Chapters 33 and 36.
6
The three Virginia statutes before us are lengthy, detailed, and sweeping. Chapters 31 and 32 are registration statutes. Chapter 31 deals with the rendering of financial assistance in litigation. It proscribes the public solicitation of funds, and the expenditure of funds from whatever source derived, for the commencement or further prosecution of an 'original proceeding,' by any person, broadly defined to include corporations and other entities, which is neither a party nor possessed of a 'pecuniary right or liability' in such proceeding, unless a detailed annual filing is made with the State Corporation Commission. If such person is a corporation, the filing must include among other things, (1) certified copies of its charter and by-laws; (2) 'a certified list of the names and addresses of the officers, directors, stockholders, members, agents and employees or other persons acting for or in (its) behalf;' (3) a certified statement of the sources of its income, however derived, including the names and addresses of contributors or donors if required by the Commission; (4) a detailed certified statement of the corporation's expenditures for the preceding year, the objects thereof, and whatever other information relative thereto may be required by the Commission; and (5) a certified statement of the 'counties and cities in which it proposes to or does finance or maintain litigation to which it is not a party.' Correspondingly broad disclosures are required of individuals who fall within the statutory proscription.
7
Violation of this Chapter is punishable as a misdemeanor for individuals, and by a fine of not more than $10,000 for corporations, plus a mandatory denial or revocation of authority to do business within the State in the case of a foreign corporation. An individual 'acting as an agent or employee' of a corporation or other entity with respect to activity violative of the Chapter is deemed guilty of a misdemeanor. And directors, officers, and 'those persons responsible for the management or control of the affairs' of a corporation or other entity are made jointly and severally liable for whatever fines might be imposed on it.
8
Chapter 32 deals with activities relating to the passage of racial legislation, with advocacy of 'racial integration or segregation,' and also with the raising and expenditure of funds in connection with racial litigation. Declaring that the 'continued harmonious relations between the races are * * * essential to the welfare, health and safety of the people of Virginia,' the Chapter finds it 'vital to the public interest' that registration be made with the State Corporation Commission by 'persons, firms, partnerships, corporations and associations whose activities are causing or may cause interracial tension and unrest.' Specifically, under § 2 of this Chapter, annual filings are required of
9
'(e)very person, firm, partnership, corporation or association, whether by or through its agents, servants, employees, officers, or voluntary workers or associates, who or which engages as one of its principal functions or activities in the promoting or opposig i n any manner the passage of legislation by the General Assembly in behalf of any race or color, or who or which has as one of its principal functions or activities the advocating of racial integration or segregation or whose activities cause or tend to cause racial conflicts or violence, or who or which is engaged or engages in raising or expending funds for the employment of counsel or payment of costs in connection with litigation in behalf of any race or color, in this State * * *.'
10
The extent of such filing is comparable to that required by Chapter 31. The information so furnished is a matter of public record, to 'be open to the inspection of any citizen at any time during the regular business hours of' the State Corporation Commission.
11
Failure to register subjects individuals to punishment as for a misdemeanor, and corporations to a fine not exceeding $10,000. Like Chapter 31, Chapter 32 also makes 'responsible' persons liable jointly and severally for corporate fines. Further, '(e)ach day's failure to register and file the information required * * * shall constitute a separate offense and he punished as such.' The Chapter is not applicable to persons or organizations which carry on the proscribed activities through matter which may qualify as second-class mail in the United States mails, or by radio or television, nor to persons or organizations acting in connection with any political campaign.
12
Chapter 35 is a 'barratry' statute. Barratry is defined as 'the offense of stirring up litigation.' A 'barrator' is thus a person or organization which 'stirs up litigation.' Stirring up litigation means 'instigating,' which in turn 'means bringing it about that all or part of the expenses of the litigation are paid by the barrator,' or by those, other than the plaintiffs, acting in concert with him, 'unless the instigation is justified.' An instigation is 'justified' when 'the instigator is related by blood or marriage to the plaintiff whom he instigates, or * * * is entitled by law to share with the plaintiff in money or property that is the subject of the litigation or * * * has a direct interest ('personal right or a pecuniary right or liability') in the subject matter of the litigation or occupies a position of trust in relation to the plaintiff; or * * * is acting on behalf of a duly constituted legal aid society approved by the Virginia State Bar which offers advice or assistance in all kinds of legal matters to all members of the public who come to it for advice or assistance and are unable because of poverty to pay legal fees.'
13
Individuals guilty of barratry as defined in the Chapter are punishable as for a misdemeanor and 'shall' have their licenses 'to practice law or any other profession * * * revoked for such period as provided by law.' Corporations are subject to a fine of not more than $10,000 and, if they are foreign, mandatory revocation of their authority to do business within the State. Moreover, a 'person who aids and abets a barrator by giving money or rendering services to or for the use or benefit of the barrator for committing barratry shall be guilty of barratry and punished * * *.' A host of exceptions to which the Chapter is not applicable is provided;1 none of these has thus far been asserted to include, or to be capable of including, appellees.
14
The majority below held Chapters 31 and 322 unconstitutional on similar grounds, centering its treatment of both around § 2 of Chapter 32, the material provisions of which have already been set forth, 79 S.Ct. at page 1028, supra. In essence § 2 was found to infringe rights assured under the Fourteenth Amendment, in that, taken in conjunction with the registration requirements of the statute, (1) the clause relating to the promoting or opposing of racial legislation invaded rights of free speech because it was not restricted to lobbying activities;3 (2) the clause directed at advocacy of racial 'integration or segregation' had the same infirmity because it was not supported by a compelling state interest or some clear and present danger;4 (3) the clause referring to activities causing or tending to cause racial conflicts or violence was too vague and indefinite to satisfy constitutional requirements;5 and (4) the clause aimed at the raising and expending of funds in connection with racial litigation unduly burdened the right of access to the courts, and did not serve an interest which could support a disclosure as broad as the one demanded.6
15
Chapter 35, the 'barratry' statute, was held to offend due process, in that it was found to be aimed not at the legitimate regulation of the practice of law but at preventing NAACP and Fund from continuing 'their legal operations.' In addition, the court held the Chapter to violate equal protection by unjustifiably discriminating between the racial litigation activities of the appellees and the general litigation efforts of 'approved' legal aid societies.
16
These constitutional holdings were made in the context of findings that Chapters 31, 32, and 35, as well as Chapters 33 and 36 not presently before us, were passed by the Virginia Legislature 'to nullify as far as possible the effect of the decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483 (74 S.Ct. 686, 98 L.Ed. 873) * * * as parts of the general plan of massive resistance to the integration of schools of the state under the Supreme Court's decrees.' 159 F.Supp. at pages 511, 515. In the view we take of this case we do not reach appellants' objections to these findings.
17
According every consideration to the opinion of the majority below, we are nevertheless of the view that the District Court should have abstained from deciding the merts of the issues tendered it, so as to afford the Virginia courts a reasonable opportunity to construe the three statutes in question. In other words, we think that the District Court in dealing with Chapters 31, 32, and 35 should have followed the same course that it did with respect to Chapters 33 and 36.
18
This now well-established procedure is aimed at the avoidance of unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system. To minimize the possibility of such interference a 'scrupulous regard for the rightful independence of state governments * * * should at all times actuate the federal courts,' Matthews v. Rodgers, 284 U.S. 521, 525, 52 S.Ct. 217, 219, 76 L.Ed. 447, as their 'contribution * * * in furthering the harmonious relation between state and federal authority * * *.' Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85 L.Ed. 971. In the service of this doctrine, which this Court has applied in many different contexts, no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them. See, e.g., Railroad Commission of Texas v. Pullman Co., supra; City of Chicago v. Fieldcrest Dairies, Inc., 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; Shipman v. DuPre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877; Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; Government & Civic Employees Organizing Committee, C.I.O. v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894. This principle does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise; it serves the policy of comity inherent in the doctrine of abstention; and it spares the federal courts of unnecessary constitutional adjudication. See City of Chicago v. Fieldcrest Dairies, Inc., supra, 316 U.S. at pages 172—173, 62 S.Ct. at page 988.
19
The present case, in our view, is one which calls for the application of this principle, since we are unable to agree that the terms of these three statutes leave no reasonable room for a construction by the Virginia courts which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.
20
It certainly cannot be said that Chapter 35 does not require a construction by the state courts. As appellants asserted here and in the court below, the Chapter might well be read as requiring a 'stirring up' of litigation in the conventional common-law sense, in addition to the 'unjustified' payment of litigation expenses. Were it to be so read, the statute might then not even apply to these appellees since the lower court found the evidence 'uncontradicted that the initial steps which have led to the institution and prosecution of racial suits in Virginia with the assistance of the Association and the Fund have not been taken until the prospective plaintiffs made application to one or the other of the corporations for help.' 159 F.Supp. at page 533. Further the 'personal right' component of 'direct interest' in the statutory definition of 'justified' instigation (see 79 S.Ct. at page 1028, supra) might lend itself to a construction which would embrace nonparty Negro contributors to litigation expense, including NAACP because of the relationship of that organization to its members. Cf. NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488.
21
The possibility of limiting interpretation, characteristic of constitutional adjudication, also cannot be ignored. Government & Civic Employees Organizing Committee C. I.O. v. Windsor, supra. The 'advocacy' clause of Chapter 32, for example, might be construed as reaching only that directed at the incitement of violence. Cf. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356. Similar construction might be employed with respect to the clause in that Chapter relating to the influencing of legislation 'in any manner,' cf. United States v. Harriss, supra; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. And, in connection with these and the membership and contributor list requirements of Chapters 31 and 32, cf. NAACP v. Alabama, supra, we note that Chapter 32 contains a separability clause, and that the Supreme Court of Appeals of Virginia treats legislative acts as separable, where possible, even in the absence of such an express provision. See Woolfolk v. Driver, 186 Va. 174, 41 S.E.2d 463.
22
We do not intimate the slightest view as to what effect any such determinations might have upon the validity of these statutes. All we hold is that these enactments should be exposed to state construction or limiting interpretation before the federal courts are asked to decide upon their constitutionality, so that federal judgment will be based on something that is a complete product of the State, the enactment as phrased by its legislature and as construed by its highest court. The Virginia declaratory judgment procedure, 2 Va.Code, 1950, §§ 8—578 to 8 585, which the appellees are now pursuing with reference to Chapters 33 and 36, also provides an expeditious avenue here. And of course we shall not assume that the Virginia courts will not do their full duty in judging these statutes in light of state and federal constitutional requirements.
23
Because of its findings, amply supported by the evidence, that the existence and threatened enforcement of these statutes worked great and immediate irreparable injury on appellees, the District Court's abstention with respect to Chapters 33 and 36 proceeded on the assumption 'that the defendants will continue to cooperate, as they have in the past, in withholding action under the authority of the statutes until a final decision is reached * * *.' 159 F.Supp. at page 534. In this Court counsel for the appellants has given similar assurances with respect to the three statutes presently before us, assurances which we understand embrace also the intention of these appellants never to proceed against appellees under any of these enactments with respect to activities engaged in during the full pendency of this litigation. While there is no reason to suppose that such assurances will not be honored by these or other Virginia officials not parties to this litigation, the District Court of course possesses ample authority in this action, or in such supplemental proceedings as may be initiated, to protect the appellees while this case goes forward.
24
Accordingly, the judgment below will be vacated and the case remanded to the District Court, with instructions to afford the appellees a reasonable opportunity to bring appropriate proceedings in the Virginia courts, meanwhile retaining its own jurisdiction of the case, and for further proceedings consistent with this opinion.
25
It is so ordered.
26
Judgment vacated and case remanded with instructions.
27
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BRENNAN concur, dissenting.
28
The rule invoked by the Court to require the Federal District Court to keep hands off this litigation until the state court has construed these laws is a judge-made rule. It was fashioned in 1941 in the decision of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, as a device to avoid needless decisions under the Federal Constitution where a resolution of state law questions might make those adjudications unnecessary. Since that time, the rule of the Pullman case has been greatly expanded. It has indeed been extended so far as to make the presence in federal court litigation o a state law question a convenient excuse for requiring the federal court to hold its hand while a second litigation is undertaken in the state court. This is a delaying tactic that may involve years of time and that inevitably doubles the cost of litigation. When used widespread, it dilutes the stature of the Federal District Courts, making them secondary tribunals in the administration of justice under the Federal Constitution.
29
With all due deference, this case seems to me to be the most inappropriate one of all in which to withhold the hand of the Federal District Court. Congress has ordained in the Civil Rights Act that 'All persons within the jurisdiction of the United States shall have the same right in every State * * * to sue, be parties, give evidence * * * as is enjoyed by white citizens * * *.' 42 U.S.C. § 1981, 42 U.S.C.A. § 1981. It has subjected to suit 'Every person who, under color of any statute * * * subjects, or causes to be subjected, any citizen of the United States or other person * * * to the deprivation of any rights * * * secured by the Constitution and laws * * *.' 42 U.S.C. § 1983, 42 U.S.C.A. § 1983; and has given the District Courts 'original jurisdiction' of actions 'to redress the deprivation, under color of any State law, * * * of any right * * * secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens * * *.' 28 U.S.C. § 1343, 28 U.S.C.A. § 1343. The latter section was invoked here. From the time when Congress first implemented the Fourteenth Amendment by the comprehensive Civil Rights Act of 1871 the thought has prevailed that the federal courts are the unique tribunals which are to be utilized to preserve the civil rights of the people. Representative Dawes, in the debate on the 1871 bill, asked 'what is the proper method of thus securing the free and undisturbed enjoyment of these rights?' Looking to the Act which eventually became law he answered, 'The first remedy proposed by this bill is a resort to the courts of the United States.* Is that a proper place in which to find redress for any such wrongs? If there be power to call into the courts of the United States an offender against these rights, privileges and immunities; and hold him to account there, I submit * * * that there is no tribunal so fitted, where equal and exact justice would be more likely to be meted out in temper, in moderation, in severity, if need be, but always according to the law and fact, as that great tribunal of the Constitution.' Cong. Globe, 42d Cong., 1st Sess. 476 (1871).
30
It seems plain to me that it was the District Court's duty to provide this remedy, if the appellees, who invoked that court's jurisdiction under the Civil Rights Act, proved their charge that the appellants, under the color of the Virginia statutes, had deprived them of civil rights secured by the Federal Constitution. See Hague v. C.I.O., 307 U.S. 496, 530—532, 59 S.Ct. 954, 83 L.Ed. 1423.
31
Judge Soper, speaking for the three-judge District Court, said that the five statutes against which the suits were directed 'were enacted for the express purpose of impeding the integration of the races in the public schools' of Virginia. 159 F.Supp. 503, 511. He reviewed at length the legislative history of the five Virginia statutes (Id., 511—515) concluding that 'they were passed to nullify as far as possible the effect of 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. Id., 159 F.Supp. 511. They were indeed 'parts of the general plan of massive resistance' which Virginia inaugurated against those decisions. Id., 515.
32
Of course Virginia courts were not parties to the formulation of that legislative program. But they are interpreters of Virginia laws and bound to construe them, if possible, so that the legislative purpose is not frustrated. Where state laws made such an assault as these do on our decisions and a State has spoken defiantly against the constitutional rights of the citizens, reasons for showing deference to local institutions vanish. The conflict is plain and apparent; and the federal courts stand as the one authoritative body for enforcing the constitutional right of the citizens.
33
This Court has had before it other state schemes intended to emasculate constitutional provisions or circumvent our constitutional decisions. In Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340, a 'Grandfather Clause' in an Oklahoma suffrage statute, exempting citizens who were qualified to vote on January 1, 1866, and their lineal descendants, from the requirements of a literacy test was said to have 'no discernible reason other than the purpose to disregard the prohibitions of the (Fifteenth) Amendment,' and was struck down because in 'direct and positive disregard' of that Amendment. Id., 238 U.S. at pages 363, 365, 35 S.Ct. at pages 930, 931. Oklahoma sought to avoid the effects of that decision (rendered in 1915) by requiring all qualified voters in 1916 to register within a named 12-day period, else the right to vote would be lost to them permanently. Persons who voted in the 1914 election were, however, exempt from the requirement. The new statute was invalidated, this Court noting that the Fifteenth Amendment barred 'sophisticated as well as simpleminded' 'contrivances by a state to thwart equality in the enjoyment of the right to vote.' Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281. The Boswell Amendment to the Alabama Constitution required prospective voters to understand and explain a section of the Alabama Constitution to the satisfaction of a registrar. A three-judge court found it to be a device in purpose and in practice to perpetuate racial distinctions in regulation of suffrage. We affirmed the judgment without requiring any submission of the amendment to the state courts to see how they might narrow it. Schnell v. Davis, 336 U.S. 933, 69 S.Ct. 749, 93 L.Ed. 1093, affirming D.C., 81 F.Supp. 872. All these cases originated in federal courts and implicated state laws evasive of our decisions; and we decided them without rerouting them through the state courts.
34
A similar history is evidenced by the 'White Primary' cases. It starts with Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759, where a Texas statute prohibiting Negroes from participating in Democratic Party primary elections was characterized as a 'direct and obvious infringement' of the Fourteenth Amendment's Equal Protection Clause. As a result of that decision, the Texas Legislature enacted a new statute authorizing the State Executive Committee of a political party to prescribe the qualifications for voters in its primary elections. Pursuant thereto the Democratic Party Committee adopted a resolution limiting the voting privilege to white Democrats. Finding that the Committee was an arm of the State, and that it discharged its power in such a way as to 'discriminate invidiously between white citizens and black' this Court overturned the restriction. Nixon v. Condon, 286 U.S. 73, 89, 52 S.Ct. 484, 487, 76 L.Ed. 984. In Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, we held that approval by the state party convention of he discriminating prohibition did not save it. And see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152. These cases too originated in federal courts and were aimed at state laws at war with our decisions. Here, again, we decided them without making the parties first repair to the state courts for a construction of the state statutes.
35
We need not—we should not—give deference to a state policy that seeks to undermine paramount federal law. We fail to perform the duty expressly enjoined by Congress on the federal judiciary in the Civil Rights Acts when we do so.
36
To return to the present case: the error, if any, of the District Court was not in passing on the constitutionality of three of the five Virginia statutes now before us but in remitting the parties to the Virginia courts for a construction of the other two.
1
'This article shall not be applicable to attorneys who are parties to contingent fee contracts with their clients where the attorney does not protect the client from payment of the costs and expense of litigation, nor shall this article apply to any matter involving annexation, zoning, bond issues, or the holding or results of any election or referendum, nor shall this article apply to suits pertaining to or affecting possession of or title to real or personal property, regardless of ownership, nor shall this article apply to suits involving the legality of assessment or collection of taxes or the rates thereof, nor shall this article apply to suits involving rtes or charges or services by common carriers or public utilities, nor shall this article apply to criminal prosecutions, nor to the payment of attorneys by legal aid societies approved by the Virginia State Bar, nor to proceedings to abate nuisances. Nothing herein shall be construed to be in derogation of the constitutional rights of real parties in interest to employ counsel or to prosecute any available legal remedy under the laws of this State.'
2
Chief Judge Hutcheson, the dissenting judge, did not reach the constitutionality of any of these statutes, because of his views on the 'abstention' issue.
3
In this, the District Court relied on United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989.
4
The lower court cited, among other cases, American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; and distinguished People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184.
5
Citing United States v. Harriss, supra.
6
On the latter ground, the court distinguished such cases as Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, and Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484; and cited Thomas v. Collins, supra.
*
It was not until 1875 that Congress gave the federal courts general jurisdiction over federal-question cases. 18 Stat. 470. The choice made in the Civil Rights Acts of 1870 and 1871 to utilize the federal courts to insure the equal rights of the people was a deliberate one, reflecting a belief that some state courts, which were charged with original jurisdiction in the normal federal-question case, might not be hospitable to claims of deprivation of civil rights. Whether or not that premise is true today, the fact remains that there has been no alteration of the congressional intent to make the federal courts the primary protector of the legal rights secured by the Fourteenth and Fifteenth Amendments and the Civil Rights Acts.
| 89
|
360 U.S. 264
79 S.Ct. 1173
3 L.Ed.2d 1217
Henry NAPUE, Petitioner,v.PEOPLE OF THE STATE OF ILLINOIS.
No. 583.
Argued April 30, 1959.
Decided June 15, 1959.
Mr. George N. Leighton, Chicago, Ill., for petitioner.
Mr. William C. Wines, Chicago, Ill., for respondent.
Mr. Chief Justice WARREN, delivered the opinion of the Court.
1
At the murder trial of petitioner the principal state witness, then serving a 199-year sentence for the same murder, testified in response to a question by the Assistant State's Attorney that he had received no promise of consideration in return for his testimony. The Assistant State's Attorney had in fact promised him consideration, but did nothing to correct the witness' false testimony. The jury was apprised, however, that a public defender had promised 'to do what he could' for the witness. The question presented is whether on these facts the failure f t he prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment to the Constitution of the United States.
2
The record in this Court contains testimony from which the following facts could have been found. The murder in question occurred early in the morning of August 21, 1938, in a Chicago, Illinois, cocktail lounge. Petitioner Henry Napue, the witness George Hamer, one Poe and one Townsend entered the dimly lighted lounge and announced their intention to rob those present. An offduty policeman, present in the lounge, drew his service revolver and began firing at the four men. In the melee that followed Townsend was killed, the officer was fatally wounded, and the witness Hamer was seriously wounded. Napue and Poe carried Hamer to the car where a fifth man, one Webb, was waiting. In due course Hamer was apprehended, tried for the murder of the policeman, convicted on his plea of guilty and sentenced to 199 years. Subsequently, Poe was apprehended, tried, convicted, sentenced to death and executed. Hamer was not used as a witness.
3
Thereafter, petitioner Napue was apprehended. He was put on trial with Hamer being the principal witness for the State. Hamer's testimony was extremely important because the passage of time and the dim light in the cocktail lounge made eyewitness identification very difficult and uncertain, and because some pertinent witnesses had left the state. On the basis of the evidence presented, which consisted largely of Hamer's testimony, the jury returned a guilty verdict and petitioner was sentenced to 199 years.
4
Finally, the driver of the car, Webb, was apprehended. Hamer also testified against him. He was convicted of murder and sentenced to 199 years.
5
Following the conviction of Webb, the lawyer who, as former Assistant State's Attorney, had prosecuted the Hamer, Poe and Napue cases filed a petition in the nature of a writ of error coram nobis on behalf of Hamer. In the petition he alleged that as prosecuting attorney he had promised Hamer that if he would testify against Napue, 'a recommendation for a reduction of his (Hamer's) sentence would be made and, if possible effectuated.'1 The attorney prayed that the court would effect 'consummation of the compact entered into between the duly authorized representatives of the State of Illinois and George Hamer.'
6
This coram nobis proceeding came to the attention of Napue, who thereafter filed a post-conviction petition, in which he alleged that Hamer had falsely testified that he had been promised no consideration for his testimony,2 and that the Assistant State's Attorney handling the case had known this to be false. A hearing was ultimately held at which the former Assistant State's Attorney testfie d that he had only promised to help Hamer if Hamer's story 'about being a reluctant participant' in the robbery was borne out, and not merely if Hamer would testify at petitioner's trial. He testified that in his coram nobis petition on Hamer's behalf he 'probably used some language that (he) should not have used' in his 'zeal to do something for Hamer' to whom he 'felt a moral obligation.' The lower court denied petitioner relief on the basis of the attorney's testimony.
7
On appeal, the Illinois Supreme Court affirmed on different grounds over two dissents. 13 Ill.2d 566, 150 N.E.2d 613. It found, contrary to the trial court, that the attorney had promised Hamer consideration if he would testify at petitioner's trial, a finding which the State does not contest here. It further found that the Assistant State's Attorney knew that Hamer had lied in denying that he had been promised consideration. It held, however, that petitioner was entitled to no relief since the jury had already been apprised that someone whom Hamer had tentatively identified as being a public defender 'was going to do what he could' in aid of Hamer, and 'was trying to get something did' for him.3 We granted certiorari to consider the question posed in the first paragraph of this opinion. 358 U.S. 919, 79 S.Ct. 293, 3 L.Ed.2d 238.
8
First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Curran v. State of Delaware, 3 Cir., 259 F.2d 707. See State of New York ex rel. Whitman v. Wilson, 318 U.S. 688, 63 S.Ct. 840, 87 L.Ed. 1083, and White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. Compare Jones v. Commonwealth of Kentucky, 6 Cir., 97 F.2d 335, 338, with In re Sawyer's Petition, 7 Cir., 229 F.2d 805, 809. Cf. Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1. The same result obtains when the State al though not soliciting false evidence, allows it to go uncorrected when it appears. Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; United States ex rel. Thompson v. Dye, 3 Cir., 221 F.2d 763; United States ex rel. Almeida v. Baldi, 3 Cir., 195 F.2d 815, 33 A.L.R.2d 1407; United States ex rel. Montgomery v. Ragen, D.C., 86 F.Supp. 382. See generally annotation, 2 L.Ed.2d 1575.
9
The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. As stated by the New York Court of Appeals in a case very similar to this one, People v. Savvides, 1 N.Y.2d 554, 557, 154 N.Y.S.2d 885, 887, 136 N.E.2d 853, 854—855:
10
'It is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon defendant's guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to correct what he knows to be false and elicit the truth. * * * That the district attorney's silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.'
11
Second, we do not believe that the fact that the jury was apprised of other grounds for believing that the witness Hamer may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one. As Mr. Justice Schaefer, joined by Chief Justice Davis, rightly put it in his dissenting opinion below, 13 Ill.2d 566, 571, 150 N.E.2d 613, 616:
12
'What is overlooked here is that Hamer clearly testified that no one had offered to help him except an unidentified lawyer from the public defender's office.'
13
Had the jury been apprised of the true facts, however, it might well have concluded that Hamer had fabricated testimony in order to curry the favor of the very representative of the State who was prosecuting the case in which Hamer was testifying, for Hamer might have believed that such a representative was in a position to implement (as he ultimately attempted to do) any promise of consideration. That the Assistant State's Attorney himself thought it important to establish before the jury that no official source had promised Hamer consideration is made clear by his redirect examination, which was the last testimony of Hamer's heard by the jury:
14
'Q. Mr. Hamer, has Judge Prystalski (the trial judge) promised you any reduction of sentence? A. No, sir.
15
'Q. Have I promised you that I would recommend any reduction of sentence to anybody? A. You did not. (That answer was false and known to be so by the prosecutor.)
16
'Q. Has any Judge of the criminal court promised that they (sic) would reduce your sentence? A. No, sir.
17
'Q. Has any representative of the Parole Board been to see you and promised you a reduction of sentence? A. No, sir.
18
'Q. Has any representative of the Governor of the State of Illinois promised you a reduction of sentence? A. No, sir.'
19
We are therefore unable to agree with the Illinois Supreme Court that 'there was no constitutional infirmity by virtue of the false statement.'
20
Third, the State argues that we are not free to reach a factual conclusion different from that reached by the Illinois Supreme Court, and that we are bound by its determination that the false testimony could not in any reasonable likelihood have affected the judgment of the jury. The State relies on Hysler v. State of Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 932. But i th at case the Court held only that a state standard of specificity and substantiality in making allegations of federal constitutional deprivations would be respected, and this Court made its own 'independent examination' of the allegations there to determine if they had in fact met the Florida standard. The duty of this Court to make its own independent examination of the record when federal constitutional deprivations are alleged is clear, resting, as it does, on our solemn responsibility for maintaining the Constitution inviolate. Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97; Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5. This principle was well stated in Niemotko v. State of Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed. 267:
21
'In cases in which there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will reexamine the evidentiary basis on which those conclusions are founded.'
22
It is now so well settled that the Court was able to speak in Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 121, 74 S.Ct. 403, 410, 98 L.Ed. 546, of the 'long course of judicial construction which establishes as a principle that the duty rests on this Court to decide for itself facts or constructions upon which federal constitutional issues rest.'4 As previously indicated, our own evaluation of the record here compels us to hold that the false testimony used by the State in securing the conviction of petitioner may have had an effect on the outcome of the trial. Accordingly, the judgment below must be reversed.
23
Reversed.
1
In relevant part, his petition read as follows:
'After Hamer was sentenced your petitioner (the Assistant State's Attorney) well knowing that identification of Poe, Napue and Webb if and when apprehended would be of an unsatisfactory character and not the kind of evidence upon which a jury could be asked to inflict a proper, severe penalty, and being unable to determine in advance whether Poe, Napue and Webb would made confessions of their participation in the crime, represented to Hamer that if he would be willing to cooperate with law enforcing officials upon the trial of (sic) trials of Poe, Napue and Webb when they were apprehended, that a recommendation for a reduction of his sentence would be made and, if possible, effectuated.
'Before testifying on behalf of the State and against Napue, Hamer expressed to your petitioner a reluctance to cooperate any further unless he were given definite assurance that a recommendation for reduction of his sentence would be made. Your petitioner, feeling that the interests of justice required Hamer's testimony, again assured Hamer that every possible effort would be made to conform to the promise previously made to him.'
2
The alleged false testimony of Hamer first occurred on his cross-examination:
'Q. Did anybody give you a reward or promise you a reward for testifying? A. There ain't nobody promised me anything.'
On redirect examination the Assistant State's Attorney again elicited the same false answer.
'Q. (by the Assistant State's Attorney) Have I promised you that I would recommend any reduction of sentence to anybody? A. You did not.'
3
The following is Hamer's testimony on the subject:
'Q. (on cross-examination) And didn't you tell him (one of Napue's attorneys) that you wouldn't testify in this case unless you got some consideration for it? A. * * * Yes, I did; I told him that.
'Q. What are you sentenced for? A. One Hundred and Ninety-Nine Years.
'Q. You hope to have that reduced, don't you? A. Well, if anybody would help me or do anything for me, why certainly I would.
'Q. Weren't you expecting that when you came here today? A. There haven't no one told me anything, no more than the lawyer. The lawyer come in and talked to me a while ago and said he was going to do what he could.
'Q. Which lawyer was that? A. I don't know; it was a Public Defender. I don't see him in here.
'Q. You mean he was from the Public Defender's office? A. I imagine that is where he was from, I don't know.
'Q. And he was the one who told you that? A. Yes, he told me he was trying to get something did for me.
'Q. * * * And he told you he was going to do something for you? A. He said he was going to try to.
'Q. And you told them (police officers) you would (testify at the trial of Napue) but you expected some consideration for it? A. I asked them was there any chance of me getting any. The man told me he didn't know, that he couldn't promise me anything.
'Q. Then you spoke to a lawyer today who said he would try to get your time cut? A. That was this Public Defender. I don't even know his name. * * *'
4
See, e.g., Payne v. State of Arkansas, 356 U.S. 560, 562, 78 S.Ct. 844, 847, 2 L.Ed.2d 975; Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948; Avery v. State of Georgia, 345 U.S. 559, 561, 73 S.Ct. 891, 892, 97 L.Ed. 1244; Feiner v. People of State of New York, 340 U.S. 315, 322, 323, note 4, 71 S.Ct. 303, 307, 95 L.Ed. 267 (dissenting opinion); Cassell v. State of Texas, 339 U.S. 282, 283, 70 S.Ct. 629, 94 L.Ed. 839; Haley v. State of Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224; Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029; Ashcraft v. State of Tennessee, 322 U.S. 143, 149, 64 S.Ct. 921, 923, 88 L.Ed. 1192; Ward v. State of Texas, 316 U.S. 547, 550, 62 S.Ct. 1139, 1141, 86 L.Ed. 1663; Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84; State of South Carolina v. Bailey, 289 U.S. 412, 420, 53 S.Ct. 667, 670, 77 L.Ed. 1292. See also, e.g., Roth v. United States, 354 U.S. 476, 497, 77 S.Ct. 1304, 1315, 1 L.Ed.2d 1498 (dissenting opinion); Stroble v. State of California, 343 U.S. 181, 190, 72 S.Ct. 599, 603, 96 L.Ed. 872; Sterling v. Constantin, 287 U.S. 378, 398, 53 S.Ct. 190, 195, 77 L.Ed. 375; Southern Pacific Co. v. Schuyler, 227 U.S. 601, 611, 33 S.Ct. 277, 280, 57 L.Ed. 662; Creswill v. Grand Lodge Knights of Pythias, 225 U.S. 246, 261, 32 S.Ct. 822, 56 L.Ed. 1074.
Mr. Justice Holmes, writing for the Court, recognized the principle over 35 years ago in Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143:
'If the Constitution and laws of the United States are to be enforced, this Court cannot accept as final the decision of a state tribunal as to what are the facts alleged to give rise to the right or to bar the assertion of it even upon local grounds.'
| 01
|
360 U.S. 252
79 S.Ct. 1164
3 L.Ed.2d 1209
William W. BURNS, Petitioner,v.STATE OF OHIO.
No. 581.
Argued May 18, 1959.
Decided June 15, 1959.
Mrs. Helen G. Washington, Washington, D.C., for petitioner.
Messrs. William M. Vance, Columbus, Ohio, and Harry C. Schoettmer, Cincinnati, Ohio, for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question presented in this case is whether a State may constitutionally require that an indigent defendant in a criminal care pay a filing fee before permitting him to file a motion for leave to appeal in one of its courts.
2
After a trial in Ohio in 1953, the petitioner was convicted of burglary and sentenced to life imprisonment.1 That same year his conviction was affirmed without opinion by the Ohio Court of Appeals. Petitioner immediately filed a notice of appeal in the Court of Appeals but did nothing further until 1957, when he sought to file a copy of the earlier notice of appeal and a motion for leave to appeal in the Supreme Court of Ohio.2 To these papers petitioner attached an affidavit of poverty which declared that he was 'without sufficient funds with which to pay the costs for Docket and Filing Fees in this cause of action.' He also attached a motion for leave to proceed in forma pauperis.
3
The Clerk of the Supreme Court of Ohio refused to file the papers. He returned them with the following letter:
4
'This will serve to acknowledge receipt of your motion for leave to proceed in forma pauperis, motion for leave to appeal and ntic e of appeal.
5
'We must advise that the Supreme Court has determined on numerous occasions that the docket fee, required by Section 1512 of the General Code of Ohio, and the Rules of Practice of the Supreme Court, takes precedence over any other statute which may allow a pauper's affidavit to be filed in lieu of a docket fee. For that reason we cannot honor your request.
6
'We are returning the above mentioned papers to you herewith.'3
7
Under Art. IV, § 2, of the State Constitution, the Supreme Court of Ohio has appellate jurisdiction in many types of cases including those 'involving questions arising under the constitution of the United States or of this state' and 'cases of felony on leave first obtained.'4 Since burglary is a felony in Ohio,5 the Supreme Court had jurisdiction to review petitioner's conviction and petitioner sought to file his motion asking leave to appeal.6 The filing fee required by the Supreme Court on a motion for leave to appeal is $207 and if that fee is paid, and the papers are otherwise proper, the motion will be considered with the possibility that leave to appeal will be granted.
8
We granted certiorari and leave to proceed in forma pauperis. 358 U.S. 919, 79 S.Ct. 292, 3 L.Ed.2d 238. Subsequently, an order was entered, 358 U.S. 943, 79 S.Ct. 354, 3 L.Ed.2d 350, expressly limiting the grant of certiorari to the question posed by petitioner in his per se petition which is restate at the outset of this opinion.8
9
The State's commendable frankness in this case has simplified the issues. If has acknowledged that the clerk's letter to petitioner is 'in reality and in effect' the judgment of the Supreme Court. Only recently, that court had occasion to comment on the function of its clerk in these words:
10
'It is the duty of the clerk of this court, in the absence of instructions from the court to the contrary, to accept for filing any paper presented to him, provided such paper is not scurrilous or obscene, is properly prepared and is accompanied by the requisite filing fee.'9
11
In a companion case, the court observed that its clerk 'acts as the court in carrying out its instructions.'10 The State represented that the clerk had been instructed not to docket any papers without fees and also that the Supreme Court had not deviated from its practice in this respect. Moreover, the State asserted that it was impossible for petitioner to file any action at all in the Supreme Court without paying the fee in advance. There is no showing that these instructions have been modified or rescinded in any way and the Supreme Court has sanctioned the clerk's well-publicized procedure of returning pauper's applications, without exception, with the above-quoted form letter. This delegation to the clerk of a matter involving no discretion clearly sufficies to make the clerk's letter a final judgment of Ohio's highest court, as required by 28 U.S.C. § 1257, 28 U.S.C.A. § 1257.
12
Although the State admits that petitioner 'in truth and in fact' is a pauper, it presses several arguments which it claims distinguish Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and justify the Ohio practice. First, the State argues that petitioner received one appellate review of his conviction in Ohio, while in Griffin, Illinois had left the defendant without any judicial review of his conviction. This is a distinction without a difference for, as Griffin holds, once the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty. 351 U.S. at pages 18, 22, 76 S.Ct. at pages 590, 592. This principle is no less applicable where the State has afforded an indigent defendant access to the first phase of its appellant procedure but has effectively foreclosed access to the second phase of that procedure solely because of his indigency.
13
Since Griffin proceeded upon the assumption that review in the Illinois Supreme Court was a matter of right, 351 U.S. at page 13, 76 S.Ct. at page 588, Ohio seeks to distinguish Griffin on the further ground that leave to appeal to the Supreme Court of Ohio is a matter of discretion. But this argument misses the crucial significance of Griffin. In Ohio, a defendant who is not indigent may have the Supreme Court consider on the merits his application for leave to appeal from a felony conviction. But as that court has interpreted § 1512 and its rules of practice, an indigent defendant is denied that opportunity. There is no rational basis for assuming that indigents' motions for leave to appeal will be less meritorious than those of other defendants. Indigents must, therefore, have the same opportunities to invoke the discretion of the Supreme Court of Ohio.
14
The State's action in this case in some ways is more final and disastrou fr om the defendant's point of view than was the Griffin situation at least in Griffin, the defendant might have raised in the Supreme Court any claims that he had that were apparent on the bare record though trial errors could not be raised. Here, the action of the State has completely barred the petitioner from obtaining any review at all in the Supreme Court of Ohio. The imposition by the State of financial barriers restricting the availability of appellate review for indigent criminal defendants has no place in our heritage of Equal Justice Under Law.
15
What was said in Griffin, might well be said here: 'We are confident that the State will provide corrective rules to meet the problem which this case lays bare.' 351 U.S. at page 20, 76 S.Ct. at page 591.11
16
The judgment below is vacated and the cause is remanded to the Supreme Court of Ohio for further action not inconsistent with this opinion. It is so ordered.
17
Judgment vacated and cause remanded with direction.
18
Mr. Justice STEWART took no part in the consideration or decision of this case.
19
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.
20
It is the special obligation of this Court strictly to observe the limits of its jurisdiction. No matter how tempting the appeal of a particular situation, we should not indulge in disregard of the bounds by which Congress has defined our power of appellate review. There will be time enough to enforce the constitutional right, if right it be, which the Court now finds the petitioner to possess when it is duly presented for judicial determination here, and there are ample modes open to the petitioner for assertion of such a claim in a way to require our adjudication.
21
The appellate power of this Court to review litigation originating in a state court can come into operation only if the judgment to be reviewed is the final judgment of the highest court of the State. The a judgment is the prerequisite for the appellate review of this Court is an ingredient of the constitutional requirement of the 'Cases' or 'Controversies' to which alone 'The judicial Power shall extend.' U.S.Const. Art. III, § 2. That it be a 'final judgment' was made a prerequisite by the very Act which established this Court in 1789. Act of September 24, 1789, § 25, 1 Stat. 85, now 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. 'Close observance of this limitation upon the Court is not regard for a strangling technicality.' Republic Natural Gas Co. v. State of Oklahoma, 334 U.S. 62, 67, 68 S.Ct. 972, 976, 92 L.Ed. 1212. Such has been the undeviating constitutional, legislative and judicial command binding on this Court and respected by it without exception or qualification to this very day.
22
The requisites of such a final judgment are not met by what a state court may deem to be a case or judgment in the exercise of the state court's jurisdiction. See Tyler v. Judges, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252; Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475. Nor can consent of the parties to the determination of a cause by this Court overleap the jurisdictional limitations which are part of this Court's being. Litigants cannot give this Court power which the Constitution and Congress have withheld. Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462. The President of the United States himself cannot secure from this Court determination of a legal question except when such a question duly arises in the course of adjudication of a case or controversy, even hou gh he asks for needed help in a great national emergency. See President Washington's questions in 33 Writings of Washington (Fitzpatrick ed. 1940) 15—19, 28, and the correspondence between Secretary of State Thomas Jefferson and Chief Justice Jay, in 3 Correspondence and Public Papers of John Jay (Johnston ed. 1891) 486—489.
23
As the importance of the interrogator and the significance of the question confer no power upon this Court to render advisory opinions, a compassionate appeal cannot endow it with jurisdiction to review a judgment which is not final. One's sympathy, however deep, with petitioner's claim cannot dispense with the precondition of a final judgment for exercising our judicial power. If the history of this Court teaches one lesson as important as any, it is the regretful consequences of straying off the clear path of its jurisdiction to reach a desired result. This Court cannot justify a yielding to the temptation to cut corners in disregard of what the Constitution and Congress command. Burns has other paths to this Court to assert what, forsooth, all of us may deem a failure by Ohio to accord him a constitutional right other paths besides our indifference to the rules by which we are bound. Specifically, he has four obvious remedies for securing an ascertainment and enforcement of his constitutional claim by this Court without having this Court treat the letter of a clerk of a court as a court's judgment. For although the caption of the case would indicate that our review was of the Supreme Court of Ohio, in fact the review can only be of the refusal of the clerk of that court to docket petitioner's papers until a twenty-dollar docket fee was paid. The Supreme Court of Ohio was not asked to consider the appeal, nor did it itself refuse to do so. The decisions in State ex rel. Dawson v. Roberts, 165 Ohio St. 341, 135 N.E.2d 409, and State ex rel. Wanamaker v. Miller, 164 Ohio St. 174 and 176, 128 N.E.2d 108 and 110 mandamus denied sub nom. Wanamaker v. Supreme Court of Ohio, 350 U.S. 881, 76 S.Ct. 142, 100 L.Ed. 777, demonstrate conclusively that the Ohio court has retained the ultimate power to determine what papers will be permitted to be filed. There is not the remotest indication in the record that this petitioner's claim to file his appeal without paying the customary filing fee, because of indigence, was brought to the attention of the Ohio Supreme Court, nor is there any showing in the record that in writing his letter the clerk was acting at the specific behest of that court in this case.
24
(1) Petitioner may make a direct application addressed in terms to the judges of the Supreme Court of Ohio. Such applications informally expressed by way of letters are frequently addressed to this Court, and are accepted here as the basis for judgments by this Court. We are not to assume that an application so addressed to the judges of the Ohio Supreme Court will not be transmitted to that court and acted upon by it. This is not merely an appropriate assumption about the functioning of courts. It is an assumption one can confidently make based upon the records in this Court. See Wanamaker v. Supreme Court of Ohio, supra. (Papers filed here in connection with the Wanamaker case make it clear that the Supreme Court of Ohio does consider letters asking that that court instruct its clerk to accept petitions for filing.) The Supreme Court of Ohio might well yield to this claim of Burns as other courts in like situations have yielded since Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. But in any event, a denial of Burns' application or refusal to entertain it would constitute a judgment of that court as an appropriate prerequisite for review here.
25
(2) Ever since § 13 of the Act of September 24, 1789, 1 Stat. 81, as amended, 28 U.S.C. § 1651, 28 U.S.C.A. § 1651, this Court has had power to issue mandamus in protection of its appellate jurisdiction in order to avoid frustration of it. This is an eerc ise of anticipatory review by bringing here directly a case which could be brought to this Court in due course.
26
(3) Under the Civil Rights Act, R.S. § 1979, 42 U.S.C. § 1983, 42 U.S.C.A. § 1983, Burns, like others before him who have allegedly been denied constitutional rights under color of any statute of a State, may have his constitutional rights determined and, incidentally, secure heavy damages for any denial of constitutional rights. See Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281.
27
(4) Burns' claim, in essence, is unlawful detention because of a denial of a constitutional right under the Fourteenth Amendment. That lays the foundation for a habeas corpus proceeding in the United States District Court. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. To be sure, if the right he claims be recognized in habeas corpus proceedings, he would not be released as a matter of course but merely conditionally on the State Supreme Court's entertaining his petition for review as an indigent incapable of meeting court costs. The contingent nature of the release would not impair the availability of habeas corpus. See Chin Yow v. United States, 208 U.S. 8, 28 S.Ct. 201, 52 L.Ed. 369.
28
Thus, it cannot be urged that necessity compels what the Constitution and statutes forbid—adjudication here of a claim which has not been rejected in a final judgment of a state court. Adherence to the dictates of the laws which govern our jurisdiction, though it may result in postponement of our determination of petitioner's rights, is the best assurance of the vindication of justice under law through the power of the courts. We should dismiss the writ of sertiorari inasmuch as there has been no final judgment over which we have appellate power.
1
Petitioner was also convicted of larceny and sentenced to a term of seven years to be served concurrently with the burglary sentence.
2
Despite the passage of years the appeal was timely. State v. Grisafulli, 135 Ohio St. 87, 19 N.E.2d 645.
3
The Rules of Practice of the Supreme Court of Ohio obviously referred to in the clerk's letter are Rules VII and XVII.
§ 1512 (Rev.Code § 2503.17):
'The clerk of the supreme court shall charge and collect the following fees:
'(A) For each case entered upon the minute book, including original actions in said court, appeal proceedings filed as of right, * * * for each motion * * * for leave to file a notice of appeal in criminal cases * * * twenty dollars. * * *
'(B) For filling assignments of error * * * upon allowance of a motion for leave to appeal * * * five dollars. * * *
'Such fees must be paid to the clerk by the party invoking the action of the court, before the case or motion is docketed and shall be taxed as costs and recovered from the other party, if the party invoking the action succeeds, unless the court otherwise directs.'
Rule VII:
'Section 1. Felony Cases. In felony cases, where leave to appeal is sought, a motion for leave to appeal shall be filed with the Clerk of this Court along with a copy of the notice of appeal which was filed in the Court of Appeals, upon payment of the docket fee required by Section 2503.17, Revised Code.
'Section 4. Appeal as of Right. In any criminal case, whether felony or misdemeanor, if the notice of appeal shows that the appeal involves a debatable question arising under the Constitution of the United States or of this state, the appeal may be docketed upon filing the transcript of the record and any original papers in the case, upon payment of the fee required by Section 2503.17, Revised Code.'
Rule XVII:
'The Docket Fees fixed by Section 2503.17, Revised Code, must be paid in advance. * * *'
4
See also Ohio Rev.Code §§ 2953-02, 2953.08, which implement this constitutional provision.
5
See Ohio Rev.Code §§ 2907.09, 1.06, 1.05.
6
In his notice of appeal filed in the Court of Appeals, petitioner stated 'This appeal is on questions of law and is taken on condition that a motion for leave to appeal be allowed.' But in the motion for leave to appeal to the Supreme Court, petitioner stated, among other contentions, that his conviction conflicted with his 'Constitutional Guarantees of the Fourteenth Amendment (14) to the Constitution of the United States; and, Article I, Section 10 of the Constitution of the State of Ohio.' This might indicate that petitioner was claiming an appeal as of right to the Supreme Court. However, since petitioner has consistently characterized his appeal as one which requires leave, we so consider it here.
7
See n. 3, supra.
8
As posed by petitioner, the question was
'Whether in a prosecution for Burglary, the Due Process Clause, And The Equal Protection Clause, of the Fourteenth (14) Amendment to the United States Constitution are violated by the refusal of the Supreme Court of Ohio, to file the aforementioned legal proceedings, because Petitioner was unable to secure the costs.'
9
State ex rel. Wanamaker v. Miller, 164 Ohio St. 176, 177, 128 N.E.2d 110.
10
State ex rel. Wanamaker v. Miller, 164 Ohio St. 174, 175, 128 N.E.2d 108, 109.
11
Shortly after this Court's decision in Griffin v. People of the State of Illinois, supra, the Illinois Supreme Court promulgated Rule 65—1, S.H.A. ch. 110, § 101.65—1, which provides in part that any person sentenced to imprisonment who is 'without financial means with which to obtain the transcript of the proceedings at his trial' will receive a transcript if it is 'necessary to present fully the errors recited in the petition. * * *'
| 12
|
360 U.S. 310
79 S.Ct. 1171
3 L.Ed.2d 1250
Howard R. MARSHALL, Petitioner,v.UNITED STATES of America.
No. 383.
Argued March 25, 26, 1959.
Decided June 15, 1959.
Messrs. George J. Francis, Frances De Lost, Omer Griffin, Denver, Colo., for petitioner.
Mr. James W. Knapp, Washington, D.C., for respondent.
PER CURIAM.
1
Petitioner was convicted of unlawfully dispensing a number of dextro amphetamine sulfate tablets, a drug within the scope of 21 U.S.C. § 353(b)(1) (B), 21 U.S.C.A. § 353(b)(1)(B), without a prescription from a licensed physician, which resulted in misbranding and violation of 21 U.S.C. § 331(k), 21 U.S.C.A. § 331(k). The Court of Appeals affirmed, one judge dissenting, 258 F.2d 94. The case is here on a petition for certiorari, 28 U.S.C. § 1254(1), 28 U.S.C.A. § 1254(1), which we granted because of doubts whether exposure of some of the jurors to newspaper articles about petitioner was so prejudicial in the setting of the case as to warrant the exercise of our supervisory power to order a new trial. 358 U.S. 892, 79 S.Ct. 153, 3 L.Ed.2d 120.
2
Petitioner never took the stand; nor did he offer any evidence. A government agent testified that he was introduced to petitioner as a salesman who had difficulty staying awake on long automobile trips and that on two occasions he obtained these tablets from petitioner. Petitioner asked the trial judge to rule there was entrapment as a matter of law. The judge refused so to hold and submitted the issue of entrapment with appropriate instructions to the jury. Cf. Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. The Government asked to be allowed to prove that petitioner had previously practiced medicine without a license, as tending to refute the defense of entrapment. The trial judge refused this offer saying, 'It would be just like offering evidence that he picked pockets or was a petty thief or something of that sort which would have no bearing on the issue and would tend to raise a collateral issue and I think would be prejudicial to the defendant.'
3
Yet during the trial two newspapers containing such information got before a substantial number of jurors, one news account said:
4
'Marshall has a record of two previous felony convictions.
5
'In 1953, while serving a forgery sentence in the State Penitentiary at McAlester, Okla., Marshall testified before a state legislative committee studying new drug laws for Oklahoma.
6
'At that time, he told the committee that although he had only a high school education, he practiced medicine with a $25 diploma he received through the mails. He told in detail of the ease in which he wrote and passed prescriptions for dangerous drugs.' The other news account said:
7
'The defendant was Howard R. (Tobey) Marshall, once identified before a committee of the Oklahoma Legislature as a man who acted as a physician and prescribed restricted drugs for Hank Williams before the country singer's death in December, 1953.
8
'Marshall was arrested with his wife, Edith Every Marshall, 56, in June, 1956. She was convicted on the drug charges in Federal District Court here in November and was sentenced to 60 days is jail.
9
'Records show that Marshall once served a term in the Oklahoma penitentiary for forgery. There is no evidence he is a doctor, court attaches said.'
10
The trial judge on learning that these news accounts had reached the jurors summoned them into his chamber one by one and inquired if they had seen the articles. Three had read the first of the two we have listed above and one had read both. Three others had scanned the first article and one of those had also seen the second. Each of the seven told the trial judge that he would not be influenced by the news articles, that he could decide the case only on the evidence of record, and that he felt no prejudice against petitioner as a result of the articles. The trial judge, stating he felt there was no prejudice to petitioner, denied the motion for mistrial.
11
The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U.S. 245, 251, 31 S.Ct. 2, 6, 54 L.Ed. 1021. Generalizations beyond that statement are not profitable, because each case must turn on its special facts. We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution's evidence. Cf. Michelson v. United States, 335 U.S. 469, 475, 69 S.Ct. 213, 218, 93 L.Ed. 168. It may indeed be greater for it is then not tempered by protective procedures.
12
In the exercise of our supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts (Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819) we think a new trial should be granted.
13
Reversed.
14
Mr. Justice BLACK dissents.
| 01
|
360 U.S. 301
79 S.Ct. 1179
3 L.Ed.2d 1243
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.FANT MILLING COMPANY.
No. 482.
Argued May 20, 1959.
Decided June 15, 1959.
Mr. Dominick L. Manoli, Washington, D.C., for petitioner.
Mr. O. B. Fisher, Paris, Tex., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The National Labor Relations Act makes it an unfair labor practice for an employer to refuse to bargain in good faith with the representative of his employees.1 The question presented by this case is the extent to which the Labor Board may, in formulating a complaint and in finding a violation of this section of the Act, take cognizance of events occurring subsequent to the filing of the charge upon which the complaint is based.
2
Pursuant to an election a union was certified in June 1953 as the exclusive bargaining representative for an appropriate unit of the respondent's employees at its plant in Sherman, Texas. During the ensuing months agents of the union and of the respondent met on several occasions for the supposed purpose of working out a collective bargaining contract. By May 20, 1954, several such meetings had taken place, but no agreement had been reached.
3
On that date the union filed a charge with the Regional Director of the Board, alleging that the respondent had violated s 8(a)(5) of the Act by refusing to bargain collectively with the union. Two months later the Regional Director advised the union that he was refusing to issue a complaint on the ground that 'it does not appear that there is sufficient evidence of violations to warrant further proceedings at this time.' The union requested the General Counsel of the Board to review this refusal.2
4
In the meantime and until October 1954 more than a dozen further meetings were held between representatives of the union and of the respondent. No real progress towards reaching an agreement was made. In October, while negotiations were still going on, the respondent unilaterally put into effect a general wage increase without prior notice to the union. A few weeks later the respondent advised the union that it was withdrawing recognition and that it would refuse any further bargaining conferences.
5
Thereafter, in January 1955, the Regional Director informed the union that 'upon reconsideration of the facts and circumstances, and additional evidence furnished us in connection with our investigation in the above matter, we have decided to and are hereby withdrawing our refusal to issue Complaint with respect to the 8(a)(5) allegation of refusal to bargain. * * * We shall proceed with our investigation in due course.' Later the Board's General Counsel advised the union as follows: 'With respect to the 8(a)(5) allegation of refusal to bargain; the Regional Director advised the parties by letter dated January 24, 1955, that he was withdrawing his dismissal of the 8(a)(5) portion of the charge and was continuing with the investigation thereof. All further inquiries with respect to the 8(a)(5) allegation should be addressed to the Regional Director.' Five days afterwards the Regional Director issued a complaint, alleging that 'on or about November 21, 1953, and at all times thereafter, Respondent did refuse and continues to refuse to bargain collectively * * *'; that 'On or about October 7, 1954, Respondent, without notice to the Union, put into effect a general wage icre ase * * *'; and that by those acts 'Respondent did engage in and is hereby engaging in an unfair labor practice within the meaning of Section 8(a), subsection (5) of the Act.'3
6
The Board, agreeing with its Trial Examiner, held that the respondent had refused to bargain collectively with the union within the meaning of the Act, finding that 'after November 21, 1953, * * * the Respondent was merely going through the motions of collective bargaining without a genuine intention of trying to negotiate an agreement with the Union as required by the provisions of the Act.' An appropriate order was accordingly issued. 117 N.L.R.B. 1277.4 The Board expressly held that the respondent's unilateral grant of a general wage increase in October of 1954, although occurring subsequent to the original charge and not the subject of an amended charge, was properly included as a subject of the complaint. Moreover, its finding of a refusal to bargain was largely influenced by this specific conduct on the part of the respondent.5 One member of the Board dissented upon the ground that the October wage increase could not lawfully be made the basis of a finding that the respondent had violated the Act.
7
The Court of Appeals denied the Board's petition for enforcement. 258 F.2d 851, 855. Substantially agreeing with the reasoning of the dissenting Board member, the court held that § 10 (b) of the Act requires 'that a charge must set up facts showing an unfair labor practice * * *, and the facts must be predicated on actions which have already been taken.' (Emphasis in original.)6 It further held that 'the complaint must faithfully reflect the facts constituting the unfair labor practices as presented in the charge.'7
8
To attribute so tightly restricted a function to a Board complaint is, as this Court pointed out in National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799, not consonant with the basic scheme of the Act. One of the issues in that case was substantially identical to the issue presented here—'whether the jurisdiction of the Board is limited to such unfair labor practices as are set up in the charge presented to the Board so as to preclude its determination that (certain actions on the part of the employer) involved unfair labor practices, since both occurred after the charge was lodged with the Board * * *.' 309 U.S. at page 357, 60 S.Ct. at page 574. The Court's resolution of the issue was unambiguous:
9
'It is unnecessary for us to consider now how far the statutory requirement of a charge as a condition precedent to a complaint excludes from the subsequent proceedings matters existing when the charge was filed, but not included in it. Whatever restrictions the requirements of a charge may be thought to place upon subsequent proceedings by the Board, we can find no warrant in the language or purposes of the Act for saying that it precludes the Board from dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board. The violations alleged in the complaint and found by the Board were but a prolongation of the attempt to form the company union and to secure the contracts alleged in the charge. All are of the same class of violations as those set up in the charge and were continuations of them in pursuance of the same objects. The Board's jurisdiction having been invoked to deal with the first steps, it had authority to deal with those which followed as a consequence of those already taken. We think the court below correctly held that 'the Board was within its power in treating the whole sequence as one." 309 U.S. 350, at page 369, 60 S.Ct. 569, at page 579.
10
In the present case, as in National Licorice, the unilateral wage increase was 'of the same class of violations as those set up in the charge * * *.' The wage increase was 'related to' the conduct alleged in the charge and developed as one aspect of that conduct 'while the proceeding (was) pending before the Board.'
11
A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry. National Labor Relations Board v. Indiana & Michigan Electric Co., 318 U.S. 9, 18, 63 S.Ct. 394, 400, 87 L.Ed. 579. The responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party. To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. Thi wo uld be alien to the basic purpose of the Act. The Board was created not to adjudicate private controversies but to advance the public interest in eliminating obstructions to interstate commerce, as this Court has recognized from the beginning. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893.
12
Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power8 in order properly to discharge the duty of protecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularizations of a charge. For these reasons we adhere to the views expressed in National Licorice Co. v. National Labor Relations Board.9
13
What has been said is not to imply that the Board is, in the words of the Court of Appeals, to be left 'carte blanche to expand the charge as they might please, or to ignore it altogether.' 258 F.2d at page 856. Here we hold only that the Board is not precluded from 'dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the prceeding is pending before the Board.' National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, at page 369, 60 S.Ct. 569, at page 579, 84 L.Ed. 799. It follows in the present case that the October wage increase was a proper subject of the Board's complaint and was properly considered by the Board in reaching its decision.10
14
Reversed.
1
'Sec. 8(a) It shall be unfair labor practice for an employer—* * * (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) * * * (d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession * * *.' 29 U.S.C. § 158(a), 29 U.S.C.A. § 158(a).
2
The respondent continues here to press the claim that this request was not timely under § 102.19 of the Board's Rules and Regulations, although the uncontroverted evidence shows that the request was filed within an extension of time that had been granted.
3
The chronology of these events refutes the respondent's claim that the Regional Director acted while the matter was under review by the General Counsel. The General Counsel had exercised his reviewing authority prior to the time the complaint issued.
4
The Board ordered the respondent to cease and desist from refusing to bargain; to refrain from interfering with the union's efforts to bargain; upon request, to bargain collectively with the union; and to post appropriate notices.
5
The language of the Board's decision makes clear how strongly it relied upon the October 1954 wage increase in reaching its conclusion, e.g.:
'We have no difficulty in determining the Respondent's bad faith throughout these protracted negotiations, particularly in view of the Respondent's unilateral effectuation of a general wage increase early in October 1954, while the negotiations were still in progress but without consultation with or even notice to the Union.
'We find, rather, that the giving of this general increase while negotiations were still continuing, and in complete disregard of the Union's representative status, provides the final insight into the Respondent's conduct of negotiations with the Union.'
6
Section 10(b) of the Act provides: 'Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be computed from the day of his discharge. Any such complaint may be amended by the member, agent, or ageny c onducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon.' 29 U.S.C. § 160(b), 29 U.S.C.A. § 160(b).
7
Judge Cameron wrote the prevailing opinion for the court. Chief Judge Hutcheson wrote a separate concurring opinion in which he agreed with Judge Cameron's view: 'In short, what has happened here is that by the device of injecting into the case entirely new matter completely unrelated to the charge, the regional director, in violation of the provisions of the Act, that no complaint can be filed except one based upon a charge, has filed a complaint, and the Board has heard and condemned the respondent in respect of matters which, because of the lack of a charge, were not before it.' Judge Rives dissented, expressing the view that 'the * * * construction * * * by the majority seems to me excessively technical and restrictive, and, if sustained, I believe that it will seriously cripple the Board in any effective enforcement of the Act.'
8
Section 11 of the Act provides: 'Investigatory powers of Board. For the purpose of all hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of the powers vested in it by section 9 and section 10 (1) Decumentary evidence; summoning witnesses and taking testimony.
'The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application. Within five days after the service of a subpena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpena does not describe with sufficient particularity the evidence whose production is required. Any member of the Board, or any agent or agency designated by the Board for such purposes, may administer oaths and affirmations, examine witnesses, and receive evidence. Such attendance of witnesses and the production of such evidence may be required from any place in the United States or any Territory or possession thereof, at any designated place of hearing.' 29 U.S.C. § 161, 29 U.S.C.A. § 161.
9
The 1947 amendments to the National Labor Relations Act made no change with respect to the respective functions of a charge and a complaint. The only change in § 10(b) was the addition of the provisions that 'No complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge, etc.' See note 6, supra. This limitation extinguishes liability for unfair labor practices committed more than six months prior to the filing of the charge. It does not relate to conduct subsequent to the filing of the charge.
10
The Board urges that we instruct the Court of Appeals to enforce the Board's order We decline to do so. Cf. National Labor Relations Board v. Pittsburgh S.S. Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479. However, we think it appropriate to state that if the factual summary contained in Judge Rives' dissenting opinion finds support in the record as a whole, the Board's order should be enforced 'even though the court would justifiably have made a different choice had the matter been before it de novo.' Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456.
| 67
|
360 U.S. 273
79 S.Ct. 1184
3 L.Ed.2d 1224
Jackson D. MAGENAU, Administrator of the Estate of Norman Ormsbee, Jr., Deceased, Petitioner,v.AETNA FREIGHT LINES, INC.
No. 439.
Argued May 18, 1959.
Decided June 15, 1959.
Mr. Harry L. Shniderman, Washington, D.C., for petitioner.
Mr. William F. Illig, Erie, Pa., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is a diversity case for wrongful death of petitioner's decedent, who was killed when a tractor-trailer leased by respondent crashed off a Pennsylvania highway. The action was tried to a jury on a negligence theory and judgment went for petitioner. D.C., 161 F.Supp. 875. The Court of Appeals reversed, finding that under Pennsylvania law the decedent was an employee of respondent and that the Pennsylvania Workmen's Compensation Act, Purdon's Pa.Stat.Ann., 1952, Tit. 77, provided the exclusive remedy. 3 Cir., 257 F.2d 445. We granted certiorari, 358 U.S. 927, 79 S.Ct. 311, 3 L.Ed.2d 301, on the question whether, in the light of Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 1958, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (decided after this case was argued in the Court of Appeals), the matter of the relationship of the decedent to respondent was a jury question. We have concluded that Byrd does control that issue and that the judgment must therefore be reversed.
2
Respondent is an interstate motor carrier of freight certificated under the Interstate Commerce Act. 49 U.S.C.A. § 301 et seq. It had leased a tractor-trailer, complete with driver from one Fidler, an independent contractor. Its lease contract, which had been in effect for four years, required Fidler to furnish the driver as well as to keep the leased equipment in repair. In this connection the evidence indicates that Fidler had authorized his driver, where circumstances required, to hire services and purchase necessities on trips of this kind. The vehicle and driver leased by respondent were en route from Syracuse, N.Y., to Midland, Pa., with 36,000 pounds of steel when the mishap leading to decedent's death occurred. The trip from Syracuse had been so beset with difficulties, such as tire replacements, battery trouble and brake failure, as well as bad weather, that it had already consumed 7 days' time. Under ordinary conditions 20 hours of elapsed time would have been sufficient. During a stop at a tavern near Waterford, Pa., the driver, Schroyer, was talking to the tavern keeper about his truck troubles when decedent and his cousin entered the place. Schroyer offered the cousin $25 to accompany him for the remainder of the trip and, upon refusal, made the same offer to decedent. The latter accepted. While the evidence is weak on the point, the indications are that decedent's job was to aid the driver in the event further trouble with the truck was encountered. Decedent was experienced with cars and had worked for a short time as a mechanic. Schroyer and decedent proceeded in the truck-trailer toward their destination, with the former driving. Some hours later the vehicle was found off the road on the downside of an embankment. Both men were dead.
3
This action ensued, in which petitioner alleged negligence on the part of Fidler and respondent for continuing to operate the vehicle with knowledge of its defective brakes. Liability of respondent was rested upon the rule that its status as a certificated carrier made it liable for the negligence of Fidler, its independent contractor, whose motor equipment was operated under the former's I.C.C. certificate. This is the law of Pennsylvania, Kissell v. Motor Age Transit Lines, 357 Pa. 204, 209, 53 A.2d 593, 597.1 Petitioner's theory was that his decedent was an invitee on the tractor-trailer, and that Fidler and his driver, Schroyer, therefore, owed decedent a duty of due care for breach of which respondent was liable under its I.C.C. certificate. Respondent claimed that decedent was a trespasser and, under Pennsylvania law, that it was therefore liable only for wanton misconduct. After discovery had been exhausted, respondent moved for summary judgment on the ground that the circumstances of decedent's engagement by Schroyer created an employer-employee relationship between it and decedent under the State workmen's compensation statute. The motion was denied and the case went to trial. It was submitted to the jury on special interrogatories covering the issues as to liability and a general charge as to the damages. The trial judge entered judgment on the special issues and the damage verdict for $76,500.
4
Interrogatory No. 1,2 the meaning of which is now in controversy, inquired as to whether it was 'reasonably necessary for the protection of defendant's (respondent's) interests' to engage decedent. The Court of Appeals held that the affirmative answer of the jury classified decedent as respondent's employee bringing him within the general definition of § 104 of the Pennsylvania Workmen's Compensation Act.3 It noted that respondent had conceded that decedent was its 'casual' employee but that this was not enough to take him out of the Act's coverage for, in addition, such casual employment must 'not be in the regular course of business' of respondent. This, the Court of Appeals said, was a question of law under Pennsylvania practice and open to review. It held that the finding under Interrogatory No. 1 put decedent 'into the regular business' of respondent. This holding would call for the dismissal of this suit, as petitioner's exclusive remedy would be under the Pennsylvania Workmen's Compensation Act.
5
Since the keystone of the Court of Appeals' holding depends on its interpretation of Special Interrogatory No. 1, we note the views of the trial judge on that issue. In his opinion on the motion of respondent for judgment non obstante veredicto, he observed that 'the interrogatory * * * was not so phraed as to require the jury to determine whether decedent was an employee of Aetna.' Rather, it 'was simply to secure a finding from the jury as to the reasonable necessity of Schroyer engaging decedent.' D.C., 161 F.Supp. at page 878. Likewise during the trial, in a colloquy with counsel as to this interrogatory, he advised: '(Y)ou notice there I refrain from saying just what his (decedent's) status is. I don't think it necessary to have the jury find whether he was employed or not; I think that is a question for the law.' On balance we believe that an examination of the record supports this interpretation of Interrogatory No. 1, although it must be admitted that the apparently inadvertent use of the words in 'protection of the defendant's interest' in the interrogatory may have been taken in a different light by the jury.
6
Be this as it may, however, not only the question of the relationship of the decedent to respondent should have been submitted to the jury but, in order to meet § 104's definition, it should likewise have passed upon whether the employment, if any, was 'casual' and not 'in the regular course' of respondent's business. Our opinion in Byrd came down subsequent to argument in the Court of Appeals. As we said in that case 'An essential characteristic of (the federal system) is the manner in which, in civil common-law actions, it distributes trial functions between judge and jury * * * (assigning) the decisions of disputed questions of fact to the jury.' Byrd v. Blue Ridge Rural Electric Coop., supra, 356 U.S. at page 537, 78 S.Ct. at page 901. We found there that the South Carolina rule in compensation cases, permitting courts to decide such factual issues without the aid of juries was not 'announced as an integral part of the special relationship created by the statute.' Id., 356 U.S. at page 536, 78 S.Ct. at page 900. We held that under such circumstances 'the federal court should not follow the state rule.' Id., 356 U.S. at page 538, 78 S.Ct. at page 901. The same reasoning applies here. We have been given no reason for the distinction in the Pennsylvania practice of trying such disputed factual issues to the court. Respondent does not claim that the rule is an 'integral part of the special relationship' created by its statute but rather that the disputed issue of employment was in fact submitted to the jury. It cannot be gainsaid that all of the disputed issues were not so submitted. In order to determine whether the Pennsylvania Act bars recovery here the court must have a full answer as to the status of the decedent as an employee under § 104 of the Act. If the jury, under proper instructions, finds facts which show that, under § 104, the decedent was respondent's employee and that such employment was 'casual' and not 'in the regular course' of respondent's business, then it can find for petitioner.
7
We are therefore of the opinion that a new trial on the whole case is necessary, since these disputed issues are so interrelated with the ultimate issues of liability and damages that a limited hearing would not be in the interest of fairness and efficiency in judicial administration. If the evidence on that trial is such as to justify with reason different conclusions on the factual issues as to the relationship of decedent as an employee, under § 104 of Pennsylvania's Act, of either respondent or its contractor, Fidler, resolution of those issues, along with others that arise from the evidence, will be for the jury. The jury's verdict at that trial will determine if as well as in what amount petitioner may recover in this action.
8
Reversed and remanded.
9
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
10
The issues in this case have had a shifting history. Today the problem of the case appears to be cast into these questions: was the issue of decedent Ormsbee's employment submitted to the jury and, if not, should it have been? But at trial the evidence massed on both sides was to prove or disprove that decedent was a trespasser. In the course of showing he was something other than a trespasser, petitioner introduced evidence which tended to prove that decedent was in fact a temporary employee of respondent, hired by the truck driver to aid in an emergency. Respondent countered by urging that the evidence introduced by petitioner, if believed, proved decedent was an employee of Aetna and therefore, under applicable Pennsylvania law, deprived petitioner of a common-law remedy against Aetna. The trial judge, believing employment to be a question of law, reserved until after the verdict a ruling on the effect of the Pennsylvania Workmen's Compensation Act, Purdon's Pa.Stat.Ann., 1952, Tit. 77, §§ 22, 52, 462. And so, putting aside this question, and keeping the original issue regarding the status of decedent as a trespasser in mind, the judge framed one of the four interrogatories submitted to the jury to elicit its opinion whether decedent was or was not a trespasser. The jury found that he was not by answering the following interrogatory in the affirmative:
11
'Under the evidence in this case, do you find that an unforeseen contingency arose which made it reasonably necessary for the protection of the defendant's interests that the driver Charles Schroyer engage the decedent Norman Ormsbee, Jr. to accompany him for the remainder of the trip?'
12
The jury also returned a general verdict for petitioner.
13
In his opinion refusing Aetna's motions for a new trial or judgment notwithstanding the verdict, the trial judge reasoned that the Pennsylvania Act did not bar petitioner's recovery at common law because the nature of decedent's employment did not, under the Pennsylvania decisions, bring him under the Workmen's Compensation Act. D.C., 161 F.Supp. 875. The Court of Appeals disagreed with the trial judge's interpretation of the interrogatory, of the Pennsylvania statute and of the decisions thereunder. Reviewing the jury's verdict for decedent's administrator, that court held that the affirmative answer to the interrogatory necessitated a finding that decedent was an employee of Aetna within the definition of that status in the Pennsylvania Act and that therefore the only remedy was under that Act. 3 Cir., 257 F.2d 445. In so doing, the court was applying to facts as found by a jury the law made applicable to the parties to this action by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and the Rules of Decision Act, 28 U.S.C. § 1652, 28 U.S.C.A. § 1652.
14
Petitioner now asserts that our opinion in Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953, required the jury in the federal courts to decide the issue of employment and that the jury did not make that determination here. To agree with this second proposition we must either find that the Court of Appeals totally misinterpreted the answer of the jury to the interrogatory or that the rule stated in Byrd requires not only that disputed questions of fact be submitted to the jury but also that the application of law to facts likewise rests with the jury. The former ruling would deviate from the settled practice of this Court to accept the interpretation of proceedings below adopted by the Court of Appeals unless that interpretation is baseless.1 Moreover, the ruling of the Court of Appeals was based primarily on an interpretation of Pennsylvania law and not on an extrapolation from the jury's finding. Judge Goodrich held that '(w)e cannot escape the conclusion that the (jury) finding that authorized the hiring of Ormsbee put him into the regular business of the defendant, namely, transportation of goods by truck. If that was not what he was doing, he had no business riding with Schroyer at all.' 3 Cir., 257 F.2d at page 448. Thus the Court of Appeals applied the jury-found facts to the court-interpreted statute and said that the Pennsylvania law barred a common-law remedy. We should not review here the finding of he Court of Appeals on the meaning of the Pennsylvania statute. This Court has repeatedly deferred to decisions on local law reached by the lower federal courts.2 What reason is there to deviate from that practice in this case? The meaning given to the Pennsylvania statutory language and to the cases interpreting it was the determination of three uncommonly experienced Pennsylvania circuit judges. Finally, no prior federal case would justify a ruling that in the federal courts application of law to fact is a jury function.3 Nor does historical analysis support the assumption that such was the case at the time of the adoption of the Seventh Amendment.4 Whether a given set of facts constitutes an employment relationship is a pure question of law and as such not within a jury's province. The charge, interrogatory, and answer thereto, as reasonably interpreted by the Court of Appeals, do not permit the conclusion that issues were withheld from the jury which were within its sphere of power, duty, and capability.
15
But suppose it be correct to conclude that the Court of Appeals erred in its opinion that the jury resolved all relevant factual inquiries. Still the petitioner has no case that should prevail here. For not only did the petitioner fail at trial to request the question of employment to be submitted to a jury, he himself stated during the course of the trial that employment was a question of law.5 And when the trial judge said that he believed that as a question oflaw it ought not to be submitted to a jury, the petitioner did not claim otherwise.6 Indeed it was the respondent who requested that the question be submitted to the jury and who objected when this request was refused. I shall continue to believe it to be law in civil cases in the federal courts that, barring some extraordinary circumstances not here present, failure to request a given issue to be submitted to a jury constitutes a waiver of any right to such submission.7 The least requisite for raising such failure on appeal is notice to the trial court by way of an objection.8
16
Certiorari was granted upon a petition which urged that the Court of Appeals had so ruled as to deprive petitioner of the right to a jury determination of employment status and thus that the case raised the same basic question as that dealt with by this Court in Byrd. More particular consideration than could be expected to be given to the petition for certiorari9 has made it apparent that neither statement is correct. The briefs on the merits and oral argument made it inescapably clear that petitioner failed to present a case which qualifies for our consideration in the light of the historical development of our certiorari jurisdiction10 and the rule which we have promulgated to guide its exercise.11 This is an ordinary diversity case turning solely on the application of Pennsylvania law to a unique set of facts and involving no question which justifies review under our discretionary jurisdiction. When the Court has discovered, even after argument, that there existed no question suitable for this Court's determination, certiorari has been dismissed as improvidently granted.12 The reasons for such a disposition of a case even after argument—action so often taken as fairly to be part of the settled practice of the Court—were thus expounded by Mr. Chief Justice Taft:
17
'If it be suggested that as much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the Circuit Courts of Appeal. The present case certainly comes under neither head.'13
18
And so, since upon full consideration of this case it becomes clear that the complained-of error was probably not committed and that in any event petitioner is not in a position to assert it, due regard for the controlling importance of observing the conditions for the proper exercise of our discretionary jurisdiction requires that the writ of certiorari should be dismissed as improvidently granted.
19
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
20
Plenary consideration of this case, and indeed the opinion of the majority of this Court, have made it clear that the Court of Appeals dealt with the factual issues involved on the basis of a concession by the respondent and the jury's answer to Interrogatory No. 1. It is therefore now apparent that this case presents no question concerning the classification of these issues as for the court or for the jury under the decision in Byrd v. Blue Ridge Rural Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953, and that the premise on which we granted certiorari was accordingly a mistaken one. And whether or not the Court of Appeals in acting as it did was correct in its assessment of the trial record is certainly not a matter justifying the exercise of our certiorari power within the criteria of Rule 19. I therefore agree with my Brother FRANKFURTER that the writ of certiorari should be dismissed as improvidently granted, and join in his dissenting opinion.
21
Even if a Byrd issue could be considered as properly presented, the most that should be done is to remand the case to the Court of Appeals for further consideration in light of that decision. A retrial of this case would be justified under Byrd only if the Pennsylvania practice treating factual issues under § 104 of the Workmen's Compensation Act as for the court, instead of for the jury, see Persing v. Citizens Traction Co., 294 Pa. 230, 144 A. 97; Vescio v. Pennsylvania Electric Co., 336 Pa. 502, 9 A.2d 546; is merely a 'form and mode' of procedure rather than 'an integral part' of the rights created by the Act. Before deciding such a difficult and subtle question of local law, this Court should have the aid of the Court of Appeals whose members are more competent than we to speak on Pennsylvania law.
1
Also see 49 Stat. 557, as amended, 49 U.S.C. § 315, 49 U.S.C.A. § 315, which provides that a certificate holder must carry insurance to satisfy any final judgment for injuries due to the 'negligent * * * use of motor vehicles under such certificate.'
2
'Interrogatory Number 1. Under the evidence in this case, do you find that an unforeseen contingency arose which made it reasonably necessary for the protection of the defendant's interests that the driver Charles Schroyer engage the decedent Norman Ormsbee, Jr. to accompany him for the remainder of the trip?'
3
Section 104 of the Pennsylvania Workmen's Compensation Act, Purdon's Pa.Stat.Ann., Tit. 77, § 22, provides:
'The term 'employe,' as used in this act is declared to be synonymous with servant, and includes—
'All natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer, and exclusive of persons to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished or repaired, or adapted for sale in the worker's own home, or on other premises, not under the control or management of the employer. Every executive officer of a corporation elected or appointed in accordance with the charter and by-laws of the corporation, except elected officers of the Commonwealth or any of its political subdivisions, shall be an employe of the corporation.'
1
See, e.g., 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; Federal Trade Commission v. American Tobacco Co., 274 U.S. 543, 47 S.Ct. 663, 71 L.Ed. 1193.
2
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499, 61 S.Ct. 643, 85 L.Ed. 971; Reitz v. Mealey, 314 U.S. 33, 39, 62 S.Ct. 24, 28, 86 L.Ed. 21; MacGregor v. State Mutual Life Assurance Co., 315 U.S. 280, 281, 62 S.Ct. 607, 86 L.Ed. 846; Helvering v. Stuart, 317 U.S. 154, 162—163, 63 S.Ct. 140, 144—145, 87 L.Ed. 154; modified on other grounds 317 U.S. 602, 63 S.Ct. 140, 87 L.Ed. 154; Palmer v. Hoffman, 318 U.S. 109, 118, 63 S.Ct. 477, 482, 87 L.Ed. 645; Huddleston v. Dwyer, 322 U.S. 232, 237, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246; Hillsborough Tp. Somerset County, N.J. v. Cromwell, 326 U.S. 620, 630, 66 S.Ct. 445, 451, 90 L.Ed. 358; Steele v. General Mills, Inc., 329 U.S. 433, 438—439, 67 S.Ct. 439, 442, 91 L.Ed. 402; Gardner v. State of New Jersey, 329 U.S. 565, 575, 67 S.Ct. 467, 472, 91 L.Ed. 504; Francis v. Southern Pacific Co., 333 U.S. 445, 447—448, 68 S.Ct. 611, 612, 92 L.Ed. 798; Estate of Spiegel v. Commissioner of Internal Revenue, 335 U.S. 701, 707—708, 69 S.Ct. 301, 303—304, 93 L.Ed. 330; Propper v. Clark, 337 U.S. 472, 486—487, 69 S.Ct. 1333, 1341—1342, 93 L.Ed. 1480; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 534, 69 S.Ct. 1233, 1235, 93 L.Ed. 1520; Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 674, 70 S.Ct. 876, 880, 94 L.Ed. 1194; United States v. Gerlach Live Stock Co., 339 U.S. 725, 755, 70 S.Ct. 955, 970, 94 L.Ed. 1231; Williams v. United States, 341 U.S. 97, 100, 71 S.Ct. 576, 578, 95 L.Ed. 774; Sutton v. Leib, 342 U.S. 402, 411, 72 S.Ct. 398, 404, 96 L.Ed. 448; Bernhardt v. Polygraphic Co., 350 U.S. 198, 204—205, 76 S.Ct. 273, 276—277, 100 L.Ed. 199; Id., 350 U.S. at pages 209, 212, 76 S.Ct. at page 279, 281 (concurring opinions); General Box Co. v. United States, 351 U.S. 159, 165, 76 S.Ct. 728, 732, 100 L.Ed. 1055; Id., 351 U.S. at pages 169—170, 76 S.Ct. at pages 734, 735 (dissenting opinion).
3
Cf. Ex parte Peterson, 253 U.S. 300, 310, 40 S.Ct. 543, 546, 64 L.Ed. 919: 'The limitation imposed by the (Seventh) amendment is merely that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with.'
4
See Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv.L.Rev. 669, 684—686 (1918).
5
'The Court: In other words, the finding of trespasser is a conclusion of law.
'Mr. Knox (attorney for petitioner): The same as employees.' Transcript of Record, p. 173a.
6
'The Court: I don't think it is necessary to have the jury find whether he was employed or not; I think that is a question for the law.' Transcript of Record, p. 169a.
7
See, e.g., Pennsylvania R. Co. v. Minds, 250 U.S. 368, 375, 39 S.Ct. 531, 533, 63 L.Ed. 1039; Shutte v. Thompson, 15 Wall. 151, 164, 21 L.Ed. 123.
8
Fed.Rules Civ.Proc., 49, 51, 28 U.S.C.A.
9
'We are not aided by oral arguments, and necessarily rely in an especial way upon petitions, replies, and supporting briefs. Unless these are carefully prepared, contain appropriate references to the record, and present with studied accuracy, brevity, and clearness whatever is essential to ready and adequate understanding of points requiring our attention, the rights of interested parties may be prejudiced and the court will be impeded in its efforts properly to dispose of the causes which constantly crowd its docket.' Furness, Withy & Co. v. Yang-Tsze Ins. Ass'n, 242 U.S. 430, 434, 37 S.Ct. 141, 142, 61 L.Ed. 409.
10
See Dick v. New York Life Ins. Co., 359 U.S. 437, 447, 79 S.Ct. 921, 927 (dissenting opinion).
11
Rules of the Supreme Court of the United States, Rule 19, 28 U.S.C.A.
12
Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 43 S.Ct. 422, 67 L.Ed. 712.
13
Id., 261 U.S. at page 393, 43 S.Ct. at page 423.
| 01
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360 U.S. 287
79 S.Ct. 1157
3 L.Ed.2d 1234
ANONYMOUS NOS. 6 AND 7, Appellants,
v.Hon. Edward G. BAKER, as Justice of the Supreme Court of the State of New York.
No. 378.
Argued March 25, 1959.
Decided June 15, 1959.
Mr. Raphael H. Weissman, Brooklyn, N.Y., for appellants.
Mr. Denis M. Hurley, Brooklyn, N.Y., for appellee.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Appellants have ben convicted of contempt for refusal to answer pertinent questions put to them as witnesses summoned in a state judicial Inquiry into alleged improper practices at the local bar. The sole issue before us is whether this conviction offended the Due Process Clause of the Fourteenth Amendment to the Federal Constitution by reason of the fact that the justice in charge of the Inquiry had required counsel retained by appellants to remain outside the hearing room while they were being interrogated, even though he expressed his readiness to suspend the course of questioning whenever appellants wished to consult with counsel. No claim is made that appellants were not fully represented by counsel in the contempt proceedings themselves or that such proceedings were otherwise lacking in due process.
2
On January 21, 1957, the Appellate Division of the Supreme Court of the State of New York, Second Department, acting pursuant to § 90 of the State Judiciary Law, 29 N.Y.Laws Ann. § 90 (McKinney 1948), and in response to a petition of the Brooklyn Bar Association charging 'ambulance chasing' and related unethical practices among segments of the Kings County Bar,1 ordered an investigation into these alleged conditions by an Additional Special Term of the Supreme Court, Mr. Justice Arkwright presiding.2
3
Appellants, licensed private detectives and investigators, but not attorneys, appeared before the Special Term pursuant to witness subpoenas, accompanied by counsel. The presiding justice, acting upon the authority of an appellate decision made during the course of this same Inquiry, M. Anonymous v. Arkwright, 5 A.D.2d 790, 170 N.Y.S.2d 535, leave to appeal denied, 4N.Y .2d 676, 173 N.Y.S.2d 1025, 149 N.E.2d 538, informed appellants that their counsel would not be allowed in the hearing room while they were being questioned, but that they would be free to consult with him at any time during their interrogation. Solely because of that limitation upon the participation of counsel, appellants thereafter refused to answer all manner of questions put to them. Their conviction for contempt, carrying a sentence of 30 days' imprisonment, followed.3 The Appellate Division affirmed, Application of Anonymous No. 6, 6 A.D.2d 719, 176 N.Y.S.2d 227, and the New York Court of Appeals, finding that 'no substantial constitutional question is involved,' dismissed ensuing appeals. 4 N.Y.2d 1034, 1035, 177 N.Y.S.2d 687, 152 N.E.2d 651. Appellants, proceeding under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2),4 then appealed to this Court, and we postponed further consideration of jurisdiction to a hearing on the merits. 358 U.S. 891, 79 S.Ct. 151, 3 L.Ed.2d 119.
4
Dealing first with the question of our jurisdiction, we think it clear that this appeal must be dismissed. It is predicated on the ground that the state courts held valid under the Federal Constitution § 90, subd. 10 of New York's Judiciary Law (see Note 6, infra), said to be the basis of the Special Term procedure here attacked. However, it appears that the federal constitutionality of § 90, subd. 10 was never 'drawn in question' or passed upon in the state courts; the Appellate Division, from whose decision the Court of Appeals denied leave to appeal, simply relied on the earlier cases of M. Anonymous v. Arkwright, supra, and S. Anonymous v. Arkwright, 5 A.D.2d 792, 170 N.Y.S.2d 538, which in turn appear not to have involved such an adjudication. In these circumstances we must hold that we lack jurisdiction under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). Nevertheless, treating the appeal as a petition for writ of certiorari, we grant the writ. 28 U.S.C. § 2103, 28 U.S.C.A. § 2103.
5
We turn to the merits. An understanding of the nature of the proceedings before the Special Term is first necessary. In New York the traditional powers of the courts over the admission, discipline, and removal of members of the bar is placed by law in the Appellate Division of the State Supreme Court. N.Y. Judiciary Law, § 90. When the Appellate Division is apprised of conditions calling for general inquiry it usually appoints, as here, a Justice of the Supreme Court, sitting at Special Term, to make a preliminary investigation. The duties of such a justice are purely investigatory and advisory, culminating in one or more reports to the Appellate Division upon which future action may then be based. In the words of Mr. Justice Cardozo, then Chief Judge of the New York Court of Appeals, the proceedings at Special Term thus simply constitute a 'preliminary inquisition, without adversary parties, neither ending in any decree nor establishing any right * * * a quasi administrative remedy whereby the court is given information that may move it to other acts thereafter * * *.' People ex rel. Karlin v. Culkin, 248 N.Y. 465, 479, 162 N.E. 487, 492, 60 A.L.R. 851.
6
Customarily the proceedings at Special Term are conducted in private, for reasons which Mr. Justice Cardozo explained in the Karlin case as follows (248 N.Y. at pages 478—479, 162 N.E. at page 492):
7
'The argument is pressed that, in conceding to the court a power of inquisition, we put into its hands a weapon whereby the fair frame of a lawyer, however innocent f w rong, is at the mercy of the tongue of ignorance or malice. Reputation in such a calling is a plant of tender growth, and its bloom, once lost, is not easily restored. The mere summons to appear at such a hearing and make report as to one's conduct, may become a slur and a reproach. Dangers are indeed here, but not without a remedy. The remedy is to make the inquisition a secret one in its preliminary stages. This has been done in the first judicial department, at least in many instances, by the order of the justice presiding at the hearing. It has been done in the second judicial department * * * by order of the Appellate Division directing the inquiry. A preliminary inquisition * * * is not a sitting of a court within the fair intendment of section 4 of the Judiciary Law, whereby sittings of a court are required to be public. * * * The closest analogue is an inquisition by the grand jury for the discovery of crime.'
8
By analogy to grand jury proceedings counsel are not permitted to attend the examination of witnesses called in such an investigation, cf. People ex rel. McDonald v. Keeler, 99 N.Y. 463, 485, 2 N.E. 615, 626—627,5 although the New York courts have held that the Special Term may in its discretion permit such attendance where it appears that the witness himself is a target of the inquiry. See M. Anonymous v. Arkwright, supra, 5 A.D.2d at page 791, 170 N.Y.S.2d at page 538.
9
These practices have received legislative approval, evidenced by § 90, subd. 10 of the State Judiciary Law, quoted in the margin,6 and by the Legislature's refusal in 1958 to amend the State Civil Rights Law, 8 N.Y.Laws Ann. § 1—242 (McKinney 1948), so as to require that counsel be allowed to attend the interrogation of witnesses in proceedings of this character.7
10
Thus, what we have here in the Appellate Division's order that the Inquiry be private8 and in the Special Term's exclusion of counsel from the hearing room is not a procedural innovation by a particular court or judge in a particular case, but an expression of established state policy. We are now asked to declare that policy unconstitutional.
11
To do so would not only necessitate our ignoring the weighty considerations which support New York's policy, but would require us to limit state power in this area of investigation far beyond anything indicated by this Court's past 'right to counsel' decisions under the Fourteenth Amendment. Although we have held that in state criminal proceedings, which these are not, M. Anonymous v. Arkwright, supra, a defendant has an unqualified right to be represented at trial by retained counsel, Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4, we have not extended that right to the investigation stages of such proceedings. See Cicenia v. LaGay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523; See also Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448. Again, while it has been decided that there is a constitutional right to counsel in a criminal contempt proceeding, growing out of a state investigation, conducted before a judge sitting as a 'one-man grand jury,' In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 500, 92 L.Ed. 682,9 we have held that a witness examined in a state investigation conducted in private is not constitutionally entitled to the assistance of counsel while being interrogated. In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376.
12
In the Groban case we upheld the constitutionality of an Ohio statute10 which, as construed by the Ohio courts, authorized the Fire Marshal to exclude from the hearing room counsel representing those summoned to testify before him in an investigation into he causes of a fire. We there said (352 U.S. at pages 332—333, 77 S.Ct. at page 513):
13
'The fact that appellants were under a legal duty to speak and that their testimony might provide a basis for criminal charges against them does not mean that they had a constitutional right to the assistance of their counsel. Appellants here are witnesses from whom information was sought as to the cause of the fire. A witness before a grand jury cannot insist, as a matter of constitutional right, on being represented by his counsel, nor can a witness before other investigatory bodies. There is no more reason to allow the presence of counsel before a Fire Marshal trying in the public interest to determine the cause of a fire. Obviously in these situations evidence obtained may possibly lay a witness open to criminal charges. When such charges are made in a criminal proceeding, he then may demand the presence of his counsel for his defense. Until then his protection is the privilege against self-incrimination.' (Footnotes omitted.)
14
The Groban case is controlling here and requires rejection of appellants' constitutional claims. As did Ohio in Groban, New York has a privilege against self-incrimination, N.Y.Const., Art. I, § 6, which was freely exercised by other witnesses in this investigation,11 and was fully available to these appellants. Moreover, the circumstance that this investigation was conducted by an experienced judge, rather than an administrative official, and the fact that appellants throughout their interrogation were freely given the right to consult counsel, notwithstanding his exclusion from the hearing room, make the constitutional claim here far less tenable than that found wanting in Groban.
15
Appellants seek to escape from Groban by arguing that they were summoned before the Special Term not as mere witnesses but with an eye to their future prosecution. This contention rests upon an informal 'off the record' conversation which appellants and their counsel had with an assistant on the Inquiry's staff some four months before appellants were actually examined. In response to counsel's inquiry as to 'what was wanted of his clients in this matter,' the assistant made the replies set forth in the margin.12 We think that the role in which these appellants were summoned to the Inquiry is to be judged by the actions of the Special Term, not by the statements of a subordinate staff member, evidently motivated by nothing more than a desire to avoid a plea of self-incrimination which would have blocked the Inquiry from obtaining possibly helpful information. The record shows that the Special Term, aware of the claims as to this occurrence, which it caused to be fully explored in the presence of appellants and their counsel, repeatedly assured appellants that they were before the Inquiry solely as witnesses.13 That they might later be faced with criminal charges, adds nothing to their present constitutional claim. In re Groban, supra, 352 U.S. at pages 332 333, 77 S.Ct. at pages 512—513.
16
The final order of the Court of Appeals of the State of New York must be affirmed.
17
Affirmed.
18
Mr. Justice BLACK, with whom The CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
19
In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376, decided two years ago, upheld as constitutional the action of a state fire marshal in compelling persons suspected of burning a building to testify about the fire in secret and without benefit of the presence of their counsel. Four of us dissented on the ground that such secret inquisitions violated the Due Process Clause of the Fourteenth Amendment. In this case the Court upholds the action of a state judge in compelling testimony from persons suspected of getting statements of defendants in negligence cases under false pretenses and later 'tampering' with these statements.* I think it violates due process for a judge no less than for a fire marshal to compel testmon y to be given incommunicado. In fact it was Star Chamber judges who helped to make closed-door court proceedings so obnoxious in this country that the Bill of Rights guarantees public trials and the assistance of counsel. And secretly compelled testimony does not lose its highly dangerous potentialities merely because it represents only a 'preliminary inquisition * * * whereby the court is given information that may move it to other acts thereafter.' (248 N.Y. 465, 162 N.W. 492.) Nor does this record justify a holding that this inquisition adopted the mantle of secrecy and barred counsel from the room out of tender solicitude for the reputation of the defendants in this contempt case. Doubtless the defendants' lawyer and the defendants themselves are at least as capable and perhaps as much interested in saving their reputations as the judge who is sending them to jail.
20
The naked, stark issue here is whether a judge, who must actually try cases in public—or any other government official for that matter—can consistently with due process compel persons to testify and perhaps to lay the groundwork for their later conviction of crime, in secret chambers, where counsel for the State can be present but where counsel for the suspect cannot. In upholding such secret inquisitions the Court once again retreats from what I conceive to be its highest duty, that of maintaining unimpaired the rights and liberties guaranteed by the Fourteenth Amendment and the Bill of Rights. Cf. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684; Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081; Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040. Here as in Groban my answer would be that no public official can constitutionally exercise such a dangerous power over any individual. I would therefore reverse this conviction.
1
The petition of the Bar Association alleged, among other things: 'That such practices result in the following: unfair agreements of retainer; maintenance by lawyers of some system of obtaining prompt information of accidents; congestion of court calendars by unworthy causes which are never intended to be brought to trial; a false conception by lawyers engaged in this practice that the relationship between attorney and client is a commercial transaction in which the interest of the client plays an unimportant part; impairment of public confidence in the Courts; and delay in the administration of justice.'
2
Upon Mr. Justice Arkwright's retirement on December 31, 1958, the Appellate Division designated Mr. Justice Edward G. Baker of the New York Supreme Court as his successor.
3
Each appellant was enlarged on bail after serving two days of his sentence.
4
'Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:
'(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.'
5
In investigations of this kind New York has deemed 'the presence of lawyers * * * not conductive to the economical and thorough ascertainment of the facts.' In re Groban, 352 U.S. 330, 335, 336, 77 S.Ct. 510, 515, 1 L.Ed.2d 376 (concurring opinion). In an interim report, release of which was authorized by the Appellate Division, Mr. Justice Arkwright stated that from March of 1957 to June of 1958 the Inquiry issued 4,875 'request' subpoenas, 2,150 witness and duces tecum subpoenas, and examined the records of approximately 5,000 insurance companies. During the same period the Inquiry's staff examined informally about 2,500 persons, and from May of 1957 to June of 1958 some 726 witnesses were interrogated before the Special Term itself.
6
'Any statute or rule to the contrary notwithstanding, all papers, records and documents upon the application or examination of any person for admission as an attorney and counsellor at law and upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential. However, upon good cause being shown, the justices of the appellate division having jurisdiction are empowered, in their discretion, by written order, to permit to be divulged all or any part of such papers, records and documents. In the discretion of the presiding or acting presiding justice of said appellate division, such order may be made either without notice to the persons or attorneys to be affected thereby or upon such notice to them as he may direct. In furtherance of the purpose of this subdivision, said justices are also empowered, in their discretion, from time to time to make such rules as they may deem necessary. Without regard to the foregoing, in the event that charges are sustained by the justices of the appellate division having jurisdiction in any complaint, investigation or proceeding relating to the conduct or discipline of any attorney, the records and documents in relation thereto shall be deemed public records.'
7
A proposed bill would have added to the Civil Rights Law a new § 12—a, providing as follows: 'Right of representation by counsel of persons clle d as witnesses in certain inquiries and investigations. Any person called as a witness by or Before any * * * judicial investigating committee, * * * or before any judge, * * * authorized or directed to conduct any inquiry or investigation, whose testimony may tend to involve himself or any other person in any subsequent criminal or quasi-criminal prosecution or in any subsequent disciplinary proceeding for professional misconduct, * * * or the revocation or suspension of any license to engage in a profession, trade or business, shall have the right to be accompanied by his counsel who shall be entitled on behalf of his client to (a) object to the jurisdiction of the * * * inquiry * * * and to argue briefly thereon; (b) to confer privately with his client to advise him of his legal rights whenever his client requests such a conference; (c) to object to procedures deemed by him to violate his client's legal rights; and (d) question the witness on his behalf, at the conclusion of his direct testimony, on any matter relevant to the subject of the inquiry or investigation, subject to such reasonable limitations as may be imposed by the officer presiding at such inquiry or investigation.'
8
The Appellate Division's order establishing the Special Term provided 'that, for the purpose of protecting the reputation of innocent persons, the said inquiry and investigation shall be conducted in private, pursuant to the provisions of the Judiciary Law (Section 90, Subdivision 10); that all the facts, testimony and information adduced, and all papers relating to this inquiry and investigation, except this order, shall be sealed and be deemed confidential; and that none of such facts, testimony and information and none of the papers and proceedings herein, except this order, shall be made public or otherwise divulged until the further order of this court; and * * * that upon the conclusion of said inquiry and investigation the said Justice shall make and file with this court his report setting forth his proceedings, his findings and his recommendations.'
9
See, p. 1, supra; Note 13, infra.
10
Page's Ohio Rev.Code, 1954, § 3737.13.
11
In the interim report already memtioned, Note 5, supra, Mr. Justice Arkwright stated:
'We have been scrupulous in apprising all attorneys of the stated purposes of the Inquiry as laid down by the Appellate Division, and witnesses, whenever required, have been advised of their constitutional rights.
'As many as 30 persons sworn as witnesses before the Additional Special Term have, as is their unquestioned right, invoked their constitutional privilege against self-incrimination, including 11 attorneys and 10 doctors. Faced with this roadblock, Counsel for the Inquiry has been forced to develop and to present independent evidence of the facts.'
12
'* * * I indicated that we did not intend to pussyfoot with them, we were not trying to trap them in any manner, but that testimony and evidence had come before us in the course of our investigation that someone in the employ of the Gotham Claims Service (appellants' partnership) had, with some frequency, obtained statements from defendants (in pending or prospective negligence
actions), holding themselves out to be from defendant's (insurance) carrier and also holding themselves out to be from other agencies, and in one instance the district attorney's office. That our investigation had disclosed that these statements had been tampered with, and that it was relative to this that we wished to speak to them to find out if these statements were actually taken by the Gotham Claims Service, for what attorneys these statements were taken, and whether the tampering was done by them or their employees or at the direction of some attorney.
'I told Mr. Zangara (appellants' counsel) that the interests of the Judicial Inquiry was primarily directed at the attorneys that they had done busiess with, that if they cooperated fully I felt that the Court would take that into consideration if something unethical had been done.
'I further stated that in my opinion there was prima facie evidence in the event that the clients decided to plead the Fifth Amendment, to refer this matter to the district attorney.
'I stated it was my opinion, I did not indicate that that would be done, I did not indicate that it was even being considered at the time. I was merely giving my opinion for which they had asked. I made it quite clear that this was all off the record, that they were asking what amounted to a favor, and I was being very frank and honest with them. And I was thanked for indicating to them what the picture was.
'In fact, I remember indicating that any final action on the matter would have to be on the part of your Honor (the Justice in charge of the Inquiry) and that the Appellate Division would finally rule as to what would actually be done.'
13
The record shows that when appellants persisted in their recalcitrance despite the court's directions to answer, it called in counsel, informed him that it considered appellants' refusals contemptuous and directed him and appellants to reappear two days thereafter. At that time, the court heard argument by counsel why appellants should not be held in contempt. It then again told counsel that each appellant was 'here merely as a witness, not as a defendant, not as a respondent. You understand what I am talking about. You can explain that to him.' The court next explained the procedure it would follow as to each appellant:
'We are going to ask him some of the question that were asked before and if he wishes to consult you, we will give him every opportunity to do so at any time during the questioning or any time that I direct.
'* * * if you will retire from the courtroom we will call * * * (him) to the stand.'
Appellants continued in refusing to answer. The court held them in contempt and recalled counsel for a hearing on the contention that their corridor conversation with the staff assistant established their status as defendants. It then heard argument by counsel on punishment, and imposed the challenged sentence.
*
Despite the judge's repeated statements that these persons were 'witnesses' not defendants, the statement of a member of the judge's inquiry staff, set out in note 12 of the Court's opinion, makes it clear that they were suspected and under investigation for criminal conduct.
| 01
|
360 U.S. 423
79 S.Ct. 1257
3 L.Ed.2d 1344
Talmadge RALEY, Joseph Stern and Emmett Calvin Brown, Appellants,v.STATE OF OHIO. Anna H. MORGAN, Appellant, v. STATE OF OHIO.
Nos. 175, 463.
Argued April 22, 23, 1959.
Decided June 22, 1959.
Mr. Morse Johnson, Cincinnati, Ohio, for appellants Raley and others.
Mrs. Thelma C. Furry, Akron, Ohio, and Mrs. Ann Fagan Ginger, New York City, for appellant Morgan.
Messrs. C. Watson Hover and Carl B. Rubin, Cincinnati, Ohio, for the State of Ohio in No. 175.
Mr. Earl W. Allison, Columbus, Ohio, for the State of Ohio in No. 463.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
These two appeals involve convictions of four appellants for refusal to answer certain questions put to them at sessions of the 'Un-American Activities Commission' of the State of Ohio, established in the legislative branch of the Ohio Government.1 The appellants had claimed the privilege against self-incrimination in refusing to answer each of the questions. The cases are before us for the second time; on prior appeals the judgments below were vacated and the causes remanded for reconsideration in the light of Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311, and Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273. See 354 U.S. 929, 77 S.Ct. 1391, 1 L.Ed.2d 1532. The remand resulted in a reaffirmance of the prior judgment without discussion, 167 Ohio St. 295, 147 N.E.2d 847, and on the present appeals we postponed further consideraton of the jurisdictional questions presented until the arguments on the merits. 358 U.S. 862, 863, 79 S.Ct. 93, 3 L.Ed.2d 96.
2
The issues tendered by the parties range broadly and involve the power of the Ohio Legislature, in view of existing federal legislation, to investigate activities deemed subversive of the forms of government within the Nation, cf. Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640; the power of the State to compel disclosure of matters interconnected with the protected freedoms of speech and assembly, cf. NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Sweezy v. State of New Hampshire, supra; the existence of an expressed legislative interest for such an inquiry, and its definition and articulation to the person smmo ned, cf. Watkins v. United States, supra; Sweezy v. State of New Hampshire, supra; Scull v. Com. of Virginia, 359 U.S. 344, 79 S.Ct. 838, 3 L.Ed.2d 865, and the effect on testimonial compulsion of state immunity statutes not affording immunity from federal prosecution, cf. Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393. But our disposition of these cases makes it unnecessary to consider the application of the principles of the cases just cited. The appellants were informed by the Commission that they had a right to rely on the privilege against self-incrimination afforded by art. I, § 10, of the Ohio Constitution. The Ohio Supreme Court, however, held that the appellants were presumed to know the law of Ohio—that an Ohio immunity statute deprived them of the protection of the privilege and that they therefore had committed an offense by not answering the questions as to which they asserted the privilege. We hold that in the circumstances of these cases, the judgments of the Ohio Supreme Court affirming the convictions violated the Due Process Clause of the Fourteenth Amendment and must be reversed, except as to one conviction, as to which we are equally divided. After the Commission, speaking for the State, acted as it did, to sustain the Ohio Supreme Court's judgment would be to sanction an indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State had clearly told him was available to him. We agree with that part of Judge Stewart's dissenting opinion in the Ohio Supreme Court in which he said: 'since the defendants were apprised by the commission at the time they were testifying that they had a right to refuse to answer questions which might incriminate them, they could not possibly in following the admonition of the commission be in contempt of it * * *.' 164 Ohio St. at page 563, 133 N.E.2d at page 125. A rather detailed description of the proceedings below must be made to illuminate the basis of decision below and the turning point of our review of it here.
3
Mrs. Morgan, appellant in No. 463, was summoned before the Commission and interrogated mainly in regard to Communist Party activities. She appeared without counsel. To each question put she answered, 'I regret that I cannot answer your question under the Fifth Amendment of the Constitution, because to do so would give your Committee an opportunity to incriminate me,' or some more abbreviated form of words to the same effect. Such responses were given to virtually all the questions and in almost every case the Commission proceeded directly to ask its next question after receiving the response. In no case did the Commission direct that she answer its question. In one or two cases Commission members expressed surprise that she might consider an answer incriminating, and on such an occasion the Chairman asked her, 'Mrs. Morgan, are you aware of the fact that your failure to answer questions—some questions of this Commission, might also tend to put you in an embarrassing situation?' At another point, the Chairman positively informed her, 'I should like to advise you under the Fifth Amendment, you are permitted to refuse to answer questions that might tend to incriminate you. * * * But you are not permitted to refuse to answer questions simply for your own convenience.'
4
Raley, Stern, and Brown, appellants in No. 175, appeared before the Commission successively on another occasion, about six months later. They were interrogated about subversive activities in the labor movement. Raley answered some questions, but to most of them asserted the privilege against self-incrimination of the Federal and Ohio Constitutions. Most of his assertions of the privilege, including his initial ones, were not made the subject of comment or question by the Commission, the next question in the inquiry being put at once. On some few occasions, when Raley claimed the privilege, the Commission members indicated their doubt wheather any answer to a specific question put could be incriminating. On one occasion, the Commission asked Raley as to whether he recollected a certain interview. Raley claimed the privilege. The Chairman took the view that Raley was required to speak as to whether he recalled the interview, but assured him that the privilege existed as to the details of the interview: 'If you recall it, and we ask you as to your recollection, then you are privileged to claim your rights under the Constitution * * *.' This and one other occasion were the only ones in which the Commission even approached directing an answer to a question by Raley; but in one case the Chairman finally asked Raley to confer with his counsel to determine whether in his opinion the privilege applied, and in another Raley did so of his own accord; then, upon an affirmative reply by Raley's counsel, the Commission passed at once to the next question.'2
5
Stern was the next person to appear at the inquiry. After giving his name, he claimed the privilege against self-incrimination at the very next, question, which called for his address. Commission counsel asked him, 'Is there something about the nature or character of the home in which you live that to admit you live there would make you subject to criminal prosecution?' On Stern's continued refusal to answer, the Chairman directed an answer to the question, which was refused. To most subseuent questions, Stern again claimed the privilege against self-incrimination, and on the great majority of questions, the Commission simply passed on to the next question. The Chairman and Stern worked out a short form of words whereby he would be understood to be claiming the privilege as to a particular question.3 At one point Stern asked the Commission if the Commission had the right to go into his opinions and to require him to speak as to them. The Chairman informed him, 'Not if in your opinion by so doing, you might tend to incriminate yourself.' On a few occasions the Chairman requested that Stern answer a question, but except for the question as to his residence, the occasions were those in which Stern had neither given a direct answer nor invoked the privilege, and upon assertion of the privilege in these cases the request was not renewed.4
6
Brown then was subjected to inquiry. He claimed the privilege as to self-incrimination to most of the questions put to him. While the Chairman never told him in so many words (as he had told the other three appellants) that the privilege was available, Brown and the Chairman engaged in long colloquies in an attempt by the Chairman to clarify that by using a certain form of words Brown was claiming the privilege.5 The Chairman's concern is inexplicable on any other basis than that he deemed the privilege available at the inquiry, and his statements would tend to create such an impression in one appearing at the inquiry. When once he made it clear that he was claiming the privilege as to a question, Brown was never directed to answer. He was on a couple of occasions directed to answer a question when he was engaging in a colloquy with the Commission without either having answered it directly or having claimed the privilege; upon his claim of the privilege, the next question was at once put.6
7
The Ohio immunity statute extends, so far as is here relevant, to any person appearing before a legislative committee and grants immunity from state prosecutions or penalties 'on account of a transaction, matter, or thing, concerning which he testifies'; the statute declares that the testimony given on such an appearance 'shall not be used as evidence in a criminal proceeding' against the person testifying. Ohio Rev.Code, § 101.44. For reasons unexplained, the existence of this immunity was never suggested by the Commission to any of the appellants, and in fact, as the above statement makes evident, the Commission's actions were totally inconsistent with a view on its part that the privilege against self-incrimination was not available. The Commission thought the privilege available, and it gave positive advice that it could be used. As the Chairman testified in the procedings below: 'It was the policy of the commission not (to) press questions which we felt would be of an incriminating nature. For instance, whenever a witness was asked a question—I believe every witness before the commission was asked the question—Are you or have you ever been a member of the communist party, and if the witness refused to answer that question, We did not press it. Frequently I made statements which indicated the policy of the commission.'
8
Indictments were found against the four appellants for failure to answer various of the questions put to them at the inquiry. In the cases of Raley, Stern, and Brown—who were indicted at the same time and tried together, but in a different court from Mrs. Morgan—only a few of the questions were made the subject of the indictment.7 There appears to have been some effort to restrict their indictments to those questions to which the prosecution thought no answer could have been incriminating. On the other hand, virtually every question asked Mrs. Morgan was made the subject of her indictment.8
9
A jury was waived by Raley, Stern, and Brown, and they were found guilty on each of the relatively few counts found against them, the trial court filing no opinion or conclusions of law. The Court of Appeals affirmed the convictions on some of the counts as to Raley, on one of the two counts as to Stern, and on all the counts as to Brown, and reversed the convictions on some of the counts as to Raley and on one count as to Stern.9 100 Ohio App. 75, 99—100, 136 N.E.2d 295, 315—316. It held that there was sufficient direction to the witnesses to answer the questions involved, so that their refusal was willful. The touchstone by which it affirmed some of the counts of the convictions and reversed others was whether, in the court's view, an answer to the question might have in fact been incriminating. hil e the court indicated that the immunity statute applied, it did not rely upon it in its judgment—as it expressly stated, 100 Ohio App. at page 99, 136 N.E.2d at page 315, and as its reversals of certain of the counts indicated.
10
A jury was also waived by Mrs. Morgan and she too was found guilty by a trial judge. The judge acquitted her on a few counts as to questions found not pertinent to the inquiry or duplicative of other questions. But as to the remaining counts, he ruled that her plea of self-incrimination was not valid, because she had referred solely to the Fifth Amendment and not to the appropriate provision of the Ohio Constitution guaranteeing anteeing freedom from compulsory self-incrimination. Ohio Const., art. I, § 10. Because of this, he held that it was unnecessary to have directed Mrs. Morgan to answer the questions or to have advised her at the inquiry that her plea of the privilege against self-incrimination was rejected. Further constitutional claims were summarily rejected. The Court of Appeals—a different one from that which passed on the appeal of Raley, Stern, and Brown—affirmed the judgment for the reasons stated in the trial court's opinion.
11
On appeal, the Supreme Court of Ohio, though affirming the convictions, abandoned reliance on the theories under which the appellants were found guilty by the courts below. It ruled that a fair reference to the privilege against self-incrimination of the United States Constitution was adequate to invoke the privilege under the Ohio Constitution, finding such reference made. 164 Ohio St. at pages 538—539, 133 N.E.2d at pages 111—112. And it did not discuss the theory on which the Court of Appeals relied in the case of Raley, Stern, and Brown; its basis for affirming the judgment was entirely independent of that of the Court of Appeals. The Supreme Court placed its reliance entirely on the immunity statute. It held that the immunity under the statute was automatically available to the appellants, that even though it did not preclude federal prosecution it was adequate to make answers compellable, and that since 'the immunity granted * * * precluded the possibility of justifying a refusal' to answer on the grounds of self-incrimination, 164 Ohio St. at page 553, 133 N.E.2d at page 120, a direction by the Commission to the appellants to answer was not necessary. Various objections to the convictions under state law were also passed on and rejected. As we have noted, on remand from this Court, the Ohio Supreme Court passed on contentions made under Sweezy v. State of New Hampshire, supra, and Watkins v. United States, supra, and adhered to its former judgments.
12
First. We must examine our jurisdiction over these appeals. Appellants assert jurisdiction under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), a grant of jurisdiction on appeal, 'where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.' In their notices of appeal to this Court, appellants have phrased some of their federal constitutional claims as attacks on the constitutionality of the Ohio statute authorizing the Commission and the statute providing for immunity. But this does not suffice: 'It is essential to our jurisdiction on appeal * * * that there be an explicit and timely insistence in the state courts that a state statute, as applied, is repugnant to the federal Constitution, treaties or laws.' Charleston Federal Savings & Loan Ass'n v. Alderson, 324 U.S. 182, 185, 65 S.Ct. 624, 627, 89 L.Ed. 857. Despite the import of our order postponing the consideration of jurisdiction till the hearing on the merits, see Rule 16(4) of this Court, 28 U.S.C.A.,10 appellants have made no effort to support their burden of demonstrating an attack made by them on the validity of a state statute in the state courts, and we have found none Ac cordingly the appeals are dismissed. See Sweezy v. State of New Hampshire, supra, 354 U.S. at page 236, 77 S.Ct. at page 1204. But since various rights, privileges and immunities under the Federal Constitution were claimed below, 28 U.S.C. § 1257(3), 28 U.S.C.A. § 1257(3), we consider the appeal papers as petitions for certiorari, and in view of the public importance of the questions presented, grant certiorari. 28 U.S.C. § 2103, 28 U.S.C.A. § 2103.
13
The view we take to the merits of the case requires us to examine whether the appellants made a proper challenge to their convictions below, on federal constitutional grounds, on the theory that they were being convicted for claiming the privilege against self-incrimination after not being given to understand at the time of the inquiry that such a privilege was unavailable. In the lower Ohio courts, federal constitutional questions as to the adequacy of the insistence of the Commission on an answer to its questions were involved in the lower courts' discussion of the cases. In the appeal of Raley, Stern and Brown, the Court of Appeals discussed the extent to which the Commission gave the defendants to understand that answers were in fact desired to particular questions, and this as part of its consideration of constitutional claims under both the Federal and Ohio Constitutions. 100 Ohio App. at pages 87—90, 136 N.E.2d at pages 308—310. The trial court's opinion in Mrs. Morgan's case refers to the contention that a direction to answer was not given to the defendant, and also recites that a due process claim under the Federal Constitution was made.
14
The assignments of error made by Mrs. Morgan in the State Supreme Court show that she claimed in that court that the judgment of conviction was violative of due process, as guaranteed by the Federal Constitution, in that while she claimed the privilege, she was not 'charged with refusal to answer any questions asked by members of the Commission and that she was not notified that her claim of the privilege as rejected by the Commision.' The State Supreme Court passed on this claim,11 holding that a direction to answer was unnecessary because of the immunity statute, and stated generally that its reasoning and conclusions in her case 'apply with equal force to the appeal of Raley, Stern and Brown.' 164 Ohio St. at page 532, 133 N.E.2d at page 108. There can be no question as to the proper presentation of a federal claim when the highest state court passes on it. See Manhattan Life Ins. Co. of New York v. Cohen, 234 U.S. 123, 134, 34 S.Ct. 874, 877, 58 L.Ed. 1245. We think this sufficient here to satisfy the statutory requirement that the federal right sought to be vindicated in this Court be one claimed below. 28 U.S.C. § 1257(3), 28 U.S.C.A. § 1257(3).12
15
Second. We conclude that the judgments of conviction rendered below violate the Due Process Clause of the Fourteenth Amendment, with an exception to be later noted. We need not decide whether there is demanded of state investigating bodies as explicit a rejection of a claimed privilege against self-incrimination as has been held to be necessary under the statute punishing contempts of Congress. Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668; Emspak v. United States, 349 U.S. 190, 202, 75 S.Ct. 687, 694, 99 L.Ed. 997; Bart v. United States, 349 U.S. 219, 75 S.Ct. 712, 99 L.Ed. 1016. Nor need we decide whether it would be a sufficient basis for reversal here simply that the appellants were not given notice of the immunity law at the inquiry, though in analougous contexts we have insisted that state investigators make clear to those before them the basis on which an answer is required. Scull v. Com. of Virginia, 359 U.S. 344, 353, 79 S.Ct. 838, 843, 3 L.Ed.2d 865. This case is more than that; here the Chairman of the Commission, who clearly appeared to be the agent of the State in a position to give such assurances, apprised three of the appellants that the privilege in fact existed, and by his behavior toward the fourth obviously gave the same impression. Other members of the Commission and its counsel made statements which were totally inconsistent with any belief in the applicability of the immunity statute, and it is fair to characterize the whole conduct of the inquiry as to the four as identical with what it would have been if Ohio had had no immunity statute at all. Yet here the crime said to have been committed by the appellants, as defined by the State Supreme Court, was simply that of declining to answer any relevant question on the ground of possible self-incrimination. This was because the Court held that the Ohio immunity statute automatically removed any basis for a valid claim of the privilege, which generally exists under Ohio law.13 Ohio Const., art. I, § 10. Accordingly, any refusal to answer, based on a claim of the privilege, was said to constitute the offense. While there is no suggestion that the Commission had any intent to deceive the appellants, we repeat that to sustain the judgment of the Ohio Supreme Court on such a basis after the Commission had acted as it did would be to sanction the most indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State clearly had told him was available to him. Cf. Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212, 77 L.Ed. 413. A State may not issue commands to its citizens, under criminal sanctions, in language so vague and underfined as to afford no fair warning of what conduct might transgress them. Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. Inexplicably contradictory commands in statutes ordaining criminal penalties have, in the same fashion, judicially been denied the force of criminal sanctions. United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200. Here there were more than commands simply vague or even contradictory. There was active misleading. Cf. Johnson v. United States, 318 U.S. 189, 197, 63 S.Ct. 549, 553, 87 L.Ed. 704. The State Supreme Court dismissed the statements of the Commission as legally erroneous, but the fact remains that at the inquiry they were the voice of the State most presently speaking to the appellans.14 We cannot hold that the Due process clause permits convictions to be obtained under such circumstances.
16
We cannot reach a contrary conclusion by joining with the speculation of the court below that some of appellants might have behaved the same way regardless of what the Commission told them. We think it impermissible in a criminal case to excuse fatal defects by assuming that a person summoned to an inquiry, simply because he expresses defiance beforehand, will continue to be defiant even if a proper explanation is made of what the inquiry wants of him and the basis on which it is wanted. See Flaxer v. United States, 358 U.S. 147, 151, 79 S.Ct. 191, 193, 3 L.Ed.2d 183. It is alleged that the personal attitudes of the appellants toward the Commission were defective in various ways, but of course the indictments and convictions were had simply for refusing to answer questions. Neither can we find any ground for affirmance in the fact that certain refusals to answer occurred before the Chairman's assurances to the various appellants that the privilege existed became explicit. Certainly such assurances removed any reason for the appellants to reconsider their prior assertions of the privilege. And the positive assurances given only made explicit an attitude that the Commission had manifested throughout its interviews with these appellants. We cannot carve the inquiry into segments; the record does not suggest any picture of the Commission's negation of the privilege followed by an acquiescence in its use.
17
Finally, it is argued that the convictions may be supportable here as to those questions which an appellant was directed to answer after claiming the privilege. As the statement of the case we have made indicates, it is not shown that there was such a direction as to any question except one put to Stern,15 which stands as the basis for the sole count on which his conviction rests. As to the conviction based on this question, the Court is equally divided. To four of us, the matter is plain. Under the circumstances of the inquiry, the direction to answer given Stern was obviously not given because of the immunity statute, but because the Commission took the position that a generally available privilege did not exist as to a particular question, since no answer to it could possibly incriminate. Stern made his decision not to answer, it must be assumed, in the light of the Commission's attitude that the privilege generally applied, and on the basis of his own determination that the answer would tend to incriminate him. The Ohio Supreme Court has not disagreed with him on the issue on which he was directed to answer; it made no finding that the Commission was correct on the basis on which it ordered the answer that no response to the question possibly could incriminate.16 Four of us think that the same affront to the Due Process Clause as is generally presented in this case is presented by a judgment ignoring the grounds on which the Commision's direction to answer was given, and affirming the conviction by reason of an immunity statute whose existence the Commission negated. To four of us, it is obvious that Stern was as much 'entrapped' as the others. It ishea rdly an answer, in our view, to say he was directed to answer the question. In effect, the Commission said to Stern: 'We recognize your privilege against self-incrimination in this inquiry, but you must take care that you claim it only where your answer might really tend to be incriminating. We do not see how saying where you live might incriinate you, so to this question we reject your claim of privilege and order you to answer.' Stern's refusal to answer after the direction opened him to the risk that a court might hold that he was wrong and that the Commission properly ruled that no answer could be incriminatory. But the Ohio Supreme Court has not held this; it has not held that Stern's decision that the answer would tend to incriminate him was wrong, but only that the Commission was wrong in telling him that the privilege applied at all. It may have been at his peril that Stern made his decision that the answer was incriminatory, but four of us cannot see how consistently with the Due Process Clause it can be said that he thereby also assumed the very different peril that the basic premise of what the Commission was telling him—that the privilege existed—was one hundred percent in error. We four regret that our Brethren remain unpersuaded on this score, and that accordingly as to Stern the judgment must be affirmed by an equally divided Court.
18
Appeals dismissed.
19
On writs of certiorari, judgments reversed as to Raley, Brown and Morgan; judgment affirmed as to Stern by an equally divided Court.
20
Mr. Justice STEWART took no part in the consideration or decision of these cases.
21
Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER, Mr. Justice HARLAN and Mr. Justice WHITTAKER join.
22
We think the conviction of Stern must be affirmed. Like our Brethren who would reverse as to him we, too, agree with Judge Stewart, of Ohio's Supreme Court. But, as we read his opinion, he swept with a whisk broom not a carpet sweeper. Our Brothers take too broad a swath.
23
Judge Stewart said that since Ohio's Commission advised appellants that they had a right to refuse to answer questions which might incriminate them, 'they could not possibly in fllo wing the admonition of the Commission be in contempt of it' in refusing to answer any such queries. Brother BRENNAN'S opinion characterizes the action of the Commission as an 'indefensible sort of entrapment * * * convicting a citizen for exercising a privilege which the State clearly had told him was available to him.' We agree that such was true as to three of these appellants, and therefore concur in the opinion as to Brown, Raley and Morgan, But, as Judge Stewart went on to point out, the record clearly shows that Stern was not so entrapped.1
24
Stern was convicted for refusal to answer the question, 'Where do you reside, Mr. Stern?' The Chairman refused to accept Stern's plea of the privilege2 and twice unequivocally directed him to answer the question. Stern persisted in his refusal. The due process ground used in our Brother BRENNAN'S opinion to invalidate the convictions of Brown, Raley and Morgan is, therefore, not present as to Stern. There was no 'entrapment' in the above question upon which he was convicted, since it was made clear, even without reference to the Ohio immunity statute, that as to that question the privilege was not available. The reason given by the Commission, except where bad faith is necessary which is not true here,3 is irrelevant. The test is whether the witness was commanded to answer regardless. Neither Morgan nor Raley was so directed, but Stern was categorically instructed to do so.4
25
Admitting that the direction to answer was 'obviously * * * (given) because the Commission took the position that a generally available privilege did not exist,' four members of the Court still refuse to affirm as to Stern because the State Supreme Court did not go on that ground. But they overlook the sweep of their own opinion. t i § the Federal Due Process Clause that is being applied and the Court must take the facts as shown by the record. It clearly shows that stern was not entrapped by the statements of the Chairman as to the availability of the privilege for the question forming the basis of the only count of the indictment before us. Unlike the others, he was specifically ordered to answer. In this posture of the facts there could be no entrapment and hence no lack of due process. We would therefore affirm as to Stern.
1
The three appellants in No. 175, Raley, Stern, and Brown, were convicted in a joint trial in a different Common Pleas Court from the one in which appellant in No. 463, Mrs. Morgan, was convicted. The judgments as to Raley, Stern, and Brown were affirmed in the Court of Appeals for Hamilton County, 100 Ohio App. 75, 136 N.E.2d 295, and that of Mrs. Morgan in the Court of Appeals for Franklin County. The cases were decided by the Ohio Supreme Court in a single opinion, 164 Ohio St. 529, 133 N.E.2d 104, which affirmed the convictions.
Raley, Stern, and Brown were convicted under the then applicable provisions of Ohio General Code, § 12137, which provided that 'a failure * * * to answer as a witness, when lawfully required' may be punished 'as for a contempt.' Mrs. Morgan was convicted under Ohio General Code, § 12845, which punished those, summoned before a Committee of the State Legislature, who refuse 'to answer a question pertinent to the matter under inquiry.'
2
After the Chairman's initial statement quoted in the text, and some exchange between the Chairman and Raley's counsel, the following occurred:
'Chairman Renner: I should like for you to consult with counsel to determine whether in his opinion you are required to answer
the question, whether you to answer the question, whether you recollect having had such an interview.
'The Witness: I have ben advised by counsel that the privilege does apply, if I desire to use it.
'Chairman Renner: Counsel (for the Commission) may proceed.'
Whereupon the next question was put. In the other instance Raley appears to have consulted with counsel of his own accord:
'Chairman Renner: Mr. Raley, would you explain to the Commission how you could incriminate yourself by acknowledging the location of the headquarters of Local 766 on that date?
'The Witness: I don't believe, Mr. Chairman, that I have to give a reason for asserting the privileges of the Constitution, so my answer would be the same to that I gave Mr. Isaacs. (The Commision Counsel.) I will assert my privileges.
'Chairman Renner: I nevertheles request an answer.
'The Witness: Just a second while I confer with counsel.
'Mr. Berger (Raley's counsel): I would like to hear the question read.
'Chairman Renner: Read the question, please.
'(Several questions and answers read by the reporter.)
'Mr. Berger: That is what I thought.
'(The witness conferred with counsel.)
'The Witness: I think I was correct in view of the line of questions that I have to assert my privileges under the Constitution.
'Chairman Renner: Counsel will proceed.'
And again the next question was forthwith put.
3
'Chairman Renner: Counsel,jus t a moment. When you say you claim the privilege, you claim the privilege of not replying by reason of the fact that your answer might tend to incriminate you?
'The Witness: I claim the privilege of not answering under the Fifth Amendment of the United States Constitution, and Section 1, Article 10 of the Ohio Constitution, as I understand them.
'Chairman Renner: I do not insist that you recite in full the precise article or section of the Bill of Rights of the state of Ohio, or the Federal Constitution, but in your reply, if you are resorting to those sections, make it clear that you are resorting to those sections, or let us have an understanding that when you say, 'The same answer,' that that is what it means.
'The Witness: It means that I claim the privilege of the Fifth Amendment, of the United States Constitution, and Article 1, Section 10 of the Ohio Constitution, as I understand them.
'Chairman Renner: And when you say, 'I claim the privilege,' that is what you mean in full; is that correct?
'The Witness: That is correct.'
4
One such exchange was as follows:
'Chairman Renner: The chair will ask the witness to answer the question that has been placed by Counsel. It is to be presumed that the witness is excused from answering the previous question. We are trying to make it easier for you, Mr. Stern.
'The Witness: I plead the privilege.
'By Mr. Isaacs:
'Q. I take it you are not making the denial that you started to make before? A. I invoke the privilege.'
Whereupon the next question was put.
5
'Chairman Renner: What do you mean when you say 'The answer is the same'?
'The Witness: I mean when I say 'The answer is the same,' the preceding question that was asked me, linking up with the next question that is asked me, I answered the first question. I said I invoked the Fifth Amendment of the United States Constitution.
'Chairman Renner: You mean you refuse to answer?
'The Witness: I did not say I refuse. I didn't refuse and I don't know what you mean. I said, 'invoked.' Do you know what the word 'invoked' means?
'Chairman Renner: Do you refuse to answer?
'The Witness: The answer is the same.'
Later, the Chairman tried again:
'Chairman Renner: Each time you have replied by saying, 'The answer is the same,' that full explanation that you have given, is that what you mean; is that correct?
'The Witness: I understand this amendment to mean that I can't be forced to testify against myself.
'Chairman Renner: And each time that you say the answer is the same, you mean to invoke that right; is that correct
'The Witness: When a question is projected to me—
'Chairman Renner: Will you answer my question?
'The Witness: By you, I will answer that question on the basis of that question that is projected at that time. * * *
'Chairman Renner: I am simply trying to clarify for the record what you mean each time you say, 'The answer is the same."
On another occasion, the Chairman had the matter cleared up, at least for a while:
'Chairman Renner: What do you mean, 'the answer is the same'?
'The Witness: In regard to that question, in the manner in which that question was phrased, I again invoke—see—the Fifth Amendment of the Constitution of the United States, see? Do you understand what that means?
'Chairman Renner: That is what I wanted.'
6
The following is illustrative:
'Q. I ask you if it is not a fact that in February of 1950, you caused to be distributed a leaflet stated to be issued by the Workers Club, Emmett C. Brown, Chairman, 1064 Flint Street? A. Is that a fact?
'Q. I am asking you to affirm or deny that fact. A. If you know it, why ask me to affirm?
'Chairman Renner: Answer the question, Mr. Brown.
'The Witness: I invoke the privileges of the Fifth Amendment.'
Whereupon the next question was asked.
7
Sixteen against Raley, two against Stern, four against Brown. 'These were minor fractions of the numbers of questions put them to which the privilege was pleaded.
8
The only omissions appear to be in regard to several pleas of self-incrimination made by Mrs. Morgan, when, in handing a statement to the Commission for the record, she was asked whether it was her statement.
9
The State did not appeal the reversals.
10
'If consideration of the question of jurisdiction is postponed, counsel should address themselves, at the outset of their briefs and oral argument, to the question of jurisdiction.'
11
Said the court: 'It is argued also that the Quinn case, supra, (Quinn v. United States, 349 U.S. 155 (75 S.Ct. 668, 99 L.Ed. 964)) is, in effect, a mandate by the Supreme Court of the United States to all legislative bodies, both national and state, that they must specifically direct a witness to answer he may be cited for contempt, and a directive to all judicial tribunals in the nation that such must be the case before a witness may be convicted of contempt.' 164 Ohio St. at page 545, 133 N.E.2d at page 115. Clearly this was a discussion of whether the theory of the Quinn case, that a witness must be apprised of the rejection of the privilege, was binding on the States as a matter of the Federal Constitution.
12
It is true that the assertion of violation of federal rights through the lack of a direction to answer, passed on below, does not precisely match the dispositive ground of the case, that is, not merely the absence of a direction to answer on the part of the Commission, but the positive assurances that the priviege was available. But this is really only a variation of the former theme, put into sharper focus by the State Supreme Court's theory of decision. See Dewey v. City of Des Moines, 173 U.S. 193, 198, 19 S.Ct. 379, 380, 43 L.Ed. 665. The claim made and passed on was, in essence, lack of knowledge by the appellants, because of the Commission's actions, that they were being considered as unlawfully refusing to answer the questions. The Supreme Court's conclusion added more force to the contenion but did not change its nature.
13
Accordingly, the applicability of Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, to the present case need not be discussed.
14
The State Supreme Court relied on Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692, in support of its holding. Sinclair dealt with a witness at an investigation who refused to answer questions by reason of a legal theory he entertained, where the Committee rejected his legal theory explicitly and ordered him to answer. He refused and was convicted. The Court found his legal theory in error, and held that under the circumstances the entertaining of this erroneous legal theory in good faith was no defense to the witness. That Sinclair is wholly inapposite here requires no further statement.
15
It is suggested that Brown declined to answer one question other than on grounds of self-incrimination. No such finding was made by the Ohio Supreme Court, which treated the entire case as involving pleas of self-incrimination; accordingly, so do we. No direction to answer as to this question was given by the Commission. It may be well to quote the entire context:
'Q. And what has been your educational background? A. I refuse to answer that question. I invoke my rights and privileges under the Fifth Amendment.
'Q. Is there some particular illegal institution which you attended or some Communist Party school that you attended that makes you hesitate to reveal where you were educated? A. No, I just don't think it is your business.
'Chairman Renner: We will determine that, Mr. Brown.
'By Mr. Isaacs:
'Q. Do I understand, for the record, you are refusing to answer the question because you feel it is not our business? A. The answer is the same.
'Mr. Isaacs: May the record show that, please.
'Q. (Going on to the next question) What has been your employment record in recent years, Mr. Brown?'
16
While one of the Ohio Courts of Appeals put its affirmance of some of the counts on this basis, the issue whether any particular questions were free of the possibility of an incriminating answer was not considered by the Ohio Supreme Court, and was in fact irrelevant to the court, under the view it took of the case. We review its judgment here, and it is basic that after finding constitutional error in a state court judgment we cannot affirm it here by postulating some ground of state law not relied on below. Murdock v. City of Memphis, 20 Wall. 590, 636, 22 L.Ed. 429, proposition 7; cf. Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 444, 36 S.Ct. 141, 142, 60 L.Ed. 372.
1
Judge Stewart said that the witnesses could not have been in contempt 'except as to the few questions which two of them were directed to answer.' 164 Ohio St. at page 564, 133 N.E.2d at page 126. The second witness whom Judge Stewart had in mind would seem from the record before us to be Brown. The first count of Brown's indictment was based on a refusal to answer the question, 'And what has been your educational background?' After pleading the privilege, Brown was pressed for an explanation as to why his answer would be incriminating. Brown responded 'I just don't think it is your business.' When pressed further, Brown reverted to the privilege. On the record here, we find no specific direction to Brown to answer, and thus we must concur in the reversal of Brown's conviction. The question of the sufficiency of the plea will, of course, be open on remand.
2
The pertinent colloquy following Stern's refusal to answer was as follows:
'Q. What is there in either of those constitutions (Ohio and federal) that permits a witness to refuse to state where he resides? A. I claim the privilege under the Fifth Amendment of the United States Constitution, and Section 1, Article 10 of the Ohio Constitution.
'Q. Is there something about the nature or character of the home in which you live that to admit you live there would make you subject to criminal prosecution? A. The same answer.
'Chairman Renner: The chair will request that the witness answr the question.
'The Witness: I have answered the question.
'Mr. Isaacs (the Commission's Counsel): Mr. Chairman, I ask that the witness be ordered and directed to answer the question.
'Chairman Renner: The chairman directs the witness to answr the question relating to his address, the address of his residence in Cincinnati.
'The Witness: The same answer.
'Q. (By Mr. Isaacs): As a matter of fact, Mr. Stern, you reside at 3595 Wilson Avenue in the city of Cincinnati, Ohio; is that not correct? A. The same answer.'
3
Under Ohio law as announced in the opinion below it is not necessary to show a 'willful' or 'deliberate' refusal to answer. 164 Ohio St. at page 543, 133 N.E.2d at page 114.
4
As to Brown, see note 1, supra.
| 23
|
360 U.S. 470
79 S.Ct. 1431
36 L.Ed.2d 1531
Harry LEV et al.v.UNITED STATES. Raymond WOOL v. UNITED STATES.
Nos. 435, 436 and 437.
Marvin RUBIN
v.
UNITED STATES.
Supreme Court of the United States
June 22, 1959
Rehearing Denied Oct. 12, 1959.
See 80 S.Ct. 41.
Mr. Anthony Bradley Eben, for petitioner Lev.
Mr. Albert H. Treiman, for petitioner Wool.
Mr. John T. Sullivan (Mr. Isidor Enselman, on the brief), for petitioner Rubin.
Mr. Oscar H. Davis (Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg, Julia P. Cooper, and Mr. Jerome M. Feit, on the brief), for the United States.
On writs of certiorari to the United States Court of Appeals for the Second Circuit.
PER CURIAM.
1
The judgment is affirmed by an equally divided Court.
2
Mr. Justice STEWAT t ook no part in the consideration or decision of these cases.
| 01
|
360 U.S. 367
79 S.Ct. 1231
3 L.Ed.2d 1304
Joel ROSENBERG, Petitioner,v.UNITED STATES of America.
No. 451.
Argued April 28, 1959.
Decided June 22, 1959.
Mr. Edward M. Dangel, Boston, Mass., for petitioner.
Miss Beatrice Rosenberg, Washington, D.C., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Petitioner was convicted in the District Court for the Eastern District of Pennsylvania, 146 F.Supp. 555, for transporting in interstae c ommerce a check obtained by the perpetration of a fraud to which he had been a party. 18 U.S.C. § 2314, 18 U.S.C.A. § 2314. That conviction was reversed by the Court of Appeals for the Third Circuit on the ground that Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, which had been decided after conviction but before appeal, required production for petitioner's inspection of certain statements in the prosecutor's possession. 3 Cir., 245 F.2d 870. The second trial thus ordered also resulted in a conviction, D.C., 157 F.Supp. 654, which was sustained by the Court of Appeals for the Third Circuit, 257 F.2d 760, 762. We granted certiorari, 358 U.S. 904, 79 S.Ct. 233, 3 L.Ed.2d 227, limited to the questions of the application of the Jencks rule to this prosecution, the effect of the statute enacted establishing legislative rules concerning the production of documents, 18 U.S.C. (Supp. V) § 3500, 18 U.S.C.A. § 3500, and the propriety of the ruling of the Court of Appeals that if the trial judge had erred in failing to deliver to petitioner certain documents, the error was harmless and therefore not grounds for reversal.
2
In the second trial, upon a demand for production for inspection of Federal Bureau of Investigation files, the United States Attorney delivered to the trial judge, and the trial judge in turn gave to petitioner's counsel, numerous documents from the Government's files. Many of these would not have been required to be provided under either the Jencks decision or the statute enacted subsequent to it. Petitioner complains that the few documents withheld by the trial judge were required to be submitted for his inspection by our opinion in Jencks and that the failure to give him that opportunity requires a reversal. We have today held in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, that since its enactment 18 U.S.C. (Supp. V) § 3500, 18 U.S.C.A. § 3500, and not the Jencks decision governs the production of statements of government witnesses for a defendant's inspection at trial.
3
In accordance with 18 U.S.C. (Supp. V) § 3500(c), 18 U.S.C.A. § 3500(c), the material withheld was preserved in the record to permit review of the correctness of the trial judge's rulings. As did the Court of Appeals, we have reviewed the documents withheld by the trial judge. Two are reports by FBI investigators which in no sense complied with subsection (e) of the statute. They were neither signed nor otherwise adopted by any witness at the trial, nor were they reproductions as statutorily required of any statement made by any witness at the trial. A third document did comply with such requirement. It is a typewritten copy of a statement given by Rosenberg's confessed associate in the crime, Meierdiercks, to the FBI. It is signed by Meierdiercks and its contents were pertinent to the trial of the case. However, the original handwritten statement, of which this was, as already stated, merely a copy, was itself given to petitioner's attorney. No relevant purpose could have been served by giving petitioner's counsel a typewritten copy of a document which he had already been given in its original form, no advantage to the petitioner was denied by withholding it.
4
The last group of documents in controversy is a series of letters written by the victim Florence Vossler to the FBI. They were signed by her and thus met the requirement of subsection (e). However, of the six letters withheld by the trial judge, five clearly fail to meet the statutory requirement that only that statement 'which relates to the subject matter as to which the witness has testified' need be produced. 18 U.S.C. (Supp. V) § 3500(b), 18 U.S.C.A. § 3500(b). These five were totally irrelevant to the proceedings. In the sixth of this group of letters, Florence Vossler wrote to the Assistant United States Attorney that her memory had dimmed in the three years that had passed since the fraud had been perpetrated and that to refresh her failing memory she would haveto reread the original statement she had given before the first trial to the FBI.
5
A statement by a witness that she fears her memory as to the events at issue was poor certainly 'relates to the subject matter as to which the witness has testified 'and should have been given to defendant. This was recognized as error by the Court of Appeals. 3 Cir., 257 F.2d 760, 763. That court, however, found that the same information which was contained in the letter was revealed to defendant's counsel by statements made by Florence Vossler under cross-examination and upon questioning by the trial judge. A review of the record, portions of which are reproduced in an Appendix, precludes us from rejecting the judgment on which the Court of Appeals based its conclusion that the failure to require production of this letter was empty of consequence. Since the same information that would have been afforded had the document been given to defendant was already in the possession of the defense by way of the witness' admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had opportunity to inspect the letter.
6
An appellate court should not confidently guess what defendant's attorney might have found useful for impeachment purposes in withheld documents to which the defense is entitled. However, when the very same information was possessed by defendant's counsel as would have been available were error not committed, it would offend common sense and the fair administration of justice to order a new trial. There is such a thing as harmless error and this clearly was such. The judgment of the Court of Appeals for the Third Circuit is therefore affirmed.
7
Affirmed.
APPENDIX TO OPINION OF THE COURT
8
Mr. Singer. 'Miss Vossler, it has been quite sometime since you have testified. Have you had an opportunity within the last six months or so to go over any previous testimony or statements which you might have given with reference to this matter? Have you spoken to anyone—'
9
Miss Vossler. 'You mean testimony that I gave?'
10
Mr. Singer. 'That is correct.'
11
Miss Vossler. 'The testimony that I gave in this court?'
12
The Court. 'Yes, in June, 1956.'
13
Miss Vossler. 'Yes. No, I haven't seen anything.' The Court. 'You haven't seen—'
14
Miss Vossler. 'Any testimony.'
15
The Court. '—the transcript of that testimony—'
16
Miss Vossler. 'No, sir.'
17
The Court. '—which was in books like this (indicating)?'
18
Miss Vossler. 'No, no, Your Honor, nothing.'
19
The Court. 'Well, have you seen any statement which you gave to agents of the Federal Bureau of Investigation?'
20
Miss Vossler. 'Yes, because I had a copy of the first statement that I gave on January 24. That is the only statement I had.'
21
The Court. 'Have you got that with you?'
22
Miss Vossler. 'No, I haven't, now.'
23
The Court. 'When did you last see it?'
24
Miss Vossler. 'Well, Mr. Bechtle asked that I leave it with him upstairs.'
25
The Court. 'When was that?'
26
Miss Vossler. 'Monday when I arrived here.'
27
The Court. 'In other words, you looked it over Monday?'
28
Miss Vossler. 'Well, I glanced at it Monday. I didn't read it line for line.'
29
The Court. 'Well, when did you last read it line for line?'
30
Miss Vossler. 'Well, last week, because I had it at my home.'
31
The Court. 'Last week you read over the statement—'
32
Miss Vossler. 'Yes.'
33
The Court. '—of January 24, you say, 1955?'
34
Miss Vossler. 'Yes. That is when the FBI agents came to my home.'
35
The Court. 'I see. Last week. You have that statement, don't you?'
36
Mr. Singer. 'I have it here.' Miss Vossler. 'That is the only statement that I have seen at all, at any time.'
37
Record, pp. 330—332.
38
Further evidence of Florence Vossler's loss of clear recollection came to defendant's attorney during the course of the cross-examination. He asked the witness to identify a Mr. McComb.
39
Miss Vossler. 'Well, let me see if I an remember. Mr. McComb came to my house one time—you see, it is always possible to find the names of people who buy leases or purchase leases—'
40
Mr. Singer. 'May I interrupt you one moment, please. In all fairness to the witness, Your Honor, I feel that I should introduce this report and permit her to refresh her recollection.'
41
The Court. 'Yes, thank you. What number is it?'
42
Mr. Singer. 'This is Court's Exhibit No. 10, which is a summary of various statements given by Miss Vossler to the FBI. And I ask Miss Vossler to read Page 2 so that she may properly answer the questions.'
43
Record, pp. 345—346.
44
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
45
The Government's case against petitioner rested on the testimony of Charles Meierdiercks, a confessed accomplice in the swindle that concerns us here, and Florence Vossler, the victim. Meierdiercks testified, in considerable detail, that he and the petitioner obtained Miss Vossler's check by fraud and that petitioner transported that check in interstate commerce before cashing it. Miss Vossler's testimony corroborated that of Meierdiercks to a considerable extent, but did not implicate petitioner. Since a conviction would have been impossible unless the jury believed Meierdiercks, it seems apparent that the Government put Miss Vossler on the stand in the hope that her detailed corroboration of Meierdiercks' story would lend credence in the eyes of the jury to the testimony of the confessed swindler. If the defense could have effectively impeached Miss Vossler, the Government would have had to rely on the essentially uncorroborated testimony of Meierdiercks for a conviction.
46
Defense counsel moved at the end of Miss Vossler's direct testimony for production of 'pertinent material in the possession of the government concerning this particular witness.' The trial judge, pursuant to this motion, ordered the delivery of some material to the defense but did not include a letter to the Assistant United States Attorney—handwritten and signed by Miss Vossler shortly before the trial—which stated in part: 'As a matter of fact, as time goes on, I am more hazy about the whole transaction and might not fare too well under a cross-examination, though I have here my statement with which to refresh my memory. It will be 3 years in January 1958 since the above swindle took place; therefore, I could not be accurate as to day to day occurrences after such a period, though, as stated, possibly a review of my statement would help.' The Court of Appeals and this Court both agree that this letter was a statement relevant to the subject matter as to which the witness testified on direct examination, and thus should have been given to the defense under the Command of the Jencks statute, 18 U.S.C. (Supp. V) § 3500, 18 U.S.C.A. § 3500. The Court holds, however, that: 'There is such a thing as harmless error and this clearly was such.' I dissent because it plainly appears that the harmless error doctrine should not be invoked in the circumstances of this case.
47
The principle underlying our decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, was that it is impossible for a judge to be fully aware of all the possibilities for impeachment inhering in a prior statement of a government witness, 'Because only the defense is adequately equipped to determine (its) * * * effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense * * *.' 353 U.S. at pages 668—669, 77 S.Ct. at page 1013.
48
The Jencks statute was clearly designed to effectuate this principle. The statute, while delimiting the statements which are to be turned over to the defense, obviously comprehends that statements which are producible under it must be given to the defense regardless of a judge's opinion as to how useful they might be on cross-examination, for only the defense can fully appreciate their possible utiity for impeachment. This is the rationale of the Jencks case, and this is the rationale of the statute. As the Senate reported: 'the proposed legislation, as here presented, reaffirms the decision of the Supreme Court in its holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in possession of the Government touching the events and activities as to which a Government witness has testified at the trial * * *.' S.Rep.No. 981, 85th Cong., 1st Sess., p. 3; and see H.R.Rep.No. 700, 85th Cong., 1st Sess., pp. 3, 4, U.S.Code Congressional and Administrative News 1957, page 1861. Although we need not go so far as those courts which have suggested that the harmless error doctrine can never apply as to statements producible under the statute, see Bergman v. United States, 6 Cir., 253 F.2d 933; United States v. Prince, 3 Cir., 264 F.2d 850, fidelity to the principle underlying Jencks and the Jencks statute requires, I think, that when the defense has been denied a statement producible under the statute, an appellate court should order a new trial unless the circumstances justify the conclusion that a finding that such a denial was harmful error would be clearly erroneous. In that determination, appellate courts should be hesitant to take it upon themselves to decide that the defense could not have effectively utilized a producible statement. This must necessarily be the case if the appellate court is to give effect to the underlying principle of Jencks, affirmed by the statute, which, I repeat, is that 'only the defense is adequately equipped to determine (its) * * * effective use for purpose of discrediting the Government's witness * * *.' Indeed, another consideration which should move the appellate court to be especially hesitant to substitute its judgment as to trial strategy for that of defense counsel is that, under the procedure established by the statute, the defense does not see the statement and has no opportunity to present arguments showing prejudice from its withholding.
49
In short, only a very strict standard is appropriate for applying the harmless error doctrine in these cases. Under such a standard, I cannot conclude that defense counsel could not have put Miss Vossler's letter to effective use in impeaching her. Although she stated on cross-examination that she had refreshed her memory before testifying by reference to a statement she had made previously, this oral testimony was obviously not as useful for impeachment purposes as her written admission shortly before trial that her memory of the events in question was failing. Defense counsel, if armed with the letter, might well have probed more deeply than he did in testing how her memory of the events to which she testified was refreshed. The trial strategy of defense counsel, familiar with his case and aware of the various possible lines of defense, might have been entirely different had he been in possession of the letter. At least I cannot bring myself to assume that this would not have been the case.
50
This is not a case in which the statement erroneously withheld from the defense merely duplicated information already in the defense's possession;* it is not a case in which the witness' testimony was unimportant to the proofs necessary for conviction; and it is not a case in which the witness' statement was wholly void of possible use for impeachment. In this case, the defense was denied a letter written by a key government witness shortly before trial making statements which raised serious questions as to her memory of the events about which she testified in considerable detail at the trial. In such a circumstance, I think it was error for the Court of Appeals to second-guess defense counsel as to the possible use of the letter on cross-examination. If we are to be faithful to the standards we have set for ourselves in the administration of criminal justice in the federal courts we must order a new trial in a casesuc h as this where the possible utility to the defense of the erroneously withheld statement cannot be denied. 'The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.' Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557. (Emphasis supplied.)
51
I would reverse the judgment of the Court of Appeals.
*
The defense was not given a typed statement signed by Meierdiercks which was discoverable under the statute, but this was harmless error since the defense was given a handwritten statement from which the typed statement had been copied.
| 01
|
360 U.S. 446
79 S.Ct. 1270
3 L.Ed.2d 1360
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.John R. HANSEN and Shirley G. Hansen. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Burl P. GLOVER. Clifton E. BAIRD and Violet L. Baird, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 380, 381, 512.
Argued April 29, 30, 1959.
Decided June 22, 1959.
Mr. Meyer Rothwacks, Washington, D.C., for Commissioner of Internal revenue.
Mr. Emmett E. McInnis, Jr., Seattle, Wash., for respondents Hansen.
Mr. W. S. Miller, Jr., Little Rock, Ark., for respondent Glover.
Mr. Lester M. Ponder, Indianapolis, Ind., for petitioners Baird.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
These federal income tax cases present questions concerning the proper and timely accrual of gross income deriving from sales of commercial installment paper by retail dealers to finance companies. The taxpayers involved i these cases are two retail automobile dealers and a house trailer dealer. All keep their books on the accrual basis. Most of their sales are 'credit sales.' It appears that they generally negotiate, consummate, and finance such sales in accordance with a common pattern. The dealer and his customer agree upon a 'Cash Delivered Price' for a particular vehicle owned by the dealer. In part payment of that price the customer makes a down payment to the dealer in dash or 'trade in,' or both. To the remaining balance of that cash price there is added the cost of insurance on the vehicle and a 'finance charge.' The aggregate is sometimes called the 'Deferred Balance.' It is evidenced and secured by an assignable or negotiable instrument retaining defeasible title to or a lien on the vehicle—generally on a form supplied by the finance company with which the dealer may then be doing business—and the instrument is signed by the customer, delivered to the dealer, and made payable to him in monthly installments over an agreed period—one to three years on automobiles and three to five years on house trailers. Thereupon, the dealer delivers the vehicle to his customer, with such memoranda or bill of sale as will enable him to register, license and use it.
2
Soon after completion of these procedures, these dealers sell (discount) those instruments (hereafter called 'installment paper') to finance companies for an agreed or formula fixed price, and the dealers guarantee payment, in whole or in part, of the installment paper.
3
Under contracts between the respective dealers and finance companies here concerned, the latter, upon receipt and acceptance of installment paper, are obligated to pay immediately to the dealers a major percentage of the purchase price, but they are thereby also authorized to retain the remaining percentage of the price and to credit it on their books to a 'dealers Reserve Account' in the name of the particular dealer, for the purpose of securing performance by him of his guarantor, endorser, and other liabilities to the finance company.
4
The dealers involved in these cases recorded on their books in the years the installment paper was sold, and included in their income tax returns for those years, the cash received from the finance companies, but they did not accrue on their books or include in their returns he percentage of the price that was retained by the finance companies and credited to their reserve accounts.
5
The Commissioner contends that in the year of their sales of installment paperto the finance companies, the taxpayers acquired a fixed right to receive—even though not until a later year—the percentage of the purchase money that was retained by the finance companies and credited on their books to the dealers' reserve accounts in that year, and, hence, those amounts constituted accrued income to the taxpayers in that year, and should have been accrued on their books and included in their returns for that year. The taxpayers, on the other hand, contend that the amounts so retained and credited were never under or subject to their control, and were always subject to such contingent liabilities of the taxpayers to the finance companies that it could not have been known, in the year of the sales, how much, if any, of the reserves would actually be received by them in cash, and hence they did not acquire, in the year of any of the sales, a fixed right to receive in a later year or at any time—the amounts credited to them in the reserves, and, therefore, the reserves did not constitute accrued income to them. This presents, in essence, the issue for decision in these cases.
6
On the grounds stated, the Commissioner proposed assessment of income tax deficiencies for certain years against the respective taxpayers here involved. The taxpayer each petitioned the Tax Court for a redetermination. After hearings, the Tax Court sustained the Commissioner in each case. The taxpayers petitioned for review. In No. 380, the Hansen case, the Ninth Circuit reversed, 258 F.2d 585; in No. 381, the Glover case, the Eighth Circuit reversed, 253 F.2d 735, and in No. 512, the Baird case, the Seventh Circuit affirmed, 256 F.2d 918. Because of an asserted conflict between those circuits in these cases, and between other circuits on the question involved,1 and because of the importance of the question to the proper administration of the revenue laws, we granted certiorari in all three cases.
7
Inasmuch as these cases turn on the same issue, and the Hansen and Glover cases were consolidated for argument and argued together in this Court, and the Baird case was argued immediately following, it will be convenient to decide the three cases in one opinion. Although the relevant facts in the three cases are very similar and follow the pattern just explained, there are variations which we think should be set forth.
8
Respondents in No. 380, John R. Hansen and Shirley G. Hansen, are husband and wife and filed joint federal income tax returns for the taxable years 1951, 1952 and 1953 here involved. During those years, John R. Hansen ('taxpayer'), was a motorcar dealer in Bellevue, Washington, and kept his books on the accrual basis. He frequently sold automobiles on 'time payments.' The taxpayer was not bound by any contract to sell his installment paper, but because of his needs for operating capital he consistently sold it to General Motors Acceptance Corporation ('GMAC').
9
Although before selling installment paper to GMAC the txpa yer did not have an express contract with that company concerning the terms and conditions of such sales and purchases, he had received its manual covering its policies on those subjects and apparently acted under them. That manual was not put in evidence, but it is intimated in the evidence and findings and stated in the briefs, without contradiction, that it contained provisions to the effect that upon receipt and acceptance of a duly assigned conditional sale contract guaranteed by the dealer, GMAC would pay to the dealer the major percentage (not specified in the evidence or findings) of the agreed price therefor, but would retain the remaining percentage of the price and credit the same on its books to a 'Dealers Reserve Account' in the name of the dealer, as security for performance of his obligations to GMAC under his guaranty of payment of the installment paper and for the payment of any other obligation which he might incur to GMAC. Once in each year GMAC would remit to the dealer so much of his accumulated reserve as exceeded 5% of the then aggregate unpaid balances on installment paper which GMAC had purchased from the dealer.
10
Upon negotiating a time sale of an automobile and receiving the down payment and any other sum immediately payable, the taxpayer prepared, on forms supplied by GMAC, a conditional sale contract setting forth a compilation of the figures, including insurance and a finance charge, involved in the time sale and concluding with a statement of the 'Time (Deferred) Balance' which was payable at the office of GMAC in fixed monthly installments. When the customer signed and delivered to the taxpayer the conditional sale contract, the automobile was delivered to the customer and, as recited in that contract, he acknowledged 'delivery and acceptance of (it) in good order.'2
11
It was the taxpayer's consistent practice immediately thereafter to assign the conditional sale contract (and guarantee its payment) to GMAC by executing the form of assignment printed at the foot of the form and forwarding it to GMAC for purchase.3 Upon receipt and acceptance of the conditional sale contract and assignment, GMAC remitted to the taxpayer the major percentage of the price it was to pay therefor, but retained the remaining percentage and credited it on its books to a 'Dealers Reserve Account' in the name of the taxpayer, for the purpose of securing performance by him of his obligations to GMAC.
12
The taxpayer recorded on his books in the year such installment paper was sold, and included in his income tax return for that year, the cash received from GMAC, but he did not accrue on his books, or include in his return, the percentage of the price that was retained by GMAC and credited to his reserve account.
13
The Commissioner proposed the assessment of deficiencies in income taxes against the taxpayer and his wife for the years involved upon the grounds earlier stated. The taxpayer sought a redetermination in the Tax Court which, after hearing, sustained the Commissioner, but on taxpayer's petition for review the Ninth Circuit reversed, 258 F.2d 585, and we granted certiorari for the reasons already stated, 358 U.S. 879, 79 S.Ct. 121, 3 L.Ed.2d 109.
14
Respondent in No. 381, Burl P. Glover ('taxpayer'), during the years 1949, 1950 and 1951 here involved, was a motorcar dealer in Pine Bluff, Arkansas, and kept his books and filed his income tax returns on a calendar year accrual basis. He frequently sold automobiles on time payments, the unpaid balance of the purchase price of each automobile, including insurance and a finance charge, being evidenced by the customer's promissory note payable to the dealer, or his order, in monthly installments over a fixed period, and secured by a chattel mortgage on the automobile.
15
Before the note and mortgage sales transactions here involved, the taxpayer signed a letter addressed to Universal C.I.T. Credit Corporation (obviously written on a form prepared by the addressee) proposing to sell to Universal C.I.T. Credit Corporation ('C.I.T.') such of his notes and mortgages as he chose to sell and as were 'acceptable to' C.I.T., and agreeing, among other things, to endorse with 'full recourse' certain of the notes accepted and purchased by C.I.T., and to purchase from C.I.T. any automobile that it repossessed or recovered under a note and mortgage bought from him, at a cash price, payable on demand, equal to the then unpaid balance of the note and mortgage, or, failing in that obligation, to pay to C.I.T. the amount of any loss incurred by it in selling such repossessed automobile. The letter also stated that the provisions for 'reserves as outlined in (C.I.T.'s) reserve arrangement effective at the time paper (was) purchased by (it),' would apply to such sales,4 and that 3 times in each 12-month period, if the dealer was not then indebted to C.I.T., the latter would pay to the dealer so much of his reserves as exceeded 3% of the then aggregate unpaid balances on paper purchased from the dealer.5
16
Upon consummating a time sale of an automobile with his customer in the manner stated, the taxpayer delivered the automobile to his customer, along with a bill of sale, subject to the mortgage, which enabled the customer to register, license and use it.
17
Soon afterward the taxpayer, pursuant to his letter to C.I.T. just referred to, endorsed the note (and assigned the mortgage) to C.I.T., in some cases without recourse and in others with full recourse, and forwarded the same to C.I.T. for purchase. Upon receipt and acceptance of the note and mortgage, C.I.T. remitted to the taxpayer the major percentage (not specified in the evidence or findings) of the agreed price therefor, but retained the remaining percentage and credited it on its books to a 'Dealers Reserve Account' in the name of the taxpayer, for the purpose of securing performance by him of his obligations to C.I.T.
18
As in the Hansen case, the taxpayer recorded on his books in the year the installment paper was sold, and included in his income tax return for that year, the cash received from C.I.T., but he did not accrue on his books, or include in his return, the percentage of the price that was retained by C.I.T. and credited to his reserve account. And, as in the Hansen case, the Commissioner proposed the assessment of deficiencies in income taxes against the taxpayer for the years involved upon the grounds earlier stated. The taxpayer sought a redetermination in the Tax Court which, after hearing, sustained the Commissioner, but, on the taxpayer's petition for review, the Eighth Circuit reversed, 253 F.2d 735, and we granted certiorari for the reasons already stated, 358 U.S. at page 879, 79 S.Ct. 122, 3 L.Ed.2d 109.
19
Petitioners in No. 512, Clifton E. Baird and Violet L. Baird ('taxpayers'), are husband and wife and, during the years 1952, 1953 and 1954 here involved, they were also partners in a firm known as 'Baird Trailer Sales' ('the partnership') which was engaged primarily in selling house trailers at Salem, Indiana. The partnership kept its books and filed its partnership (informational) income tax returns on a fiscal year accrual basis, but the taxpayers kept their personal books, and filed their returns, on a calendar year cash basis. During the years involved the partnership sold many of its trailers on 'the installment basis,' the unpaid purchase price of each trailer being evidenced and secured by an assignable or negotiable instrument, retaining in the partnership defeasible title to or a lien on the trailer, signed by the customer, delivered to the partnership, and payable to it in monthly installments over an agreed period.
20
The partnership was not legally obligated to sell its installment paper but its limited operating capital made it necessary, as a practical matter, to do so. Prior to the transactions here involved the partnership entered into contracts with Minnehoma Financial Company ('Minnehoma'), of Tulsa, Oklahoma, Michigan National Bank, of Grand Rapids, Michigan, and Midland Discount Corporation ('Midland'), of Cincinnati, Ohio, providing for the sale and purchase of such of the partnership's installment paper as it offered for sale and as those companies were willing to buy, and throughout the years in question the partnership sold installment paper to each of those companies under those contracts.
21
It was provided in the Minneoma contract that the partnership, among other liabilities assumed by it to Minnehoma, would unconditionally guarantee payment when due of all sums called for by any installment paper purchased from it, and that Minnehoma, upon receipt and acceptance of such installment paper, would remit to the partnership 95% of the agreed price to be paid therefor, but would retain the remaining 5% of the price and credit it (and also, if it wished, a portion of the 'finance charge') to a reserve account on its books in the name of the partnership, as security for performance of all endorser, guarantor, and other liabilities of the partnership to Minnehoma.6
22
Under an oral contract with Michigan National Bank, the bank agreed that, upon receipt and acceptance of installment paper endorsed by the partnership with full recourse, it would immediately pay to the partnership a percentage (not specified in the evidence or findings) of the price to be paid therefor, but that the remaining percentage of the price would be retained and credited to a 'reserve account' in the bank in the name of the partnership. That reserve account was contemporaneously assigned to the bank by the partnership under the 'collateral assignment' shown in the margin.7
23
The contract with Midland was evidenced by two letters. In essence they stated that upon receipt and acceptance of installment paper, endorsed by the partnership with full recourse, Midland would 'advance' 97% of the price to be paid therefor if on new trailers and 95% of the price if on used trailers, and that the 'differentials of 3% and 5%' would be retained and credited on Midland's books to a reserve account in the name of the partnership, for the purpose of securing performance of its obligations to Midland.8 They also stated that, when a particular note has been paid out, the amount credited to the reserve on account of that note would be immediately paid to the dealer, and that when the 'reserve fund exceeds 10% of (the partnership's) outstandings, the excess will be paid (to the partnership) automatically.'
24
Here, as in the Hansen and Glover cases, the partnership did not accrue on its books, and the taxpayers did not include in their individual returns, in any of the years here involved, the amounts that were retained by Minnehoma, Michigan National Bank and Midland and credited on their respective books to the partnership's reserve accounts, and, again, as in the Hansen and Glover cases, the Commissioner proposed assessment against the taxpayers of deficiencies in income taxes for the years involved upon the grounds previously stated. Similarly, the taxpayers sought a redetermination in the Tax Court which, after hearing, sustained the Commissioner. On the taxpayers' petition for review, the Seventh Circuit affirmed, 256 F.2d 918, and we granted certiorari for the reasons already stated, 358 U.S. 918, 79 S.Ct. 291, 3 L.Ed.2d 238.
25
We turn, first, to the taxpayers' contention that, in substance, the purchaser, not the dealer, obtains the loan directly from a finance company, and that the percentage of the loan which is retained by the finance company—although credited on its books to a reserve account in the name of the dealer as collateral security for the payment of his liabilities to the finance company—is the property of the purchaser of the vehicle, not the dealer, and therefore may not be regarded as accrued income to the dealer.
26
The basis of the contention (filling in the omitted but necessarily involved steps) is that each of these transactions is a single, 'three-cornered' one between the dealer, the finance company and the purchaser; that, in substance, the dealer agrees to sell the vehicle to the purchaser for 'a down payment plus cash' (the term 'cash' as here used must necessarily refer to the unpaid balance of the purchase price); hat the purchaser agrees immediately to obtain from the finance company, and it agrees to make to the purchaser, a loan, on the security of the vehicle, in an amount at least equal to the unpaid balance of the purchase price owing by the purchaser to the dealer for the vehicle; and that the purchaser agrees immediately to pay, or to direct the finance company to pay, to the dealer, out of the proceeds of the loan, an amount equal to 95% (in most instances) of the unpaid balance of the purchase price owing by the purchaser to the dealer for the vehicle. Although this leaves an unpaid balance of the purchase price of the vehicle (5% in most instances) still owing by the purchaser to the dealer, it also leaves in possession of the finance company, out of the proceeds of the loan, an amount at least equal to that 5%. Nevertheless the purchaser, with the consent of the dealer, agrees with the finance company that the latter shall retain that 5% and credit it on its books to a reserve account in the name of the dealer, as collateral security for the payment of his contingent liabilities to the finance company. On these assumptions of fact the taxpayers contend that the reserves retained by the finance companies, though credited on their books to the dealers' reserve accounts, are only contingently so credited and are subject to cancellation if the purchaser fails to pay out his loan and, at all events, the reserves belong to the purchasers, and should not be regarded as accrued income of the dealers.
27
The Ninth Circuit in the Hansen case, heavily relying upon the opinion of the Fifth Circuit in Texas Trailer-coach, Inc., v. Commissioner, 251 F.2d 395, adopted this theory and largely rested its decision upon that ground, 258 F.2d at page 588, and, to a lesser extent, so did the Eighth Circuit in the Glover case, 253 F.2d at page 737. The taxpayers contend here that such is the substance, if not the form, of their transactions and that, inasmuch as taxation depends on substance and not on form, the Hansen and Glover cases should be affirmed and the Baird case should be reversed on this ground alone.
28
We agree, of course, that the incidence of taxation depends upon the substance, not the form, of the transaction, Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981; Helvering v. F. & R. Lazarus & Co., 308 U.S. 252, 255, 60 S.Ct. 209, 210, 84 L.Ed. 226; Bowers v. Kerbaugh-Empire Co., 271 U.S. 170, 174, 46 S.Ct. 449, 451, 70 L.Ed. 886; Weiss v. Stearn, 265 U.S. 242, 254, 44 S.Ct. 490, 491, 68 L.Ed. 1001; United States v. Phellis, 257 U.S. 156, 168, 42 S.Ct. 63, 65, 66 L.Ed. 180, but we think that the taxpayers have assumed facts which are contrary to the records and are wholly without substance.
29
These records clearly show that, in every instance, the installment paper was executed by the purchaser and made payable to the dealer (though in the Hansen case 'at the office of' GMAC, and in the Baird case 'at the office of' Minnehoma), and that the same was later assigned or endorsed by the dealer and sent to the finance company for purchase, under and subject to the dealer's contractually assumed contingent liabilities to the finance company respecting it,9 and that, every instance, the finance company, upon receipt and acceptance of the installment paper and of the dealer's obligations respecting it, immediately paid to the dealer a major percentage of the agreed or formula fixed price for the paper; but, pursuant to the terms of the dealer's contract with the finance company, the latter retained the remaining percentage of the price and credited it on its books to the dealer's reserve account, as collateral security for the payment of his contingent liabilities to the finance company on such installment paper.
30
It is therefore clear that the retained percentages of the purchase price of the installment paper, from the time they were entered on the books of the finance companies as liabilities to the respective dealers, were vested in and belonged to the respective dealers, subject only to their several pledges thereof to the respective finance companies as collateral security for the payment of their then contingent liabilities to the finance companies.
31
This brings us to the question whether amounts of purchase price withheld by finance companies as security to cover possible losses on installment paper purchased from dealers, who employ the accrual method of accounting, constitute income to them at the time the withheld amounts are recorded on the books of the finance companies as liabilities to the dealers.
32
The principles governing the accrual and reporting of income by taxpayers who employ the accrual basis have long been settled by the opinions of this Court, Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725; Spring City Foundry Co. v. Commissioner, 292 U.S. 182, 184, 54 S.Ct. 644, 645, 78 L.Ed. 1200; Brown v. Helvering, 291 U.S. 193, 199, 54 S.Ct. 356, 359, 78 L.Ed. 725. In Spring City Foundry Co. v. Commissioner, supra, Chief Justice Hughes, speaking for the Court, said:
33
'Keeping accounts and making returns on the accrual basis, as distinguished from the cash basis, import that it is the right to receive and not the actual receipt that determines the inclusion of the amount in gross income. When the right to receive an amount becomes fixed, the right accrues.' 292 U.S. at pages 184—185, 54 S.Ct. at page 645.
34
Those principles are not questioned here, but the parties differ respecting their application to the facts of these cases. The taxpayers contend, first, that they cannot presently compel the finance companies to pay to them the amounts of their reserve accounts, and therefore they have not acquired a presently enforcible right to recover those reserves, and, hence, they should not be deemed to constitute accrued income to them. Inasmuch as these records show that the payout period for automobiles varies from 12 to 36 months and for house trailers from 36 to 60 months, it is doubtless true that the taxpayers, having pledged their reserve accounts to the finance companies as collateral security, cannot prsen tly compel the finance companies to pay over their reserves. But the question is not whether the taxpayers can presently recover their reserves, for, as stated, it is the time of acquisition of the fixed right to receive the reserves and not the time of their actual receipt that determines whether or not the reserves have accrued and are taxable.
35
The taxpayers next contend that the amounts that were retained by the finance companies and entered on their books as liabilities to the dealers under their reserve accounts, were subject to such contingencies that it could not have been known, in the year of such retentions and credits, what amount of those reserves would actually be received by them and, hence, they did not acquire, in the year of such retentions and credits, a fixed right to receive—in a later year or at any time—the amounts so withheld and credited to them, and therefore those amounts did not constitute accrued income to them.
36
It is true that the amounts retained by any one of the finance companies, and entered on its books as a liability to a particular dealer, are subject to such liabilities as the dealer may have contractually assumed to the finance company, but only the obligations of the dealer to the finance company arising from those liabilities may be offset against a like amount in the dealer's reserve account. Hence, those liabilities and obligations provide the only conditions that can affect full cash payment to the dealer of his reserve account. No amount may be charged by the finance company against the dealer's reserve account which he has not thus authorized.
37
It follows that only one or the other of two things can happen to the dealer's reserve account: (1) the finance company is bound to pay the full amount to the dealer in cash, or (2) if the dealer has incurred obligations to the finance company under his guaranty, endorsement, or contract of sale, of the installment paper, the finance company may apply so much of the reserve as is necessary to discharge those obligations, and is bound to pay the remainder to the dealer in cash.
38
Does the dealer 'receive' funds which are so taken from his reserve account and applied to the payment of his obligations to the finance company? The dealer agreed in his contract with the finance company to receive his reserve in offset payment of his obligations to the finance company and the balance in cash. It would therefore seem that funds in the dealer's reserve which are applied to the payment of his obligations to the finance company are as much 'received' by him as those which the finance company pays to him in cash. The Seventh Circuit took that view in the Baird case, saying:
39
'Ultimately only two things could happen to the funds in the dealer's reserve accounts: either the amounts would be paid to the partnership in cash or they would be used to satisfy the partnership's other obligations to the finance companies.' 256 F.2d at page 924.
40
In any realistic view we think that the dealer has 'received' his reserve account whether it is applied, as he authorized, to the payment of his obligations to the finance company, or is paid to him in cash.10
41
It follows that the amounts (of purchase price of the installment paper) that were withheld by the finance companies constituted accrued income to these accrual basis dealers at the time the withheld amounts were entered on the books of the finance companies as liabilities to the dealers, for at that time the dealers acquired a fixed right to receive the amounts so retained by the finance companies.
42
The taxpayers complain that such a holding will unfairly require them to pay taxes upon funds which are not available to them for that purpose. Though the funds are not presently available to the taxpayers for the payent of taxes, they are nevertheless owned by the taxpayers, and the latter cannot expect to collateralize their liabilities, for periods running from 1 to 5 years, by the use of their accrued but untaxed funds. Moreover, it is a normal result of the accrual basis of accounting and reporting that taxes frequently must be paid on accrued funds before receipt of the cash with which to pay them, just as the Ninth Circuit stated in the Hansen case, 258 F.2d at page 587. See Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 284 285, 64 S.Ct. 596, 597—598, 88 L.Ed. 725.
43
To permit accrual basis taxpayers to escape accrual and taxation, in a particular year, of such portions of their sales as they may permit to be retained by buyers, as collateral security, well might violate § 42(a) of the 1939 Internal Revenue Code as amended,11 and, moreover, might well afford opportunities to accrual basis taxpayers to allocate income to years deemed most advantageous.
44
The Commissioner has broad powers in determining whether accounting methods used by a taxpayer clearly reflect income, Lucas v. American Code Co., 280 U.S. 445, 449, 50 S.Ct. 202, 203, 74 L.Ed. 538; Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 189—190, 77 S.Ct. 707, 712—713, 1 L.Ed.2d 746 and under § 41 of the Internal Revenue Code of 1939, 26 U.S.C. (1952 ed.) § 41, 26 U.S.C.A. § 41, the Commissioner, believing that the accounting method employed by a taxpayer 'does not clearly reflect the income,' may require that 'computation shall be made in accordance with such method as in (his) opinion * * * does clearly reflect the income.' Since 1931 the Internal Revenue Service has consistently maintained that amounts withheld by finance companies to cover possible losses on notes purchased from dealers constitute income to dealers, who employ the accrual method of accounting, from the time the amounts are recorded on the books of the finance companies as liabilities to the dealers.12 That position, in general, accords with our view.
45
The taxpayers have argued that portions of the Dealers Reserve Accounts consist of percentages of 'finance charges'13 which the finance companies agreed to allow them, and that such percentages of the 'finance charges,' not being a part of the purchase price of the installment paper, should in no event be regarded as accrued income to the dealers. However, the respective taxpayers, each of whom had the burden of showing that he did not owe the taxes which the Commissioner proposed to assess against him, wholly failed to adduce evidence to support their claims. They failed even to adduce evidence showing whether any percentages of the 'finance charges' that may have been allowed to them by the respective finance companies were entered on the books of the finance companies as credits to the respective 'Dealers Reserve Accounts,' and if so, whether such percentages of the 'finance charges' so credited had been identified and separated in character and amount from the erc entages of the purchase price of the installment paper that were retained by the finance companies and entered on their books as liabilities to the dealers in their respective Dealers Reserve Accounts. For these reasons the respective taxpayers have wholly failed to sustain the burden of showing that any part of the amounts credited on the books of the finance companies to the respective Dealers Reserve Accounts was entitled to special treatment.
46
The judgments in No. 380 and No. 381 are reversed and the judgment in No. 512 is affirmed.
47
Mr. Justice DOUGLAS dissents.
48
Mr. Justice BLACK took no part in the consideration or decision of these cases.
1
The Sixth Circuit in Schaeffer v. Commissioner, 258 F.2d 861, sustained the Commissioner's position. Also the Tax Court since Shoemaker-Nash, Inc., v. Commissioner, 1940, 41 B.T.A. 417, has by a long line of decisions consistently sustained the Commissioner's position.
On the other hand the Fourth Circuit has sustained the taxpayers' position in Johnson v. Commissioner, 233 F.2d 952. And the Fifth Circuit has sustained the taxpayers' position in Texas Trailercoach, Inc., v. Commissioner, 251 F.2d 395; West Pontiac, Inc., v. Commissioner, 5 Cir., 257 F.2d 810, and in several judgments (without opinions) entered on stipulations specifically presenting anew the same issue which that court had decided in Texas Trailercoach, Inc., v. Commissioner, supra. In entering those judgments (in United States v. Hines, Pontiac, 2 P-H Fed.Tax Rep.2d 5694, United States v. Modern Olds, Inc., 2 P-H Fed.Tax Rep.2d 5713, and Kilborn v. Commissioner, 2 P-H Fed.Tax Rep.2d 5812), the Fifth Circuit adhered to its decision in Texas Trailercoach, Inc., v. Commissioner, supra.
2
At the very beginning of the form there is a recital that 'The undersigned seller (the dealer) hereby sells, and the undersigned purchaser or purchasers, jointly and severally, hereby purchase(s), subject to the terms and conditions hereinafter set forth, the following property, delivery and acceptance of which in good order are hereby acknowledged by purchaser,' and then follows a detailed description of the automobile, and a computation of the amounts which support the 'Time (Deferred) Balance' that is payable by the purchaser in monthly installments.
The reverse side of the form recites that '(f)or the purpose of securing payment of the obligation hereunder, seller reserves title, and shall have a security interest, in said property until said amount is fully paid in cash.' It then goes on to specify the various conditions to be observed by the purchaser, which are usually found in conditional sale contracts.
3
That assignment, so far as pertinent, provides:
'For value received, undersigned (the dealer) does hereby sell, assign and transfer to the General Motors Acceptance Corporation his * * * right, title and interest in and to the within contract, herewith submitted for purchase by it, and the property covered thereby and authorizes said General Motors Acceptance Corporation to do every act and thing necessary to collect and discharge the same.
'In consideration of your purchase of the within contract, undersigned (the dealer) guarantees payment of the full amount remaining unpaid hereon, and covenants if default be made in payment of any instalment herein to pay the full amount then unpaid to General Motors Acceptance Corporation upon demand * * *.'
4
This record does not contain C.I.T.'s 'reserve arrangement.'
5
The pertinent parts of the taxpayer's letter, referred to in the text, may be more fully summarized as follows: C.I.T. was to buy from the taxpayer such of his notes and mortgages as he chose to sell and as were 'acceptable to' C.I.T. Some of the notes and mortgages were to be endorsed by the dealer to C.I.T. without recourse, but 'paper covering commercial cars used for long distance hauling, commercial cars of more than two tons capacity, busses, cars used for taxi, jitney, 'drive-yourself' service, or cars sold to relatives or employees' was to bear the dealer's 'full recourse endorsement.'
Provisions for 'reserves as outlined in (C.I.T.'s) reserve arrangement effective at the time paper (was) purchased by (it),' were to be applicable to such sales, but as earlier observed this record does not contain C.I.T.'s 'reserve arrangement.' Three times in each 12-month period, if the dealer was not then indebted to C.I.T., the latter would pay to the dealer his 'accumulated reserves in excess of 3% of the then aggregate unpaid balances on paper purchased from (him),' but if C.I.T. stopped buying installment paper from the dealer the former was authorized to 'hold and apply all reserves until liquidation of all paper purchased from (the dealer was) completed.'
The taxpyer was to purchase from C.I.T. 'each repossessed or recovered car tendered at (the dealer's) place of business within 90 days after maturity of the earliest instalment still unpaid,' at a price payable on demand, equal to 'the unpaid balance due on the car,' or, if the dealer failed to do so, he was to pay to C.I.T. the amount of 'any deficiency incurred by (C.I.T.) in the resale of such repossessed cars * * *.'
If because of prepayment of a note by a maker, C.I.T. refunded any part of a 'service charge,' the taxpayer agreed to pay to C.I.T. the same percentages, if any, of the refund as had originally been credited to his reserve account.
6
The material parts of the contract between the partnership and Minnehoma may be summarized as follows: Upon receipt and acceptance of installment paper from the partnership, Minnehoma would remit to the partnership 95% of the price to be paid therefor, but would retain the remaining 5% of the price and credit it (and also, if it wished, a portion of the 'finance charge' paid by the maker) to a reserve account on its books in the name of the partnership. The partnership unconditionally guaranteed payment when due of all sums called for by the installment paper, and guaranteed that the makers would perform all obligations assumed by them under that paper, and that in the event the makers failed to pay any installment when due or to keep any obligation assumed by them under the installment paper, the partnership would repurchase such installment paper from Minnehoma, upon demand, at a price equal to the unpaid balance thereon.
Minnehoma was authorized to charge against the partnership's reserve account any sums for which the partnership might be or become indebted to Minnehoma; and at such times as—after the payment of all contingent liabilities of the partnership to Minnehoma—the amount then credited to the partnership's reserve account exceeded 15% of the aggregate unpaid balances of all outstanding installment paper so sold and purchased, Minnehoma would pay such excess, once each month, to the partnership; and when all installment paper purchased by Minnehoma from the partnership had been paid in full, Minnehoma would pay to the partnership the balance of its reserve account.
7
'COLLATERAL ASSIGNMENT.
'For Valuable Consideration, the receipt of which is hereby acknowledged, the undersigned hereby sells, assigns, transfers, and conveys unto Michigan National Bank, of Grand Rapids, Michigan, its successors, and assigns forever, irrevocably, all of his, its, or their right, title and interest in certain sums of money now on deposit or that may hereafter be deposited in the Michigan National Bank, of Grand Rapids, Michigan, and identified and represented by Reserve account in the name of the undersigned in the Michigan National Bank.
'This Assignment and Transfer is made as collateral security for the payment of the direct and indirect liability of the undersigned to the said Michigan National Bank, of Grand Rapids, Michigan, and to secure the payment of the several notes representing said direct and indirect liability and any renewal or renewals thereof, or any installment payment or payments and to secure any obligation * * * which the undersigned may owe to said Michigan National Bank, of Grand Rapids, Michigan.
'In the event of default in the payment of said liability or any installment thereof, or any of the several notes at the time when sme shall fall due or in the payment of the interest thereon or any part of the principal of said liability then the Michigan National Bank, of Grand Rapids, Michigan, at their election, notice of said election being hereby expressly waived, may apply the total of said sums of money represented by said Reserve account at the date of election or any part thereof to meet the default in the liability.
'Whenever the indebtedness secured hereby is paid in full the Michigan National Bank, of Grand Rapids, Michigan, shall reassign said sums of money represented by said Reserve account along with all right, title and interest back to the undersigned.
'If in the opinion of the bank the undersigned dealer's account is in good standing, all sums in this reserve account in excess of ten per cent (10%) of the gross unpaid balance of all contracts outstanding on February 28 of each year will promptly be returned to the undersigned dealer.'
8
Midland's vice president who handled these transactions with the partnership testified relative to the purpose of the reserve as follows:
'A. Well, we buy this paper from all of our dealers on a straight endorsed basis, in other words, it's fully recoursed. If a trailer is given to a note-maker and the note-maker can't pay for it, the dealer has to take it bank, (and) if he can't pay us * * * the net pay-off on the trailer, we would take the reserve money to liquidate the account.'
9
The record in the Hansen case shows that the conditional sale contracts were made between the dealer and the purchaser of the vehicle, and that the latter acknowledged to the dealer 'delivery and acceptanc of (the automobile) in good order' (see Note 2); that the dealer consistently assigned his conditional sale contracts to GMAC by executing the form of assignment printed at the foot of the form and sending the same to GMAC for purchase, guaranteeing payment of the full amount remaining unpaid thereon and covenanting that if default be made in the payment of any installment thereof to pay the full amount then unpaid to GMAC upon demand (see Note 3).
The record in the Glover case shows that the notes and mortgages were payable to the dealer and that, upon a sale of them, he endorsed them, in some cases without recourse and in others with 'full recourse,' and forwarded them to C.I.T. for purchase, subject, of course, to the various obligations he had undertaken to C.I.T. in respect thereto that are shown in Note 5.
The record in the Baird case shows that the partnership entered into contracts with its customers, taking assignable or negotiable instruments retaining defeasible title to or a lien on the trailers evidencing and securing the unpaid purchase price of the trailers; that it assigned its conditional sale contracts to Minnehoma with the guaranties and covenants shown in Note 6; that it endorsed with full recourse, sold and delivered to Michigan National Bank certain of its notes and mortgages, under the further guaranties contained in the 'collateral assignment' shown in Note 7; and that it also endorsed with full recourse, sold and delivered other of its notes and mortgages to Midland, and authorized it to retain a percentage of the purchase price to secure performance of its endorser liabilities to Midland. See Note 8.
10
Cf. Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 729, 49 S.Ct. 499, 504, 73 L.Ed. 918; Douglas v. Willcuts, 296 U.S. 1, 9, 56 S.Ct. 59, 62, 80 L.Ed. 3; Tressler v. Commissioner, 9 Cir., 228 F.2d 356, 359, note 6.
11
Section 42(a) (as amended by § 114, Revenue Act of 1941, c. 412, 55 Stat. 687), 26 U.S.C. (1952 ed.) § 42, 26 U.S.C.A. § 42, so far as pertinent, provides:
'(a) General rule. The amount of all items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period.'
12
The first publication of its views was in G.C.M. 9571, X 2 Cum.Bull. 153 (1931). Its most recently published views on the subject are contained in Rev.Rul. 57—2, 1957—1 Cum.Bull. 17, which, so far as pertinent, provides:
'Amounts withheld by banks or finance companies to cover possible losses on notes purchased from dealers constitute income to dealers employing the accrual method of accounting, to the extent of their interest therein at the time the amounts are recorded on the books of the bank or finance company as a liability to the dealer * * *.'
13
As to the term 'finance charges,' the records and briefs in these cases make one thing clear: it is not a term of art. Its meaning appears to be both erratic and elastic. Nor have we been told by any one of these taxpayers what he intends to be included in his use of the term.
| 1112
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360 U.S. 411
79 S.Ct. 1210
3 L.Ed.2d 1334
SOUTHWESTERN SUGAR AND MOLASSES CO., Inc., Petitioner,v.RIVER TERMINALS CORPORATION.
No. 155.
Argued March 3, 1959.
Decided June 22, 1959.
Mr. Amos L. Ponder, Jr., New Orleans, La., for petitioner.
Mr. Selim B. Lemle, New Orleans, La., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
On September 24, 1944, the barge Peter B, carrying a cargo of molasses, sank in 30 feet of water at dockside in Texas City, Texas. Although the barge was eventually raised, the cargo, allegedly valued at some $26,000, was largely or totally lost.
2
Petitioner, Southwestern Sugar & Molasses Co., charterer of the barge and owner of the cargo, filed a libel against respondent, River Terminals Corporation, a water carrier certificated under Part III of the Interstate Commerce Act, 49 U.S.C. § 901 et seq., 49 U.S.C.A. § 901 et seq., seeking recovery of damages for the loss of cargo and for expenses occasioned in the raising and repair of the barge, which had been towed by respondent from Reserve, Louisiana, to Texas City and there berthed. The District Court first tried the issue of liability, separating the question of damages for subsequent determination, and held that the barge had sunk and the cargo had been lost as a result of respondent's negligence in the navigation or management of the tow and that respondent was liable for all damage to the cargo and for the cost of raising and repairing the barge.1 153 F.Supp. 923.
3
Respondent appealed from the interlocutory decree adjudging liability, 28 U.S.C. § 1292(3), 28 U.S.C.A. § 1292(3), urging that the trial court had erred in holding (1) that petitioner had an interest in the Peter B sufficient to entitle it to maintain a libel for damage thereto, (2) that the sinking of the barge and loss of cargo were due to respondent's negligence, (3) that § 3 of the Harter Act2 did not establish respondent's freedom from liability as a matter of law, and (4) that certain provisions in tariffs filed by respondent with the Interstate Commerce Commission, which purported to release respondent from liability for its negligence, and which were assumed by the District Court to have been applicalbe to the transportation here involved, were invalid as a matter of law and constituted no defense to thelib el.3
4
The Court of Appeals did not consider any of the first three claims of error, although if sustained they would wholly have disposed of the case. Instead, the court directed its attention to respondent's contention that the exculpatory clause in respondent's tariff, incorporated by reference in the bill of lading issued in connection with the transportation, must be given effect. The court concluded that because the clause was embodied in a tariff filed with the I.C.C. it could not in the first instance declare it invalid, but was bound to give it effect unless and until the Commission, after appropriate investigation, reached a contrary conclusion.4 Accordingly, it reversed the judgment of the District Court 'in order to afford * * * (petitioner) reasonable opportunity to seek administrative action before the Commission to test the validity of the challenged provision, otherwise to give full effect to the exculpatory clause * * *.' 253 F.2d 922, 928.
5
Petitioner sought certiorari, contending that the refusal of the Court of Appeals to strike down the exculpatory clause as a matter of law was contrary to the decision of this Court in Bisso v. Inland Waterways Corporation, 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911, where it was held that a clause in a private contract of towage purporting altogether to exculpate the tug from liability for its own negligence was void as against public policy. We granted the writ. 358 U.S. 811, 79 S.Ct. 38, 3 L.Ed.2d 55.
6
At the outset, we hold that the Court of Appeals erred in ordering what was in substance a referral of the issue of the validity of the exculpatory clause to the Commission without first passing on the other claims of error tendered by respondent below. As we have noted, those other claims, if accepted, would have required a reversal of the judgment of the District Court and the entry of judgment for respondent. The case had been fully argued before the Court of Appeals, and those claims were plainly ripe for decision.
7
Under these circumstances, we think that sound and expeditious judicial administration should have led the Court of Appeals not to leave these issues undecided while a course was charted requiring the institution and litigation of an altogether separate proceeding before the I.C.C.—a proceeding which might well assume substantial dimensions—to test the sufficiency of only one of respondent's several defenses. If in consequence of findings made by the Commission in such a proceeding it should be determined that the excupat ory clause cannot be given effect, the Court of Appeals would then have to decide the very questions which it can now decide without the necessity for any collateral proceeding. Conversely, a present ruling on those other questions might entirely obviate the necessity for proceedings in the Commission which would further delay the final disposition of this already protracted litigation. We conclude, therefore, that the Court of Appeals should have passed upon those issues as to which the expert assistance of the I.C.C. is concededly not appropriate, before invoking the processes of the Commission.
8
Despite the fact that disposition of respondent's other claims by the Court of Appeals may ultimately render moot the question of the validity of the exculpatory clause as a defense in the circumstances of this case, we deem it appropriate now to review the holding of that court that the exculpatory clause was not void as a matter of law. Were the Court of Appeals on remand to decide the other questions tendered by respondent adversely to it, it would otherwise then be necessary for petitioner once more to seek review here on this very question. The issue is one of importance in the development of the law maritime, as to which we have large responsibilities, constitutionally conferred; it is squarely presented on the record before us; and the exigencies of this litigation clearly call for its resolution at this stage. Accordingly, to this question we now turn.
9
In Bisso (349 U.S. 85, 75 S.Ct. 632) this Court held that a towboat owner might not, as a defense to a suit alleging loss due to negligent towage, rely on a contractual provision which purported to exempt the towboat altogether from liability for negligent injury to its tow. There a barge, while being towed on the Mississippi River by a steam towboat under a private towage contract, was caused by the negligence of those operating the towboat to collide with a bridge pier and sink. The Court reviewed prior cases in the field, and concluded that the conflict of decision found in those cases should be resolved by declaring private contractual provisions of the kind there involved altogether void as contrary to 'public policy.' The Court relied on 'two main reasons' for its conclusion, (1) that such a rule was necessary 'to discourage negligence,' and (2) that the owner of the tow required protection from 'others who have power to drive hard bargains.' As was pointed out explicitly in a concurring opinion, the Court's decision was perforce reached without consideration of particularized economic and other factors relevant to the organization and operation of the tugboat industry.
10
Petitioner argues that Bisso is dispositive of this case, on the theory that an inherently illegal condition gains nothing from being filed as part of a tariff with the Commission.5 We think that this reasoning begs the true question here presented, which is whether considerations of public policy which may be called upon by courts to strike down private contractual arrangements between tug and tow are necessarily applicable to provisions of a tariff filed with, and subject to the pervasive regulatory authority of, an expert administrative body. In Bisso the clause struck down was part of a contract over the terms of which the I.C.C., the body primarily charged by Congress with the regulation of the terms and conditions upon which water carriers subject to its jurisdiction shall offer their services, had no control. In the present case the courts below have assumed, and petitioner does not challenge, the applicability to the transportation which resulted in loss to petitioner of a duly filed tariff containing this exculpatory clause.
11
In these circumstances we would be moving too fast were we automatically to extend the rule of Bisso to govern the present case.6 For all we know, it may be that the rate specified in the relevant tariff is computed on the understanding that the exculpatory clause shall apply to relieve the towboat owner of the expense of insuring itself against liability for damage caused tows by the negligence of its servants, and is a reasonable rate so computed. If that were so, it might be hard to say that public policy demands that the tow should at once have the benefit of a rate so computed and be able to repudiate the correlative obligation of procuring its own insurance with knowledge that the towboat may be required to respond in damages for any injury caused by its negligence despite agreement to the contrary. For so long as the towboat's rates are at all times subject to regulatory control, prospectively and by way of reparation, the possibility of an overreaching whereby the towboat is at once able to exact high rates and deny the liabilities which transportation at such rates might be found fairly to impose upon it can be aborted by the action of the I.C.C. The rule of Bisso (349 U.S. 85, 75 S.Ct. 633), however applicable where the towboat owner has the 'power to drive hard bargains,' may well call for modification when that power is effectively controlled by a pervasive regulatory scheme.7
12
Further, it may be noted that the clause relied on in this case is by its terms restricted to the situation where shipments are transported in barges furnished by others than the towboat owner. Whatever may be the considerations involved in forbidding a towboat to contract for exemption from liability for negligence in other circumstances, it may be that different considerations apply when the towboat moves barges which are delivered to it loaded, so that it never has an opportunity adequately to inspect them below the waterline, and which, if defective, may create emergency situations where a small degree of negligence can readily lead to very substantial monetary loss.8 If the peculiar hazards involved in towing a barge supplied by the shipper are great, and the methods of guarding against those hazards uncertain, it may be that in an area where Congress has not, expressly or by fair implication, declared for a particular result, the federal courts should creatively exercise their responsibility for the development of the law maritime to fashion a particularized rule to deal with particularized circumstances.9
13
We may assume that the question whether a clause of this kind offends against public policy is one appropriate ultimately for judicial rather than administrative resolution. But that does not mean that the courts must therefore deny themselves the enlightenment which may be had from a consideration of the relevant economic and other facts which the administrative agency charged with regulation of the transaction here involved is peculiarly well qui pped to marshal and initially to evaluate. As was said in Far East Conference v. United States, 342 U.S. 570, 574, 575, 72 S.Ct. 492, 494, 96 L.Ed. 576, this Court has frequently recognized and applied
14
'* * * a principle, now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.'
15
We hold that the Court of Appeals correctly ruled that the exculpatory clause here at issue should not be struck down as a matter of law, and that the parties should be afforded a reasonable opportunity to obtain from the I.C.C., in an appropriate form of proceeding, a determination as to the particular circumstances of the tugboat industry which lend justification to this form of clause, if any there be, or which militate toward a rule wholly invalidating such provisions regardless of the fact that the carrier which seeks to invoke them is subject to prospective and retrospective rate regulation. 'Cases are not decided, nor the law appropriately understood, apart from an informed and particularized insight into the factual circumstances of the controversy under litigation.' Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 498, 78 S.Ct. 851, 861, 2 L.Ed.2d 926. This principle has particular force when the courts are asked to strike down on grounds of public policy a contractual arrangement on its face consensual.
16
The case is remanded to the Court of Appeals with instructions to pass upon the first three assignments of error specified by respondent in its appeal from the judgment of the District Court. Should resolution of those issues not dispose of the case, the Court of Appeals is directed to remand the case to the District Court with instructions to hold it in abeyance while the parties seek the views of the I.C.C., in any form of proceeding which that body may deem appropriate, as to the circumstances bearing on the validity of respondent's exculpatory clause in the context of this litigation, and for further proceedings consistent with this opinion.
17
It is so ordered.
18
Case remanded with instructions.
19
THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS believe that the rule of law announced in Bisso should not be changed by the Interstate Commerce Commission, and would therefore reverse this judgment.
1
The District Court found that the sinking of the Peter B was occasioned by the shipping of water through a crack in the starboard shell plate of one of its cargo tanks which had been discovered by petitioner's local manager while the barge was being loaded with molasses under his supervision, and that respondent's employees were negligent in various respects in failing to take proper precautions to avoid the sinking after it should have become evident that the barge was shipping water.
2
46 U.S.C. § 192, 46 U.S.C.A. § 192: 'If the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel * * *.'
3
The pertinent provisions of the tariff provided:
'When shipments are transported in barges furnished by owners, shippers, consignees or parties other than the Carriers parties to this Tariff, such barges and (or) cargoes will be handled at owner's risk only, whether loss or damage is caused by negligence or otherwise.
'Presentation of a shipment in barge furnished by shipper, consignee or owner for movement on rates named herein shall constitute a guarantee to the Carriers parties to this Tariff that such barge is seaworthy and barge and cargo are in suitable condition for voyage in prospect. * * *'
4
In reaching this conclusion the court relied on 'the rule frequently stated by the Supreme Court that 'Until changed, tariffs bind both carriers and shippers with the force of law.' Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U.S. 516, 520, 59 S.Ct. 612, 614, 83 L.Ed. 953 * * *; Crancer v. Lowden, 315 U.S. 631, 635, 62 S.Ct. 763, 86 L.Ed. 1077. * * *' 253 F.2d 922, 925.
5
Compare Boston & Maine R.R. v. Piper, 246 U.S. 439, 445, 38 S.Ct. 354, 355, 62 L.Ed. 820, where this Court held a limitation of liability clause void although filed as part of a tariff with the I.C.C. by a rail carrier, saying that: 'While this provisio was in the bill of lading, the form of which was filed with the railroad company's tariffs with the Interstate Commerce Commission, it gains nothing from that fact. The legal conditions and limitations in the carrier's bill of lading duly filed with the Commission are binding until changed by that body (citation) * * * but not so of conditions and limitations which are, as is this one, illegal, and consequently void.' The decisive difference between Piper and this case is that there the exculpatory clause was specifically declared illegal by the Interstate Commerce Act itself. See 49 U.S.C. § 20(11), 49 U.S.C.A. § 20(11).
6
It may be noted that the tug-tow relationship has not been assimilated by the law to that between a common carrier and shipper so far as liability is concerned. See, e.g., The Steamer Syracuse, 12 Wall. 167, 20 L.Ed. 382. Thus although at common law a common carrier was liable, without proof of negligence, for all damage to the goods transported by it, unless it affirmatively showed that the damage was occasioned by the shipper, acts of God, the public enemy, public authority, or the inherent vice or nature of the commodity, Secretary of Agriculture v. United States, 350 U.S. 162, 165, note 9, 76 S.Ct. 244, 247, 100 L.Ed. 173, and cases cited, the District Court in the present case held that respondent could not be held liable in the absence of its negligence and petitioner did not assail that determination on appeal.
Part III of the Interstate Commerce Act has made tugboats common carriers for regulatory purposes under certain circumstances. See Cornell Steamboat Co. v. United States, 321 U.S. 634, 64 S.Ct. 768, 88 L.Ed. 978. Section 320(d) of that Act, 49 U.S.C. § 920(d), 49 U.S.C.A. § 920(d), explicitly provides, however, that the statute is not to be construed to affect 'liabilities of vessels and their owners for loss or damage * * *.' The settled common-law rule that common carriers may not 'by any form of agreement secure exemption from liability for loss or damage caused by their own negligence,' Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 294, 53 S.Ct. 135, 136, 77 L.Ed. 311; New York Cent. Railroad Co. v. Lockwood, 17 Wall. 357, 21 L.Ed. 627; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788, thus has no application here.
7
Under Part III of the Interstate Commerce Act all 'common carrier by water' as therein defined (see 49 U.S.C. § 902(d), 49 U.S.C.A. § 902(d)) are required to file with the Commission and keep open to public inspection 'tariffs showing all rates, fares, charges, classifications, rules, regulations an d practices for the transportation * * * of * * * property' and stating 'any rules or regulations which in anywise change, affect, or determine any part of the aggregate of such rates, fares, or charges, or the value of the service rendered to the passenger, shipper, or consignee.' 49 U.S.C. § 906(a), 49 U.S.C.A. § 906(a). Contract carriers are subject to similar requirements. 49 U.S.C. § 906(e), 49 U.S.C.A. § 906(e). The Commission may suspend newly filed tariffs while it investigates them, 49 U.S.C. § 907(g), (i), 49 U.S.C.A. § 907(g, i), and may at any time initiate an investigation, upon complaint or on its own initiative, into the reasonableness of filed tariffs. 49 U.S.C. § 907(b), (h), 49 U.S.C.A. § 907(b, h).
8
It is of course open to the I.C.C. to consider any other factors which it may deem relevant to the question of the propriety of exculpatory clauses in regulated towage tariffs, such as the availability to shippers of arrangements whereby use of the tower's barge, or payment of a higher alternative rate, results in an assumption by the tower of liability for its negligence, and the relative practicality and cost of the securing of insurance against the kind of risk here involved by shipper and by tower. We do not intimate any view as to the relative weight of the factors herein mentioned.
9
Congress has in some instances declared by statute the circumstances under which carriers may contract for release from or limitation of liability, or rules governing the liability or exemption from liability of carriers irrespective of contract. See 46 U.S.C. §§ 181—196, 1300—1315, 46 U.S.C.A. §§ 181—196, 1300—1315 (water carriers); 49 U.S.C. §§ 20(11), 319, 49 U.S.C.A. § 20(11), 319 (rail and motor carriers). Where such statutes apply of course no agreement in derogation of them, even if embodied in a tariff, is valid. See, e.g., Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314; Boston & Maine R.R. v. Piper, supra.
As we have noted above, respondent claims that § 3 of the Harter Act, 46 U.S.C. § 192, 46 U.S.C.A. § 192, applies to exempt it from liability in this case irrespective of the effect given its tariff exculpatory clause. Be that as it may, the cited provision is ample demonstration that there is no general congressional policy requiring water carriers to be held liable for damage caused by the negligence of their servants in all cases.
| 78
|
360 U.S. 343
79 S.Ct. 1217
3 L.Ed.2d 1287
Anthony M. PALERMO, Petitioner,v.UNITED STATES of America.
No. 471.
Argued April 28, 1959.
Decided June 22, 1959.
Rehearing Denied Oct. 12, 1959.
See 80 S.Ct. 41.
Mr. Wyllys S. Newcomb, New York City, for petitioner.
Mr. Ralph S. Spritzer, Washington, D.C., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Petitioner was convicted of knowingly and willfully evading the payment of income taxes for the years 1950, 1951 and 1952. A substantial part of the alleged evasion was failure to report income from dividends. Among the Government's exhibits at trial was a record, presumably contemporaneous and in the petitioner's handwriting, of dividends received during 1951 and 1952. This record reflected an amount of dividend income for 1951 substantially larger than that reported on the 1951 reurn . Petitioner contended that this record had been turned over to the accounting firm which regularly prepared his return, Arthur R. Sanfilippo & Co., in early 1952 for use in preparing his 1951 return, but that the figures had not been accurately entered on the return by the accountants. The Government's contention was that the record had not been given to the accounting firm until early 1953, subsequent to the initiation of the investigation of petitioner's tax affairs and long after the filing of the 1951 return. The time at which the record had been given to the accountants thus became directly relevant to the issue of criminal intent in the charge against the petitioner. Arthur R. Sanfilippo, an important government witness and the principal partner in the accounting firm, testified that his firm had not received the handwritten record of dividend income until early 1953.
2
Prior to the trial, on July 16, 1956, during the course of an interrogation by agents of the Internal Revenue Service, Sanfilippo had been unable to recall when the dividend record had been received. More than a month later, August 23, 1956, Sanfilippo had met with revenue agents to verify and sign the transcript of his earlier testimony. At this meeting he executed a supplementary affidavit reciting that he wished to clarify his original answers and that he remembered that his firm had not received the dividend record until after revenue agents had begun their investigation of petitioner's tax returns. A memorandum of the conference at which this affidavit was executed was made by one of the agents present. On cross-examination of Sanfilippo the defense demanded and received various documents including the transcript of the July 16 interrogation and the August 23 affidavit. The defense also requested production of any memoranda, or of any part thereof summarizing what Sanfilippo had said, which had been made of the August 23 conference. The trial judge denied this request on the ground that the Act of September 2, 1957, 71 Stat. 595, 18 U.S.C. § 3500, 18 U.S.C.A. § 3500—the so-called 'Jencks' Act—governing the production of statements made to government agents by government witnesses, precluded production of the requested memorandum since it was not within the definition of 'statement' in (e) of the Act.1 The Court of Appeals for the Second Circuit affirmed. 258 F.2d 397. Together with several other cases raising Jencks Act problems, we granted certiorari, 358 U.S. 905, 79 S.Ct. 236, 3 L.Ed.2d 227, to determine the scope and meaning of this new statute.
3
Accurate analysis of these problems as a basis of their appropriate solution requires due appreciation of the background against which the statutory terms must be projected.
4
Exercising our power, in the absence of statutory provision, to prescribe procedures for the administration of justice in the federal courts, this Court, on June 3, 1957, in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, decided that the defense in a federal criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses. These statements were therefore to be turned over to the defense at the time of cross-examination if their contents related to the subject matter of the witness' direct testimony, and if a demand had been made for specific statements which had been written by the witness or, if orally made, as recorded by agents of the Government. We also held that the trial judge was not to examine the statements to determine if they contained material inconsistent with the testiony of the witness before deciding whether he would turn them over to the defense. Once the statements had been shown to contain related material only the defense was adequately equipped to decide whether they had value for impeachment. This decision only concerned production and therefore did not purport to modify the laws of evidence governing the admissibility of prior statements of a witness.
5
The decision promptly gave rise to sharp controversy and concern. The day following our opinion the House of Representatives was told that the decision in Jencks posed a serious problem of national security and that legislation would be introduced. 103 Cong.Rec. 8290. The same day H.R. 7915, the first of eleven House bills dealing with what became the Jencks problem, was introduced in the House.2 Defendants' counsel began to invoke the Jencks decision to justify demands for production far more sweeping than that involved in Jencks, and under circumstances for removed from those of that case, and some federal trial judges acceded to those excessive demands.3 The Department of Justice, concerned over these rapid intrusions of Jencks into often totally unrelated areas, drafted legislation to clarify and delimit the reach of Jencks. See 103 Cong.Rec. 15781. On June 24, 1957, this legislation was introduced into the Senate by Senator O'Mahoney acting for himself and several other Senators. 103 Cong.Rec. 10057. After study by a subcommittee of the Judiciary Committee the bill was reported out, 103 Cong.Rec. 10601, then withdrawn and a completely new measure substituted. 103 Cong.Rec. 14913. When the bill reached the floor for debate Senator O'Mahoney proposed an amendment in the nature of a substitute which was adopted, 103 Cong.Rec. 15938, and the bill passed the Senate on August 26. Ibid. In the House the original H.R. 7915, after being amended in Committee, see 103 Cong.Rec. 10925, was passed on August 27, 103 Cong.Rec. 16130, and then substituted for the text of the Senate bill. 103 Cong.Rec. 16131. The two versions went to Conference. The Conference Report was agreed to by the Senate on August 29, 103 Cong.Rec. 16490, and by the House the next day. 103 Cong.Rec. 16742. The Act was approved on September 2, and became law as § 3500 of the Criminal Code, 18 U.S.C., 18 U.S.C.A. § 3500.4 Congress had determined to exercise its power to define the rules that should govern in this particular area in the trial of criminal cases instead of leaving the matter to the lawmarking of the courts.
6
In almost every enactment there are gaps to be filled and ambiguities to be resolved by judicial construction. This statute is not free from them. Here, however, the detailed particularity with which Congress has spoken has narrowed the scope for needful judicial interpretation to an unusual degree. The statute clearly defines procedures and plainly indicates the circumstances for their application. Since this case is the first calling for authoritative exposition of an Act that frequently comes into use in federal criminal prosecutions we deem it appropriate to explicate the construction of the statute required by the circumstances of this case.
7
1. Subsection (a) requires that no statement of a government witness made to an agent of the Government and in the Government's possession shall be turned over to the defense until the witness has testified on direct examination. This section manifests the general statutory aim to restrict the use of such statements to impeachment. Subsections (b), (c) and (d) provide procedures for the production of 'statements,' and for the consequences to the Government of failure to produce. Subsection (e) restrictively defines with particularity the term 'statement' as used in the three preceding sections. The suggestion that the detailed statutory procedures restrict only the production of the type of statement described in subsection (e), leaving all other statements, e.g., non-verbatim, non-contemporaneous records of oral statements, to be produced under pre-existing rules of roc edure as if the statute had not been passed at all, flouts the whole history and purpose of the enactment. It would mock Congress to attribute to it an intention to surround the production of the carefully restricted and most trustworthy class of statements with detailed procedural safeguards, while allowing more dubious and less reliable documents a more favored legal status, free from safeguards in the tournament of trials. To state such a construction demonstrates its irrationality; the authoritative legislative history precludes its acceptance.
8
To be sure, the statute does not, in so many words, state that it is the exclusive, limiting means of compelling for cross-examination purposes the production of statements of a government witness to an agent of the Government. But some things too clearly evince a legislative enactment to call for a redundancy of utterance. One of the most important motive forces behind the enactment of this legislation was the fear that an expansive reading of Jencks would compel the undiscriminating production of agent's summaries of interviews regardless of their character or completeness. Not only was it strongly feared that disclosure of memoranda containing the investigative agent's interpretations and impressions might reveal the inner workings of the investigative process and thereby injure the national interest, but it was felt to be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness' own rather than the product of the investigator's selections, interpretations, and interpolations. The committee reports of both Houses and the floor debates clearly manifest the intention to avoid these dangers by restricting production to those statements specifically defined in the bill.5 Indeed both the House and Senate bills as they went to Conference explicitly so stated. See 103 Cong.Rec. 16130; 103 Cong.Rec. 16125. Nothing in the Conference Reports or the limited debate following Conference intimated the slightest intention to change the exclusive nature of the measure. Indeed the reports and debate proceeded on the explicit assumption that the bill retained as a major purpose the barring of all statements not specifically defined.6 The purpose of the Act, its fair reading and its overwhelming legislative history compel us to hold that statements of a government witness made to an agent of the Government which cannot be produced under the terms of 18 U.S.C. § 3500, 18 U.S.C.A. § 3500, cannot be produced at all.
9
2. Since the statutory procedures are exclusive they constitute the rule of law governing the production of the statement at issue in this case and it becomes necessary to determine the scope and meaning of the statutory definition of 'statement' contained in (e). Clause (1) of (e) permits the production of 'a written statement made by said witness and signed or otherwise adopted or approved by him * * *.' Although some situations may arise, creating peripheral problems of construction, its import is clear. Clause (2) widens the definition of 'statement' to include 'a stenographic, mechanical, electrical, or other recording, or a transcription her eof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the marking of such oral statement.' Clearly this provision allows with the making of such oral stenographic recordings of oral statements, even though later transcribed. A preliminary problem for determining that the statement now before us may be produced is whether the statutory phrase 'other recording' allows an even wider scope for production. We find the legislative history persuasive that the statute was meant to encompass more than mere automatic reproductions of oral statements.7
10
However, such a finding is only the beginning of the task of construction. It is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available to the defense for purposes of impeachment.8 It was important that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent. Distortion can be a product of selectivity as well as the conscious or inadvertent infusion of the recorder's opinions or impressions. It is clear from the continuous congressional emphasis on 'substantially verbatim recital,' and 'continuous, narrative statements made by the witness recorded verbatim, or nearly so * * *,' see Appendix B, post 79 S.Ct. page 1228, that the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. Quoting out of context is one of the most frequent and powerful modes of misquotation. We think it consistent with this legislative history,9 and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent's interpretations or impressions. In expounding this standard we do not wish to create the impression of a 'delusive exactness.' The possible permutations of fact and circumstance are myriad. Trial courts will be guided by the indicated standard, informed by fidelity to the congressional purposes we have outlined. There is nothing impalpable about these provisions. Since we feel the statutory standard had guiding definiteness, it would be idle to attempt a minute enumeration of particular situations to which it is to be applied. Such a vain attempt at forcasting myriad diversities with minor variance is as futile and uncalled for in this as in so many other areas of the law. That is what the judicial process is for to follow a generally clear direction in dealing with a new diversity as it may occasionally arise. Final decision as to production must rest, as it does so very often in procedural and evidentiary matters, within the good sense and experience of the district judge guided by the standards we have outlined,10 and subject to the appropriately limited review of appellate courts.11
11
3. The statute itself provides no procedure for making a determination whether a particular statement comes within the terms of (e) and thus may be produced if related to the subject matter of the witness' testimony. Ordinarily the defense demand will be only for those statements which satisfy the statutory limitations. Thus the Government will not produce documents clearly beyond the reach of the statute for to do so would not be responsive to the order of the court. However, when it is doubtful whether the production of a particular statement is compelled by the statute, we approve the practice of having the Government submit the statement to the trial judge for an in camera determination. Indeed, any other procedure would be destructive of the statutory purpose. The statute governs the production of documents; it does not purport to affect or modify the rules of evidence regarding admissibility and use of statements once produced. The Act's major concern is with limiting and regulating defense access to government papers, and it is designed to deny such access to those statements which do not satisfy the requirements of (e), or do not relate to the subject matter of the witness' testimony. It would indeed defeat this design to hold that the defense may see statements in order to argue whether it should be allowed to see them.
12
It is also the function of the trial judge to decide, in light of the circumstances of each case, what, if any, evidence extrinsic to the statement itself may or must be offered to prove the nature of the statement. In most cases the answer will be plain from the statement itself. In others further information might be deemed relevant to assist the court's determination. This is a problem of the sound and fair administration of a criminal prosecution and its solution must be guided by the need, reflected in so much of our law of evidence, to avoid needless trial of collateral and confusing issues while assuring the utmost fairness to a criminal defendant. See, e.g., Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307.
13
In light of these principles the case before us is clear. Both the District Court and the Court of Appeals correctly held that the sole standard governing production of the agent's memorandum of his conference with Sanfilippo was 18 U.S.C. § 3500, 18 U.S.C.A. § 3500. The district judge and a unanimous Court of Appeals held that the statement was not within the definition of statement in (e) as properly understood by them. We have examined the statement and the record and find that the determination of the two courts below was justified and therefore must be sustained.12 It would bespeak a serious reflection on the conscience and capacity of the federal judiciary if both a trial judge and a Court of Appeals were found to have disregarded the command of Congress, duly interpreted, for making available a prior statement of a government witness in a case. Against such a contingency there is always the safeguard of this Court's reviewing power.
14
Affirmed.
15
For opinion of Mr. Justice BRENNAN, joined by The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS, see post 79 S.Ct. page 1228.
APPENDIX A TO OPINION OF THE COURT.
16
SUMMARY OF LEGISLATIVE HISTORY DEMONSTRATING THE INTENT OF THE CONFERENCE MEASURE TO RETAIN AS A PRIMARY PURPOSE OF THE ACT A PROHIBITION OF PRODUCTION OF ALL STATEMENT NOT DESCRIBED IN SUBSECTION (E). (SEE 79 S.Ct. 1224, ANTE.)
17
The bills as they went to Congress contained explicit provisions making them exclusive. For example, the Senate bill provided in subsection (a):
18
'In any criminal prosecution brought by the United States, no statement or report of a Government witness or prospective Government witness (other than the defendant) made to an agent of the Government which is in the possession of the United States shall be the subject of subpena, or inspection, except, if provided in the Federal Rules of Criminal Procedure (18 U.S.C.A.), or as provided in paragraph (b) of this section.' (Emphasis added.) 103 Cong.Rec. 16130.
19
The House bill contained a similar provision.
20
Although the last phrase of this section was dropped out when the section was rewritten to eliminate reference to the Federal Rules of Criminal Procedure, see 103 Cong.Rec. 16488; H.R. Rep. No. 1271, 85th Cong., 1st Sess., there is no indication that its omission was intended to work a silent and radical change in the entire concept and purpose of the Act. Both the Conference Report of the House Managers and the floor remarks of the Senate Conferees enumerate the particular changes which had been made to meet earlier specific differences and objections. No mention is made, nor can an intimation be found, of any intention to change the exclusive nature of the measure. The House Conference Report enumerates the specific changes and then states that 'To remove any doubt as to the kinds of statements affected by the bill as agreed to by the conferees, a new paragraph 'e' was added * * * expressly defining the term 'statement." H.R.RepNo.1271, 85th Cong., 1st Sess., 3. In the Senate, Senator O'Mahoney, in response to a question, gave the specific changes which had been made in the bill by the Conference, and he did not give the slighest indication that it had lost its exclusive nature. 103 Cong.Rec. 16487.
21
What small debate there was following the Conference Report supports the conclusion that no change in the exclusiveness of the bill was intended. For example, Senator O'Mahoney, introducing the conference measure, stated that, '(t)here was some fear upon the part of the Department of Justice that the Senate bill would create a greater latitude for the examination of irrelevant reports of agents. The language which was devised by the conferees has cleared up the doubts * * *.' 103 Cong.Rec. 16487. See also 103 Cong.Rec. 16488—16489. In the House, Representative Keating, one of the Conferees, explained that 'The conferees provided that the only statements a defendant could see, and then only in the courtroom were those actually signed or formally approved by the witness or a stenographic verbatim recital of a statement made by a witness which is recorded contemporaneously with the making of such oral statement. In other words, only those statements need be produced in court by the Government which could be shown in court to impeach the credibility of the witness.' 103 Cong.Rec. 16739. See also 103 Cong.Rec. 16742.
APEN DIX B TO THE OPINION OF THE COURT.
22
PARTIAL SUMMARY OF LEGISLATIVE HISTORY BEARING ON THE PROPER CONSTRUCTION OF SUBSECTION (E). (SEE 79 S.Ct. 1224, ANTE.)
23
The original Senate bill, as passed by the Senate, allowed the production of 'any transcriptions or records of oral statements made by the witness to an agent of the Government * * *.' See 103 Cong.Rec. 16130. During the course of the Senate debate an amendment had been offered to limit this provision to mechanical transcriptions or recordings. See 103 Cong.Rec. 15930 15931. This amendment was rejected after Senator O'Mahoney, sponsor of the legislation, had argued that it would leave the bill too 'limited.' 'All we are asking,' he stated, 'is that the records which are relevant and competent, which deal with the oral statements made by Government witnesses whom the Government puts on the stand, with respect to the matters concerning which they testify, be made available.' 103 Cong.Rec. 15932. Thus the bill as it left the Senate was clearly not confined to automatic reproductions of oral statements, although its further reach was not explicitly demarcated.
24
The House bill, as passed, allowed only the production of written statements signed by the witness or otherwise adopted or approved. 103 Cong.Rec. 16125. The present language emerged from the Conference.
25
Senator O'Mahoney, sponsor of the original Senate bill and one of the Senate Conferees, in submitting the conference bill, made it clear that (e) 'would include a memorandum made by an agent of the Government of an oral statement made to him by a Government witness * * *.' 103 Cong.Rec. 16488. Senator Javits then asked:
26
'* * * what has been done with the so-called records provision is to tie it down to those cases in which the agent actually purports to make a substantially verbatim recital of an oral statement that the witness has made to him—not the agent's own comments or a recording of his own ideas, but a substantially verbatim recital of an oral statement which the witness has made to him, and as transcribed by him; is that correct?' Ibid.
27
Senator O'Mahoney replied, 'Precisely.' Thus although the Senate history indicates that the bill was restricted to a 'substantially verbatim recital,' it is apparent that the Act was not designed to be restricted to mere mechanical transcription.
28
The proceedings in the House are less clear. It is true that Representative Keating, one of the House Conferees, did say that only stenographic verbatim recitals need be produced. 103 Cong.Rec. 16739. But this was said in reply to Representative Celler's statement that the conference measure was as liberal as the original Senate bill. Representative Celler was also a House Conferee. The report of the House Managers, signed by all the House Conferees, after pointing out that the term 'statement' had been defined in the bill, stated:
29
'It is believed that the provisions of the bill as agreed to by the conferees are in line with the standard enunciated by Judge George H. Moore of the eastern district of Missouri in * * * United States v. Anderson, (D.C., 154 F.Supp. 374) * * * which is set forth at page 14552 (sic) of the daily Congressional Record of August 26, 1957.' H.R. Rep. No. 1271, 85th Cong., 1st Sess., 3.
30
In the opinion referred to, Judge Moore had explicitly limited the type of oral statement which could be produced under the Jencks decision to
31
'* * * only continuous, narrative statements made by the witness recorded verbatim, or nearly so, and does not include notes made during the course of an investigation (or reports compiled therefrom) which contain the subjective impressions, opinions, or conclusions of the person or persons making such notes.' 103 Cong.Rec. 15940.
32
This standard, explicitly incorporated into the House Report, has a dual significance. It not only goes beyond mechanical or stenographic statements, in defining the statements which must be made available to the defense, but indicates that once beyond tht p oint a very restrictive standard is to be applied.
33
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, concurring in the result.
34
I concur in the result but see no justification for the Court's ranging far afield of the necessities of the case in an opinion essaying obiter a general interpretation of the so-called 'Jencks Act,' 18 U.S.C. (Supp. V) § 3500, 18 U.S.C.A. § 3500. Many more concrete cases must be adjudicated in the District Courts before we shall be familiar with all the problems created by the statute.
35
We of this Court, removed as we are from the tournament of trials, must be careful to guard against promulgating general pronouncements which prevent the trial judges from exercising their traditional responsibility. The Court's opinion well observes that the hope for a fair administration of the statute rests in the final analysis with its responsible application in the federal trial courts. This responsibility of the federal trial judge, it goes without saying, is not to be delegated to the prosecutor. Questions of production of statements are not to be solved through one party's determination that interview reports fall without the statute and hence that they are not to be produced to defense counsel or to the trial judge for his determination as to their coverage. I am confident that federal trial judges will devise procedural methods whereby their responsibility is not abdicated in favor of the unilateral determination of the prosecuting arm of the Government.
36
Congress had no thought to invade the traditional discretion of trial judges in evidentiary matters beyond checking extravagant interpretations of our decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, which were said to have been made by some lower courts. Indeed Congress took particular pains to make it clear that the legislation 'reaffirms' that decision's holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in possession of the Government touching the events and activities as to which a government witness has testified at the trial. S.Rep.No.981, 85th Cong., 1st Sess., p. 3. And see H.R.Rep.No.700, 85th Cong., 1st Sess., pp. 3, 4. I see no necessity in the circumstances of this case which calls for a decision whether § 3500 is the sole vehicle whereby production of prior statements of government witnesses to government agents may be made to the defense. Certainly nothing in the statute or its legislative history justifies our stripping the trial judge of all discretion to make nonqualifying reports available in proper cases. Take the case of a memorandum of a government agent simply stating that a person interrogated for several hours as to his knowledge of the defendant's alleged criminal transactions, denied any knowledge of them. Then suppose that person is called as a government witness at the trial and testifies in great detail as to the defendant's alleged criminal conduct. The agent's summary would not be a detailed account of the several hours' interrogation of the witness by the Government, and would not meet the definition of statement in subsection (e) of the statute; but it is inconceivable that Congress intended, by the Jencks statute, to strip the trial judge of discretion to order such a summary produced to the defense. Even the Government, in oral argument, conceded that the statute did not strip the district judges of discretion to order production of such a statement under some circumstances.1 There is an obvious constitutional problem in an interpretation that the statute restrains the trial judge from ordering such a statement produced. Less substantial restrictions than this of the common-law rights of confrontation of one's accusers have been struck down by this Court under the Sixth Amendment. See Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890. And in such circumstances, therebec omes pertinent the command of that Amendment that criminal defendants have compulsory process to obtain witnesses for their defense. See United States v. Schneiderman, D.C., 106 F.Supp. 731, 738. It is true that our holding in Jencks was not put on constitutional grounds, for it did not have to be; but it would be idle to say that the commands of the Constitution were not close to the surface of the decision; indeed, the Congress recognized its constitutional overtones in the debates on the statute.2
37
No express language of the statute forbids the production, after a witness has testified, of any statement outside the coverage of the definition in subsection (e), and certainly the legislative history is no adequate support for reading an absolute prohibition into it. It is true that until the Conference Report the bill contained a provision making it in terms exclusive; but this language was deleted in Conference. I should think this change would support an inference negating any absolute exclusivity. To be sure, the change was not explained in the hurried floor discussions which followed the agreement in Conference, in the hectic closing days of the session,3 but the absence of an explanation for the change can argue in favor of its being taken at face value. Certainly this Court should not decide the contrary against the backdrop of a serious question of potential invasion of Sixth Amendment rights. This is not to ignore the obvious intent of Congress that the statute provide the primary tests of what the Government should produce; it is only to recognize that it is not inconsistent with achievement of the statute's aim to require the production of statements outside the scope of the statute where the fair administration of criminal justice so demands. And certainly the statute cannot be said to be exclusive where the Constitution demands production. Of course, the trial judge may fashion procedural safeguards as to those producible statements lying outside the statute's purview, perhaps by analogy to the statutory procedures for the excision of irrelevant matter. It is sufficient to say in this case that the summary in controversy does not appear to fall within the category of statements, outside the definition in subsection (e), as to which the trial judge's discretion might be exercised.4 Decision need turn on no broader ground. Cf. Lee v. Madigan, 358 U.S. 228, 230 231, 79 S.Ct. 276, 278—279, 3 L.Ed.2d 260. What was stated in the agent's summary was already known in every important detail to the defense from the transcript of the interview of July 16 and the affidavit of August 23.
38
The summary in this case does not present the question whether the statute requires the productio of a statement which records part of, but not the entire interview between the witness and the government agent. This is a problem which also should be left to the development of the interpretive case law, and in fact I do not read the Court's opinion as essaying a definitive answer. It is a problem I suppose which would be raised by a stenographic, electrical or mechanical transcript of only part of an interview. There is nothing in the legislative history of the statute to indicate that a stenographic transcript of a 10-minute segment of an hour's interview would not be producible under the statute. If such a transcript would be producible, how distinguish a substantially faithful reproduction, made by the interviewer from his notes or from memory, of any part of the interview? Since, as the Court's opinion concedes, statements made up from interviewer's notes5 are not per se unproducible, one would suppose that a summary, part of which gave a substantial verbatim account of part of the interview, would, as to that part, be producible under the statute. Certainly a statement can be most useful for impeachment even though it does not exhaust all that was said upon the occasion. We must not forget that when confronted with his prior statement upon cross-examination the witness always has the opportunity to offer an explanation. The statute is to be given a reasonable construction, and the courts must not lose sight of the fact that the statute regulates production of material for possible use in cross-examination, and does not regulate admissibility into evidence—as the Court properly observes. Here too, the constitutional question close to the surface of our holding in Jencks must be borne in mind.
39
I repeat that Congress made crystal clear its purpose only to check extravagant interpretations of Jencks in the lower courts while reaffirming the basic holding that a defendant on trial should be entitled to statements helpful in the cross-examination of government witnesses who testify against him. Although it is plain that some restrictions on production have been introduced, it would do violence to the understanding on which Congress, working at high speed under the pressures of the end of a session, passed the statute, if we were to sanction applications of it exalting and exaggerating its restrictions, in disregard of the congressional aim of reaffirming the basic Jencks principle of assuring the defendant a fair opportunity to make his defense. Examination of the papers so sedulously kept from defendant in this case and companion cases does not indicate any governmental interest, outside of the prosecution's interest in conviction, that is served by non-disclosure, and one may wonder whether this is not usually so. There inheres in an overrigid interpretation and application of the statute the hazard of encouraging a practice of government agents' taking statements in a fashion calculated to insulate them from production. I am confident that the District Courts will bear all these factors in mind in devising practical solutions to the problems of production in the many areas which cannot fairly be said to be determined by the affirmance of the judgment in this case.
1
We reject the Government's contention that, at trial, petitioner asserted only that the statute did not cover his request for production, and failed to assert that, if the statute was applicable, the memorandum could be produced under its terms. We find that objection to the interpretation of the statute was adequately made.
2
103 Cong.Rec. 8327. The other House bills were H.R. 8225, 103 Cong.Rec. 9572; H.R. 8243, 103 Cong.Rec. 9746; H.R. 8335, 103 Cong.Rec. 10181; H.R. No. 8341, 103 Cong.Rec. 10181; H.R. 8388, 103 Cong.Rec. 10403; H.R. 8393, 103 Cong.Rec. 10403; H.R. 8414, 103 Cong.Rec. 10547; H.R. 8416, 103 Cong.Rec. 10547; H.R. 8423, 103 Cong.Rec. 10547; H.R. 8438, 103 Cong.Rec. 10589.
3
Many of the cases in the lower federal courts after Jencks and prior to the enactment of the statute are collected in the statement of the Attorney General contained in H.R.Rep. No. 700, 85th Cong., 1st Sess., and in S.Rep. No. 569, 85th Cong., 1st Sess. See also S.Rep. No. 981, 85th Cong., 1st Sess.; 103 Cong.Rec. 15939—15941.
4
The statute provides:
'(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
'(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testiied . If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
'(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate
to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statements shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial.
'(d) If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
'(e) The term 'statement,' as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means—
'(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or
'(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.'
5
See, e.g., H.R.Rep. No. 700, 85th Cong., 1st Sess.; S.Rep. No. 569, 85th Cong., 1st Sess.; S.Rep. No. 981, 85th Cong., 1st Sess. The statements in the reports are frequent and clear. There are many like expressions on the floor of both chambers. For example, there was a lengthy debate in the Senate over an amendment which would have restricted the type of statement which could be produced beyond the limitations already incorporated in the Senate bill. The entire debate proceeded on the explicit assumption that only those statements which were enumerated in the bill could be produced at all. 103 Cong.Rec. 15930—15935. See also 103 Cong.Rec. 16116. There are many similar expressions during the debates.
6
See legislative history summarized in Appendix A, post, 79 S.Ct. page 1226.
7
See legislative history summarized in Appendix B, post, 79 S.Ct. page 1227.
8
See, e.g., 103 Cong.Rec. 16739. See also many statements to the same effect in the House and Senate Reports.
9
See legislative material cited and quoted in Appendix B, post, 79 S.Ct. page 1227.
10
Of course the statute does not provide that inconsistency between the statement and the witness' testimony is to be a relevant consideration. Neither is it significant whether or not the statement is admissible as evidence.
11
The statute as interpreted does not reach any constitutional barrier. Congress has the power to prescribe rules of procedure for the federal courts, and has from the earliest days exercised that power. See 37 Harv.L.Rev., at 1086 and 093 1094, for a collection of such legislation. The power of this Court to prescribe rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress. See Funk v. United States, 290 U.S. 371, 382, 54 S.Ct. 212, 215, 78 L.Ed. 369; Gordon v. United States, 344 U.S. 414, 418, 73 S.Ct. 369, 372, 97 L.Ed. 447. Much of the law of evidence and of discovery is concerned with limitations on a party's right to have access to, and to admit in evidence, material which has probative force. It is obviously a reasonable exercise of power over the rules of procedure and evidence for Congress to determine that only statements of the sort described in (e) are sufficiently reliable or important for purposes of impeachment to justify a requirement that the Government turn them over to the defense.
12
The statement consists of a brief agent's summary, of approximately 600 words, ofa c onference lasting 3 1/2 hours. It was made up after the conference and consists of several brief statements of information given by Sanfilippo in response to questions of the agent. The typed agent's memorandum is clearly not a virtually verbatim narrative of the conference but represents the agent's selection of those items of information deemed appropriate for inclusion in the memorandum. Thus by applying the governing standard set forth at 79 S.Ct. 1224, supra, it is clear that the lower courts did not err in refusing to hand the statement over to the defense.
1
In response to a case put similar to the one given here, government counsel suggested that the primary remedy of the defendant was to call the interviewer. Of course this would only be adequate if the defense had some reason to believe that an interview of such character had taken place and if the witness recalled the interviewer's name. Pressed further as to cases of the nonavailability of the interviewer, government counsel made it clear that 'I would certainly not want to carry the burden of saying that in some extraordinary situation where there was no other possible way to getting hold of it (the summary) that there might not be exceptions read into the statute—what I am talking about now is the normal, ordinary case.'
2
See H.R.Rep. No. 700, 85th Cong., 1st Sess., p. 4; S.Rep. No. 981, 85th Cong., 1st Sess., p. 3; 103 Cong.Rec. 15928, 15933, 16489.
3
Copies of a statement analyzing the conference version were not even available to the Senate due to the press of time. See 103 Cong.Rec. 16488—16489.
4
Of course if the memorandum had been one falling within the statute, I need hardly add that the judge would have had no discretion to refuse to order its production to the defense, in the light of the statute's affirmative command.
5
I might say in passing that the Court's emphasis on interviewer's notes as a basis of producible interview records seems wholly devoid of any real support in the text of the statute or in the legislative materials cited by the Court.
| 01
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360 U.S. 471
79 S.Ct. 1192
3 L.Ed.2d 1375
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC.,v.Bruce BENNETT, Attorney General of the State of Arkansas.
No. 757.
Decided June 22, 1959.
Messrs.
Robert O. Carter and Herbert O. Reid, for appellant.
PER CURIAM.
1
When the validity of a state statute, challenged under the United States Constitution, is properly for adjudication before a United States District Court, reference to the state courts for construction of the statute should not automatically be made. The judgment is vacated and the case is remanded to the United States District Court for the Eastern District of Arkansas for consideration in light of Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025.
2
Judgment vacated and case remanded.
3
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BRENNAN concurs, dissenting.
4
While I agree that the case should be remanded to the District Court, I think that court should be directed to pass on the constitutional issues presented without prior reference to the state courts. My reasons are stated in my dissent in Harrison v. NAACP, 360 U.S. 179, 79 S.Ct. 1032.
| 89
|
360 U.S. 378
79 S.Ct. 1246
3 L.Ed.2d 1312
See 80 S.Ct. 42. ATLANTIC REFINING CO., Cities Service Production Company, Continental Oil Company, et al., Petitioners,
v.PUBLIC SERVICE COMMISSION OF STATE OF NEW YORK, Long Island Lighting Co., et al. TENNESSEE GAS TRANSMISSION CO., Petitioner, v. PUBLIC SERVICE COMMISSION OF STATE OF NEW YORK, Long Island Lighting Co., et al.
Nos. 518, 536.
Argued May 20, 21, 1959.
Decided June 22, 1959.
Motion to Amend Judgment Denied Oct. 12, 1959.
[Syllabus from pages 378-379 intentionally omitted]
Mr. David T. Searls, Houston, Tex., for petitioners Atlantic Refining Co. et al.
Mr. Harry S. Littman, Washington, D.C., for petitioner, Tennessee Service Comm.
Mr. Kent H. Brown, Albany, N.Y., for respondent, Public Service Commission of State of New York.
Mr. Edward S. Kirby, Newark, N.J., (Messrs. David K. Kadane and Bertram D. Moll, Mineola, N.Y., on the brief), for respondents Long Island Lighting Co. and Public Service Electric & Gas Co.
Mr. Justice CLARK delivered the opinion of the Court.
1
This proceeding tests the jurisdiction, as well as the discretion, of the Federal Power Commission in the certificating of the sale of natural gas under § 7(e) of the Natural Gas Act of 1938, 52 Stat. 821, 56 Stat. 84, as amended, 15 U.S.C. § 717 et seq., 15 U.S.C.A. § 717 et seq.1 The Commission has issued a certificate of public convenience and necessity to petitioners, producers of natural gas,2 to sell to petitioner Tennessee Gas Transmission Co. 1.67 trillion cubic feet of natural gas at an initial price of 224 c ents per MCF, including a tax of 1 cent per MCF. Continental Oil Co., 17 F.P.C. 880. In the same proceeding and on the same evidence it had twice refused to issue such an unconditional certificate because of insufficient evidence or testimony 'on which to base a finding that the public convenience and necessity requires the sale of these volumes of gas at the particular rate level here proposed.' On the second occasion it proposed to petitioners that the certificates be conditioned upon an initial price of 18 cents per MCF (including the 1-cent tax), to be increased to 22.4 cents per MCF (including the 1-cent tax) after the first 24-hour delivery period, the latter rate to be subjected to the 'just and reasonable' provisions of § 4 of the Act, 15 U.S.C. § 717c, 15 U.S.C.A. § 717c. The petitioners refused this proposal, and Tennessee advised the Commission that unless the certificates were issued without such conditions, CATCO would not dedicate its gas to the interstate market. Upon rehearing, after argument but without additional evidence, the Commission issued the certificates declaring 'important as is the issue of price, that as far as the public is concerned, the precise charge that is made initially is less important than the assurance of this great supply of gas' for interstate markets. 17 F.P.C., at 881.
2
The respondents, other than the Public Service Commission of the State of New York, are public utilities in New York and New Jersey. They buy gas from petitioner Tennessee for distribution in those States. They and the New York Commission oppose the issuance of the certificates on the ground that their issuance will increase the price of gas to consumers in those States, of whom there are over a million, using Tennessee's gas. Upon the issuance of the certificates the respondents filed petitions for review with the Court of Appeals. It held that 'Congress has not given the Commission power to inquire into the issue of public convenience and necessity where, as here, the applicant circumscribes the scope of that inquiry by attaching a condition to its application requiring the Commission to forego the consideration of an element which may be necessary in the formulation of its judgment.' Public Service Commission of State of New York v. Federal Power Commission, 3 Cir., 257 F.2d 717, 723. Concluding that the Commission had no jurisdiction to conduct such 'a limited inquiry,' ibid., it vacated the order granting the certificates and remanded the case to the Commission. The importance in the administration of the Act of the questions thus posed required the granting of certiorari, 1959, 358 U.S. 926, 79 S.Ct. 317, 3 L.Ed.2d 300. We have concluded that the Court of Appeals was in rro r in deciding that the Commission had no jurisdiction. However, for reasons hereafter developed we hold that the order of the Commission in granting the certificates was in error and we, therefore, affirm the judgment of the Court of Appeals.
3
The natural gas involved here is of a Miocene sand located below seabed out in the Gulf of Mexico some 15 to 25 miles offshore from Cameron and Vermilion Parishes, Louisiana. The petitioners in No. 518 are each independent natural gas producers. They jointly own oil and gas leases (25% to each company) which they obtained from Louisiana covering large acreages of the Continental Shelf off the Louisiana coast. Jurisdiction over the Continental Shelf is claimed by the United States and the question is now in litigation. The Congress has continued existing leases in effect pending the outcome of the controversy over the title. 67 Stat. 462, 43 U.S.C. (Supp. I, 1954) §§ 1331—1343, 43 U.S.C.A. §§ 1331—1343. The four companies' joint venture has resulted in the discovery of huge fields of natural gas and they have dedicated some 1.75 trillion cubic feet of gas from 95,000 acres of their leases to the petitioner Tennessee Gas Transmission Company, a natural gas company subject to the jurisdiction of the Commission.3 The latter is the petitioner in No. 536 which has been consolidated with No. 518.
4
The four contracts dedicating the gas to Tennessee run from each of the petitioner producers. The contracts call for an initial price of 22.4 cents per MCF for the gas, including 1-cent tax, with escalator clauses calling for periodic increases in specific amounts.4 In addition, they provide for Tennessee to receive the gas at platforms on the well sites out some 15 to 25 miles in the Gulf. This requires it to build approximately 107 miles of pipeline from its nearest existing pipeline point to the offshore platforms at wellhead. The estimated cost was $16,315,412. It further appears that the necessity for the certificates was based on an application of Tennessee, Docket G 11107, in which Tennessee requested certification to enlarge and extend its facilities. This program included the building of a pipeline from southeast Louisiana to Potland, Tennessee, which would carry a large proportion of the gas from these leases. Its cost was estimated at $85,000,000. In addition the contracts provide that Tennessee give free carriage from the wells to the shore of all condensate or distillate in the gas for the account of producers who have the option to separate it from the gas at shore stations. We need not discuss the contract provisions more minutely, though respondents do claim that other requirements place a greater burden on Tennessee and in practical effect increase the stated price of the gas to it.
5
The Presiding Examiner on March 29, 1957, found that the sales were required by the public convenience and necessity. Continental Oil Co., 17 F.P.C. 563. While he found that the proposed price was higher than any price Tennessee was then paying, he pointed to other prices currently paid for onshore sales 'for smaller reserves and smaller future potentials.' Id., at 571. The average weighted cost of gas to Tennessee he found would be increased, if the contract price was certificated, by .97 cent per MCF.5 However, he said that no showing hd b een made that this would lead to an increase in Tennessee's rates to jurisdictional customers or result in an increase in the price governing its other purchases. He refused to condition the certificates on the acceptance of a lower price by the parties on the ground that no 'showing of imprudence or of abuse of discretion by management,' ibid., had been made that indicated the proposed price could not be accepted temporarily as consistent with the public convenience and necessity, pending review in a § 5(a) proceeding. However, he did condition his recommendation on the approval of Tennessee's application in Docket G—11107 above mentioned.
6
The Commission, as we have indicated, took three strikes at the recommendations of the Examiner. On April 22 it reversed his finding on public convenience and necessity because the evidence was insufficient as to price. It said:
7
'The importance of this issue in certificating this sale cannot easily be overemphasized. This is the largest reserve ever committed to one sale. This is the first sale from the newly developed offshore fields from which large proportions of future gas supplies will be taken. This is the highest price level at which the sale of gas to Tennessee Gas has been proposed.
8
'These factors make it abundantly evident that, in the public interest, this crucial sale should not be permanently certificated unless the rate level has been shown to be in the public interest.' Id., at 575.
9
The Commission granted petitioners temporary certificates and remanded the proceeding to the Examiner 'to determine at what rates the public convenience and necessity requires these sales' of natural gas to Tennessee under a permanent certificate. Id., at 576. The producers immediately moved for modification, asserting that they could not present sufficient evidence 'within any reasonable period in the future' to meet the necessities of the remand and, further, could not 'afford to commence construction until at least the initial rate (question) is resolved.' The Commission on May 20, however, reiterated its belief that 'the record does not contain sufficient evidence on which to base a finding that the public convenience and necessity requires the sale of the gas at that particular rate level.' 17 F.P.C. 732, 733 734. In an effort to ameliorate the situaton represented by the producers, the Commission did grant the certificates but conditioned them upon the producers' acceptance of an initial price of 17 cents per MCF (plus the 1-cent tax), which was the highest price theretofore paid by Tennessee in the Southwest. It also agreed that one day after the commencement of deliveries of gas the 17-cent price would be escalated to 21.4 cents (plus 1 cent for taxes), the increase to be collected under bond, subject to proof and refund under the provisions of § 4 of the Act. This time Tennessee sought rehearing advising the Commission that the producers would not accept the 17-cent initial price order of May 20 and that 'the contracts will be terminated' with the consequent 'loss of natural gas supplies' required for Tennessee's customers. The Commission, afer oral argument, did not withdraw its previous findings in the matter but predicated its third order on 'the primary consideration that the ubl ic served through the Tennessee Gas system is greatly in need of increased supplies of natural gas. * * * In view of these circumstances and the fact that the record does not show that the 21.4-cent (plus 1 cent for taxes) rate is necessarily excessive, we agree with the presiding examiner that this certificate proceeding * * * should not assume the character of a rate proceeding under Section 5(a).' 17 F.P.C. 880, 881. Asserting that it was of the opinion that it would be able 'to adequately protect the public interest with respect to the matter of price,' ibid., it ordered the certificates issued and directed that since the price 'is higher than Tennessee Gas is paying under any other contract, it should be subject to prompt investigation under Section 5(a) as to its reasonableness.' Id., at 882.
10
We note that the Commission did not seek certiorari here but has filed a brief amicus curiae.6 It does not urge reversal of the judgment but attacks the ground upon which the Court of Appeals bottomed its remand, namely, lack of Commission jurisdiction to consider the limited proposal of petitioners. The Commission's brief suggests that the Court not reach the issue tendered by petitioners, i.e., must the Commission, in a § 7 proceeding, decide whether the proposed initial rate is just and reasonable? Instead, the Commission says, if the judgment must be affirmed it would be better to base the affirmance on the ground that its order 'was not supported by sufficient evidence, and hence constituted an abuse of discretion in the circumstances of the particular case * * *.' Brief for the Federal Power Commission, p. 31. Petitioners oppose such a disposition, contending the evidence was quite substantial.
I. Jurisdiction of the Commission.
11
The Court of Appeals thought that the Commission had no jurisdiction to consider petitioners' proposal because it was limited to a firm price agreed upon by the parties applicant. Their refusal to accept certification at a lower price, even to the extent of canceling their contracts and withholding the gas from interstate commerce, the court held, resulted in the Commission's losing jurisdiction. We do not believe that this follows. No sales, intrastate or interstate, of gas had ever been made from the leases involved here. The contracts under which the petitioners proposed to sell the gas in the interstate market were all conditioned on the issuance of certificates of public convenience and necessity. A failure by either party to secure such certificates rendered the contracts subject to termination. Certainly the filing of the application for a certificate did not constitute a dedication to the interstate market of the gas recoverable under these leases. Nor is there doubt that the producers were at liberty to refuse conditional certificates proposed by the Commission's second order. While the refusal might have been couched in more diplomatic language, it had no effect on the Commission's power to act on the rehearing requested. Even though the Commisson did march up the hill only to march down again upon reaching the summit we cannot say that this about-face deprived it of jurisdiction. We find nothing illegal in the petitioners' rejection of the alternative price proposed by the Commission and their standing firm on their own.
12
II. The Validity of the Order.
13
The purpose of the Natural Gas Act was to underwrite just and reasonable rates to the consumers of natural gas. Federal Power Commission v. Hope Natural Gas Co., 1944, 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333. As the original § 7(c) provided, it was 'the intention of Congress that natural gas shall be sold in interstate commerce for resale for ultimate public consumption for domestic, commercial, industrial, or any other use at the lowest possible reasonable rate consistent with the maintenance of adequate erv ice in the public interest.' 52 Stat. 825.7 The Act was so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges. The heart of the Act is found in those provisions requiring initially that any 'proposed service, sale, operation, construction, extension, or acquisition * * * will be required by the present or future public convenience and necessity,' § 7(e), 15 U.S.C. § 717f(e), 15 U.S.C.A. § 717f(e), and that all rates and charges 'made, demanded, or received' shall be 'just and reasonable,' § 4, 15 U.S.C. § 717c, 15 U.S.C.A. § 717c. The Act prohibits such movements unless and until the Commission issues a certificate of public convenience and necessity therefor, § 7(c), 15 U.S.C. § 717f(c), 15 U.S.C.A. § 717f(c). Section 7(e) vests in the Commission control over the conditions under which gas may be initially dedicated to interstate use. Moreover, once so dedicated there can be no withdrawal of that supply from continued interstate movement without Commission approval. The gas operator, although to this extent a captive subject to the jurisdiction of the Commission is not without remedy to protect himself. He may, unless otherwise bound by contract, United Gas Pipe Line Co. v. Mobile Gas Service Corp., 1956, 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373, file new rate schedules with the Commission. This rate becomes effective upon its filing, subject to the 5-month suspension provision of § 4 and the posting of a bond, where required. This not only gives the natural gas company opportunity to increase its rates where justified but likewise guarantees that the consumer may recover refunds for moneys paid under excessive increases. The overriding intent of the Congress to give full protective coverage to the consumer as to price is further emphasized in § 5 of the Act, 15 U.S.C. § 717d, 15 U.S.C.A. § 717d, which authorizes the Commission sua sponte, or otherwise, to institute an investigation into existing rates and charges and to fix them at a just and reasonable level. Under this section, however, the rate found by the Commission to be just and reasonable becomes effective prospectively only. Gas purchasers, therefore, have no protection from excessive charges collected during the pendency of a § 5 proceeding.
14
In view of this framework in which the Commission is authorized and directed to act, the initial certificating of a proposal under § 7(e) of the Act as being required by the public convenience and necessity becomes crucial. This is true because the delay incident to determination in § 5 proceedings through which initial certificated rates are reviewable appears nigh interminable. Although Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, was decided in 1954, cases instituted under § 5 are still in the investigative stage. This long delay, without the protection of refund, as is possible in a § 4 proceeding, would provide a windfall for the natural gas company with a consequent squall for the consumers. This the Congress did not intend. Moreover, the fact that the Commission was not given the power to suspend initial rates under § 7 makes it the more important, as the Commission itself says, that 'this crucial sale should not be permanently certificated unless the rate level has been shown to be in the public interest.' 17 F.P.C. 563, 575.
15
This is especially true where, as here, the initial price will set a pattern in an area where enormous reserves of gas appear to be present. We note that in petitioners' proof a map of the Continental Shelf area off of the coast of Louisiana shows that the leases here involved cover but 17 out of a blocked-out area ove ring some 900 blocks of 5,000 acres each. The potential of this vast acreage, in light of discoveries already made as shown by the record, is stupendous. The Commission has found that the transaction here covers the largest reserve ever committed to interstate commerce in a single sale. Indications are that it is but a puff in comparison to the enormous potentials present under the seabed of the Gulf. The price certificated will in effect become the floor for future contracts in the area. This has been proven by conditions in southern Louisiana where prices have now vaulted from 17 cents to over 23 cents per MCF. New price plateaus will thus be created as new contracts are made and unless controlled will result in 'exploitation' at the expense of the consumer, who eventually pays for the increases in his monthly bill.
16
It is true that the Act does not require a determination of just and reasonable rates in a § 7 proceeding as it does in one under either § 4 or § 5. Nor do we hold that a 'just and reasonable' rate hearing is a prerequisite to the issuance of producer certificates. What we do say is that the inordinate delay presently existing in the processing of § 5 proceedings requires a most careful scrutiny and responsible reaction to initial price proposals of producers under § 7. Their proposals must be supported by evidence showing their necessity to 'the present or future public convenience and necessity' before permanent certificates are issued. This is not to say that rates are the only factor bearing on the public convenience and necessity, for § 7(e) requires the Commission to evaluate all factors bearing on the public interest. The fact that prices have leaped from one plateau to the higher levels of another, as is indicated here, does make price a consideration of prime importance. This is the more important during this formative period when the ground rules of producer regulation are being evolved. Where the application on its face or on presentation of evidence signals the existence of a situation that probably would not be in the public interest, a permanent certificate should not be issued.
17
There is, of course, available in such a situation, a method by which the applicant and the Commission can arrive at a rate that is in keeping with the public convenience and necessity. The Congress, in § 7(e), has authorized the Commission to condition certificates in such manner as the public convenience and necessity may require. Where the proposed price is not in keeping with the public interest because it is out of line or because its approval might result in a triggering of general price rises or an increase in the applicant's existing rates by reason of 'favored nation' clauses or otherwise, the Commission in the exercise of its discretion might attach such conditions as it believes necessary.
18
This is not an encroachment upon the initial rate-making privileges allowed natural gas companies under the Act, United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, but merely the exercise of that duty imposed on the Commission to protect the public interest in determining whether the issuance of the certificate is required by the public convenience and necessity, which is the Act's standard in § 7 applications. In granting such conditional certificates, the Commission does not determine initial prices nor does it overturn those agreed upon by the parties. Rather, it so conditions the certificate that the consuming public may be protected while the justness and reasonableness of the price fixed by the parties is being determined under other sections of the Act. Section 7 procedures in such situations thus act to hold the line awaiting adjudication of a just and reasonable rate. Thus the purpose of the Congress 'to create a comprehensive and effective regulatory scheme,' Panhandle Eastern Pipe Line Co. v. Public Service Commission of Indiana, 1947, 332 U.S. 507, 520, 68 S.Ct. 190, 197, 92 L.Ed. 128, is given full recognition. And § 7 is given only that scope necessary for 'a single statutory scheme under which all rates are established initially by the natural gas companies, by contract or otherwise, and all rates are subject to being modified by the Commission * * *.' United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, 350 U.S. at page 341, 76 S.Ct. at page 379. On the other hand, if unconditional certificates are issued where the rate is not clearly shown to be required by the public convenience and necessity, relief is limited to § 5 proceedings, and, as we have indicated, full protection of the public interest is not afforded.
19
Our examination of the record here indicates that there was insufficient evidence to support a finding of public convenience and necessity prerequisite to the issuance of the permanent certificates. The witnesses tendered developed little more information than was included in the printed contracts. As the proposed contract price was higher than any paid by Tennessee, including offshore production in the West Delta area of Louisiana, it is surprising that evidence, if available, was not introduced as to the relative costs of production in the two submerged areas. Moreover the record indicates that the proposed price was some 70% higher than the weighted average cost of gas to Tennessee; still no effort was made to give the 'reason why.' More damaging, was the evidence that this price was greatly in excess of that which Tennessee pays from any lease in southern Louisiana. Likewise the $16,000,000 pipeline to the producers' wells was unsupported by evidence of practice or custom. Respondents contend—and it stands undenied that this alone would add 2 cents per MCF to the cost of the gas. Again the free movement of distillates retained by the producers was 'shrugged off' as being de minimis, without any supporting data whatever. Nor was the evidence as to whether the certification of this price would 'trigger' increases in leases with 'favored nation' clauses convincing, and the claim that it would not lead to an increase in rates by Tennessee was not only unsupported but has already proven unfounded.8
20
Nor do we find any support whatever in the record for the conclusory finding on which the order was based that 'the public served through the Tennessee Gas system is greatly in need of increased supplies of natural gas.' 17 F.P.C. 880, 881. Admittedly any such need was wrapped up in the Commission's action in Docket G—11107, where Tennessee was asking for permission to enlarge its facilities. However, the two dockets were not consolidated and the Presiding Examiner conditioned his approval here on the granting of the application in Docket G—11107, no part of which record is here. Neither is there evidence supporting the finding that the producers 'would seek to dispose of their gas elsewhere than to Tennessee Gas and the interstate market,' ibid. While the Commission says that statements were made in argument, apparently by counsel, that this was the case, we find no such testimony. Since some 90% of all commercial gas moves into the interstate market, the sale of such vast quantities as available here would hardly be profitable except interstate.
21
These considerations require an affirmance of the judgment with instructions that the applications be remanded to the Commission for further proceedings. It is so ordered.
22
Judgment affirmed with instructions.
23
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins, concurring.
24
I agree with the judgment of the Court on the ground that the findings upon which the Commission based its conclusion that the public convenience and necessity required the issuance to petitioners of unconditional final certificates find no support in the record. There is no evidence supporting what apear to be the crucial findings that (1) 'the public served through the Tennessee Gas system is greatly in need of increased supplies of natural gas,' particularly insofar as this finding implies that this need is immediate and cannot be satisfied from Tennessee's existing reserves, and that (2) there was serious danger that producer petitioners' gas would be permanently lost to the interstate market unless an unconditional certificate were granted on their terms. This makes it unnecessary to consider at this stage any of the other questions sought to be presented by the parties.
1
Section 7(e), 15 U.S.C. § 717f(e), 15 U.S.C.A. § 717f(e), provides:
'(e) Except in the cases governed by the provisos contained in subsection (c) of this section, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operation, sale, service, construction, extension, or acquisition covered by the application, if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of the Act and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied. The Commission shall have the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.'
2
These are the Atlantic Refining Company, Cities Service Production Company, Continental Oil Company, and Tidewater Oil Company, all petitioners in No. 518 and sometimes known as CATCO.
3
Tennessee operates a pipeline system extending from gas fields in Texas and Louisiana through Arkansas, Mississippi, Tennessee, Kentucky, West Virginia, Ohio, Pennsylvania, New Jersey, New York and into Massachusetts, New Hampshire, Rhode Island and Connecticut. It serves some 80 distributing companies which in turn serve millions of consumers in the various States which its pipeline traverses.
4
These increases were later limited to 2 cents per MCF. The escalator clauses apparently were inserted in lieu of 'favored nation' clauses, but by letter, not a part of the contracts, 'favored nation' clauses were to be substituted at a later date on certain contingencies.
5
The exact finding is as follows:
'Including the gas which Tennessee proposes to purchase under these contracts, some 240,000 M.c.f. per day (14.73 p.s.i.a.), it is estimated that the weighted average cost of all gas to Tennessee in 1958 will be some 13.70 cents per M.c.f., as compared with 12.73 cents if the gas here proposed to be purchased is excluded.' 17 F.P.C. 563, 570. Thus is the .97-cent figure derived. It is, however, a misleading figure, for the estimate for 1958 includes the 22.4-cent gas for only two months of 1958, November and December. There is no indication in the record as to what the cost increase would be if the weighted average were calculated by including the 22.4-cent gas for the full year.
6
The brief is not signed by the Solicitor General but by both the General Counsel and the Solicitor of the Federal Power Commission.
7
The 1942 amendments to § 7, 56 Stat. 83, were not intended to change this declaration of purpose. See Hearings, House Interstate and Foreign Commerce Committee, on H.R. 5249, 77th Cong., 1st Sess. 18—19; H.R.Rep. No. 1290, 77th Cong., 1st Sess.; S.Rep. No. 948, 77th Cong., 2d Sess.
8
Tennessee has subsequently filed an application with the F.P.C. requesting higher rates designed to produce some $19,000,000 additional annual revenue. Tennessee Gas Transmission Co., Docket G—17166.
| 78
|
360 U.S. 395
79 S.Ct. 1237
3 L.Ed.2d 1323
PITTSBURGH PLATE GLASS COMPANY, Petitioner,v.UNITED STATES of America. GALAX MIRROR COMPANY, Inc, et al., Petitioners, v. UNITED STATES of America.
Nos. 489, 491.
Argued April 28, 29, 1959.
Decided June 22, 1959.
Rehearing Denied Oct. 12, 1959.
See 80 S.Ct. 42.
Mr. Leland Hazard, Pittsburgh, Pa., for petitioner Pittsburgh Plate glass co.
H. Graham Morison, Washington, D.C., for petitioners Galax Mirror Co. et al.
Philip Elman, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioners stand convicted on a single-count indictment charging a conspiracy under § 1 of the Sherman Act, 15 U.S.C.A. § 1. They contend that the trial judge erred in refusing to permit them to inspect the grand jury minutes covering the testimony before that body of a key government witness at the trial. The Court of Appeals affirmed the convictions, 260 F.2d 397. With reference to the present claim, it held that Rule 6(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.,1 committed the inspection or not of grand jury minutes to the sound discretion of the trial judge, and that in this instance, no abuse of that discretion had been shown. We granted certiorari limited to the question posed by this ruling. 358 U.S. 917, 79 S.Ct. 289, 3 L.Ed.2d 237. We conclude that in the circumstances of this case the trial court did not err in refusing to make Jonas' grand jury testimony available to petitioners for use in cross-examination.
2
The indictment returned in the case named as defendants seven corporations, all manufacturers of mirrors, and three of their officers. However, only three of the corporations are petitioners here, slong with one individual, J. A. Messer, Sr. The indictment charged a conspiracy to fix the price of plain plate glass mirrors sold in interestate commerce. It is not necessary for our purposes to detail the facts of this long trial, the record of which covers 860 pages. It is sufficient to say that the Government proved its case through 10 witnesses, the last of wom was Jonas. He was President of a large North Carolina mirror manufacturing company and had a reputation for independence in the industry. Although neither he nor his corporation was indicted, the latter was made a co-conspirator. The evidence indicates that the conspiracy was consummated at two meetings held on successive days during the week of the annual meeting of the Mirror Manufacturers Association in 1954 at Asheville, North Carolina. Jonas, not being a member of the Association, did not attend the convention. Talk at the convention regarding prices culminated in telephone calls by several representatives of mirror manufacturers to Jonas concerning his attitude on raising prices. On the day following these calls Jonas and three of the participants in the conspiracy met at an inn away from the convention headquarters and discussed 'prices.' Within three days thereafter each of the manufacturers announced an idential price increase, which was approximately 10 percent. Jonas' testimony, of course, was confined to the telephone calls and the meeting at the inn where the understanding was finalized. The Government admits that he was an 'important' witness. However, proof of the conspiracy was overwhelming aside from Jonas' testimony. While he was the only witness who characterized the outcome of the meetings as an 'agreement' on prices, no witness negatived this conclusion and the idential price lists that followed the meeting at the inn were little less than proof positive.
3
After the conclusion of Jonas' testimony, defense counsel interrogated him as to the number of times he appeared and the subject of his testimony before the grand jury. Upon ascertaining that Jonas had testified three times on 'the same general subject matter,' counsel moved for the delivery of the grand jury minutes. He stated that the petitioners had 'a right * * * to inspect the Grand Jury record of the testimony of this witness after he has completed his direct examination' relating to 'the same general subject matter' as his trial testimony.2 As authority for 'the automatic delivery of Grand Jury transcripts' under such circumstances counsel cited Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. As previously indicated, the motion was denied.
4
It appears to us clear that Jencks v. United States, supra, is in nowise controlling here. It had nothing to do with grand jury proceedings and its language was not intended to encompass grand jury minutes. Likewise, it is equally clear that Congress intended to exclude those minutes from the operation of the so-called Jencks Act, 71 Stat. 595, 18 U.S.C. (Supp. V, 1958) § 3500, 18 U.S.C.A. § 3500.3
5
Petitioners concede, as they must, that any disclosure of grand jury minutes is covered by Fed.Rules Crim.Proc. 6(e) promulgated by this Court in 1946 after the approval of Congress. In fact, the federal trial courts as well as the Courts of Appeals have been nearly unanimous in regarding disclosure as committed to the discretion of the trial judge.4 Our cases announce the same principle,5 and Rule 6(e) is but declaratory of it.6 As recently as last Term we characterized cases where grand jury minutes are used 'to impeach a witness, to refresh his recollection to test his credibility and the like' as instances of 'particularized need where the secrecy of the proceedings is lifted discretely and limitedly.' United States v. Procter & Gamble, 1958, 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077.
6
Petitioners argue, however, that the trial judge's discretion under Rule 6(e) must be exercised in accordance with the rationale of Jencks; namely, upon a showing on cross-examination that a trial witness testified before the grand jury—and nothing more—the defense has a 'right' to the delivery to it of the witness' grand jury testimony.
7
This conclusion, however, runs counter to 'a long-established policy' of secrecy, United States v. Procter & Gamble, supra, 356 U.S. at page 681, 78 S.Ct. at page 986, older than our Nation itself. The reasons therefor are manifold, id., 356 U.S. at page 682, 78 S.Ct. at page 986, and are compelling when viewed in the light of the history and modus operandi of the grand jury. Its establishment in the Constitution 'as the sole method for preferring charges in serious criminal cases' indeed 'shows the high place it (holds) as an instrument of justice.' Costello v. United States, 1956, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397. Ever since this action by the Fathers, the American grand jury, like that of England, 'has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.' Ibid. Indeed, indictments may be returned on hearsay, or for that matter, even on the knowledge of the grand jurors themselves. Id., 350 U.S. at pages 362, 363, 76 S.Ct. at pages 408, 409. To make public any part of its proceedings would inevitably detract from its efficacy. Grand jurors would not act with that independence required of an accusatory and inquisitorial body. Moreover, not only would the participation of the jurors be curtailed, but testimony would be parsimonious if each witness knew that his testimony would soon be in the hands of the accused. Especially is this true in antitrust proceedings where fear of business reprisal might haunt both the grand juror and the witness. And this 'go slow' sign would continue as realistically at the time of trial as theretofore.
8
It does not follow, however, that grand jury minutes should never be made available to the defense. This Court has long held that there are occasions, see United States v. Procter & Gamble, supra, 356 U.S. at 683, 78 S.Ct. at page 987, when the trial judge may in the exercise of his discretion order the minutes of a grand jury witness produced for use on his cross-examination at trial. Certainly 'disclosure is wholly proper where the ends of justice require it.' United States v. Socony-Vacuum Oil Co., supra, 310 U.S. at page 234, 60 S.Ct. at page 849.
9
The burden, however, is on the defense to show that 'a particularized need' exists for the minutes which outweighs the policy of secrecy. We have no such showing here. As we read the record the petitioners failed to show any need whatever for the testimony of the witness Jonas. They contended only that they had a 'right' to the transcript because it dealt with subject matter generally covered at the trial. Petitioners indicate that the trial judge required a showing of contradiction between Jonas' trial and grand jury testimony. Such a preliminary showing would not, of course, be necessary. While in a colloquy with counsel the judge did refer to such a requirement, we read his denial as being based on the breadth of petitioners' claim. Petitioners also claim error because the trial judge failed to examine the transcript himself for any inconsistencies. But we need not consider that problem because petitioners made no such request of the trial judge. The Court of Appeals apparently was of the view that even if the ria l judge had been requested to examine the transcript he would not have been absolutely required to do so. It is contended here that the Court of Appeals for the Second Circuit has reached a contrary conclusion. United States v. Spangelet, 258 F.2d 338. Be that as it may, resolution of that question must await a case where the issue is presented by the record. The short of it is that in the present case the petitioners did not invoke the discretion of the trial judge, but asserted a supposed absolute right, a right which we hold they did not have. The judgment is therefore affirmed.
10
Affirmed.
11
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
12
In the words of the Court of Appeals, Jonas was the Government's 'principal prosecuting witness.'1 He was President of Lenoir Mirror Company, which company was a participant in the alleged price-fixing conspiracy, but was not indicted. After Jonas testified on direct examination defense counsel asked for the production of his relevant grand jury testimony. The trial judge immediately made clear his intention not to grant the motion: 'Unless you can show some sound basis that contradicts between what happened in the Grand Jury room and his testimony before the Grand Jury and his testimony in this trial, I am not going to require the production of the Grand Jury records. It would be easy for any attorney to get access to the records of the Grand Jury by just such a motion as you are making here.' Defense counsel protested, 'we are not attempting that. We want just a transcript of his testimony before the Grand Jury regarding the subjects to which he has testified on direct examination.' (Emphasis supplied.) This request thus encompassed all of Jonas' grand jury testimony only if all of that testimony covered the subject matter of Jonas' trial testimony. The court replied, 'You have stated what you want to ask him and I am denying your right to do it.' Plainly defense counsel were not asking to see the minutes of the entire grand jury proceedings, nor even of all of Jonas' testimony before the grand jury unless all of it was on the same subject matter as his trial testimony. Their motion was carefully limited to a request for so much of Jonas' grand jury testimony as 'covered the substance of his testimony on direct examination.' This request that secrecy be 'lifted discretely and limitedly,' United States v. Procter & Gamble, 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077, necessarily implied a request that the trial judge inspect the grand jury minutes and turn over to the defense only those parts dealing with Jonas' testimony on the same subject matter as his trial testimony. In this posture, then, the question for our decision is the narrow one whether the trial judge erred in denying the defense request for inspection of the grand jury testimony of a key government witness which covered the subject matter of that witness' trial testimony.2 I dissent from the Court's affirmance of the trial judge's ruling denying this carefully circumscribed request.
13
Grand jury secrecy is, of course, not an end in itself. Grand jury secrecy is maintained to serve particular ends. But when secrecy will not serve those ends or when the advantages gained by secrecy are outweighed by a countervailing interest in disclosure, secrecy may and should be lited , for to do so in such a circumstance would further the fair administration of criminal justice. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. It is true that secrecy is not to be lifted without a showing of good reason, but it is too late in the day to say, as the Court as a practical matter does here, that the Government may insist upon grand jury secrecy even when the possible prejudice to the accused in a criminal case is crystal clear and none of the peasons justifying secrecy is present. '(A)fter the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it.' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234, 60 S.Ct. 811, 849, 84 L.Ed. 1129. Thus grand jury minutes have been made available to a defendant accused of committing perjury before the grant jury so that he could adequately prepare his defense, United States v. Remington, 2 Cir., 191 F.2d 246; United States v. Rose, 3 Cir., 215 F.2d 617, and to a defendant who can show an inconsistency between the trial testimony and grand jury testimony of a government witness, United States v. Alper, 2 Cir., 156 F.2d 222; Burton v. United States, 5 Cir., 175 F.2d 960; Herzog v. United States, 9 Cir., 226 F.2d 561; United States v. H.J.K. Theatre Corp., 2 Cir., 236 F.2d 502. On occasion the Government itself has recognized the fairness of permitting the defense access to the grand jury testimony of government witnesses even though it considered that it was not bound to do so, United States v. Grunewald, D.C., 162 F.Supp. 621. This Court has implied that grand jury minutes would be discoverable by a defendant in a civil antitrust suit instituted by the Government on a showing of 'particularized need,' United States v. Procter & Gamble, 356 U.S. 677, 683, 78 S.Ct. 983, 987, 2 L.Ed.2d 1077.3 Nor can we overlook that the Government uses grand jury minutes to further its own interests in litigation. It is apparently standard practice for government attorneys to use grand jury minutes in preparing a case for trial, see United States v. Procter & Gamble, 356 U.S. 677, 678, 78 S.Ct. 983, 984, 2 L.Ed.2d 1077, in refreshing the recollection of government witnesses at trial, see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233, 60 S.Ct. 811, 849, 84 L.Ed. 1129, and, when the need arises, in impeaching witnesses at trial, see United States v. Cotter, 2 Cir., 60 F.2d 689. Of course, when the Government uses grand jury minutes at trial the defense is ordinarly entitled to inspect the relevant testimony in those minutes. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233, 60 S.Ct. 811, 849, 84 L.Ed. 1129; United States v. Cotter, 2 Cir., 60 F.2d 689. Indeed, Rule 6(e) of the Federal Rules of Criminal Procedure itself recognizes that grand jury testimony is discoverable under appropriate circumstances.4
14
The Court apparently agrees with the conclusion compelled by these precedents, for its opinion states that grand jury minutes are discoverable when "a particularized need' exists for the minutes which outweighs the policy of secrecy.' But the Court pays only lip service to the principle in view of the result in this case. It is clear beyond question, I think, that the application of that principle to this case requires a holding that Jonas' grand jury testimony is discoverable to the limited extent sought. Since there are no valid considerations which militate in favor of grand jury secrecy in this case, simple justice requires that the petitioners be given access to the relevant portions of Jonas' grand jury testimony so that they have a fair opportunity to refute the Government's case.
15
Essentially four reasons have been advanced as justification for grand jury secrecy.5 (1) To prevent the accused from escaping before he is indicted and arrested or from tampering with the witnesses against him. (2) To prevent disclosure of derogatory information presented to the grand jury against an accused who has not been indicted. (3) To encourage complainants and witnesses to come before the grand jury and speak freely without fear that their testimony will be made public thereby subjecting them to possible discomfort or retaliation. (4) To encourage the grand jurors to engage in uninhibited investigation and deliberation by barring disclosure of their votes and comments during the proceedings.
16
None of these reasons dictates that Jonas' grand jury testimony, to the limited extent it is sought, should be kept secret. The Court, while making obeisance to 'a long-established policy' of secrecy, makes no showing whatever how denial of Jonas' grand jury testimony serves any of the purposes justifying secrecy. Certainly disclosure at this stage of the proceedings would not enable the defendants to escape from custody or to tamper with the witness who has already testified against them on direct examination. Certainly, also, protection of an innocent accused who has not been indicted has no bearing on this case. Discovery has been sought only of Jonas' grand jury testimony on the same subject matter as his testimony at trial. This testimony will have condemned someone to whom he did not refer at trial only if he has concealed information at the trial, and this creates the very situation in which it is imperative that the defense have assess to the grand jury testimony if we are to adhere to the standards we have set for ourselves to assure the fair administration of criminal justice in the federal courts. Similarly, disclosure of Jonas' relevant ground jury testimony could not produce the apprehended results of retaliation or discomfort which might induce a reluctance in others to testify before grand juries. Jonas has already taken the stand and testified freely in open court against the defendants. His testimony has been extremely damaging. Disclosure of his testimony before the grand jury is hardly likely to result in any embarrassment that his trial testimony has not already produced. 'If he tells the truth, and the truth is the same as he testified before the grand jury, the disclosure of the former testimony cannot possibly bring to him any harm * * * which his testimony on the open trial does not equally tend to produce.' 8 Wigmore, Evidence (3d ed. 1940), § 2362, at p. 725. Witnesses before a grand jury necessarily know that once called by the Government to testify at trial they cannot remain secret informants quite apart from whether their grand jury testimony is discoverable. Finally, the defense seeks nothing which would disclose the votes or opinions of any of the grand jurors involved in these proceedings. All that is sought is the relevant testimony of Jonas. If there are questions by grand jurors intertwined with Jonas' testimony disclosure of which would indicate the jurors' opinions or be embarrassing to them, the names of the grand jurors asking the questions can be excised. Cf. United States v. Grunewald, D.C., 162 F.Supp. 621.
17
Plainly, then, no reason justifying secrecy of Jonas' relevant grand jury testimony appears. The Court's insistence on secrecy exalts the principle of secrecy for secrecy's sake in the face of obvious possible prejudice to the petitioners' defense against Jonas' seriously damaging testimony on the trial. Surely 'Justice requires no less,' Jencks v. United States, 353 U.S. 657, 669, 77 S.Ct. 1007, 1013, 1 L.Ed.2d 1103, than that the defense be permitted every reasonable opportunity to impeach a government witness, and that a criminal conviction not be based on the testimony of untruthful or inaccurate witnesses. The interest of the United States in a criminal prosecution, it must be emphasized, 'is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314.
18
Obviously the impeachment of the Government's key witness on the basis of prior inconsistent or contradictory statements made under oath before a grant jury would have an important effect on a trial. Thus it has long been held that a defendant may have access to inconsistent grand jury testimony for use in cross-examination if he can somehow show that an inconsistency between the trial and grand jury testimony exists. United States v. Alper, 2 Cir., 156 F.2d 222; Burton v. United States, 5 Cir., 175 F.2d 960; Herzog v. United States, 9 Cir., 226 F.2d 561; United States v. H.J.K. Theatre Corp., 2 Cir., 236 F.2d 502. But in an analogous situation we have pointed out the folly of requiring the defense to show inconsistency between the witness' trial testimony and his previous statements on the same subject matter before it can obtain access to those very statements. In Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, we said that it offers no protection to permit a defendant to obtain inconsistent statements to impeach a witness unless he may inspect statements to determine if in fact they are inconsistent with the trial testimony. We said in Jencks:
19
'Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense. The occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict, as in Gordon, (Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447) the accused is helpless to know or discover conflict without inspecting the reports. A requirement of a showing of conflict would be clearly incompatible with our standards for the administration of criminal justice in the federal courts and must therefore be rejected.' 353 U.S. at pages 667—668, 77 S.Ct. at pages 1013.
20
The considerations which moved us to lay down this principle as to prior statements of government witnesses made to government agents obviously apply with equal force to the grand jury testimony of a government witness. For the defense will rarely be able to lay a foundation for obtaining grand jury testimony by showing it is inconsistent with trial testimony unless it can inspect the grand jury testimony, and, apparently in recognition of this fact, the Court holds today that a preliminary showing of inconsistency by the defense would not be necessary in order for it to obtain access to relevant grand jury minutes. It is suggested by the Government, however, that rather than permit the defense to inspect the relevant grand jury minutes for possible use on cross-examination, the trial judge should inspect them and turn over to the defense only those portions, if any, that the judge considers would be useful for purposes of impeachment. This procedure has sometimes een utilized in the past as a way to limit discovery of grand jury minutes. See United States v. Alper, 2 Cir., 156 F.2d 222; United States v. Consolidated Laundries, D.C., 159 F.Supp. 860. But we pointed out in Jencks the serious disadvantages of such a procedure and expressly disapproved of it. We said:
21
'Flat contradiction between the witness' testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness' trial testimony.
22
'* * * We hold * * * that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.' 353 U.S., at pages 667—669, 77 S.Ct. at pages 1013.
23
From Jonas' own admission it appears that his grand jury testimony covered the subject matter of his trial testimony. The reasons for permitting the defense counsel rather than the trial judge to decide what parts of that testimony can effectively be used on cross-examination are certainly not less compelling than in regard to the FBI reports involved in Jencks. For grand jury testimony is often lengthy and involved, and it will be extremely difficult for even the most able and experienced trial judge under the pressures of conducting a trial to pick out all of the grand jury testimony that would be useful in impeaching a witness. See United States v. Spangelet, 2 Cir., 258 F.2d 338. His task should be completed when he has satisfied himself what part of the grand jury testimony covers the subject matter of the witness' testimony on the trial, and when he has given that part to the defense. Then the defense may utilize the grand jury testimony for impeachment purposes as it may deem advisable in its best interests, subject of course to the applicable rules of evidence.
24
I would reverse the Court of Appeals and order a new trial for failure to the trial judge to order the production of Jonas' relevant grand jury testimony.
1
'Rule 6. The Grand Jury.
'(e) Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.'
2
The fact that the trial testimony and that before the grand jury included the same 'subjects' or related to 'the same general subject matter' is not contested.
3
See S.Rep. No. 981, 85th Cong., 1st Sess.; 103 Cong.Rec. 15933.
4
E.g., United States v. Spangelet, 2 Cir., 258 F.2d 338; United States v. Angelet, 2 Cir., 255 F.2d 383; United States v. Rose, 3 Cir., 215 F.2d 617, 629; Schmidt v. United States, 6 Cir., 115 F.2d 394; United States v. Amercan Medical Ass'n., D.C., 26 F.Supp. 429.
5
United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129. And see United States v. Procter & Gamble Co., 1958, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077; United States v. Johnson, 1943, 319 U.S. 503, 513, 63 S.Ct. 1233, 1238, 87 L.Ed. 1546.
6
See Notes of the Advisory Committee on Rules, following Rule 6, Fed.Rules Crim.Proc.
1
Jonas was the only witness to testify that the defendants had actually agreed to a uniform price increase. Furthermore, his testimony was necessary to refute other testimony that the President of petitioner Galax Mirror Co., Inc., had stated that he would follow his pricing policy regardless of what the other manufacturers did. Jonas' testimony was also instrumental in connecting petitioner Pittsburgh Plate Glass Co. to the pricefixing agreement.
2
As the Court points out, discovery of grand jury minutes is not affected by the Jencks statute, 18 U.S.C.(Supp. V) § 3500, 18 U.S.C.A. § 3500.
3
United States v. Procter & Gamble, upon which the Court relies, actually is authority for permitting discovery in this case. The Court in that case recognized that grand jury minutes were discoverable where the need outweighed the advantages of secrecy, but held that such was not the case in the circumstances because, unlike this case, Procter & Gamble concerned a demand for a transcript of the entire grand jury proceedings to be used in pretrial preparation of a civil suit. This case, of course, concerns a demand for discovery of a particular witness' relevant testimony for use on cross-examination at trial in a criminal prosecution. The Court specifically stated in Procter & Gamble: 'We do not reach in this case problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like. Those are cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly.' 356 U.S., at page 683, 78 S.Ct. at page 987.
4
See United States v. Alper, 2 Cir., 156 F.2d 222, 226; In re Bullock, D.C., 103 F.upp . 639.
5
See United States v. Rose, 3 Cir., 215 F.2d 617, 628—629; United States v. Amazon Industrial Chemical Corp., D.C., 55 F.2d 254, 261; 8 Wigmore, Evidence (3d ed. 1940), § 2360.
| 01
|
360 U.S. 315
79 S.Ct. 1202
3 L.Ed.2d 1265
Vincent Joseph SPANO, Petitioner,v.PEOPLE OF THE STATE OF NEW YORK.
No. 582.
Argued April 27, 1959.
Decided June 22, 1959.
Mr. Herbert S. Siegal, New York City, for the petitioner.
Mr. Irving Anolik, New York City, for the respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This is another in the long line of cases presenting the question whether a confession was properly admitted into evidence under the Fourteenth Amendment. As in all such cases, we are forced to resolve a conflict between two fundamental interests of society; its interest in prompt and efficient law enforcement, and its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement. Because of the delicate nature of the constitutional determination which we must make, we cannot escape the responsibility of making our own examination of the record. Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074.
2
The State's evidence reveals the following: Petitioner Vincent Joseph Spano is a derivative citizen of this country, having been born in Messina, Italy. He was 25 years old at the time of the shooting in question and had graduated from junior high school. He had a record of regular employment. The shooting took place on January 22, 1957.
3
On that day, petitioner was drinking in a bar. The decedent, a former professional boxer weighing almost 200 pounds who had fought in Madison Square Garden, took some of petitioner's money from the bar. Petitioner followed him out of the bar to recover it. A fight ensued, with the decedent knocking petitioner down and then kicking him in the head three or four times. Shock from the force of these blow caused petitioner to vomit. After the bartender applied some ice to his head, petitioner left the bar, walked to his apartment, secured a gun, and walked eight or nine blocks to a candy store where the decedent was frequently to be found. He entered the store in which decedent, three friends of decedent, at least two of whom were ex-convicts, and a boy who was supervising the store were present. He fired five shots, two of which entered the decedent's body, causing his death. The boy was the only eyewitness; the three friends of decedent did not see the person who fired the shot. Petitioner then disappeared for the next week or so.
4
On February 1, 1957, the Bronx County Grand Jury returned an indictment for first-degree murder against petitioner. Accordingly, a bench warrant was issued for his arrest, commanding that he be forthwith brought before the court to answer the indictment, or, if the court had adjourned for the term, that he be delivered into the custody of the Sheriff of Bronx County. See N.Y. Code Crim.Proc. § 301.
5
On February 3, 1957, petitioner called one Gaspar Bruno, a close friend of 8 or 10 years' standing who had attended school with him. Bruno was a fledgling police officer, having at that time not yet finished attending police academy. According to Bruno's testimony, petitioner told him 'that he took a terrific beating, that the deceased hurt him real bad and he dropped him a couple of times and he was dazed; he didn't know what he was doing and that he went and shot at him.' Petitioner told Bruno that he intended to get a lawyer and give himself up. Bruno relayed this information to his superiors.
6
The following day, February 4, at 7:10 p.m., petitioner, accompanied by counsel, surrendered himself to the authorities in front of the Bronx County Building, where both the office of the Assistant District Attorney who ultimately prosecuted his case and the court-room in which he was ultimately tried were located. His attorney had cautioned him to answer no questions, and left him in the custody of the officers. He was promptly taken to the office of the Assistant District Attorney and at 7:15 p.m. the questioning began, being conducted by Assistant District Attorney Goldsmith, Lt. Gannon, Detectives Farrell, Lehrer and Motta, and Sgt. Clarke. The record reveals that the questioning was both persistent and continuous. Petitioner, in accordance with his attorney's instructions st eadfastly refused to answer. Detective Motta testified: 'He refused to talk to me.' 'He just looked up to the ceiling and refused to talk to me.' Detective Farrell testified:
7
'Q. And you started to interrogate him? A. That is right.
8
'Q. What did he say? A. He said 'you would have to see my attorney. I tell you nothing but my name.'
9
'Q. Did you continue to examine him? A. Verbally, yes, sir.'
10
He asked one officer, Detective Ciccone, if he could speak to his attorney, but that request was denied. Detective Ciccone testified that he could not find the attorney's name in the telephone book.1 He was given two sandwiches, coffee and cake at 11 p.m.
11
At 12:15 a.m. on the morning of February 5, after five hours of questioning in which it became evident that petitioner was following his attorney's instructions, on the Assistant District Attorney's orders petitioner was transferred to the 46th Squad, Ryer Avenue Police Station. The Assistant District Attorney also went to the police station and to some extent continued to participate in the interrogation. Petitioner arrived at 12:30 and questioning was resumed at 12:40. The character of the questioning is revealed by the testimony of Detective Farrell:
12
'Q. Who did you leave him in the room with? A. With Detective Lehrer and Sergeant Clarke came in and Mr. Goldsmith came in or Inspector Halk came in. It was back and forth. People just came in, spoke a few words to the defendant or they listened a few minutes and they left.'
13
But petitioner persisted in his refusal to answer, and again requested permission to see his attorney, this time from Detective Lehrer. His request was again denied.
14
It was then that those in charge of the investigation decided that petitioner's close friend, Bruno, could be of use. He had been called out on the case around 10 or 11 p.m., although he was not connected with the 46th Squad or Precinct in any way. Although, in fact, his job was in no way threatened, Bruno was told to tell petitioner that petitioner's telephone call had gotten him 'in a lot of trouble,' and that he should seek to extract sympathy from petitioner for Bruno's pregnant wife and three children. Bruno developed this theme with petitioner without success, and petitioner, also without success, again sought to see his attorney, a request which Bruno relayed unavailingly to his superiors. After this first session with petitioner, Bruno was again directed by Lt. Gannon to play on petitioner's sympathies, but again no confession was forthcoming. But the Lieutenant a third time ordered Bruno falsely to importune his friend to confess but again petitioner clung to his attorney's advice. Inevitably, in the fourth such session directed by the Lieutenant, lasting a full hour, petitioner succumbed to his friend's prevarications and agreed to make a statement. Accordingly, at 3:25 a.m. the Assistant District Attorney, a stenographer, and several other law enforcement officials entered the room where petitioner was being questioned, and took his statement in question and answer form with the Assistant District Attorney asking the questions. The statement was completed at 4:05 a.m.
15
But this was not the end. At 4:30 a.m. three detectives took petitioner to Police Headquarters in Manhattan. On the way they attempted to find the bridge from which petitioner said he had thrown the murder weapon. They crossed the Triborough Bridge into Manhattan, arriving at Police Headquarters at 5 a.m., and left Manhattan for the Bronx at 5:40 a.m. via the Willis Avenue Bridge. When petitioner recognized neither bridge as the one from which he had thrown the weapon, they re-entered Manhattan via the Third Avenue Bridge, which petitioner stated was the right one, and then returned to the Bronx well after 6 a.m. During that trip the officers also elicited a statement from petitioner that the deceased was always 'on (his) back,' 'always pushing' him and that he was 'not sorry' he had shot the deceased. All three detectives testified to that statement at the trial.
16
Court opened at 10 a.m. that morning, and petitioner was arraigned at 10:15.
17
At the trial, the confession was introduced in evidence over appropriate objections. The jury was instructed that it could rely on it only if it was found to be voluntary. The jury returned a guilty verdict and petitioner was sentenced to death. The New York Court of Appeals affirmed the conviction over three dissents, 4 N.Y.2d 256, 173 N.Y.S.2d 793, 150 N.E.2d 226, and we granted certiorari to resolve the serious problem presented under the Fourteenth Amendment. 358 U.S. 919, 79 S.Ct. 293, 3 L.Ed.2d 238.
18
Petitioner's first contention is that his absolute right to counsel in a capital case, Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, became operative on the return of an indictment against him, for at that time he was in every sense a defendant in a criminal case, the grand jury having found sufficient cause to believe that he had committed the crime. He argues accordingly that following indictment no confession obtained in the absence of counsel can be used without violating the Fourteenth Amendment. He seeks to distinguish Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, and Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, on the ground that in those cases no indictment had been returned. We find it unnecessary to reach that contention, for we find use of the confession obtained here inconsistent with the Fourteenth Amendment under traditional principles.
19
The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Accordingly, the actions of police in obtaining confessions have come under scrutiny in a long series of cases.2 Those cases suggest that in recent years law enforcement officials have become increasingly aware of the burden which they share, along with our courts, in protecting fundamental rights of our citizenry, including that portion of our citizenry suspected of crime. The facts of no case recently in this Court have quite approached the brutal beatings in Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, or the 36 consecutive hours of questioning present in Ashcraft v. State of Tennessee, 1944, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192. But as law enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, our duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made. Our judgment here is that, on all the facts, this conviction cannot stand.
20
Petitioner was a foreign-born young man of 25 with no past history of law violation or of subjection to official interrogation, at least insofar as the record shows. He had progressed only one-half year into high school and the record indicates that he had a history of emotional instability.3 He did not make a narrative statement, but was subject to the leading questions of a skillful prosecutor in a question and answer confession. He was subjected to questioning not by a few men, but by many. They included Assistant District Attorney Goldsmith, one Hyland of the District Attorney's Office, Deputy Inspector Halks,4 Lieutenant Gannon, Detective Ciccone, Detective Motta, Detective Lehrer, Detective Marshal, Detective Farrell, Detective Leira,5 Detective Murphy, Detective Murtha, Sergeant Clarke, Patrolman Bruno and Stenographer Baldwin. All played some part, and the effect of such massive official interrogation must have been felt. Petitioner was questioned for virtually eight straight hours before he confessed, with his only respite being a transfer to an arena presumably considered more appropriate by the police for the task at hand. Nor was the questioning conducted during normal business hours, but began in early evening, continued into the night, and did not bear fruition until the not-too-early morning. The drama was not played out, with the final admissions obtained, until almost sunrise. In such circumstances slowly mounting fatigue does, and is calculated to, play its part. The questioners persisted in the face of his repeated refusals to answer on the advice of his attorney, and they ignored his reasonable requests to contact the local attorney whom he had already retained and who had personally delivered him into the custody of these officers in obedience to the bench warrant.
21
The use of Bruno, characterized in this Court by counsel for the State as a 'childhood friend' of petitioner's, is another factor which deserves mention in the totality of the situation. Bruno's was the one face visible to petitioner in which he could put some trust Th ere was a bond of friendship between them going back a decade into adolescence. It was with this material that the officers felt that they could overcome petitioner's will. They instructed Bruno falsely to state that petitioner's telephone call had gotten him into trouble, that his job was in jeopardy, and that loss of his job would be disastrous to his three children, his wife and his unborn child. And Bruno played this part of a worried father, harried by his superiors, in not one, but four different acts, the final one lasting an hour. Cf. Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. Petitioner was apparently unaware of John Gay's famous couplet:
22
'An open foe may prove a curse, But a pretended friend is worse,'
23
and he yielded to his false friend's entreaties.
24
We conclude that petitioner's will was overborne by official pressure, fatigue and sympathy falsely aroused after considering all the facts in their post-indictment setting.6 Here a grand jury had already found sufficient cause to require petitioner to face trial on a charge of first-degree murder, and the police had an eyewitness to the shooting. The police were not therefore merely trying to solve a crime, or even to absolve a suspect. Compare Crooker v. State of California, supra, and Cicenia v. Lagay, supra. They were rather concerned primarily with securing a statement from defendant on which they could convict him. The undeviating intent of the officers to extract a confession from petitioner is therefore patent. When such an intent is shown, this Court has held that the confession obtained must be examined with the most careful scrutiny, and has reversed a conviction on facts less compelling than these. Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029. Accordingly, we hold that petitioner's conviction cannot stand under the Fourteenth Amendment.
25
The State suggests, however, that we are not free to reverse this conviction, since there is sufficient other evidence in the record from which the jury might have found guilt, relying on Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522. But Payne v. State of Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 850, 2 L.Ed.2d 975, authoritatively establishes that Stein did not hold that a conviction may be sustained on the basis of other evidence if a confession found to be involuntary by this Court was used, even though limiting instructions were given. Stein held only that when a confession is not found by this Court to be involuntary, this Court will not reverse on the ground that the jury might have found it involuntary and might have relied on it. The judgment must be reversed.
26
Reversed.
27
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice BRENNAN join, concurring.
28
While I join the opinion of the Court, I add what for me is an even more important ground of decision.
29
We have often divided on whether state authorities may question a suspect for hours on end when he has no lawyer present and when he has demanded that he have the benefit of legal advice. See Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, and cases cited. But here we deal not with a suspect but with a man who has been formally charged with a crime. The question is whether after the indictment and before the trial the Government can interrogate the accused in secret when he asked for his lawyer and when his request was denied. This is a capital case; and under the rule of Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, the defendant was entitled to be represented by counsel. This representation by counsel is not restricted to the trial. As stated in Powell v. State of Alabama, upr a, 287 U.S. at page 57, 53 S.Ct. at page 59:
30
'during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.'
31
Depriving a person, formally charged with a crime, of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself.
32
We do not have here mere suspects who are being secretly interrogated by the police as in Crooker v. State of California, supra, nor witnesses who are being questioned in secret administrative or judicial proceedings as in In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376, and Anonymous Nos. 6 & 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157. This is a case of an accused, who is scheduled to be tried by a judge and jury, being tried in a preliminary way by the police. This is a kangaroo court procedure whereby the police produce the vital evidence in the form of a confession which is useful or necessary to obtain a conviction. They in effect deny him effective representation by counsel. This seems to me to be a flagrant violation of the principle announced in Powell v. State of Alabama, supra, that the right of counsel extends to the preparation for trial, as well as to the trial itself. As Professor Chafee once said, 'A person accused of crime needs a lawyer right after his arrest probably more than at any other time.' Chafee, Documents on Fundamental Human Rights, Pamphlet 2 (1951—1952), p. 541. When he is deprived of that right after indictment and before trial, he may indeed be denied effective representation by counsel at the only stage when legal aid and advice would help him. This secret inquisition by the police when defendant asked for and was denied counsel was as serious an invasion of his constitutional rights as the denial of a continuance in order to employ counsel was held to be in Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4. What we said in Avery v. State of Albama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377, has relevance here:
33
'* * * the denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel.'
34
I join with Judges Desmond, Fuld, and Van Voorhis of the New York Court of Appeals (4 N.Y.2d 256, 266, 173 N.Y.S.2d 793, 801, 150 N.E.2d 226, 232—233), in asking, what use is a defendant's right to effective counsel at every stage of a criminal case if, while he is held awaiting trial, he can be questioned in the absence of counsel until he confesses? In that event the secret trial in the police precincts effectively supplants the public trial guaranteed by the Bill of Rights.
35
Mr. Justice STEWART, whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, concurring.
36
While I concur in the opinion of the Court, it is my view that the absence of counsel when this confession was elicited was alone enough to render it inadmissible under the Fourteenth Amendment.
37
Let it be emphasized at the outset that this is not a case where the police were questioning a suspect in the course of investigating an unsolved crime. See Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523. When the petitioner surrendered to the New York authorities he was under indictment for first degree murder.
38
Under our system of justice an indictment is supposed to be followed by an arraignment and a trial. At every stage in those proceedings the accused has an absolute right to a lawyer's help ifthe case is one in which a death sentence may be imposed. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. Indeed the right to the assistance of counsel whom the accused has himself retained is absolute, whatever the offense for which he is on trial. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4.
39
What followed the petitioner's surrender in this case was not arraignment in a court of law, but an all-night inquisition in a prosecutor's office, a police station, and an automobile. Throughout the night the petitioner repeatedly asked to be allowed to send for his lawyer, and his requests were repeatedly denied. He finally was induced to make a confession. That confession was used to secure a verdict sending him to the electric chair.
40
Our Constitution guarantees the assistance of counsel to a man on trial for his life in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law. Surely a Constitution which promises that much can vouchsafe no less to the same man under midnight inquisition in the squad room of a police station.
1
How this could be so when the attorney's name, Tobias Russo, was concededly in the telephone book does not appear. The trial judge sustained objections by the Assistant District Attorney to questions designed to delve into this mystery.
2
E.g., Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523; Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Ashdown v. State of Utah, 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443; Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863; Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86;Joh nson v. Commonwealth of Pennsylvania, 340 U.S. 881, 71 S.Ct. 191, 95 L.Ed. 640; Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Lee v. State of Mississippi, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330; Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663; Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Vernon v. State of Alabama, 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513; Lomax v. State of Texas, 313 U.S. 544, 61 S.Ct. 956, 85 L.Ed. 1511; White v. State of Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342; Canty v. State of Alabama, 309 U.S. 629, 60 S.Ct. 612, 84 L.Ed. 988; Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682.
3
Medical reports from New York City's Fordham Hospital introduced by defendant showed that he had suffered a cerebral concussion in 1955. He was described by a private physician in 1951 as 'an extremely nervous tense individual who is emotionally unstable and maladjusted,' and was found unacceptable for military service in 1951, primarily because of Psychiatric disorder.' He failed the Army's AFQT—1 intelligence test. His mother had been in mental hospitals on three separate occasions.
4
His name is sometimes spelled 'Hawks.'
5
Although each is referred to separately in the record, it may be that Detectives Lehrer and Leira are the same person.
6
Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166, is not to the contrary. There, while petitioner had already been arraigned on an incest charge, his later questioning and confession concerned a murder.
| 01
|
360 U.S. 328
79 S.Ct. 1193
3 L.Ed.2d 1275
UNITED STATES, Petitioner,v.93.970 ACRES OF LAND et al.
No. 573.
Argued May 21, 1959.
Decided June 22, 1959.
Mr. Ralph S. Spritzer, Washington, D.C., for the petitioner.
Mr. Leonard R. Hartenfeld, for the respondent.
Mr. Justice BLACK, delivered the opinion of the Court.
1
The basic question presented in this case is whether the United States can have adjudicated under one complaint (1) the claim by a third person of a valuable possessory interest in government property and (2) condemnation and value of that interest, if any. In 1947 the United States leased an airfield to respondent Illinois Aircraft Services & Sales Co. The preamble to the lease stated that because of the strategic value of the field the Government considered it essential to retain it 'in a stand-by status for post-war use in connection with Naval Aviation activities * * *.'1 One paragraph of the lease provided:
2
'It is understood and agreed that this lease will at all times be revocable at will by the Government upon presentation of notice of cancellation to the Lessee, in writing, sixty (60) days prior to such termination, * * * in event of a national emergency and a decision by the Secretary of the Navy that such revocation is essential.' In 1954 the Army wanted to use the property for an aerial defense missile (NIKE) site. Timely notice of revocation was delivered to respondent under the signatures of the Secretaries of the Army and Navy, stating that a national emergency declared by the President in 1950 was still in effect and that both Secretaries deemed revocation of the lease essential. Respondent declined to leave the land, claiming that the Government had gone beyond the authority granted by the lease in attempting to revoke it for use by the Army rather than in connection with Naval Aviation activities mentioned in the preamble to the lease.
3
In order to obtain possession and use of the land as soon as possible—and without waiting to try out the validity of the prior revocation in a separate action or actions—the Government filed a complaint to condemn whatever possessory interest respondent might be adjudicated to have. Although the Government's complaint alleged that it had revoked the lease and, in effect, that respondent had no compensable interest in the property taken, the District Court ruled that by suing for condemnation the United States had 'elected' to abandon its prior revocation. On this basis the court found that respondent had a compensable interest and let a jury determine its value. Under instructions that the lease was revocable only if needed for 'aviation purposes' and that a NIKE site was not such a purpose, the jury returned a $25,000 verdict for respondents. On appeal the United States Court of Appeals for the Seventh Circuit affirmed this verdict by a divided court. 258 F.2d 17. It held (1) that the doctrine of 'election of remedies' applied and barred consideration of the revocation whether state or federal law governed and (2) that the lease could only be validly revoked under its terms if the Government planned to use the land for 'aviation purposes.' To review the severe restrictions the court's holding places on the ability of the United States to get, quickly, land it may need for government purposes, we granted certiorari. 358 U.S. 945, 79 S.Ct. 354, 3 L.Ed.2d 351.2
4
We cannot agree that the lease permitted revocation only if the Government wanted the land for 'aviation purposes.' It is true that the preamble to the agreement states that the airfield was leased, rather than sold, because it was needed in stand-by status for naval aviation activities. It is also true that immediately folow ing the preamble there is a statement, common in many contracts, that 'Now Therefore, in consideration of the foregoing, and of the covenants hereinafter mentioned, the Government' leases the airport. There is no indication, however, either in the lease itself or as far as we have been shown in the history of the agreement, that this preamble and the formal legal statement immediately following it meant to limit the express and unequivocal clause of the lease allowing revocation at the will of the Secretary of the Navy in the event of a national emergency. Instead the preamble can be easily understood, in view of the Surplus Property Act of 1944, which required all surplus property to be disposed of, as a mere statement of why the property was not considered surplus.3 In addition the statute which authorized the airport lease provided that such leases shall be revocable 'at any time, unless the Secretary shall determine that the omission of such provision from the lease will promote the national defense or will be in the public interest. In any event each such lease shall be revocable by the Secretary during a national emergency declared by the President.'4 Under the circumstances, we cannot and will not assume that an explict revocation clause in the lease means any less than it seems to mean. We therefore hold that the revocation was valid and effective.
5
It follows necessarily from this that application of the doctrine of 'election of remedies' would put the Government in an impossible situation. For under the doctrine, the Government must choose either to abandon its power to revoke the lease or to give up its right to immediate possession under condemnation law, a right which is not here questioned. We see no reason either in justice or authority why such a Hobson's choice should be imposed and why the Government should be forced to pay for property which it rightfully owns merely because it attempted to avoid delays which the applicable laws seek to prevent. Such a strict rule against combining different causes of action would certainly be out of harmony with modern legislation and rules designed to make trials as efficient, expeditious and inexpensive as fairness will permit.5
6
Respondents argue, however, that election of remedies is part of the law of Illinois and that Illinois law applies here. We cannot agree with this view. Condemnation involves essential governmental functions. See Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. We have often held that where essential interests of the Federal Government are concerned, federal law rules unless Congress chooses to make state laws applicable.6 It is apparent that no such choice has been made here.7
7
The judgment of the Court of Appeals is reversed.
8
Reversed.
1
The preamble reads:
'Whereas, because of its strategic value, it is considered essential that the said airfield and the facilities thereon, comprising the said United States Naval Outlying Airfield, be retained in a stand-by status for post-war use in connection with Naval Aviation activities; and
'Whereas, the use of the airfield and facilities by the Lessee will in no wise be detrimental to the present activities of the Navy Department, but is on the contrary deemed to be in the best interest of the Government.'
2
The decision of the court below is also in apparent conflict with United States v. San Geronimo Dev. Co., 1 Cir., 154 F.2d 78 and United States v. Turner, 5 Cir., 175 F.2d 644.
3
58 Stat. 766, 767—770, 777, as amended, 50 U.S.C.App. (1946 ed.) §§ 1612(e), 1613, 1620, 1632, 50 U.S.C.A.Appendix, §§ 1612, 1613, 1620, 1632.
4
61 Stat. 774, 34 U.S.C. § 522a. The current version of this statute is found in 10 U.S.C. (Supp. V) § 2667, 10 U.S.C.A. § 2667. We assume without deciding that this statute is applicable although an argument can be made for the applicability of a prior statute. That law provided that leases must be 'revocable at any time.' 39 Stat. 559, 34 U.S.C. (1946 ed.) § 522.
5
Cf. Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80. See also Fed.Rule Civ.Proc. rules 1, 2, 18, 28 U.S.C.A.
6
See, e.g., Kohl v. United States, 91 U.S. 367, 374, 23 L.Ed. 449; United States v. Miller, 317 U.S. 369, 380, 63 S.Ct. 276, 283, 87 L.Ed. 336; Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838; Bank of America Nat. T. & S. Ass'n v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93.
7
Respondents rely on 26 Stat. 316, as amended, 50 U.S.C. § 171, 50 U.S.C.A. § 171, which provided that condemnation proceedings like the one here involved were 'to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instiute d.' But it is settled that this language required conformity in procedural matters only. See United States v. Miller, 317 U.S. 369, 379—380, 63 S.Ct. 276, 282—283 (citing 25 Stat. 94, 33 U.S.C.A. § 591); Kanakanui v. United States, 9 Cir., 244 F. 923; State of Nebraska v. United States, 8 Cir., 164 F.2d 866, affirming United States v. 19,573.59 Acres of Land, D.C., 70 F.Supp. 610. And insofar as it required such procedural conformity it was clearly repealed by Rule 71A, Federal Rules of Civil Procedure, at the time this suit was brought. It follows that federal law was wholly applicable to this case. In reaching this conclusion we express no opinion on the possible effect on other cases of the re-enactment of this conformity clause in 70A Stat. 148, 10 U.S.C. (Supp. V) § 2663(a) (1956), 10 U.S.C.A. § 2663(a), or its subsequent repeal, retroactive to the time of re-enactment, by the Act of September 2, 1958. 72 Stat. 1565, 1568.
| 78
|
360 U.S. 334
79 S.Ct. 1196
3 L.Ed.2d 1280
SAFEWAY STORES, INCORPORATED, Appellant,v.OKLAHOMA RETAIL GROCERS ASSOCIATION, INC., and Louie J. Speed, Inc.
No. 252.
Argued May 19, 1959.
Decided June 22, 1959.
Mr. Ramsey Clark, Dallas, Tex., for appellant.
Mr. Samuel M. Lane, New York City, for appellees.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This is a suit for an injunction, brought in a state court in Oklahoma by appellee, Oklahoma Retail Grocers Association, against appellant, Safeway Stores, for selling several specified items of retail grocery merchandise below 'cost' in violation of the Oklahoma Unfair Sales Act. Okla.Stat. tit. 15, §§ 598.1—598.11 (1951). Section 598.3 of the Act provides:
2
'It is hereby declared that any advertising, offer to sell, or sale of any merchandise, either by retailers or wholesalers, at less than cost as defined in this Act with the intent and purpose of inducing the purchase of other merchandise or of unfairly diverting trade from a competitor or otherwise injuring a competitor, impair and prevent fair competition, injure public welfare, are unfair competition and contrary to public policy and the policy of this Act, where the result of such advertising, offer or sale is to tend to deceive any purchaser or prospective purchaser, or to substantially lessen competition, or to unreasonably restrain trade, or to tend to create a monopoly in any line of commerce.'
3
The elements of 'cost' are enumerated in other sections of the statute. Safeway defended on the ground, inter alia, that its reductions were permitted by § 598.7 of the Unfair Sales Act which allows 'any retailer or wholesaler' to
4
'* * * advertise, offer to sell, or sell merchandise at a price made in good faith to meet the price of a competitor who is selling the same article or products of comparable quality at cost to him as a wholesaler or retailer.'
5
Safeway by cross-petition sought to enjoin several named members of appellee Association, including Speed, alleging that they were selling below cost in violation of the Act. The trial court, with some qualification, granted the injunction against Safeway and denied relief against appellees. On appeal, the Supreme Court of Oklahoma affirmed, 322 P.2d 179, and since the constitutionality of the state statute was challenged under the Fourteenth Amendment, we noted probable jurisdiction, 358 U.S. 807, 79 S.Ct. 56, 3 L.Ed.2d 54, and brought the case here under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2).
6
Safeway makes two main claims.
7
1. Safeway justified cutting prices below cost in some cities by claiming it was to meet the prices of some of its competitors who were also selling below cost. The statute allows a reduction below cost only when it is a good faith meeting of the competition of a seller who is selling at his own cost. The trial court found that Safeway's reductions violated the Act, and hat Safeway could not avail itself of the statutory defense of meeting competition since its reductions were not in good faith but were made to meet prices Safeway 'either knew or had reason to know were illegal * * *.' The court enjoined Safeway from
8
'* * * selling, at retail, any items of merchandise * * * at prices which are less than cost to the retailer as defined in the Oklahoma 'Unfair Sales Act' and in violation of the provisions of said 'Unfair Sales Act', except to meet in good faith the prices of competitors who are selling the same articles or products of comparable quality at cost to them as retailers as defined in the Oklahoma 'Unfair Sales Act', and except in instances of other exempted sales as provided in Section 598.6 of said Oklahoma 'Unfair Sales Act."
9
The injunction, phrased substantially in the terms of the statute, allows Safeway to meet the prices of competitors who are selling 'at cost to them' if the other requisites of the good faith defense are met. Appellant claims that this injunction deprives it of a constitutional right to compete since it forbids meeting the prices of competitors who are selling below cost. There is no constitutional right to employ relation against action outlawed by a State. Safeway, the Oklahoma court held, had ample means, under the state statute, to enjoin the illegal methods of its competitors. It had no constitutional right to embark on the very kind of destructive price was the Act was designed to prevent.
10
Appellant also claims that there are situations in which a competitor might reduce his prices below cost without violating the Act, and hence, under the injunction, Safeway would have no remedy whatsoever since it could not retaliate in kind and judicial relief would not be available. The conclusive answer to this claim is that it is not before us for adjudication. The court below found that Safeway was meeting prices it 'knew or had reason to know' were illegal. It then phrased its injunction in the terms of a statute which has yet to be construed in the abstract circumstances presented by appellant. The Oklahoma Supreme Court carefully noted that it was interpreting the Unfair Sales Act as applied to the particular facts of this case, pointing out that 'until a proper factual case is presented which requires a clear determination and offers a practical situation in which all the conflicting problems and considerations of the area involved are apparent, this court will refrain from theorizing.' 322 P.2d at page 181. If this is a rule of wise restraint for the courts of Oklahoma in this situation, it clearly bars constitutional adjudication here.1
11
2. Appellant's second contention involves its competitors' use of trading stamps. Trading stamps, it hardly needs to be stated, are, generally speaking, coupons given by dealers to retail purchasers on the basis of the dollar value of the items purchased, e.g., one stamp for each ten cents' worth of goods, and are collected by the purchaser until he has enough to redeem for various items of merchandise. Trading stamps have had a checkered career in the United States, but since World War II their popularity has grown until now it is a reasonable estimate that these multi-colored scraps of paper may be found in almost half of America's homes.2
12
When this suit was brought Safeway did not use trading stamps. In the Oklahoma City-Midwest City area several of its competitors did. These stamps were deemed to be worth approximately 2.5 percent of the price of the goods with which they were given. Safeway contended in the Oklahoma courts that giving a trading stamp with goods sold at or near the statutory minimum resulted in an unlawful reduction below 'cost' to the extent of the value of the trading stamp. To be specific, if an item sold for $1, and that price was statutory cost, the trading stamps given with it would be worth approximately 2.5 cents and the net price was therefore $.975, or 2.5 cents below cost. Safeway sought to restrain its competitors from selling below cost in this manner and also claimed that it was justified, in order to meet competition, in reducing its prices to the net of its competitors' prices, taking into account the value of trading stamps. The Oklahoma court found that the giving of trading stamps with items sold at or near statutory cost was not a violation of the statute and denied Safeway's request for an injunction. The court also decided that Safeway could not reduce its prices to meet the trading stamp competition. It did, however, provide that Safeway could do what appellees did, it might issue 'trading stamps, cash register receipts, or other evidence of credit issued as a discount for prompt payment of cash * * *,' as long as the value of the discount did not exceed three percent.3
13
Safeway contends that such a construction of the Unfair Sales Act violates the Fourteenth Amendment. Appellant claims that even though the State may prohibit sales below 'cost,' it is barred from allowing a merchant to give trading stamps with goods sold at or near 'cost,' unless it allows competing merchants to make an equivalent price reduction. For the State to differentiate between the use of trading stamps and price-cutting is, so the argument runs, a constitutionally inadmissible discrimination.4
14
'It would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of the equal protection of the laws has been applied. The generalities on this subject are not in dispute; their application turns peculiarly on the particular circumstances of a case.' Goesaert v. Clearly, 335 U.S. 464, 467, 69 S.Ct. 198, 200, 93 L.Ed. 163.
15
The Oklahoma court decided that, although price cuts below cost were prohibited by the statute, the use of trading stamps was not a price reduction but constituted a cash discount, i.e., a reduction given to customers for prompt payment of cash. Opposing expert accountants sustained and rejected the validity of such a diffeenc e. In matters of this sort we might content ourselves in resting on the clash of expert opinion to show that the Oklahoma decision was not wanting in a foundation that may not unjustifiably have commended itself as a state policy. However, we may note some readily apparent differences between the practices which support the State's differentiation and thereby the power asserted by the State.
16
Trading stamps are given to cash customers 'across the board,' namely, the number of stamps varies directly with the total cost of goods purchased. Safeway's price-cutting, however, was selective. This difference is vital in the context of this Act. One of the chief aims of state laws prohibiting sales below cost was to put an end to 'loss-leader' selling. The selling of selected goods at a loss in order to lure customers into the store is deemed not only a destructive means of competition; it also plays on the gullibility of customers by leading them to expect what generally is not true, namely, that a store which offers such an amazing bargain is full of other such bargains.5 Clearly there is a reasonable basis for a conclusion that selective price cuts tend to perpetuate this abuse whereas the use of trading stamps does not.
17
This difference alone would be enough to require affirmance. It is reinforced by other tenable grounds for distinction. There was a basis in evidence for the view that the use of trading stamps has an entirely different impact on the consuming market than do price cuts. When prices are the same customers tend to go the store offering trading stamps. But when prices are cut to the extent of the value of the trading stamp the stamps lose their lure and lower prices prove a more potent attraction. On the basis of this not unreasonable belief as to the economics of the highly competitive, low-profit-margin retail-grocery business, Oklahoma could well have concluded that tis choice was to provide that all use a cash discount system or none could do so.6 Such a view of the economic aspects of the problem affords an ample basis for the legislative judgment enforced by the court below.
18
Certainly this Court will not interpose its own economic views or guesses when the State has made its choice.
19
'The Fourteenth Amendment enjoins 'the equal protection of the laws,' and laws are not abstract propositions. They do not relate to abstract units A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.' Tinger v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124.
20
We are not concerned with the soundness of the distinctions drawn. It is enough that it is open to Oklahoma to believe them to be valid as the basis of a policy for its people.7
21
Affirmed.
22
Mr. Justice CLARK took no part in the consideration or decision of this case.
1
The Oklahoma Supreme Court said:
'In this connection our attention has been called to the recent case (10—4—57) of State by Clark v. Wolkoff, 250 Minn. 504, 85 N.W.2d 401, 403, wherein it was held that '(I)f a merchant in good faith sets the price of an article on the basis of a competitor's price, which price he in good faith believes to be a legal price, there is no violation,' which clearly is not the case herein. In the instant case, Safeway obviously and admittedly did not, in good faith, set the price of its articles which were subject to the Unfair Sales Act on the basis of its competitors' prices, which it in good faith believed to be legal prices under the Unfair Sales Act, but on the contrary it set illegal prices for the sole purpose of meeting prices of its competitors, which it thought to be illegal.' 322 P.2d at page 181.
2
The latest chapter in trading stamp history was recounted in The (London) Economist for May 30, 1959, at p. 850: 'In Colorado a proposal to tax the stamps brought battalions of housewives to the state capital. One of its original sponsors changed his mind when his own mother threatened to campaign against his re-election if he did not alter his stand. The newest twist to the trading stamp story is that they can now be exchanged, in the East, for a theatre seat, even, after July 12th, for one for 'My Fair Lady.' This will take, however, the stamps accumulated on nearly $700 worth of purchases—about what it costs to feed a family for five months.'
3
Safeway, in fact, did offer its own cash discount coupons during the course of this litigation.
4
This Court in other contexts has upheld, against a challenge based on the Fourteenth Amendment, state tax laws which discriminated against the use of trading stamps. Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S.Ct. 370, 60 L.Ed. 679; Tanner v. Little, 240 U.S. 369, 36 S.Ct. 379, 60 L.Ed. 691; Pitney v. Washington, 240 U.S. 387, 36 S.Ct. 385, 60 L.Ed. 703.
5
See the article by Mr. Brandeis, as he then was, in the November 15, 1913, issue of Harper's Weekly, at p. 10.
6
This would come about if the dealer using trading stamps were allowed to meet the lowered price, or if, by being required to drop trading stamps, the other dealer were forced to raise prices. It is conceivable that a mathematical formula might be developed to equalize the use of trading stamps and price cuts. But certainly the Constitution does not place such a complex and, at best, uncertain and speculative burden on the States.
7
Appellant also claims that the Oklahoma law is pre-empted by federal antitrust laws. However, this claim was not made below.
| 78
|
360 U.S. 525
79 S.Ct. 1302
3 L.Ed.2d 1407
FARMERS EDUCATIONAL AND COOPERATIVE UNION OF AMERICA, NORTH DAKOTA DIVISION, a Corporation, Petitioner,v.WDAY, INC.
No. 248.
Argued March 23, 1959.
Decided June 29, 1959.
Mr. Edward S. Greenbaum and Mrs. Harriet F. Pilpel, New York City, for petitioner.
Mr. Harold W. Bangert, Fargo, N.D., for respondent.
Mr. Douglas A. Anello, Washington, D.C., for National Ass'n of Broadcasters, amicus curiae.
Mr. Herbert Monte Levy, Mr. Rowland Watts, New York City, on the brief, for American Civil Liberties Union, amicus curiae.
Mr. Justice BLACK delivered the opinion of the Court.
1
We must decide whether § 315 of the Federal Communications Act of 1934 bars a broadcasting station from removing defamatory statements contained in speeches broadcast by legally qualified candidates for public office, and if so, whether that section grants the station a federal immunity from liability for libelous statements so broadcast Section 315 reads:
2
'(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate.'1
3
This suit for libel arose as a result of a speech made over the radio and television facilities of respondent, WDAY, Inc., by A. C. Townley—a legally qualified candidate in the 1956 United States senatorial race in North Dakota. Because it felt compelled to do so by the requirements of § 315, WDAY permitted Townley to broadcast his speech, uncensored in any respect, as a reply to previous speeches made over WDAY by two other senatorial candidates. Townley's speech, in substance, accused his opponents, together with petitioner, Farmers Educational and Cooperative Union of America, of conspiring to 'establish a Communist Farmers Union Soviet right here in North Dakota.' Farmers Union then sued Townley and WDAY for libel in a North Dakota State District Court. That court dismissed the complaint against WDAY on the ground that § 315 rendered the station immune from liability for the defamation alleged. The Supreme Court of North Dakota affirmed, stating: 'Section 315 imposes a mandatory duty upon broadcasting stations to permit all candidates for the same office to use their facilities if they have permitted one candidate to use them. Since power of censorship of political broadcasts is prohibited it must follow as a corollary that the mandate prohibiting censorship includes the privilege of immunity from liability for defamatory statements made by the speakers.' For this reason it held that the state libel laws could not apply to WDAY. N.D., 89 N.W.2d 102, 110. We granted certiorari because the questions decided are important to the administration of the Federal Communications Act. 358 U.S. 810, 79 S.Ct. 56, 3 L.Ed.2d 54.
I.
4
Petitioner argues that § 315's prohibition against censorship leaves broadcasters free to delete libelous material from candidates' speeches, and that therefore no federal immunity is granted a broadcasting station by that section. The term censorship, however, as commonly understood, connotes any examination of thought or expression in order to prevent publication of 'objectionable' material. We find no clear expression of legislative intent, nor any other convicting reason to indicate Congress meant to give 'censorship' a narrower meaning in § 315. In arriving at this view, we note that petitioner's interpretation has not generally been favored in previous considerations of the section. Although the first, and for years the only judicial decision dealing wih the censorship provision did hold that a station may remove defamatory statements from political broadcasts,2 subsequent judicial interpretations of § 315 have with considerable uniformity recognized that an individual licensee has no such power.3 And while for some years the Federal Communications Commission's views on this matter were not clearly articulated,4 since 1948 it has continuously held that licensees cannot remove allegedly libelous matter from speeches by candidates.5 Similarly, the legislative history of the measure both prior to its first enactment in 1927, and subsequently, shows a deep hostility to censorship either by the Commission or by a licensee.6
5
More important, it is obvious that permitting a broadcasting station to censor allegedly libelous remarks would undermine the basic purpose for which § 315 was passed—full and unrestricted discussion of political issues by legally qualified candidates. That section dates back to, and was adopted verbatim from, the Radio Act of 1927. In that Act, Congress provided for the first time a comprehensive federal plan for regulating the new and expanding art of radio broadcasting. Recognizing radio's potential importance as a medium of communication of political ideas, Congress sought to foster its broadest possible utilization by encouraging broadcasting stations to make their facilities available to candidates for office without discrimination, and by insuring that these candidates when broadcasting were not to be hampered by censorship of the issues they could discuss. Thus, expressly applying this country's tradition of free expression to the field of radio broadcasting, Congress has from the first emphatically forbidden the Commission to exercise any power of censorship over radio communication.7 It is in line with this same tradition that the individual licensee has consistently been denied 'power of censorship' in the vital area of political broadcasts.
6
The decision a broadcasting station would have to make in censoring libelous discussion by a candidate is far from easy. Whether a statement is defamatory is rarely clear. Whether such a statement is actionably libelous is an even more complex question, involving as it does, consideration of various legal defenses such as 'truth' and the privilege of fair comment. Such issues have always troubled courts. Yet, under petitioner's view of the statute they would have to be resolved by an individual licensee during the stress of a political campaign, often, necessarily, without adequate consideration of basis for decision. Quite possibly, if a station were held responsible for the broadcast of libelous material, all remarks even faintly objectionable would be excluded out of an excess of caution. Moreover, if any censorship were permissible, a station so inclined could intentionally inhibit a candidate's legitimate presentation under the guise of lawful censorship of libelous matter. Because of the time limitation inherent in a political campaign, erroneous decisions by a station could not be corrected by the courts promptly enough to permit the candidate to bring improperly excluded matter before the public. It follows from all this that allowing censorship, even of the attenuated type advocated here, would almost inevitably force a candidate to avoid controversial issues during political debates over radio and television, and hence restrict the coverage of consideration relevant to intelligent political decision. We cannot believe, and we certainly are unwilling to assume, that Congress intended any such result.
II.
7
Petitioner alternatively argues that § 315 does not grant a station immunity from liability for defamatory statements made during a political broadcast even though the section prohibits the station from censoring allegedly libelous matter. Again, we cannot agree. For under this interpretation, unless a licensee refuses to permit any candidate o t alk at all, the section would sanction the unconscionable result of permitting civil and perhaps criminal liability to be imposed for the very conduct the statute demands of the licensee. Accordingly, judicial interpretations reaching the issue have found an immunity implicit in the section.8 And in all those cases concluding that a licensee had no immunity, § 315 had been construed—improperly as we hold—to permit a station to censor potentially actionable material.9 In no case has a court even implied that the licensee would not be rendered immune were it denied the power to censor libelous material.
8
Petitioner contends, however, that the legislative history of § 315 shows that Congress did not intend to grant an immunity. Some of the history supports such an inference. As it reached the Senate, the provision which became § 18 of the Radio Act of 1927 provided in part that if a station permitted one candidate to use its facilities, it should 'be deemed a common carrier in interstate commerce * * *' and could not discriminate against other political candidates or censor material broadcast by them.10 In the Senate, Senator Dill the bill's floor manager—introduced an amendment to this provision which, among other things, specifically granted a station immunity from civil and criminal liability for 'any uncensored utterances thus broadcast.'11 The amendment was adopted by the Senate, but its provision expressly granting immunity was removed by the Conference Committee without any explanation.12 Section 18 was incorporated into the Communications Act of 1934 with no explanatory discussion. Subsequently, a great deal of pressure built up for legislation to remove all possible doubt as to broadcasters' liability for libel eiher by granting them a power to censor libelous statements or by providing an express legislative immunity. Many legislative proposals were made to accomplish these purposes,13 but no legislation providing either was ever enacted. Thus, whatever adverse inference may be drawn from the failure of Congress to legislate an express immunity is offset by its refusal to permit stations to avoid liability by censoring broadcasts. And more than balancing any adverse inferences drawn from congressional failure to legislate an express immunity is the fact that the Federal Communications Commission—the body entrusted with administering the rovisions of the Act—has long interpreted § 315 as granting stations an immunity.14 Not only has this interpretation been adhered to despite many subsequent legislative proposals to modify § 315, but with full knowledge of the Commission's interpretation Congress has since made significant additions to that section without amending it to depart from the Commission's view.15 In light of this contradictory legislative background we do not feel compelled to reach a result which seems so in conflict with traditional concepts of fairness.
9
Petitioner nevertheless urges that broadcasters do not need a specific immunity to protect themselves from liability for defamation since they may either insure against any loss, or in the alternative, deny all political candidates use of station facilities.16 We have no means of knowing to what extent insurance is available to broadcasting stations, or what it would cost them. Moreover, since § 315 expressly prohibits stations from charging political candidates higher rates than they charge for comparable time used for other purposes, any cost of insurance would robably have to be absorbed by the stations themselves. Petitioner's reliance on the stations' freedom from obligation 'to allow use of its station by any such candidate,' seems equally misplaced. While denying all candidates us of stations would protect broadcasters from liability, it would also effectively withdraw political discussion from the air. Instead the thrust of § 315 is to facilitate political debate over radio and television. Recognizing this, the Communications Commission considers the carrying of political broadcasts a public service criterion to be considered both in license renewal proceedings, and in comparative contests for a radio or television construction permit.17 Certainly Congress knew the obvious—that if a licensee could protect himself from liability in no other way but by refusing to broadcast candidates' speeches, the necessary effect would be to hamper the congressional plan to develop broadcasting as a political outlet, rather than to foster it.18
10
We are aware that causes of action for libel are widely recognized throughout the States. But we have not hesitated to abrogate state law where satisfied that its enforcement would stand 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'19 Here, petitioner is asking us to attribute to § 315 a meaning which would either frustrate the underlying purposes for which it was enacted, or alternatively impose unreasonable burdens on the parties governed by that legislation. In the absence of clear expression by Congress we will not assume that it desired such a result. Agreeing with the state courts of North Dakota that § 315 grants a licensee an immunity from liability for libelous material it broadcasts, we merely read § 315 in accordance with what we believe to be its underlying purpose.
11
Affirmed.
12
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN, Mr. Justice WHITTAKER and Mr. Justice STEWART join, dissenting.
13
The language of § 315 of the Federal Communications Act, 'such licensee shall have no power of censorship over the material broadcast under the provisions of this section,'1 and the legislative history of this provision call for the conclusion reached in Part I of the Court's opinion, namely, that WDAY could not have lawfully deleted from A. C. Townley's broadcast his defamation of petitioner. But due regard for the principle of separation of powers limiting this Court's functions and respect for the binding principle of federalism, leaving to the States authority not withdrawn by the Constitution or absorbed by the Congress, are more compelling considerations than avoidance of a hardship legally imposed. Consequently the claim that WDAY cannot be held liable under constitutionally enacted state libel laws must be tested not by inquiring whether a particular result would be 'unconscionable' but whether the result is or is not barred by federal legislation as construed and applied in accordance with settled principles of statutory and constitutional adjudication. When the question in this case is thus properly put, it is necessary to examine the three relevant legal concepts to which resort must be had in order to find that WDAY is not liable for defamatory remarks broadcast by it.
14
(1) If § 315 could be construed to contain implicitly, between the lines, a grant by Congress of immunity from state libel laws, the Court's result would follow. But it is not possible to find such implied grant of immunity. It is common ground that an express provision granting such immunity was excised from the bill which later became the Radio Act of 1927 and repeated attempts in later revisions of the Act to introduce similar provisions have failed.
15
(2) If there were consistent administrative rulings that the Communications Act required that immunity be granted, and if that administrative ruling had been acquiesced in by Congress even by implication, the Court's result would have support.
16
(3) If § 315 alone, or together with the remainder of the Communications Act, could be said to manifest a congressional purpose to oust state law from application to licensees, or if the state law could be said to be in clear conflictwit h § 315 or the Act as a whole, then, in either event, it could be concluded that the libel law of the State had been preempted insofar as its applicability to a broadcaster acting within § 315 is concerned.
17
Because I believe that agreement with the Court's conclusion involves either disregard of the legislative and administrative history of § 315 or departure from the principles which have governed this Court in determining when state law must give way to overriding federal law. I dissent from Part II of the opinion of the Court and therefore from its judgment.
18
An administrative agency cannot, of course, determine the constitutional issue whether a federal statute has displaced state law, certainly not by way of determining what Congress has in fact done. In re Port Huron Broadcasting Co., 12 F.C.C. 1069, the case in which the Federal Communications Commission first held that stations could not censor, the Federal Communications Commission's dictum that stations would not be liable was not a relevant administrative interpretation of the meaning of § 315 but was a finding that the States were pre-empted from this area. It was said, not that the broadcasters operating under § 315 had a federally created defense, but that the state libel laws had been supplanted. 'The conclusion is inescapable that Congress has occupied the field in connection with responsibility for libelous matter in broadcasts under section 315 * * *.' 12 F.C.C., at 1075 1076.
19
We have here not a course of administrative interpretation of an ambiguous statutory provision; it is not even a case of a single administrative application of a statute. This is a ruling of constitutional law—that the Supremacy Clause, Const. art. 6 requires that the existence of the Communications Act of 1934 oust the States of jurisdiction to impose libel laws upon broadcasts made under the provisions of § 315. Such constitutional rulings are for this Court and not for administrative agencies. I would suppose that a consistent administrative insistence on the constitutionality of § 315, were that a question, would not affect this Court's consideration of its constitutionality.
20
But suppose that, even as to pre-emption, we are to assume that Congress should be said to defer to consistent administrative interpretation. There was no such consistency here in the FCC. The Commission has never issued a regulation nor held in an adjudicatory proceeding that there is immunity. Dictum in the Port Huron case was affirmatively embraced by only two of the five Commissioners who presided. Since Port Huron the Commission has referred to its language in that case in increasingly tentative fashion. In In re WDSU Broadcasting Corp., 7 Pike and Fischer Radio Reg. 769, 770, the FCC said of its dictum in Port Huron:
21
'We said in the Port Huron case that in our view the station was relieved from liability, but that whether or not this was the case, the fact remained that a licensee is prohibited from censoring material broadcast under the provisions of § 315.'
22
In a regulation issued in 1958 the Commission answered the question 'If a legally qualified candidate broadcasts libelous or slanderous remarks, is the station liable therefor?' in this way:
23
'In Port Huron Bctg. Co., 4 R.R. 1, the Commission expressed an opinion that licensees not directly participating in the libel might be absolved from any liability they might otherwise incur under state law, because of the operation of section 315, which precludes them from preventing a candidate's utterances.' 23 Fed.Reg. 7820.
24
Thus the FCC has demonstrated apparent waning confidence in its Port Huron dictum—from '(t)he conclusion is inescapable' to 'in our view the station was relieved from liability, but * * * whether or not this was the case' to 'an opinion that licensees * * * might be absolved from any liability.'
25
Even if the FCC's position were of a type to which the principle of deference or acquiescence were applicable, even if that position were loger held than just the past decade, and were taken with more confidence than was true here, the history of congressional dealings with the question of liability of stations for libel would not support a conclusion that Congress had acquiesced in such a ruling. For when the last congressional discussion of an immunity provision took place in 1952, the Conference Committee, in reporting out the revised version of § 315, stated it had rejected a House immunity provision2
26
'* * * because these subjects have not been adequately studied by the Committees on Interstate and Foreign Commerce of the Senate and House of Representatives. The proposal was adopted in the House after the bill had been reported from the House committee. The proposal involves many difficult problems and it is the judgment of the committee of the conference that it should be acted on only after full hearings have been held.' H.R.Rep.No. 2426, 82d Cong., 2d Sess. 21.
27
This language negates rather than supports the conclusion that Congress in failing to enact proposed immunity measures was in fact acquiescing in the Port Huron dictum.3
28
For these many reasons a conclusion that in failing to change § 315 after the Port Huron decision Congress by its inaction effected the pre-emption which the Commission had found is an assumption wholly unsupported in fact. The attempt to use congressional acquiescence to support the constitutional ruling of supersession of state law raises political stalement and legislative indecision4 to the level of constitutional declaration. As we should go slow to read into what Congress has said the negation of state power, unless it speaks explicitly or there is obvious collision, we should even less willingly find such negation in what Congress has frankly refused to say.
29
The Court proceeds not only from an insupportable finding that Congress acquiesced in the Commission's Port Huron opinion. It also relies upon a determination that North Dakota's libel law could not constitutionally be applied to WDAY in this case since the State's libel laws had been superseded by federal law for broadcasts made under § 315. A determination of supersession of state law rests on legal and political presuppositions which should be made explicit and not left clouded. States should not be held to have been ousted from power traditionally held in the absence of either a clear declaration by Congress that it intends to forbid the continued functioning of the state law or an obvious and unavoidable conflict between the federal and state directives. The first does not exist here. Indeed, congressional refusal to act has often been suggested as implied recognition of the opposite. Thus, it may well be urged that repeated refusal to relieve from state libel laws amounted to an affirmance that the state laws of defamation should continue in operation since the Congress debated the issue in terms of erecting a defense to these laws, and then declined to do so. In any event, the legislative history emphatically does not support the affirmative conclusion that Congress intended preclusion of state law. Congress can speak with drastic clarity when it so intends. It has not so spoken here; it has refused to speak with drastic clarity.
30
The nature of the conflict which necessitates striking down state law has been considered in numerous decisions of this Court. In the much-cited case of Sinnot v. Davenport, 22 How. 227, 243, 16 L.Ed. 243, this Court said:
31
'We agree, that in the application of this principle of supremacy of an act of Congress in a case where the State law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together.'
32
Whether denying to WDAY the power to eliminate defamatory matter from broadcasts made under compulsion of § 315 while at the same time refusing to find in s 315 either immunity or a negation of state power to apply libel laws to programs required by the Federal Act is or is not fair, is not the question with which this Court must, consistent with the Supremacy Clause and the long history of this Court in construing it, begin. We are dealing with political power, not ethical imperatives. The most harmonious deduction to be drawn from the many cases in which the claim has been made that state action cannot survive some contradictory command of Congress is that state action has not been set aside on mere generalities about Congress having 'occupied the field,' or on the basis of loose talk instead of demonstrations about 'conflict' between state and federal action. We are in the domain of government and practical affairs, and this Court has not stifled state action unless what the State has required, in the light of what Congress has ordered, would truly entail contradictory duties or make actual, not argumentative, inroads on what Congress has commanded or forbidden.
33
It is to be noted initially that since defamation is generally regarded as an intentional tort, it is a solid likelihood that the North Dakota courts would conclude that WDAY's compelled broadcast of Townley's speech lacked the necessary intent to communicate the defamation, and that therefore WDAY's conduct was not tortious, or, if prima facie tortious, that WDAY was privileged.5 In no case has any state court held a station liable on finding that the station could not censor. Some forty States have enacted statutes granting various degrees of privilege.6
34
In two States, exercising the flexibility of common-law principles, the courts have extended a defense of privilege to broadcasters compelled to carry broadcasts by § 315.7 Thus, the largely abstract assumption on the basis of which the Court makes such heavy inroad on state laws—that broadcasters will be held without having committed a voiti onal act—may be entirely contradicted by experience.
35
How treacherous it is for this Court to be speculating about state law is well illustrated by a detailed examination of North Dakota law in the situation presented by this case. A North Dakota statute extending general immunity to all broadcasts by radio and television stations was found by the District Court of North Dakota to violate the North Dakota and United States Constitutions, WDAY, the appellee before the Supreme Court Of North Dakota, did not except to this finding and therefore the Supreme Court of North Dakota declined to rule on the validity of the North Dakota statute. But no inference may be drawn from the District Court's conclusions that a station broadcasting under compulsion of § 315 would be liable under North Dakota law. On the contrary, the District Court found that WDAY had a valid defense not only under § 315 of the Communications Act but also within the provisions of Chapter 14—02 of the North Dakota Revised Statutes of 1943. One section of this chapter extends a privilege to 'one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent.' And so, rather than being justification for a belief that under North Dakota law WDAY would be liable for defamation, the District Court's opinion is clear evidence that at least one North Dakota court believed that North Dakota law creates a privilege in favor of broadcasters who are compelled by federal law to broadcast the defamatory matter. In any event, the finding of unconstitutionality was by a lower court and not by the North Dakota Supreme Court which is, of course, the final interpreter of North Dakota law.
36
Even granting the Court's unsupported assumption about state law, however, there is not that conflict between federal and state law which justifies displacement of state power. Conflict between the North Dakota libel law and § 315 might be attributed to the fact that broadcasters, to avoid being held liable without fault, will refrain from permitting any political candidate to buy time. This result, the argument would conclude, is contrary to the congressional command that stations operate in the 'public convenience, interest, or necessity.' 48 Stat. 1083, as amended, 47 U.S.C. § 307, 47 U.S.C.A. § 307. The Federal Communications Commission has determined that to fulfill this congressional command stations must carry some political broadcasts. But the state libel laws do not prohibit them from airing speeches by political candidates. They merely make such broadcasts potentially less profitable (or unprofitable) since the station may have to compensate someone libeled during the candidate's broadcast. The Federal Act was intended not to establish a mode of supervising the income of broadcasters—not of protecting or limiting their profits—but of insuring 'a rapid, efficient, Nation-wide, and world-wide wire and radio communication service' for the benefit of 'all the people of the United States.' 48 Stat. 1064, as amended, 47 U.S.C. § 151, 47 U.S.C.A. § 151.
37
We have held that the Communications Act does not govern relations between stations and third persons. Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092. And we have permitted a state court to award damages for breach of a contract despite the fact that that breach was ordered by the FCC as a condition for renewal of a license. Regents of the University System of Georgia v. Carroll, 338 U.S. 586, 70 S.Ct. 370, 94 L.Ed. 363. If North Dakota were to rule that its libel law applies to broadcasts made under compulsion of § 315, it would rule that broadcasters are liable without fault. There is nothing in such liability which conflicts with the necessity of broadcasting imposed by § 315. If ong ress came to fear impairment of its policy on political broadcasts, Congress could act to alter the condition which it has created by declining to legislate immunity. There may be a burden, even unfairness to the stations. But there may be unfairness too, after all, in depriving a defamed individual of recovery against the agency by which the defamatory communication was magnified in its deleterious effect on his ability to earn a livelihood. Adjustment of what is fair to all should be done by a congressional change in the federal law, or in the absence of such enactment, by state law, through legislation or common-law rulings that the stations are partially or totally immune. Again, allocation of risk of loss through defamation does not necessarily imply the duty not to defame. The application of libel laws by North Dakota to WDAY merely means that since the harm could no more have been avoided by the person defamed than by WDAY, in balancing these conflicting undesirables the risk of loss should fall upon WDAY. Whether or not this would be a wise decision, it would not conflict with § 315's compulsion to broadcast speeches by opposing candidates for office.
38
In discussing in the Federalist Papers the respective areas of federal and state constitutional powers, Hamilton wrote that state powers would be superseded by federal authority if continued authority in the States would be 'absolutely and totally contradictory and repugnant.' 'I use these terms,' he wrote, 'to distinguish this * * * case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority.' The Federalist, No. 32, at 200 (Van Doren ed. 1945). Since this concurrent jurisdiction was 'clearly admitted by the whole tenor' of the Constitution in Hamilton's view, 'It is not * * * a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pree xisting right of sovereignty.' Id., at 203.
39
Hamilton's suggestion, emanating from the contest of constitutional creation, is disregarded in the approach taken by the Court today on a precisely analogous if not identical question, for there exists here not an explicit conflict but, at the very most, an interference with policy. Hamilton said, and this Court has in the past begun from similar presuppositions, that alienation of an area of state sovereignty is not to be implied from occasional interferences by state law with federal policy. Particularly should this rule be adhered to where the precise nature of that federal policy on the issues involved rests on the conjectures of the Court. When a state statute is assailed because of alleged conflict with a federal law, the same considerations of forbearance, the same regard for the lawmaking power of States, should guide the judicial judgment as when this Court is asked to declare a statute unconstitutional outright.
40
In this decision a state law is invalidated by hypothesizing congressional acquiescence and by supposing 'conflicting' state law which we cannot be certain exists and which, if it does exist, is not incompatible with federal law when judged by the considerations governing supersession in the long course of our decisions, judged as a corpus.
41
I would reverse the North Dakota Supreme Court and remand the case to it with instructions that § 315 has left to the States the power to determine the nature and extent of the liability, if any, of broadcasters to third persons.
1
48 Stat. 1088, as amended, 47 U.S.C. § 315(a), 47 U.S.C.A. § 315(a). See also, § 18, of the Radio Act of 1927, 44 Stat. 1170.
2
Sorensen v. Wood, 123 Neb. 348, 243 N.W. 82, 82 A.L.R. 1098. Following this decision the case was remanded for a new trial. Appeal from a judgment for plaintiff was dismissed by the Supreme Court of Nebraska. Appeal to this Court was dismissed sub nom. KFAB Broadcasting Co. v. Sorensen, 290 U.S. 599, 54 S.Ct. 209, 78 L.Ed. 527, because, as the records of this Court disclose, the Supreme Court of Nebraska's holding had been based on adequate state grounds, namely, that the case had become moot through settlement.
3
See Lamb v. Sutton, D.C., 164 F.Supp. 928; Yates v. Associated Broadcasters, Inc., 7 Pike and Fischer Radio Reg. 2088; Felix v. Westinghouse Radio Stations, Inc., D.C., 89 F.Supp. 740, reversed on other grounds, 3 Cir., 186 F.2d 1; Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 116 A.2d 440; Josephson v. Knickerbocker Broadcasting Co., 179 Misc. 787, 38 N.Y.S.2d 985. But see Daniell v. Voice of New Hampshire, Inc., 10 Pike and Fischer Radio Reg. 2045; Houston Post Co. v. United States, D.C., 79 F.Supp. 199.
4
See In re Bellingham Broadcasting Co., 8 F.C.C. 159, 172.
5
In re Port Huron Broadcasting Co., 12 F.C.C. 1069; In re WDSU Broadcasting Corp., 7 Pike and Fischer Radio Reg. 769; Public Notice (FCC 54—1155), Use of Broadcast Facilities by Candidates For Public Office, 19 Fed.Reg. 5948, 5951; Public Notice (FCC 58 936), Use of Broadcast Facilities by Candidates For Public Office, 23 Fed.Reg. 7817, 7820—7821.
6
See S.Rep. No. 1567, 80th Cong., 2d Sess. 13—14 (1948), where, discussing S. 1333, the Committee Report stated:
'The flat prohibition against the licensee of any station exercising any censorship authority over any political or public question discussion is retained and emphasized. This means that the Commission cannot itself or by rule or regulation reqiure the licensee to censor, alter, or in any manner affect or control the subject matter of any such broadcast and the licensee may not in his own discretion exercise any such censorship authority. * * *
'(S)ection 326 of the present act, which deals with the question of censorship of radio communications by the Commission . . . makes clear that the Commission has absolutely no power of censorship over radio communications and that it cannot impose any regulation or condition which wuld interfere with the right of free speech by radio.'
And see, e.g., H.R.Rep. No. 404, 69th Cong., 1st Sess. 17—18 (minority views); S.Rep. No. 772, 69th Cong., 1st Sess. 4; 67 Cong.Rec. 5480, 5484, 12356; 78 Cong.Rec. 10991—10992; Hearings before Senate Committee on Interstate Commerce on S. 1 and S. 1754, 69th Cong., 1st Sess., pt. 2, 121, 125—134; Hearings before Senate Committee on Interstate Commerce on H.R. 7716, 72d Cong., 2d Sess., pt. 2, 9—13; Hearings before Senate Committee on Interstate Commerce on S. 814, 78th Cong., 1st Sess. 59—68, 943 945.
7
§ 29 of the Radio Act of 1927, 44 Stat. 1172; § 326 of the Communications Act of 1934, 48 Stat. 1091, as amended, 47 U.S.C. § 326, 47 U.S.C.A. § 326.
8
Lamb v. Sutton; Yates v. Associated Broadcasters, Inc.; Josephson v. Knickerbocker Broadcasting Co., supra, note 3. Cf. Felix v. Westinghouse Radio Stations, Inc.; Charles Parker Co. v. Silver City Crystal Co., supra, note 3.
9
Houston Post Co. v. United States, supra, note 3; Sorensen v. Wood, supra, note 2; Daniell v. Voice of New Hampshire, Inc., supra, note 3.
10
H.R. 9971, 69th Cong., 1st Sess., as reported to the full Senate, May 6, 1926, p. 50, § 4.
11
67 Cong.Rec. 12501.
12
H.R.Rep. No. 1886, 69th Cong., 2d Sess. 10, 18.
13
See, e.g., H.R. 9230, 74th Cong., 1st Sess.; S. 814, 78th Cong., 1st Sess., §§ 7, 9, 10, 11; S. 1333, 80th Cong., 1st Sess., § 15; 98 Cong.Rec. 7401. See also Hearings before the Senate Committee on Interstate Commerce on H.R. 7716, 72d Cong., 2d Sess. pt. 2, 9—11; Hearings before Senate Committee on Interstate Commerce on S. 2910, 73d Cong., 2d Sess. 63—67; Hearings before Senate Committee on Interstate Commerce on S. 814, 78th Cong., 1st Sess. 59—68, 162—163, 362—381, 943—945; Hearings beore Select Committee of the House to Investigate the FCC, pursuant to H.Res. No. 691, 80th Cong., 2d Sess. 1—109.
14
See note 5, supra. In port Huron only two of the five Commissioners participating in the decision expressly concluded that § 315 barred state prosecutions for libel. Two of the others expressed no view on the subject. And one dissented. The Commission's 1948 report to Congress stated, however, that the Commission had interpreted § 315 to grant a federal immunity. 14 F.C.C.Ann.Rep. 28 (1948). And in WDSU, released November 26, 1951, a majority of the Commission affirmed the Commission's Port Huron decision. 7 Pike and Fischer Radio Reg. 769. See also 24 F.C.C.Ann.Rep. 123 (1958); Lamb v. Sutton, supra, note 3, 164 F.Supp. at pages 932—933; Daniell v. Voice of New Hampshire, Inc., supra, note 3, at 2047; Charles Parker Co. v. Silver City Crystal Co., supra, note 3, 142 Conn. at page 619, 116 A.2d at page 446.
15
The Commission's position with respect to § 315 was not only reported to Congress in an Annual Report of the Commission, 14 F.C.C.Ann.Rep. 28 (1948), but it was made the subject of a special investigation by a Select Committee of the House, expressly constituted for that purpose. See H.R.Rep. No. 2461, 80th Cong., 2d Sess. See also In re WDSU Broadcasting Corp., supra, note 5, at 772—773. Compare H.R.Rep. No. 2426, 82d Cong., 2d Sess. 20—21. For examples of legislative proposals to modify § 315 see, e.g., S. 2539, 82d Cong., 2d Sess.; H.R. 4814, 84th Cong., 1st Sess.
16
A dissent here suggests that since WDAY's broadcast was required by federal law, there is a 'strong likelihood' that the North Dakota courts might hold that the broadcast was not tortious under state law, or if tortious, was privileged. The North Dakota District Court, however, struck down a state statute which would have granted WDAY an immunity as in violation of a state constitutional provision saving to 'every man' a court remedy for any injury done his 'person or reputation.' In this situation we do not think that the record justifies the inference that WDAY could have obtained an immunity by calling it a privilege. But whatever North Dakota might hold, the question for us is whether Congress intended to subject a federal licensee to possible liability under the law of some or all of the 49 States for broadcasting in a way required by federal law.
17
In re City of Jacksonville, 12 Pike and Fisher Radio Reg. 113, 125—126, 180 i—j; In re Loyola University, 12 Pike and Fischer Radio Reg. 1017, 1099. See also In re Homer P. Rainey, 11 F.C.C. 898. Cf. F.C.C. Report, In re Editorializing by Broadcast Licensees, 1 Pike and Fischer Radio Reg., pt. 3, 91:201.
18
See, e.g., statement of Senator Fess, 67 Cong.Rec. 12356.
19
Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 773, 67 S.Ct. 1026, 1030, 91 L.Ed. 1234; Hill v. State of Florida, 325 U.S. 538, 542, 65 S.Ct. 1373, 1375, 89 L.Ed. 1782. See also San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775; State of California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034.
1
48 Stat. 1088, as amended, 47 U.S.C. § 315(a), 47 U.S.C.A. § 315(a).
2
See 98 Cong.Rec. 7401—7416.
3
The situation would not have appeared to Congress to be one in which acquiescence was a meaningful concept. Immediately after Port Huron the decision was criticized as being without statutory basis. Houston Post Co. v. United States, D.C., 79 F.Supp. 199. In discussing the Port Huron decision before a House Committee, FCC Chairman Coy insisted that that decision 'only represents the views of the Commission' and that he did not think 'his decision clarifies it as far as the industry is concerned.' Hearings before House Select Committee to Investigate the Federal Communications Commission, 80th Cong., 2d Sess. 14. After Port Huron had been argued but before the decision, a bill, S. 1333, 80th Cong., 1st Sess., § 15, granting immunity was reported favorably by the Senate Committee on Interstate and Foreign Commerce, S.Rep. No. 1567, 80th Cong., 2d Sess. 13, but was never enacted. Every indication is persuasive that the question was regarded as open and highly debatable.
4
Both before and after Port Huron, bills to permit censorship or grant total or partial immunity have been introduced. See H.R. 9230, 74th Cong., 1st Sess.; H.R. 3038, 75th Cong., 1st Sess.; S. 814, 78th Cong., 1st Sess., § 11; S. 1333, 80th Cong., 1st Sess., § 15; H.R. 3595, 80th Cong., 1st Sess., § 15; H.R. 6949, 81st Cong., 2d Sess., § 202; H.R. 5470, 82d Cong., 1st Sess.; S. 2539, 82d Cong., 2d Sess.; H.R. 7062, 82d Cong., 2d Sess.; H.R. 7756, 82d Cong., 2d Sess.; S. 1208, 84th Cong., 1st Sess.; H.R. 4814, 84th Cong., 1st Sess.; S. 1437, 85th Cong., 1st Sess., § 401. The congressional declination to act partakes not of satisfaction with the Port Huron decision but of indecision about the propriety and constitutionality of the alternative solutions to the broadcasters' plea of unfairness.
5
See Developments in the Law of Defamation, 69 Harv.L.Rev. 875, 907—910; Remmers, Recent Legislative Trends in Defamation by Radio, 64 Harv.L.Rev. 727.
6
Friedenthal and Medalie, The Impact of Federal Regulation on Political Broadcasting: Section 315 of the Communications Act, 72 Harv.L.Rev. 445, 485.
7
Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 116 A.2d 440; Josephson v. Knickerbocker Broadcasting Co., Sup.Ct., 179 Misc. 787, 38 N.Y.S.2d 985.
| 23
|
360 U.S. 601
79 S.Ct. 1351
3 L.Ed.2d 1460
UNION PACIFIC RAILROAD COMPANY, Petitioner,v.L. L. PRICE.
No. 414.
Argued March 31, 1959.
Decided June 29, 1959.
Mr. James A. Wilcox, Omaha, Neb., for petitioner.
Mr. Samuel S. Lionel, Las Vegas, Nev., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This is a diversity common-law action brought by the respondent, a former employee of petitioner railroad, in the United States District Court for the District of Nevada to recover damages from the railroad for allegedly wrongfully discharging him in violation of the collective bargaining agreement between it and the Brotherhood of Railroad Trainmen. The validity of the discharge was previously challenged upon the same grounds before the National Railroad Adjustment Board, First Division, in a proceeding brought by the Brotherhood on respondent's behalf under § 3 First (i) of the Railway Labor Act,1 seeking the respondent's reinstatement with back pay. The Board rendered an award in favor of the petitioner. The question for decision here is whether the respondent may pursue a common-law remedy for damages for his allegedly wrongful dismissal after having chosen to pursue the statutory remedy which resulted in a determination by the National Adjustment Board that his dismissal was justified.
2
The respondent was employed by petitioner as a swing brakeman (an extra brakeman who is not a regularly assigned member of a train crew) and was a member of the Brotherhood of Railroad Trainmen. The collective bragaining agreement between the Brotherhood and the petitioner contained two provisions involved in the dispute over his discharge. One provision, Article 32(b), provided that: 'Swing brakemen will not be tied up nor released at points where sleeping and eating accommodations are not available.' The other provision, Article 33(a), provided that: 'When a trainman is suspended for an alleged fault, no punishment will be fixed without a thorough investigation, at which the accused may have a trainman of his choice present.'
3
On July 12, 1949, the respondent was called to 'deadhead' on Train No. 37 from Las Vegas, Nevada, to Nipton, California, at which point he was to detrain and await assignment to another train traveling to Las Vegas. Train No. 37 Arrived at Nipton at 10:30 p.m., and the train dispatcher assigned respondent to train No. X 1622E, which was due to arrive at Nipton around 4 a.m., en route to Las Vegas. The respondent complained that there were no facilities available in Nipton for eating or sleeping and told the dispatcher he would go back to Las Vegas and return after getting something to eat. The dispatcher refused to release him and ordered him to wait the arrival of train X 1622E. The respondent disobeyed this instruction and deadheaded back to Las Vegas on a train which left Nipton at 11:10 p.m.
4
The railroad suspended the respondent on the morning of July 13. On July 16 he received a notice to appear at 10 a.m. on July 17 before an Assistant Superintendent of the railroad for an investigation. At the respondent's request the investigation was postponed to the morning of July 18, at which time the respondent requested a further postponement until his representative, the Brotherhood's Local Chairman, could be present. A postponement was again granted, until 2:30 p.m. of the 18th, but the respondent's Local Chairman apparently was still not available at that time. When respondent failed to appear for the 2:30 hearing, the Assistant Superintendent proceeded with the investigation in his absence. The testimony of railroad witnesses was taken stenographically and transcribed; no evidence was received in respondent's behalf. On July 24 the railroad notified the reaspondent that he was discharged.
5
The Brotherhood processed respondent's grievance through the required management levels, and when settlement could not be reached, nor agreement arrived at for a joint submission to the National Railroad Adjustment Board, the Brotherhood, in January 1951, filed an ex parte submission with the Board's First Division.2 Hearing was waived by the parties and the submission was considered on the papers filed by them. The Adjustment Board, on June 25, 1952, rendered its award 'Claim denied,' with supporting findings.3
6
Some three years after the filing of the award, the respondent, on June 6, 1955, brought the instant suit. His complaint alleges a cause of action predicated on the same grounds of allegedly wrongful dismissal in violation of the collective bargaining agreement which had been urged on the Adjustment Board, namely, (1) that he 'was dismissed without cause' and (2) that he was dismissed without a 'thorough investigation' because not 'afforded an opportunity to have a trainman of his choice present at the investigation held' nor 'afforded a reasonable opportunity to prepare his defense,' 'to present his defense,' 'to have witnesses present' or 'to participate in his own defense.' After filing an answer, the railroad moved for summary judgment on affidavits and other papers on file upon the ground that 'any judicially enforceable cause of action arising from the termination of the employment relationship * * * is now barred by the adjudication and determination of the validity of such termination by the National Railroad Adjustment Board under the terms and conditions of said collective bargaining agreement, and pursuant to and in conformance with the Railway Labor Act * * *.' The District Court, without opinion, granted the motion and entered summary judgment in favor of the petitioner. The respondent appealed to the Court of Appeals for the Ninth Circuit, assigning as the single point on the appeal that the District Court 'erred in holding that the award of the National Railroad Adjustment Board entitled * * * (the railroad) to Summary Judgment.' The Court of Appeals, one judge dissenting, reversed, 255 F.2d 633. Although the Court of Appeals held that the District Court would be 'without jurisdiction to entertain the action if the Board award represents a determination on the merits,' id., at page 666, the court concluded that while the question whether the railroad was entitled to discharge the respondent 'was one of the two questions which Price submitted for Board determination,' 'the Board made no determination on the merits' but determined only that in 'the manner in which the investigation was conducted by the carrier * * * none of Price's rights in that regard was abridged,' and held that the District Court therefore had jurisdiction to entertain the action. Id., at pages 666—667. We granted certiorari to decide the important question raised by the case of the interpretation of the Railway Labor Act. 358 U.S. 892, 79 S.Ct. 155, 3 L.Ed.2d 119.
7
We do not agree with the Court of Appeals' holding that the Board's award was based solely on its decision that Article 33(a) was not violated by the railroad because respondent's dismissal followed a 'thorough investigation.' Rather we think the award also reflects the Board's determination that respondent was discharged for good cause. Thus we agree with Judge Healy, dissenting in the Court of Appeals, that on the face of the customarily brief findings of the Board4 it appears 'plain that the Board was of opinion, and in substance held, that the asserted violation by the Company of Article 32, even if true, would not serve to justify an employee's violation of direct operating instructions and his abandonment of his post.' 255 F.2d at pages 667—668. Since the discharge could be set aside by the Board if either ground of the submission was sustained, the unqualified denial of the claim necessarily implied, we think, that the Board decided both grounds submitted adversely to the respondent. Even if the procedure followed by the railroad constituted a proper investigation, the Board's outright denial of the claim is explicable only on the ground that the Board also held that Article 32(b) did not justify the respondent in disobeying the dispatcher's instruction to remain at Nipton. We conclude that both issues were decided by the Board against the respondent,5 and therefore reach the question whether the respondent, despite the adverse determination of the Adjustment Board, could pursue the common-law remedy for damages in the District Court.6
8
Congress has said in § 3 First (m) of the Railway Labor Act7 that the Adjustment Board's 'awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.' Respondent does not argue that a 'money award' is anything other than an award directing the payment of money. Indeed, it would distort the English language to interpret that term as including a refusal to award a money payment. Thus, the plain language of § 3 First (m), on its face, imports that Congress intended that the Board's disposition of a grievance should preclude a subsequent court action by the losing party. Furthermore, we have said of the Railway Labor Act that 'the specification of one remedy normally excludes another.' Switchmen's Union v. National Mediation Board, 320 U.S. 297, 301, 64 S.Ct. 95, 97, 88 L.Ed. 61. Thus, our duty to give effect to the congressional purpose compels us to hold that the instant common-law action is precluded unless the over-all scheme established by the Railway Labor Act and the legislative history clearly indicate a congressional intention contrary to that which the plain meaning of the words imports. Our understanding of the statutory scheme and the legislative history, however, reinforces what the statutory language already makes clear, namely, that Congress barred the employee's subsequent resort to the commonlaw remedy after an adverse determination of his grievance by the Adjustment Board.8
9
The purpose of the Railway Labor Act was to provide a framework for peaceful settlement of labor disputes between carriers and their employees to 'insure to the public continuity and efficiency of interstate transportation service, and to protect the public from the injuries and losses consequent upon any impairment or interruption of interstate commerce through failures of managers and employees to settle peaceably their controversies.' H.R.Rep. No. 328, 69th Cong., 1st Sess., p. 1. Congress did not, however, in the original 1926 Act, create the National Railroad Adjustment Board or make the use of such an agency compulsory upon the parties; rather the Act contemplated that settlement of disputes would be achieved through 'machinery for amicable adjustment of labor disputes agreed upon by the parties * * *.' S.Rep. No. 606, 69th Cong., 1st Sess., p. 4. Congress, therefore, provided that adjustment boards should be 'created by agreement between any carrier or group of carriers, or the carriers as a whole, or its or their employees.' § 3 First of the Railway Labor Act of 1926, 44 Stat. 578. These adjustment boards, intended for use in settling what are termed minor disputes in the railroad industry, primarily grievances arising from the application of collective bargaining agreements to particular situations, see Brotherhood of Railroad Trainmen v. Chicago River & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, were thus to be established by voluntary agreement. Congress, even in 1926 however, recognized that the boards would not be useful in bringing about industrial peace unless their decisions were binding on the parties. Thus the 1926 Act required that agreements creating adjustment boards must stipulate 'that decisions of adjustment boards shall be final and binding on both parties to the dispute; and it shall be the duty of both to abide by such decisions * * *.' § 3 First (e) of the Railway Labor Act of 1926, 44 Stat. 579.
10
But the 1926 Act provided no sanctions to force the carriers and their employees to make agreements establishing adjustment boards and many railroads refused to participate on such boards or so limited their participation that the boards were ineffectual.9 Moreover, the boards which were created were composed of equal numbers of management and labor representatives and deadlocks over particular cases became commonplace. Since no procedure for breaking such deadlocks was provided, many disputes remained unsettled. As reported to Congress in 1934 by Mr. Eastman, Federal Coordinator of Transportation: 'Another difficulty with the present law (the 1926 Act), even where an adjustment board has been established, is that, although its decisions are final and binding upon both parties, there can be no certainty that there will be a decision.' Hearings before Senate Committee on Interstate Commerce on S. 3266, 73d Cong., 2d Sess., p. 17. Strike threats became frequent in an atmosphere of mutual recriminations which presented the danger of creating the very strife which the statute had been designed to avoid. Mr. Eastman reported to the House Rules Committee: '(G)rievances on a number of roads in the past few years have accumulated to such an extent that the only remedy the men could see was to threaten a strike and thus secure appointment by the President of a fact finding board which could go into the whole situation. That has happened on several occasions. Some of these grievances have accumulated up into the hundreds on the various roads and when the situation finally became intolerable the men would threaten a strike * * *.' Hearings before the House Rules Committee, 73d Cong., 2d Sess., p. 25; see also p. 14; see also Hearings before the Senate Interstate Commerce Committee, 73d Cong., 2d Sess., p. 17; and see Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 725—726, 65 S.Ct. 1282, 1290 1291, 89 L.Ed. 1886.
11
The railroad labor organizations were particularly dissatisfied. They urged that effective adjustment of grievances could be attained only by amendments to the 1926 Act that would establish a National Adjustment Board in which both carriers and employees would be required to participate, that would permit an employee to compel a carrier to submit a grievance to the Board, that would provide for a neutral person to break deadlocks occurring when the labor and management representatives divided equally, and, finally, that would make awards binding on the parties and enforceable in the courts, when favorable to the employees.10 These views prevailed in the Congress and resulted in the 1934 amendments which drastically changed the scheme of the Act. Act of June 21, 1934, 48 Stat. 1185.11 The National Railroad Adjustment Board was created and the carriers were required to participate through representatives selected by them, § 3 First (a) through (g). The Board is composed of four divisions each having jurisdiction over different employees and whose proceedings are independent of one another, § 3 First (h). Disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements must be handled in the usual manner up to and including the chief operating officers of the carrier designated to handle such disputes, but failing adjustment the disputes may be referred by the parties or by either party to the appropriate division, § 3 First (i). Upon failure of a division to agree upon an award because of a deadlock or inability to secure a majority vote of the division members, the division must appoint a neutral referee to sit with the division as a member thereof and make an award, § 3 First (l). Awards are final and binding except insofar as they contain a money award; in case of dispute involving an interpretation of the award either party may request the division to interpret the award in the light of the dispute, § 3 First (m). In case of an award favorable to the petitioner, the division shall make an order, directed to the carrier, to make the award effective and if the payment of money is required to pay such sum to the employee, § 3 First (o). If the carrier does notcom ply with an order, enforcement may be sought by a suit in a District Court of the United States as provided in § 3 First (p).
12
The labor spokesman for the proposal made it crystal clear that an essential feature of the proposal was that Board awards on grievances submitted by or on behalf of employees were to be final and binding upon the affected employees. The employees were willing to give up their remedies outside of the statute provided that a workable and binding statutory scheme was established to settle grievances. Mr. George Harrison, President of the Brotherhood of Railroad Clerks, stated: 'Grievances come about because the men file them themselves. Railroads don't institute grievances. Grievances are instituted against railroad officers' actions, and we are willing to take our chances with this national board because we believe, out of our experience, that the national board is the best and most efficient method of getting a determination of these many controversies * * *.' Hearings before the Senate Committee on Interstate Commerce on S. 3266, 73d Cong., 2d Sess., p. 33. '(W)e are now ready to concede that we can risk having our grievances go to a board and get them determined * * * (but) if we are going to get a hodgepodge arrangement by law, rather than what is suggested by this bill, then we don't want to give up that right, because we only give up the right because we feel that we will get a measure of justice by this machinery that we suggest here.' Id., at 35. Mr. Eastman echoed this thought: 'decisions of the adjustment board * * * are made final and binding by the terms of this act, and as I understand it, the labor organizations, none of them, are objecting to that provision. They have their day in court and they have their members on the adjustment board, and if an agreement cannot be reached between the parties representing both sides on the adjustment board, a neutral man steps in and renders the decision, and they will be required to accept that decision when made * * *.' Hearings before House Committee on Interstate and Foreign Commerce on H.R. 7650, 73d Cong., 2d Sess., p. 59. See also id., at 58—65.
13
Thus the employees considered that their interests would be best served by a workable statutory scheme providing for the final settlement of grievances by a tribunal composed of people experienced in the railroad industry. The employees' representatives made it clear that, if such a statutory scheme were provided, the employees would accept the awards as to disputes processed through the scheme as final settlements of those disputes which were not to be raised again.
14
Despite the conclusion compelled by the over-all scheme of the Railway Labor Act and its legislative history, it is suggested that because an enforcement proceeding against a noncomplying carrier under § 3 First (p) affords the defeated carrier some opportunity to relitigate the issues decided by the Adjustment Board,12 unfairness results if § 3 First (m) is construed so as to deny the employee the right to maintain this common-law action. We are referred to the emphasis upon the consideration of avoiding unfairness expressed in United States v. Interstate Commerce Comm., 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, which held that a denial by the Interstate Commerce Commission of a claim of a shipper for money reparations is reviewable in the federal courts, pointing out that a Commission award favorable to a shipper was not final and binding upon the railroad. But that holding rested upon an interpretation of 28 U.S.C. (1946 ed.) § 41(28)* providing that 'The district courts shall have original jurisdiction * * * of cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission.' (Italics supplied.) In contrast, § 3 First (m) here involved commands that the Adjustment Board's 'awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.' The Adjustment Board's award in controversy denied respondent's claim for reinstatement and back pay, which, we have said, was not a 'money award.' Although the provisions for enforcement of money awards in the Railway Labor Act, § 3 First (o) and (p), establish procedures similar to those under 49 U.S.C. § 16(1) and (2), 49 U.S.C.A. § 16(1, 2), for enforcement of reparations orders of the Interstate Commerce Commission, § 3 First (m) with which we are here concerned has no counterpart in the Interstate Commerce Act. The disparity in judicial review of Adjustment Board orders, if it can be said to be unfair at all, was explicitly created by Congress, and it is for Congress to say whether it ought be removed.
15
Plainly the statutory scheme as revised by the 1934 amendments was designed for effective and final decision of grievances which arise daily, principally as matters of the administration and application of the provisions of collective bargaining agreements. This grist of labor relations is such that the statutory scheme cannot realistically be squared with the contention that Congress did not purpose to foreclose litigation in the courts over grievances submitted to and disposed of by the Board, past the action under § 3 First (p) authorized against the noncomplying carrier, see Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 124 F.2d 235, affirmed by an equally divided Court, 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694, or the review sought of an award claimed to result from a denial of due process of law,see Ellerd v. Southern Pacific R. Co., 7 Cir., 241 F.2d 541; Barnett v. Pennsylvania-Reading Seashore Lines, 3 Cir., 245 F.2d 579, 582. So far as appears, all of the Court of Appeals13 and District Courts14 which have dealt with this problem have reached the conclusion we reach here. To say that the discharged employee may litigate the validity of his discharge in a common-law action for damages after failing to sustain his grievance before the Board is to say that Congress planned that the Board should function only to render advisory opinions, and intended the Act's entire scheme for the settlement of grievances to be regarded 'as wholly conciliatory in character, involving no element of legal effectiveness, with the consequence that the parties are entirely free to accept or ignore the Board's decision * * * (a contention) inconsistent with the Act's terms, purposes and legislative history.' Elgin J. & E.R. Co. v. Burley, 325 U.S. 711, 720—721, 65 S.Ct. 1282, 1288.
16
We therefore hold that the respondent's submission to the Board of his grievances as to the validity of his discharge precludes him from seeking damages in the instant common-law action.
17
The judgment of the Court of Appeals is reversed and the case is remanded with direction to affirm the judgment of the District Court.
18
It is so ordered.
19
Judgment of the Court of Appeals reversed and case remanded with direction to affirm the judgment of the District Court.
20
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
21
The basic question in this case is the one reserved in Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 719, 720, 65 S.Ct. 1282, 1287, 1288. It is whether an award that denies a claim for money damages comes within the exception of § 3 First (m) of the Railway Labor Act which provides that 'the awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.'
22
It was pointed out in the dissent in that case (325 U.S. at pages 760—761, 65 S.Ct. at pages 1306—1307) that the provision for finality of these awards was close in origin to the reparation orders under the Interstate Commerce Act.
23
'Since both Acts came out of the same Congressional Committees one finds, naturally enough, that the provisions for enforcement and review of the Adjustment Board's awards were based on those for reparation orders by the Interstate Commerce Commission. Compare Railway Labor Act, § 3, First (p) with Interstate Commerce Act, as amended by § 5 of the Hepburn Act, 34 Stat. 584, 590, 49 U.S.C. § 16(1), (2), 49 U.S.C.A. § 16(1, 2). If a carrier fails to comply with a reparation order, as is true of non-compliance with an Adjustment Board award, the complainant may sue in court for enforcement; the Commission's order and findings and evidence then become prima facie evidence of the facts stated. But a denial of a money claim by the Interstate Commerce Commission bar the door to redress in the courts. Baltimore & Ohio R. Co. v. Brady, 288 U.S. 448, 53 S.Ct. 441, 77 L.Ed. 888; I.C.C. v. United States, 289 U.S. 385, 388, 53 S.Ct. 607, 609, 77 L.Ed. 1273; Terminal Warehouse v. Pennsylvania R. Co., 297 U.S. 500, 507, 56 S.Ct. 546, 548, 80 L.Ed. 827.'
24
Since the decision in the Burley case the situation described in the dissenting opinion has changed. Subsequently, United States v. Interstate Commerce Comm., 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, was decided; and it held, contrary to earlier precedents cited in the dissent in the Burley case, that orders in reparations cases which denied the claims of shippers were reviewable in the federal courts. It pointed out that the 'negative order' doctrine, which we abandoned in Rochester Tel. Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147, had greatly influenced those prior decisions.
25
We refused to follow that discarded doctrine there; and it should find no place here. An award of no damages is, as I see it, as much a 'money award' as an award of 6 cents. The words 'money award' are descriptive of the nature of the claim, setting that class apart from other suits which involve, for example, a declaration of seniority rights.
26
Tolerance of judicial review has been more and more the rule as against the claim of administrative finality.1 See Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 183, 59 S.Ct. 160, 163, 83 L.Ed. 111; Stark v. Wickard, 321 U.S. 288, 309—310, 64 S.Ct. 559, 570—571, 88 L.Ed. 733; Harmon v. Brucker, 355 U.S. 579, 581—582, 78 S.Ct. 433, 434—435, 2 L.Ed.2d 503; Leedom v. Kyne, 358 U.S. 184, 190, 79 S.Ct. 180, 185, 3 L.Ed.2d 210. The weight of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C. § 1009, 5 U.S.C.A. § 1009, is on the side of judicial review, the finality of administrative action being sanctioned only where it is clear from the statutory scheme that judicial review is precluded.
27
Respondent argues that it would be grossly unfair to construe § 3 First (m) so as to deny judicial review to a defeated employee but not to a defeated railroad. That would indeed be the result if an employee asserting a money claim cannot get court review if he loses, while the employer can obtain it if the employee wins. It is difficult for me to believe that Congress designed and approved such a lopsided, preferential system. No rhyme or reason is apparent for such discrimination. The attempt throughout was to equalize the advantages of the contending parties, not to prefer the employer who had long been dominant. Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 6—7, 124 F.2d 235, 240—241. Some have said that an award denying payment cannot be a 'money award' in the intendment of the Act. Berryman v. Pullman Co., D.C., 48 F.Supp. 542. But that is a narrow reading, not in keeping with the harmony of the Act. I would read § 3 First (m) so as not to preclude judicial review in any suit for 'money awards' no matter which party wins.
28
It is true that the Act does not provide the method of review in a case of this kind. Section 3 First (p) only covers the case where an award has been granted an employee and the carrier 'does not comply.' In that case the order of the Board 'shall be prima facie evidence of the facts therein stated.' § 3 First (p). But this action is properly maintainable if the District Court otherwise has jurisdiction. No question of election of remedies is involved because of the express provision in the Act that the award of the Board is not final. Since there is no provision in the Act that specifies what judicial review may be obtained,the re are preserved whatever judicial remedies are available. One of those is a suit for damages for wrongful discharge. In three separate decisions we have said that actions for wrongful discharge can be maintained in the courts by the employee. Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 244, 70 S.Ct. 577, 579, 94 L.Ed. 795; Transcontinental & Western Air v. Koppal, 345 U.S. 653, 661, 73 S.Ct. 906, 910, 97 L.Ed. 1325. We stated in the Slocum case that 'A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide * * *.' The Board has power to reinstate the discharged employee and award back pay; and that was the relief which this employee sought before the Board. But the common-law action for wrongful discharge may include other items of damages as well. Here the employee claimed not only lost earnings but future earnings, seniority rights, retirement rights, hospitalization rights, and transportation rights. Whether Nevada law that governs this contract would grant as much is not now important. The point is that the measure of the recovery in a suit for damages is not necessarily the same and may in fact be greater, including an award of attorney fees.2 It is difficult to believe that this cause of action triable before a jury is lost, wiped out, or abolished merely because the employee loses out when he pursues the lesser or more restrictive remedy before the Board. If there is to be equality between employer and employee in the assertion of rights and the assumption of duties under the Act, the employee cannot be held to have merely one chance if he proceeds before the Board, while the employer has a remedy first before the Board and, if he loses there, another one before the court.
29
In my view the Court's contrary reading of § 3 raises questions of constiutional magnitude. For if an employee is to be denied any review of the Board's decision when the railroad prevails, while the latter can obtain judicial review with a jury trial before complying with a Board order, there would appear to be an unjustifiable discrimination in violation of the Due Process Clause of the Fifth Amendment. It is not the usual practice in this country to permit one party to a lawsuit two chances to prevail, while the other has only one, nor to permit one party but not the other to get a jury determination of his case. See Pennsylvania R. Co. v. Day, 360 U.S. 554, 79 S.Ct. 1326 (dissent.)
30
The result is that I would remand the case to the District Court for trial.
1
Section 3 First (i) of the Railway Labor Act, 48 Stat. 191, 45 U.S.C. § 153 First (i), 45 U.S.C.A. § 153, subd. 1(i), provides:
'The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disute s.'
2
It is conceded that respondent authorized the Brotherhood to bring his claim before the Adjustment Board. Compare Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886; affirmed on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928.
3
The pertinent excerpts from the findings are the following:
'If the carrier is to have efficient operations on its railroad, employees must be relied on to obey operating instructions and orders. Claimant was found to have wilfully disobeyed his orders. This was insubordination and merited discipline.
'The employee * * * seeks complete vindication on the grounds that he was denied the investigation provided by the rules of agreement. Thus, the only question for review is whether there was substantial compliance with the investigation rule.
'Basically, the complaint is that the hearing was held when the claimant was not present. * * *
'* * * The right of the employee to be heard before being disciplined is a personal right which he cn w aive by action, inaction, or failure to act in good faith.
'* * * his position here would have been strengthened had he personally appeared at all stages of the proceeding to labor as best he could to preserve his record and to get his story to us first hand. All that the transcript reflects does claimant no credit, but leaves us with the feeling that the things of which he now complains were planned by him that way.'
4
Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency, 46 Yale L.J. 567, 584, describes the awards of the First Division of the National Adjustment Board as follows:
'It will be noted that, except for the purely jurisdictional recitals, the findings consist of a single sentence ('The evidence indicates that the movements made did not constitute switching under Article I—R') which constitutes the nub of the whole decision. Rarely does this central finding consist of more than a sentence or two. To a lay reader the sentence quoted above is meaningless. In order that it may be more intelligle the findings in their printed form are preceded by the employees' statement of facts taken from their submission, and a statement of their position (likewise extracted from the submission), followed by the management's statement of facts and a statement of its position derived similarly from its submission. From these rival statements it is easy to determine what the controversy is about, but it is not easy to determine from the laconic findings the real basis upon which the decision was reached.'
5
In an interpretation announced on November 26, 1958, sought by the railroad under § 3 First (m) of the Railway Labor Act, the Board declared that its award reflected its conclusion that the railroad was justified in discharging respondent. This interpretation was not before the Court of Appeals in this case, and we refer to it only as further substantiation of our conclusion based on the record in the case.
6
Since respondent, instead of bringing his claim in court as was his right under Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, chose to pursue that claim before the Adjustment Board, he does not even argue that a holding that the Railway Labor Act precludes a relitigation of that claim in the courts would deprive him of any constitutional right to a jury trial.
7
48 Stat. 1191—1192, 45 U.S.C. § 153 First (m), 45 U.S.C.A. § 153, sub. 1 (m). That section provides:
'The awards of the several divisions of the Adjustment Board shall be stated in writing. A copy of the awards shall be furnished to the respective parties to the controversy, and the awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award. In case a dispute arises involving an interpretation of the award, the division of the Board upon request of either party shall interpret the award in the light of the dispute.'
8
Despite the clear import of the statutory language and the legislative history the respondent argues that this Court's holding in Moore v. Illinois R. Co., 312 U.S. 630, 61 S.Ct. 754, requires us to hold that the instant suit is not precluded. However, the holding in Moore was simply that a common-law remedy for damages might be pursued by a discharged employee who did not resort to the statutory remedy before the Board to challenge the validity of his dismissal. A different question arises here where the employee obtained a determination from the Board, and, having lost, is seeking to relitigate in the courts the same issue as to the validity of his discharge.
9
See Hearings before the Senate Committee on Interstate Commerce on S. 3266, 73d Cong., 2d Sess., p. 15. The Chairman of the United States Board of Mediation described § 3 First of the 1926 Act as follows: 'The provision in the present (1926) act for adjustment boards is in practice about as near a fool provision as anything could possibly be. I mean this—that on the face of it they shall, by agreement, do so and so. Well, you can do pretty nearly anything by agreement, but how can you get them to agree?' Hearings before the Senate Committee on Interstate Commerce on S. 3266, 73d Cong., 2d Sess., p. 137.
10
Provision for judicial enforcement of awards against employees was thought to be unnecessary since grievances are usually asserted by employees challenging some action by the carrier, and if the grievance is not sustained by the Board, the award simply denies the claim and requires no affirmative action by the employee. If an unfavorable award results in a strike the carrier may obtain injunctive relief. Brotherhood of Railroad Trainmen v. Chicago River & I.R. Co., 353 U.S. 30, 77 S.Ct. 635; see also Hearings before House Committee on Interstate and Foreign Commerce on H.R. 7650, 73d Cong., 2d Sess., pp. 58—65.
11
For discussion of the statutory scheme enacted in the Railway Labor Act and the 1934 amendments thereto, see Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282; Brotherhood of Railroad Trainmen v. Chicago River & I.R. Co., 353 U.S. 30, 77 S.Ct. 635; Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 124 F.2d 235, affirmed by an equally divided Court, 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694.
12
Section 3 First (p) of the Railway Labor Act, 48 Stat. 1192, 45 U.S.C. § 153 First (p), 45 U.S.C.A. § 153, subd. 1(p), provides:
'If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner * * * may file in the District Court of the United States * * * a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board in the premises. Such suit in the District Court of the United States shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings, unless they accrue upon his appeal, and such costs shall be paid out of the appropriation for the expenses of the courts of the United States. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board.'
*
New 28 U.S.C.A. § 1336.
13
Barnett v. Pennsylvania-Reading Seashore Lines, 3 Cir., 245 F.2d 579; Bower v. Eastern Airlines, Inc., 3 Cir., 214 F.2d 623; Michel v. Louisville & N.R. Co., 5 Cir., 188 F.2d 224; Reynolds v. Denver & R.G.W.R. Co., 10 Cir., 174 F.2d 673; Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 10, 124 F.2d 235, 244, affirmed by an equally divided Court, 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694.
14
Weaver v. Pennsylvania R. Co., D.C.S.D.N.Y., 141 F.Supp. 214, affirmed per curiam, 2 Cir., 240 F.2d 350; Byers v. Atchison, T. & S.F.R. Co., D.C.S.D.Cal., 129 F.Supp. 109; Greenwood v. Atchison, T. & S.F.R. Co., D.C.S.D.Cal., 129 F.Supp. 105; Farris v. Alaska Airlines, Inc., D.C.W.D.Wash., 113 F.Supp. 907; Parker v. Illionis Central R. Co., D.C.N.D.Ill., 108 F.Supp. 186; Futhey v. Atchison, T. & S.F.R. Co., D.C.N.D.Ill., 96 F.Supp. 864; Kelly v. Nashville, C. & St. L.R. Co., D.C.E.D.Tenn., 75 F.Supp. 737; Ramsey v. Chesapeake & O.R. Co., D.C.N.D.Ohio, 75 F.Supp. 740; Berryman v. Pullman Co., D.C.W.D.Mo., 48 F.Supp. 542.
1
Cases like Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61, and General Committee v. Missouri-Kansas-Texas R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76, are no true exception, for those cases involved mediation, not adjudication—mediation being 'the antithesis of justiciability.' 320 U.S., at page 337, 64 S.Ct. at page 152.
2
See, e.g., Wis.Stat.Ann., § 103.39(3); Vernon's Ann.Tex.Civ.Stat., Art. 2226. Cf. Fair Labor Standards Act, § 16(b), 29 U.S.C. § 216(b), 29 U.S.C.A. § 216(b).
| 78
|
360 U.S. 684
79 S.Ct. 1362
3 L.Ed.2d 1512
KINGSLEY INTERNATIONAL PICTURES CORPORATION, Appellant,v.REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK.
No. 394.
Argued April 23, 1959.
Decided June 29, 1959.
Mr. Ephraim London, New York City, for appellant.
Mr. Charles A. Brind, Jr., Albany, for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
Once again the Court is required to consider the impact of New York's motion picture licensing law upon First Amendment liberties, protected by the Fourteenth Amendment from infringement by the States. Cf. Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098.
2
The New York statute makes it unlawful 'to exhibit, or to sell, lease or lend for exhibition at any place of amusement for pay or in connection with any business in the state of New York, any motion picture film or reel (with certain exceptions not relevant here), unless there is at the time in full force and effect a valid license or permit therefor of the education department * * * .1 The law provides that a license shall issue 'unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacriegi ous, or is of such a character that its exhibition would tend to corrupt morals or incite to crime * * *.'2 A recent statutory amendment provides that, 'the term 'immoral' and the phrase 'of such a character that its exhibition would tend to corrupt morals' shall denote a motion picture film or part thereof, the dominant purpose or effect of which is erotic or pornographic; or which portrays acts of sexual immorality, perversion, or lewdness, or which expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior.'3
3
As the distributor of a motion picture entitled 'Lady Chatterley's Lover,' the appellant Kingsley submitted that film to the Motion Picture Division of the New York Education Department for a license. Finding three isolated scenes in the film "immoral' within the intent of our Law,' and Division refused to issue a license until the scenes in question were deleted. The distributor petitioned the Regents of the University of the State of New York for a review of that ruling.4 The Regents upheld the denial of a license, but on the broader ground that 'the whole theme of this motion picture is immoral under said law, for that theme is the presentation of adultery as a desirable, acceptable and proper pattern of behavior.' Kingsley sought judicial review of the Regents' determination.5 The Appellate Division unanimously annulled the action of the Regents and directed that a license be issued. 4 A.D.2d 348, 165 N.Y.S.2d 681. A sharply divided Court of Appeals, however, reversed the Appellate Division and upheld the Regents' refusal to license the film for exhibition. 4 N.Y.2d 349, 175 N.Y.S.2d 39, 151 N.E.2d 197.6
4
The Court of Appeals unanimously and explicitly rejected any notion that the film is obscene.7 See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Rather, the court found that the picture as a whole 'alluringly portrays adultery as proper behavior.' As Chief Judge Conways' prevailing opinion emphasized, therefore, the only portion of the statute involved in this case is that part of §§ 122 and 122—a of the Education Law requiring the denial of a license to motion pictures 'which are immoral in that they portray 'acts of sexual immorality * * * as desirable, acceptale or proper patterns of behavior."8 4 N.Y.2d 351, 175 N.Y.S.2d 40, 151 N.E.2d 197. A majority of the Court of Appeals ascribed to that language a precise purpose of the New York Legislature to require the denial of a license to a motion picture 'because its subject matter is adultery presente as being right and desirable for certain people under certain circumstances.'9 4 N.Y.2d 369, 178 N.Y.S.2d 55, 151 N.E.2d 208 (concurring opinion).
5
We accept the premise that the motion picture here in question can be so characterized. We accept too, as we must, the construction of the New York Legislature's language which the Court of Appeals has put upon it. Albertson v. Millard, 345 U.S. 242, 73 S.Ct. 600, 97 L.Ed. 983; United States v. Burnison, 339 U.S. 87, 70 S.Ct. 503, 94 L.Ed. 675; Aero Mayflower Transit Co. v. Board of R.R. Com'rs, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99. That construction, we emphasize, gives to the term 'sexual immorality' a concept entirely different from the concept embraced in words like 'obscenity' or 'pornography.'10 Moreover, it is not suggested that the film would itself operate as an incitement to illegal action. Rather, the New York Court of Appeals tells us that the relevant portion of the New York Education Law requires the denial of a license to any motion picture which approvingly portrays an adulterous relationship, quite without reference to the manner of its portrayal.
6
What New York has done, therefore, is to prevent the exhibition of a motion picture because that picture advocates an idea—that adultery under certain circumstances may be proper behavior. Yet the First Amendment's basic guarantee is of freedom to advocate ideas. The State, quite simply, has thus struck at the very heart of constitutionally protected liberty.
7
It is contended that the State's action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religios p recepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.
8
Advocacy of conduct proscribed by law is not, as Mr. Justice Brandeis long ago pointed out, 'a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.' Whitney v. People of State of California, 274 U.S. 357, at page 376, 47 S.Ct. 641, at page 648, 71 L.Ed. 1095 (concurring opinion). 'Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech * * *.' Id., 274 U.S. at page 378, 47 S.Ct. at page 649.11
9
The inflexible command which the New York Court of Appeals has attributed to the State Legislature thus cuts so close to the core of constitutional freedom as to make it quite needless in this case to examine the periphery. Specifically, there is no occasion to consider the appellant's contention that the State is entirely without power to require films of any kind to be licensed prior to their exhibition. Nor need we here determine whether, despite problems peculiar to motion pictures, the controls which a State may impose upon this medium of expression are precisely coextensive with those allowable for newspapers,12 books,13 or individual speech.14 It is enough for the present case to reaffirm that motion pictures are within the First and Fourteenth Amendments' basic protection. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098.
10
Reversed.
11
Mr. Justice BLACK, concurring.
12
I concur in the Court's opinion and judgment but add a few words because of concurring opinions by several Justices who rely on their appraisal of the movie Lady Chatterley's Lover for holding that New York cannot constitutionally bar it. Unlike them, I have not seen the picture. My view is that stated by Mr. Justice DOUGLAS, that prior censorship of moving pictures like prior censorship of newspapers and books violates the First and Fourteenth Amendments. If despite the Constitution, however, this Nation is to embark on the dangerous road of censorship, my belief is that this Court is about the most inappropriate Supreme Board of Censors that could be found. So far as I know, judges possess no special expertise providing exceptional competency to set standards and to supervise the private morals of the Nation. In addition, the Justices of this Court seem especially unsuited to make the kind of value judgments—as to what movies are good or bad for local communities—which the concurring opinions appear to require. We are told that the only way we can decide whether a State or municipality can constitutionally bar movis i § for this Court to view and appraise each movie on a case-by-case basis. Under these circumstances, every member of the Court must exercise his own judgment as to how bad a picture is, a judgment which is ultimately based at least in large part on his own standard of what is immoral. The end result of such decisions seems to me to be a purely personal determination by individual Justices as to whether a particular picture viewed is too bad to allow it to be seen by the public. Such an individualized determination cannot be guided by reasonably fixed and certain standards. Accordingly, neither States nor moving picture makers can possibly know in advance, with any fair degree of certainty, what can or cannot be done in the field of movie making and exhibiting. This uncertainty cannot easily be reconciled with the rule of law which our Constitution envisages.
13
The different standards which different people may use to decide about the badness of pictures are well illustrated by the contrasting standards mentioned in the opinion of the New York Court of Appeals and the concurring opinion of Mr. Justice FRANKFURTER here. As I read the New York court's opinion this movie was held immoral and banned because it makes adultery too alluring. Mr. Justice FRANKFURTER quotes Mr. Lawrence, author of the book from which the movie was made, as believing censorship should be applied only to publications that make sex look ugly, that is, as I understand it, less alluring.
14
In my judgment, this Court should not permit itself to get into the very center of such policy controversies, which have so little in common with lawsuits.
15
Mr. Justice FRANKFURTER, concurring in the result.
16
As one whose taste in art and literature hardly qualifies him for the avantgarde, I am more than surprised, after viewing the picture, that the New York authorities should have banned 'Lady Chatterley's Lover.' To assume that this motion picture would have offended Victorian moral sensibilities is to rely only on the stuffiest of Victorian conventions. Whatever one's personal preferences may be about such matters, the refusal to license the exhibition of this picture, on the basis of the 1954 amendment to the New York State Education Law, can only mean that that enactment forbids the public showing of any film that deals with adultery except by way of sermonizing condemnation or depicts any physical manifestation of an illicit amorous relation. Since the denial of a license by the Board of Regents was confirmed by the highest court of the State, I have no choice but to agree with this Court's judgment in holding that the State exceeded the bounds of free expression protected by the 'liberty' of the Fourteenth Amendment. But I also believe that the Court's opinion takes ground that exceeds the appropriate limits for decision. By way of reinforcing my brother HARLAN'S objections to the scope of the Court's opinion, I add the following.
17
Even the author of 'Lady Chatterley's Lover' did not altogether rule out censorship, nor was his passionate zeal on behalf of society's profound interest in the endeavors of true artists so doctrinaire as to be unmindful of the facts of life regarding the sordid exploitation of man's nature and impulses. He knew there was such a thing as pornography, dirt for dirt's sake, or, to be more accurate, dirt for money's sake. This is what D. H. Lawrence wrote:
18
'But even I would censor genuine pornography, rigorously. It would not be very difficult. In the first place, genuine pornography is almost always underworld, it doesn't come into the open. In the second, you can recognize it by the insult it offers invariably, to sex, and to the human spirit.
19
'Pornography is the attempt to insult sex, to do dirt on it. This is unpardonable. Take the very lowest instance, the picture post-card sold underhand, by the underworld, in most cities. What I have seen of them have been of an ugliness to make you cry. The insult to the human body, the insult to a vital human relationship! Uly and cheap they make the human nudity, ugly and degraded they make the sexual act, trivial and cheap and nasty.' (D. H. Lawrence, Pornography and Obscenity, pp. 12—13.)
20
This traffic has not lessened since Lawrence wrote. Apparently it is on the increase. In the course of the recent debate in both Houses of Parliament on the Obscene Publications Bill, now on its way to passage, designed to free British authors from the hazards of too rigorous application in our day of Lord Cockburn's ruling, in 1868, in Regina v. Hicklin, L.R. 3 Q.B. 360, weighty experience was adduced regarding the extensive dissemination of pornographic materials.1 See 597 Parliamentary Debates, H.C., No. 36 (Tuesday, December 16, 1958), cols. 992 et seq., and 216 Parliamentary Debates H.L., No. 77 (Tuesday, June 2, 1959), cols. 489 et seq. Nor is there any reason to believe that on this side of the ocean there has been a diminution in the pornographic business which years ago sought a flourishing market in some of the leading secondary schools for boys, who presumably had more means than boys in the public high schools.
21
It is not surprising, therefore, that the pertinacious, eloquent and free-spirited promoters of the liberalizing legislation in Great Britain did not conceive the needs of a civilized society, in assuring the utmost freedom to those who make literature and art possible—authors, artists, publishers, producers, book sellers—easily attainable by sounding abstract and unqualified dogmas about freedom. They had a keen awareness that freedom, of expression is no more an absolute than any other freedom, an awareness that is reflected in the opinions of Mr. Justice Holmes and Mr. Justice Brandeis, to whom we predominantly owe the present constitutional safeguards on behalf of freedom of expression. And see Near v. State of Minnesota, ex rel. Olson, 283 U.S. 697, 715—716, 51 S.Ct. 625, 630 631, 75 L.Ed. 1357, for limitations on constitutionally protected freedom of speech.2
22
In short, there is an evil against which a State may constitutionally protect itself, whatever we may think about the questions of policy involved. The real problem is the formulation of constitutionally allowable safeguards which society may take against evil without impinging upon the necessary dependence of a free society upon the fullest scope of free expression. One cannot read the debates in the House of Commons and the House of Lords and not realize the difficulty of reconciling these conflicting interests, in the framing of legislation on the ends of which there was agreement, even for those who most generously espouse that freedom of expression without which all freedom gradually withers.
23
It is not our province to meet these recalcitrant problems of legislative drafting. Ours is the vital but very limited task of scrutinizing the work of the draftsmen in order to determine whether they have kept within the narrow limits of the kind of censorship which even D. H. Lawrence deemed necessary. The legislation must not be so vague, the language so loose, as to leave to those who have to apply it too wide a discretion for sweeping within its condemnation what is permissible expression as well as what society may permissibly prohibit. Always remembering that the widest scope of freedom is to be given to the adventurous and imaginative exercise of the human spirit, we have struck down lgis lation phrased in language intrinsically vague, unless it be responsive to the common understanding of men even though not susceptible of explicit definition. The ultimate reason for invalidating such las is that they lead to timidity and inertia and thereby discourage the boldness of expression indispensable for a progressive society.
24
The New York legislation of 1954 was the product of careful lawyers who sought to meet decisions of this Court which had left no doubt that a motion-picture licensing law is not inherently outside the scope of the regulatory powers of a State under the Fourteenth Amendment. The Court does not strike the law down because of vagueness, as we struck down prior New York legislation. Nor does it reverse the judgment of the New York Court of Appeals, as I would, because in applying the New York law to 'Lady Chatterley's Lover' it applied it to a picture to which it cannot be applied without invading the area of constitutionally free expression. The difficulty which the Court finds seems to derive from some expressions culled here and there from the opinion of the Chief Judge of the New York Court of Appeals. This leads the Court to give the phrase 'acts of sexual immorality * * * as desirable, acceptable or proper patterns of behavior' an innocent content, meaning, in effect, an allowable subject matter for discussion. (4 N.Y.2d 349, 175 N.Y.S.2d 39, 151 N.E.2d 197.) But, surely, to attribute that result to the decision of the Court of Appeals, on the basis of a few detached phrases of Chief Judge Conway, is to break a faggot into pieces, is to forget that the meaning of language is to be felt and its phrases not to be treated disjointedly. 'Sexual immorality' is not a new phrase in this branch of law and its implications dominate the context. I hardly conceive it possible that the Court would strike down as unconstitutional the federal statute against mailing lewd, obscene and lascivious matter, which has been the law of the land for nearly a hundred years, see the Act of March 3, 1865, 13 Stat. 507, and March 3, 1873, 17 Stat. 599, whatever specific instances may be found not within its allowable prohibition. In sustaining this legislation this Court gave the words 'lewd, obscene and lascivious' concreteness by saying that they concern 'sexual immorality.' And only very recently the court sustained the constitutionality of the statute. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
25
Unless I misread the opinion of the Court, it strikes down the New York legislation in order to escape the task of deciding whether a particular picture is entitled to the protection of expression under the Fourteenth Amendment. Such an exercise of the judicial function, however onerous or ungrateful, inheres in the very nature of the judicial enforcement of the Due Process Clause. We cannot escape such instance-by-instance, case-by-case application of that clause in all the varieties of situations that come before this Court. It would be comfortable if, by a comprehensive formula, we could decide when a confession is coerced so as to vitiate a state conviction. There is no such talismanic formula. Every Term we have to examine the particular circumstances of a particular case in order to apply generalities which no one disputes. It would be equally comfortable if a general formula could determine the unfairness of a state trial for want of counsel. But, except in capital cases, we have to thread our way, Term after Term, through the particular circumstances of a particular case in relation to a particular defendant in order to ascertain whether due process was denied in the unique situation before us. We are constantly called upon to consider the alleged misconduct of a prosecutor as vitiating the fairness of a particular trial or the inflamed state of public opinion in a particular case as undermining the constitutional right to due process. Again, in the series of cases coming here from the state courts, in which due process was invoked to enfoce separation of church and state, decision certainly turned on the particularities of the specific situations before the Court. It is needless to multiply instances. It is the nature of the concept of due process, and, I venture to believe, its high service-ability in our constitutional system, that the judicial enforcement of the Due Process Clause is the very antithesis of a Procrustean rule. This was recognized in the first full-dress discussion of the Due Process Clause of the Fourteenth Amendment, when the Court defined the nature of the problem as a 'gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasons on which such decision may be founded.' Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616. The task is onerous and exacting, demanding as it does the utmost discipline in objectivity, the severest control of personal predilections. But it cannot be escaped, not even by disavowing that such is the nature of our task.
26
Mr. Justice DOUGLAS with whom Mr. Justice BLACK joins, concurring.
27
While I join in the opinion of the Court, I adhere to the views I expressed in Superior Films Inc. v. Department of Education, 346 U.S. 587, 588—589, 74 S.Ct. 286, 98 L.Ed. 329, that censorship of movies is unconstitutional, since it is a form of 'previous restraint' that is as much at war with the First Amendment, made applicable to the States through the Fourteenth, as the censorship struck down in Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. If a particular movie violates a valid law, the exhibitor can be prosecuted in the usual way. I can find in the First Amendment no room for any censor whether he is scanning an editorial, reading a news broadcast, editing a novel or a play, or previewing a movie.
28
Reference is made to British law and British practice. But they have little relevance to our problem, since we live under a written Constitution. What is entrusted to the keeping of the legislature in England is protected from legislative interference or regulation here. As we stated in Bridges v. State of California, 314 U.S. 252, 265, 62 S.Ct. 190, 194, 86 L.Ed. 192, 'No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.' If we had a provision in our Constitution for 'reasonable' regulation of the press such as India has included in hers,1 there would be room for argument that censorship in the interests of morality would be permissible. Judges sometimes try to read the word 'reasonable' into the First Amendment or make the rights it grants subject to reasonable regulation (see Beauharnais v. People of State of Illinois, 343 U.S. 250, 262, 72 S.Ct. 725, 733, 96 L.Ed. 919; Dennis v. United States, 341 U.S. 494, 523—525, 71 S.Ct. 857, 873—875, 95 L.Ed. 1137), or apply to the States a watered-down version of the First Amendment. See Roth v. United States, 354 U.S. 476, 505—506, 77 S.Ct. 1304, 1319—1320, 1 L.Ed.2d 1498. But its language, in terms that are absolute, is utterly at war with censorship. Different questions may arise as to censorship of some news when the Nation is actually at war. But any possible exceptions are extremely limited. That is why the tradition represented by Near v. State of Minnesota ex rel. Olson, supra, represents our constitutional ideal.
29
Happily government censorship has put down few roots in this country. The American tradition is represented by Near v. State of Minnesota ex rel. Olson, supra. See Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 324—325; Alpert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40, 53 et seq. We have in the United States no counterpart of the Lord Chamberlain who is censor over England's stage. As late as 1941 only six States had systems of censorship for movies. Chafee, Free Speech in the United States (1941), p. 540. That number has now been reduced to four2—Kansas, Maryland, New York, and Virginia—plus a few cities. Even in these areas, censorship of movies shown on television gives way by reason of the Federal Communications Act, 47 U.S.C.A. § 151 et seq. See Allen B. Dumont Laboratories v. Carroll, 3 Cir., 184 F.2d 153. And from what information is available, movie censors do not seem to be very active.3 Deletion of the residual part of censorship that remains would constitute the elimination of an institution that intrudes on First Amendment rights.
30
Mr. Justice CLARK, concurring in the result.
31
I can take the words of the majority of the New York Court of Appeals only in their clear, unsophisticated and common meaning. They say that §§ 122 and 122—a of New York's Education Law 'require the denial of a license to motion pictures which are immoral in that they portray 'acts of sexual immorality * * * as desirable, acceptable or proper patterns of behavior." (4 N.Y.2d 349, 175 N.Y.S.2d 39, 151 N.E.2d 197.) That court states the issue in the case in this language:
32
'Moving pictures are our only concern and, what is more to the point, only those motion pictures which alluringly present acts of sexual immorality as proper behavior.' 4 N.Y.2d 349, 175 N.Y.S.2d 39, 48, 151 N.E.2d 197, 203.
33
Moreover, it is significant to note that in its 14-page opinion that court says again and again, in fact 15 times, that the picture 'Lady Chatterley's Lover' is proscribed because of its 'espousal' of sexual immorality as 'desirable' or as 'proper conduct for the people of our State.'1
34
The minority of my brothers here, however, twist this holding into one that New York's Act requires 'obscenity or incitement, not just mere abstract expressions of opinion.' But I cannot so obliterate the repeated declarations above-mentioned that were made not only 15 times by the Court of Appeals but which were the basis of the Board of Regents' decision as well. Such a construction would raise many problems, not the least of which would be our failure to accept New York's interpretation of the scope of its own Act. I feel, as does the majority here, bound by their holding.
35
In this context, the Act comes within the ban of Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098. We held there that 'expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.' Id., 343 US. at page 502, 72 S.Ct. at page 781. Referring to Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, we said that while 'a major purpose of the First Amendment guaranty of a free press was to prevent prior restraints upon publication' such protection was not unlimited but did place on the State 'a heavy burden to demonstrate that the limitation challenged' was exceptional. Id., 343 U.S. at pages 503—504, 72 S.Ct. at page 781. The standard applied there was the word 'sacrilegious' and we found it set the censor 'adrift upon a boundless sea amid a myriad of conflicting currents of religious views * * *.' Id., 343 U.S. at page 504, 72 S.Ct. at page 782. We struck it down.
36
Here the standard is the portrayal of 'acts of sexual immorality * * * as desirable, acceptable or proper patterns of behavior.' Motion picture plays invariably have a hero, a villain, supporting characters, a location, a plot, a diversion from the main theme and usually a moral. As we said in Burstyn: 'They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.' 343 U.S. at page 501, 72 S.Ct. at page 780. What may be to one viewer the glorification of an idea as being 'desirable, acceptable or proper' may to the notions of another be entirely devoid of such a teaching. The only limits on the censor's discretion is his understanding of what is included within the term 'desirable, acceptable or proper.' This is nothing less than a roving commission in which individual impressions become the yardstick of action, and result in regulation in accordance with the beliefs of the individual censor rather than regulation by law. Even here three of my brothers 'cannot regard this film as depicting anything more than a somewhat unusual, and rather pathetic, 'love triangle." At least three—perhaps four—of the members of New York's highest court thought otherwise. I need only say that the obscurity of standard presents such a choice of difficulties that even the most experienced find themselves at dagger's point.
37
It may be, as Chief Judge Conway said, 'that our public morality, possibly more than ever before, needs every protection government can give.' 4 N.Y.2d 363, 175 N.Y.S.2d 50, 151 N.E.2d 204—205. And, as my Brother HARLAN points out, 'each time such a statute is struck down, the State is left in more confusion.' This is true where broad grounds are employed leaving no indication as to what may be necessary to meet the requirements of due process. I see no grounds for confusion, however, were a statute to ban 'pornographic' films, or those that 'portray acts of sexual immorality, perversion or lewdness.' If New York's statute had been so construed by its highest court I believe it would have met the requirements of due process. Instead, it placed more emphasis on what the film teaches than on what it depicts. There is where the confusion enters. For this reason, I would reverse on the authority of Burstyn.
38
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, concurring in the result.
39
I think the Court has moved too swiftly in striking down a statute which is the product of a deliberate and conscientious effort on the part of New York to meet constitutional objections raised by this Court's decisions respecting predecessor statutes in this field. But although I disagree with the Court that the parts of §§ 122 and 122—a of the New York Education Law, 16 N.Y.Laws Ann. § 122 (McKinney 1953), 16 N.Y. Laws Ann. § 122—a (McKinney Supp. 1958), here particularly involved are unconstitutional on their face, I believe that in their application to this film constitutional bounds were exceeded.
I.
40
Section 122—a of the State Education Law was passed in 1954 to meet this Court's decision in Commercial Pictures Corp. v. Regents, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329, which overturned the New York Court o Ap peals' holding in Commercial Pictures Corp. v. Board of Regents, 305 N.Y. 336, 113 N.E.2d 502, 505, that the film La Ronde could be banned as 'immoral' and as 'tend(ing) to corrupt morals' under § 122.1 The Court's decision in Commercial Pictures was but a one line per curiam with a citation to Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, which in turn had held for naught not the word 'immoral' but the term 'sacrilegious' in the statute.
41
New York, nevertheless, set about repairing its statute. This it did by enacting § 122—a which in the respects emphasized in the present opinion of Chief Judge Conway as pertinent here defines an 'immoral' motion picture film as one which portrays "acts of sexual immorality * * * as desirable, acceptable or proper pattern of behavior." 4 N.Y.2d 349, 351, 175 N.Y.S.2d 39, 151 N.E.2d 197.2 The Court now holds this part of New York's effort unconstitutional on its face under the Fourteenth Amendment. I cannot agree.
42
The Court does not suggest that these provisions are bad for vagueness.3 Any such suggestion appears to me untenable in view of the long-standing usage in this Court of the concept 'sexual immorality' to explain in part the meaning of 'obscenity.' See, e.g., Swearingen v. United States, 161 U.S. 446, 451, 16 S.Ct. 562, 563, 40 L.Ed. 765.4 Instead, the Court finds a constitutional vice in these provisions in that they require, so it is said, neither 'obscenity' nor incitement to 'sexual immorality,' but strike of their own force at the mere advocacy of 'an idea—that adultery under certain circumstances may be proper behavior'; expressions of 'opinion that adultery may sometimes be proper * * *.' I think this characterization of these provisions misconceives the construction put upon them by the prevailing opinions in the Court of Appeals. Granting that the abstract public discussion or advocacy of adultery, unaccompanied by obscene portrayal or actual incitement to such behavior, may not constitutionally be proscribed by the State, I do not read those opinions to hold that the statute on its face undertakes any such proscription. Chief Judge Conway's opinion, which was joined by two others of the seven judges of the Court of Appeals, and in the trust of which one more concurred, to be sure with some doubt, states (4 N.Y.2d at page 356, 175 N.Y.S.2d at page 44, 151N.E .2d at page 200):
43
'It should first be emphasized that the scope of section 122 a is not mere expression of opinion in the form, for example, of a filmed lecture whose subject matter is the espousal of adultery. We reiterate that this case involves the espousal of sexually immoral acts (here adultery) plus actual scenes of a suggestive and obscene nature.' (Emphasis in original.)
44
The opinion elsewhere, as indeed is also the case with §§ 122 and 122—a themselves when independently read in their entirety, is instinct with the notion that mere abstract expressions of opinion regarding the desirability of sexual immorality, unaccompanied by obscenity5 or incitement, are not proscribed. See 4 N.Y.2d 349, especially at pages 351—352, 354, 356—358, 361, 363—364, 175 N.Y.S.2d 39, at pages 40—41, 42—43 44—49, 50—51, 151 N.E.2d 197, at pages 197, 199, 200—201, 203, 204—205; and Notes 1 and 2, supra. It is the corruption of public morals, occasioned by the inciting effect of a particular portrayal or by what New York has deemed the necessary effect of obscenity, at which the statute is aimed. In the words of Chief Judge Conway, 'There is no difference in substance between motion pictures which are corruptive of the public morals, and sexually suggestive, because of a predominance of suggestive scenes, and those which achieve rec isely the same effect by presenting only several such scenes in a clearly approbatory manner throughout the course of the film. The law in concerned with effect, not merely with but one means of producing it * * * the objection lies in the corrosive effect upon the public sense of sexual morality.' 4 N.Y.2d at page 358, 175 N.Y.S.2d at page 46, 151 N.E.2d at page 201. (Emphasis in original.)
45
I do not understand that the Court would question the constitutionality of the particular portions of the statute with which we are here concerned if the Court read, as I do, the majority opinions in the Court of Appeals as construing these provisions to require obscenity or incitement, not just mere abstract expressions of opinion. It is difficult to understand why the Court should strain to read those opinions as it has. Our usual course in constitutional adjudication is precisely the opposite.
II.
46
The application of the statute to this film is quite a different matter. I have heretofore ventured the view that in this field the States have wider constitutional latitude than the Federal Government. See the writer's separate opinion in Roth v. United States and Alberts v. State of California, 354 U.S. 476, 496, 77 S.Ct. 1304, 1315, 1 L.Ed.2d 1498. With that approach, I have viewed this film.
47
Giving descriptive expression to what in matters of this kind are in the last analysis bound to be but individual subjective impressions, objectively as one may try to discharge his duty as a judge, is not apt to be repaying. I shall therefore fore content myself with saying that, according full respect to, and with, I hope, sympathetic consideration for, the views and characterizations expressed by others, I cannot regard this film as depicting anything more than a somewhat unusual, and rather pathetic, 'love triangle,' lacking in anything that could properly be termed obscene or corruptive of the public morals by inciting the commission of adultery. I therefore think that in banning this film New York has exceeded constitutional limits.
48
I conclude with one further observation. It is sometimes said that this Court should shun considering the particularities of individual cases in this difficult field lest the Court become a final 'board of censorship,' But I cannot understand why it should be thought that the process of constitutional judgment in this realm somehow stands apart from that involved in other fields, particularly those presenting questions of due process. Nor can I see, short of holding that all state 'censorship' laws are constitutionally impermissible, a course from which the Court is carefully abstaining, how the Court can hope ultimately to spare itself the necessity for individualized adjudication. In the very nature of things the problems in this area are ones of individual cases, see Roth v. United States and Alberts v. State of California, supra, 354 U.S. at pages 496—498, 77 S.Ct. at pages 1315—1316, for a 'censorship' statute can hardly be contrived that would in effect be self-executing. And lastly, each time such a statute is struck down, the State is left in more confusion, as witness New York's experience with its statute.
49
Because I believe the New York statute was unconstitutionally applied in this instance I concur in the judgment of the Court.
1
McKinney's Consol.N.Y.Laws, c. 16, 1953, Education Law, § 129.
2
McKinney's Consol.N.Y.Laws, 1953, Education Law, § 122.
3
McKinney's Consol.N.Y.Laws, 1953, Education Law, § 122—a.
4
'An applicant for a license or permit, in case his application be denied by the director of the division or by the officer authorized to issue the same, shall have the right of review by the regents.' McKinney's Consol.N.Y.Laws, 1953, Education Law, § 124.
5
The proceeding was brought under art. 78 of the New York Civil Practice Act, Gilbert-Bliss' N.Y.Cic.Prac., Vol. 6B, 1944, 1949 Supp., § 1283 et seq. See also, McKinney's Consol.N.Y.Laws, 1953, Education Law, § 124.
6
Although four of the seven judges of the Court of Appeals voted to reverse the order of the Appellate Division, only three of them were of the clear opinion that denial of a license was permissible under the Constitution. Chief Judge Conway wrote an opinion in which Judges Froessel and Burke concurred, concluding that denial of the license was constitutionally permissible. Judge Desmond wrote a separate concurring opinion in which he stated: 'I confess doubt as to the validity of such a statute but I do not know how that doubt can be resolved unless we reverse here and let the Supreme Court have the final say.' 4 N.Y.2d 369, 175 N.Y.S.2d 55, 151 N.E.2d 208. Judge Dye, Judge Fuld, and Judge Van Voorhis wrote separate dissenting opinions.
7
The opinion written by Chief Judge Conway stated: '(I)t is curious indeed to say in one breath, as some do, that obscene motion pictures may be censored, and then in another breath that motion pictures which alluringly portray adultery as proper and desirable may not be censored. As stated above, 'The law is concerned with effect, not merely with but one means of producing it.' It must be firmly borne in mind that to give obscenity, as defined, the stature of the only constitutional limitation is to extend an invitation to corrupt the public morals by methods of presentation which craft will insure do not fall squarely within the definition of that term. Precedent, just as sound principle, will not support a statement that motion pictures must be 'out and out' obscene before they may be censored.' 4 N.Y.2d 364, 175 N.Y.S.2d 51, 151 N.E.2d 205.
Judge Desmond's concurring opinion stated: '(It is not) necessarily determinative that this film is not obscene in the dictionary sense * * *.' 4 N.Y.2d 369, 175 N.Y.S.2d 55, 151 N.E.2d 208. Judge Dye's dissenting opinion stated: 'No one contends that the film in question * * * is obscene within the narrow legal limits of obscenity as recently defined by the Supreme Court * * *.' 4 N.Y.2d 371, 175 N.Y.S.2d 57, 151 N.E.2d 210. Judge Van Voorhis' dissenting opinion stated: '(I)t is impossible to write off this entire drama as 'mere pornography' * * *.' Judge Van Voorhis, however, would have remitted the case to the Board of Regents to consider whether certain 'passages' in the film 'might have been eliminated as 'obscene', without doing violence to constitutional liberties.' 4 N.Y.2d 375, 175 N.Y.S.2d 60, 151 N.E.2d 212.
8
This is also emphasized in the brief of counsel for the Regents, which states, 'The full definition is not before this Court—only these parts of the definition as cited—and any debate as to whether other parts of the definition are a proper standard has no bearing in this case.'
9
In concurring, Judge Desmond agreed that this was the meaning of the statutory language in question, and that 'the theme and content of this film fairly deserve that characterization * * *.' 4 N.Y.2d 366, 175 N.Y.S.2d 52, 151 N.E.2d 206.
10
See by way of contrast, Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765; United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843.
11
Thomas Jefferson wrote more than a hundred and fifty years ago, 'But we have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors. And especially when the law stands ready to punish the first criminal act produced by the false reasoning. These are safer correctives than the conscience of a judge.' Letter of Thomas Jefferson to Elijah Boardman, July 3, 1801, Jefferson Papers, Library of Congress, Vol. 115, folio 19761.
12
Cf. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357.
13
Cf. Kingsley Books, Inc., v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Alberts v. State of California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
14
Cf. Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093.
1
'In the course of our enquiries, we have been impressed with the existence of a considerable and lucrative trade in pornography * * *.' Report of the Select Committee on Obscene Publications to the House of Commons, March 20, 1958, p. IV.
2
'The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases * * *.' 283 U.S., at pages 715—716, 51 S.Ct. at page 631.
1
Section 19(2) of the Indian Constitution permits 'reasonable restrictions' on the exercise of the right of freedom of speech and expression in the interests, inter alia, of 'decency or morality * * * defamation or incitement to an offence.' This limitation is strictly construed; any restriction amounting to an 'imposition' which will 'operate harshly' on speech or the press will be held invalid. See Seshadri v. District Magistrate, Tangore, 41 A.I.R.(Sup.Ct.) 747, 749.
2
See Note, 71 Harv.L.Rev. 326, 328, n. 14.
3
Id., p. 332.
1
The phrase is not always identical but varies from the words of the statute, 'acts of sexual immorality * * * as desirable, acceptable or proper patterns of behavior,' to such terms 'as proper conduct for the people of our State'; 'exaltation of illicit sexual love in derogation of the restraints of marriage'; as a 'proper pattern of behavior'; 'the espousal of sexually immoral acts'; 'which debase fundamental sexual morality by portraying its converse to the people as alluring and desirable'; 'which alluringly portrays sexually immoral acts as proper behavior'; 'by presenting * * * (adultery) in a clearly approbatory manner'; 'which alluringly portrays adultery as proper behavior'; 'which alluringly portray acts of sexual immorality (here adultery) and recommended them as a proper way of life'; 'which alluringly portray adultery as proper and desirable'; and 'which alluringly portray acts of sexual immorality by adultery as proper behavior.'
1
Section 122 provides: 'The director of the (motion picture) division or, when authorized by the regents, the officers of a local office or bureau shall cause to be promptly examined every motion picture film submitted to them as herein required, and unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that it exhibition would tend to corrupt morals or incite to crime, shall issue a license therefor. If such director or, when so authorized, such officer shall not license any film submitted, he shall furnish to the applicant therefor a written report of the reasons for his refusal and a description of each rejected part of a film not rejected in toto.'
2
Section 122—a provides:
'1. For the purpose of section one hundred twenty-two of this chapter, the term 'immoral' and the phrase 'of such a character that its exhibition would tend to corrupt morals' shall denote a motion picture film of part thereof, the dominant purpose or effect of which is erotic or pornographic; or which portrays acts of sexual immorality, perversion, or lewdness, or which expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior.
'2. For the purpose of section one hundred twenty-two of this chapter, the term 'incite to crime' shall denote a motion picture the dominant purpose or effect of which is to suggest that the commission of criminal acts or contempt for law is profitable, desirable, acceptable, or respectable behavior; or which advocates or teaches the use of, or the methods of use of, narcotics or habit-forming drugs.'
3
The bill that became § 122—a was introduced at the request of the State Education Department, which noted in a memorandum that 'the issue of censorship, as such, is not involved in this bill. This bill merely attempts to follow out the criticism of the United States Supreme Court by defining the words 'immoral' and 'incite to crime." N.Y.S. Legis. Ann., 1954, 36. In a memorandum accompanying his approval of the measure, the then Governor of New York, himself a lawyer, wrote:
'Since 1921, the Education Law of this State has required the licensing of motion pictures and authorized refusal of a license for a motion picture which is 'obscene, indecent, immoral' or which would 'tend to corrupt morals or incite to crime.'
'Recent Supreme Court decisions have indicated that the term 'immoral' may not be sufficiently definite for constitutional purposes. The primary purpose of this bill is to define 'immoral' and 'tend to corrupt morals' in conformance with the apparent requirements of these cases. It does so by defining them in terms of 'sexual immorality.' The words selected for this definition are based on judicial opinions which have given exhaustive and reasoned treatment to the subject.
'The bill does not create any new licensing system, expand the scope of motion picture censorship, or enlarge the area of permissible prior restraint. Its sole purpose is to give to the section more precision to make it conform to the tenor of recent court decisions and proscribe the exploitation of 'filth for the sake of filth.' It does so as accurately as language permits in 'words well understood through long use.' (Winters v. People of State of N.Y., 1948, 333 U.S. 507, 518 (68 S.Ct. 665, 92 L.Ed. 840)).
'The language of the Supreme Court of the United States, in a recent opinion of this precise problem, should be noted: "To hold that liberty and expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places.' ((Joseph) Burstyn (Inc.) v. Wilson, 343 U.S. 495, at (page) 502 (72 S.Ct. 777, at page 780)).
'So long as the State has the responsibility for interdicting motion pictures which transgress the bounds of decency, we have the responsibility for furnishing guide lines to the agency charged with enforcing the law.' Id., at 408.
4
Certainly it cannot be claimed that adultery is not a form of 'sexual immorality'; indeed adultery is made a crime in New York. N.Y. Penal Law §§ 100—103, 39 N.Y. Laws Ann. §§ 100—103 (McKinney's Consol.Laws, c. 40, 1944, c).
5
Nothing in Judge Dye's dissenting opinion, to which the Court refers in Note 7 of its opinion, can be taken as militating against this view of the prevailing opinions in the Court of Appeals. Judge Dye simply disagreed with the majority of the Court of Appeals as to the adequacy of the § 122—a definition of 'immoral' to overcome prior constitutional objections to that term. See 4 N.Y.2d at page 371, 175 N.Y.S.2d at page 57, 151 N.E.2d at pages 209—210; see also the dissenting opinion of Judge Van Voorhis, 4 N.Y.2d at page 374, 175 N.Y.S.2d at page 60, 151 N.E.2d at page 212.
| 23
|
360 U.S. 672
79 S.Ct. 1314
3 L.Ed.2d 1503
Horace INGRAM, L. E. Smith, Mary Law et al., Petitioners,v.UNITED STATES of America.
No. 457.
Argued April 30, 1959.
Decided June 29, 1959.
Rehearing Denied Oct. 12, 959 .
See 80 S.Ct. 42.
Mr. Wesley R. Asinof, Atlanta, Ga., for petitioners.
Mr. J. Dwight Evans, Jr., Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioners and twenty-two others were indicted and tried for conspiracy to evade and defeat the payment of the federal taxes imposed on lottery operations. The petitioners and six others were convicted.1 Their convictions were affirmed by the Court of Appeals. 259 F.2d 886. Certiorari was granted to examine the scope of the conspiracy statute in the context of these provisions of the Internal Revenue Code. 358 U.S. 905, 79 S.Ct. 234, 3 L.Ed.2d 227.
2
At the trial it was established by overwhelming evidence that the petitioners had engaged with numerous others in a closely organized and large-scale operation of the numbers game in Atlanta, Georgia, during the years 1954 to 1957, the period covered by the indictment.2 That activity is a criminal offense under Georgia law.3 The evidence also established in intricate detail that the participants in this large-scale enterprise had, through a variety of carefully planned stratagems, made every effort to conceal its operation.4 Finally, the evidence showed that none of the petitioners had paid any of the federal taxes in question. There was no direct evidence to show that any of the petitioners knew of these taxes.
3
In addition to the conspiracy count, the indictment under which the petitioners were tried also contained two additional counts charging them with the substantive offenses of willful failure to pay the special tax imposed by § 4411 of the Internal Revenue Code,5 in violation of § 7203 of the Code,6 and of failure to register as required by § 4412 of the Code,7 in violation of § 7272 of the Code.8 The trial took place subsequent to the announcement of this Court's decision in United States v. Calamaro, 354 U.S. 351, 77 S.Ct. 1138, 1 L.Ed.2d 1394, and the district judge correctly instructed the jury that conviction of the substantive offenses would be justified only as to any defendants found to be 'writers,' 'bankers,' or to have 'a proprietary interest in such lottery operation.' Two of the petitioners, Ingram an d Jenkins, were found guilty on both substantive counts and do not question these convictions, conceding the sufficiency of the evidence to show that Ingram was the banker and that Jenkins had a proprietary interest in the enterprise. The evidence showed that the other two petitioners, Smith and Law, were relatively minor clerical functionaries at the headquarters of the operation, and they were acquitted on the substantive counts.
4
In sum, what this record presents then is a picture of a large-scale and profitable gambling business conducted in Atlanta over a period of several years by petitioners Ingram and Jenkins. He business involved many participants, including the petitioners Smith and Law. It was a business made criminal by the laws of Georgia, and everyone in the organization participated in trying to keep its operation secret. Ingram and Jenkins were liable for the federal taxes imposed by §§ 4401 and 4411 of the Internal Revenue Code and willfully failed to pay them. They were required by § 4412 of the Code to register with the official in charge of the Internal Revenue District, and they failed to do so. Smith and Law were not themselves subject to any of the taxes here involved. The question presented is whether this factual foundation is sufficient to support a conviction of the petitioners, or any of them, for conspiracy to attempt to evade or defeat federal taxes, 'the gravest of offenses against the revenues.' Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 368, 87 L.Ed. 418. We hold that it was sufficient as to Ingram and Jenkins, and insufficient as to Smith and Law.
5
As to Ingram and Jenkins, the record is clear. They were entrepreneurs in a vast and profitable gambling business. They were clearly liable for the special taxes and registration requirements that the Federal Government has imposed upon the operators of that kind of business. United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. Not only did they willfully fail and neglect to pay these taxes, but they conspired to conceal the operation of the business and the source of the income upon which the tax is imposed.
6
In Spies v. United States this Court had occasion to consider the quantum and type of evidence required to support a conviction for the substantive offense of attempting to defeat or evade federal taxes as contrasted with the lesser proof required to convict of the isd emeanor of willfully failing to file a return or to pay a tax. It was there said:
7
'Willful but passive neglect of the statutory duty may constitute the lesser offense, but to combine with it a willful and positive attempt to evade tax in any manner or to defeat it by any means lifts the offense to the degree of felony.
8
'Congress did not define or limit the methods by which a willful attempt to defeat and evade might be accomplished and perhaps did not define lest its effort to do so result in some unexpected limitation. Nor would we by definition constrict the scope of the Congressional provision that it may be accomplished 'in any manner.' By way of illustration, and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one's affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal. If the tax-evasion motive plays any part in such conduct the offense may be made out even though the conduct may also serve other purposes such as concealment of other crime.' 317 U.S. at page 499, 63 S.Ct. at page 368.
9
In Spies, the Court was dealing with the substantive offense, not with a conspiracy to commit it. But the evidence of agreement between Ingram and Jenkins to operate this gambling enterprise, which operation made them liable for federal taxes, and to conceal its operation and its income is clear on this record, and is virtually conceded by the petitioners. The evidence was sufficient to support a conclusion that they were engaged not only in a conspiracy to operate and conceal their gambling enterprise, but that they were also parties to an agreement to attempt to defeat or evade the federal taxes imposed upon tne operators of such a business.
10
As to Smith and Law, the case is quite a different one. While the record clearly supports a finding that Smith and Law were participants in a conspiracy to operate a lottery and to conceal that operation from local law enforcement agencies, we find no warrant for a finding that they were, like Ingram and Jenkins, parties to a conspiracy with a purpose illegal under federal law. Certainly there is nothing in the record to show that Smith and Law knew that Ingram and Jenkins had not paid the taxes, a fact obviously within the knowledge of the latter.
11
It is fundamental that a conviction for conspiracy under 18 U.S.C. § 371, 18 U.S.C.A. § 371, cannot be sustained unless there is 'proof of an agreement to commit an offense against the United States.' Pereira v. United States, 347 U.S. 1, 12, 74 S.Ct. 358, 364, 98 L.Ed. 435. There need not, of course, be proof that the conspirators were aware of the criminality of their objective, but an essential ingredient of the proof was knowledge on the part of Smith and Law that Ingram and Jenkins were liable for federal taxes by reason of the gambling operation. 'Without the knowledge, the intent cannot exist.' Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674.
12
'(C)onspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself.'9 The substantive offense which Smith and Law were accused of conspiring to commit was the willful evasion of federal taxes, an offense which, even presuming knowledge of the tax law, obviously cannot be committed in the absence of knowledge of willfulness. Spies v. United States, supra, Cf. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128.
13
Indulging, as of course we must, in that view of the evidence most favorable to the Goern ment, we simply cannot discern adequate foundation in the present record for a finding that Smith and Law had such knowledge of Ingram's and Jenkins' wagering tax liability. The record is completely barren of any direct evidence of such knowledge. It was not shown, for example, that any reference had ever been made by any of the petitioners to possible tax liability, or that they had filed a return or paid a tax in previous years. The Government relied instead upon evidence which, it asserts, circumstantially proved the requisite knowledge on the part of Smith and Law. These circumstances were simply the intimate connection of Smith and Law with the operation of the lottery itself, their cooperation in conducting it secretly,10 and their apparent knowledge that it was conducted at a profit. The Government points out that not only would payment of the taxes have decreased the profits to be derived from operation of the lottery, but in addition would have required registration, including the names and addresses of the bankers and writers, with the local internal revenue office and the posting of a wagering tax stamp at the place of business. 26 U.S.C. (Supp. V) §§ 4412, 6806(c), 26 U.S.C.A. §§ 4412, 6806(c). The information contained in the registration would have been available to local law enforcement officials. 26 U.S.C. (Supp. V) § 6107, 26 U.S.C.A. § 6107.
14
Yet these circumstances actually are colorless as to the vital issue of knowledge on the part of Smith and Law that their superiors owed federal wagering taxes. Certainly the secrecy of the operation did not go to show that knowledge. This is not a case where efforts at concealment would be reasonably explainable only in terms of motivation to evade taxation. Here, the criminality of the enterprise under local law provided more than sufficient reason for the secrecy in which it was conducted. A conspiracy, to be sure, may have multiple objectives, United States v. Rabinowich, 238 U.S. 78, 86, 35 S.Ct. 682, 684, 59 L.Ed. 1211, and if one of its objectives, even a minor one, be the evasion of feferal taxes, the offense is made out, though the primary objective may be concealment of another crime. See Spies v. United States, supra, 317 U.S. at page 499, 63 S.Ct. at page 368. But the fact that payment of the federal taxes by Ingram and Jenkins might have resulted in disclosure of the lottery and subsequent prosecution of Smith and Law by local authorities would permit an inference that concealment of the lottery was motivated by a purpose to evade payment of federal taxes only if, independently, there were proof that Smith and Law knew of the tax liability. Evidence that Smith and Law might have wanted the taxes to be evaded if they had known of them, and that they engaged in conduct which could have been in furtherance of a plan to evade the taxes if they had known of them, is not evidence that they did know of them.
15
What was said in Direct Sales Co. v. United States on behalf of a unanimous Court is of particular relevance here:
16
'Without the knowledge, the intent cannot exist. * * * Furthermore to establish the intent, the evidence of knowledge must be clear, not equivocal. * * * This, because charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning * * * a dragnet to draw in all substantive crimes.' 319 U.S. at page 711, 63 S.Ct. at page 1269.
17
Smith and Law were not liable for the wagering tax. United States v. Calamaro, supra. They could not, therefore, have been convicted of the crime which they were charged with having conspired to commit. To sustain their conviction on this record would make of the crime of conspiracy just that 'dragnet to draw in all substantive crimes' against which the Court warned in Direct Sales. Cf. Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206.
18
Accordingly, while affirming the convictions of Ingram and Jenkins, we hold that the motions for acquittal of Smith and Law should have been sustained by the District Court, and that the Court of Appeals was in error in affirming their convictions.
19
Judgment accordingly.
20
Mr. Justice BLACK took no part in the consideration or decision of this case.
21
Mr. Justice HARLAN, whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, concurring in part and dissenting in part.
22
The constitutional validity of the occupational tax provisions on persons engaged in the business of accepting wagers has been established by United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. In construing those provisions, however, we have held that no weight can be given to the suggestion that they must be interpreted on the premise that their enactment was "in part motivated by a congressional desire to suppress wagering." United States v. Calamaro, 354 U.S. 351, 77 S.Ct. 1138, 1143, 1 L.Ed.2d 1394. In that case we held that only 'writers,' 'bankers,' or those who have a 'proprietary interest' in a lottery operation are subject to the taxing statutes, and that therefore only those persons can be held for violation of their substantive provisions.
23
In this case the Government has in effect sought to by-pass Calamaro by the simple expedient of indicting persons connected with a lottery operation not for the substantive offenses proscribed by the Internal Revenue Code, but instead for conspiring with those members of the lottery operation who are personally subject to the relevant excise taxes to evade payment of those taxes. Two essential elements of the crime, first, knowledge that the taxes are due, and, second, a 'willful and positive attempt to evade tax in any manner or to defeat it by any means,' Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 368, are sought to be established here by the naked fact that the lottery operation was carefully concealed by all who participated in it. Since lotteries are unlawful in virtually every State, more particularly in Georgia where this enterprise was carried on, and therefore require concealment if they are to continue to operate, to permit a conviction on such evidence alone would relegate Calamaro to the status of an unmeaningful relic. The opinion of the Court convincingly demonstrates why the evidence in the case does not support a finding by the jury that petitioners Smith and Law knew that a tax was owing by petitioners Ingram and Jenkins, and that they undertook acts of concealment for the purpose, in whole or in part, of aiding an evasion of that tax.
24
But I think that the very considerations which lead the Court to reverse the conviction of Smith and Law equally require a reversal as to Ingram and Jenkins. An indispensable element of the crime of tax evasion is knowledge that a tax is imposed. This knowledge may be proved directly or circumstantially. Here there is no direct proof, and the sole circumstantial evidence relied on by the Government is the fact of concealment of the lottery operation. But if, as the Court holds, 'certainly the secrecy of the operation did not go to show * * * knowledge' by Smith and Law that their superiors were liable for a federal tax, I am at a loss to understand how this factor can at the same time suffice to show knowledge on the part of petitioners Ingram and Jenkins that they themselves were liable for a federal tax. The latter no less than the former must be shown to have actual knowledge that a tax is owing before they can be convicted of a conspiracy to evade that tax, and the Court's reasoning plainly demonstrates to me that the Government has made no such showing in this case.
25
I think that sight has been lost of the fact that this is a prosecution for conspiracy to violate a federal taxing statute, not for violation of local gambling laws. An overwhelming showing has been made that petitioners were participants in a large lottery enterprise, but that does not suffice to support conviction of the crime with which they are here charged.
1
Section 4401 of the Internal Revenue Code of 1954 provides:
'(a) Wagers.—There shall be imposed on wagers, as defined in section 4421, an excise tax equal to 10 percent of the amount thereof.
'(c) Persons liable for tax.—Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subchapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and shall pay the tax under this subchapter on all wagers placed in such pool or lottery.' 68A Stat. 525, 26 U.S.C.A. § 4401.
Section 4411 of the Code provides: 'There shall be imposed a special tax of $50 per year to be paid by each person who is liable for tax under section 4401 or who is engaged in receiving wagers for or on behalf of any person so liable.' 68A Stat. 527, 26 U.S.C.A. § 4411.
Section 4421 of the Code includes in the definition of 'wager' 'any wager placed in a lottery conducted for profit' and includes in the definition of 'lottery' 'the numbers game, policy, and similar types of wagering.' 68A Stat. 528, 26 U.S.C.A. § 4421.
Section 7201 of the Code provides: 'Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall * * * be guilty of a felony * * *' 68A Stat. 851, 26 U.S.C.A. § 7201.
18 U.S.C. § 371, 18 U.S.C.A. § 371, provides: '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 * * * or imprisoned * * *.' 62 Stat. 701.
These were the links in the statutory chain under which the petitioners were indicted and convicted.
2
Some of the items found when the headquarters of the operation was raided in 1957 were clearly indicative of the magnitude of the enterprise. Among the items found on that occasion were some 2,400 scratch pads of the type used in numbers operations, thousands of coin wrappers, a police alarm radio, with a secret code of police calls, two high-frequency radios, and six fictitious automobile registrations with license tags. Petitioner Ingram was alleged to have stated in 1955 that the 'business is down to about' $3,500 per day.
3
Georgia Code (1953 Revision), § 26—6502.
4
There was extensive evidence, for example, that participants in the enterprise used false license plates on their automobiles, took evasive routes to the 'checkup headquarters' of the operation, used false names on occasion, and atemp ted to bribe local law enforcement officers.
5
See Note 1, supra.
6
This section of the Code provides: 'Any person required under this title to pay any * * * tax, * * * who willfully fails to pay such * * * tax, * * * shall * * * be guilty of a misdemeanor * * *.' 68A Stat. 851, 26 U.S.C.A. § 7203.
7
This section of the Code provides: 'Each person required to pay a special tax under this subchapter shall register with the official in charge of the internal revenue district—* * *.' 68A Stat. 527, 26 U.S.C.A. § 4412.
8
This section of the Code provides: 'Any person who fails to register with the Secretary or his delegate as required by this title * * * shall be liable to a penalty of $50.' 68A Stat. 866, 26 U.S.C.A. § 7272.
9
See 'Developments in the Law—Criminal Conspiracy,' 72 Harv.L.Rev. 920, at 939, and authorities there cited.
10
The Court's decisions in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; and Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790, do not, as petitioners appear to contend, prevent the jury from treating this subsidiary objective as an element of the conspiracy. Those cases hold only that the life of the conspiracy cannot be extended by evidence of concealment after the conspiracy's criminal objectives have been fully accomplished. '* * * (A) vital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime.' Grunewald v. United States, supra, 353 U.S., at page 405, 77 S.Ct. at page 974.
| 01
|
360 U.S. 709
79 S.Ct. 1428
3 L.Ed.2d 1528
Charles Allen TAYLOR, Petitioner,v.Neil McELROY, A. Tyler Port.
No. 504.
Argued April 1, 1959.
Decided June 29, 1959.
Mr. Joseph L. Rauh, Jr., Washington, D.C., for the petitioner.
Solicitor General J. Lee Rankin, Washington, D.C., for respondents.
PER CURIAM.
1
This is a companion case to Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, and concerns an industrial worker who was denied clearance to classified defense information and consequently discharged from his employment as a lathe operator and tool and die maker at a plant which manufactured aircraft for the Government.
2
Prior to 1956, petitioner had a Confidential clearance. In that year, he was denied Secret clearance and his Confidential clearance was suspended. He demanded and was accorded a hearing similar to the one afforded petitioner in Greene v. McElroy, supra. The Hearing Board concluded that petitioner's access to classified defense information was 'not clearly consistent with the interests of national security.' Later, he was afforded another hearing with similar results. Petitioner then filed an action asking for a declaration that he was entitled to a hearing at which he could confront the informants whose statements were used against him, a declaration that the denial of clearance violated his rights under the Fifth Amendment, and an injunction restraining respondents from enforcing the decision denying clearance. Respondents prevailed on a motion for summary judgment and, on December 15, 1958, we granted certiorari to the Court of Appeals before argument was had in that court because of the pendency here of Greene v. McElroy, supra. 358 U.S. 918, 79 S.Ct. 291, 3 L.Ed.2d 238.
3
On December 31, 1958, the Department of Defense notified all interested parties, including petitioner, his counsel, and his ex-employer, that the Secretary of Defense had determined 'that the granting of clearance to Mr. Charles Allen Taylor for access to Secret defense information is in the national interest.' On January 9, 1959, respondents filed a suggestion of mootness. We postponed consideration of that question to the hearing of the case on the merits. 359 U.S. 901, 79 S.Ct. 578, 3 L.Ed.2d 568.
4
At the oral argument in this case, the Solicitor General made the following representations:
5
1. The Secretary of Defense in determining that petitioner was eligible for clearance to obtain access to information classified 'Secret' did not intend by his reference to 'the national interest' to differentiate between petitioner's status and that of other employees whose eligibility for clearance has been found to be 'clearly consistent with the interests of national security.'*
6
2. The findings of the various Hearing Boards which passed on petitioner's fitness for clearance have been expunged from all records and no longer have any vitality or effect.
7
3. Petitioner was afforded clearance on December 31, 1958, after having been denied clearanc for over two years, because of a change in applicable Department of Defense regulations.
8
4. Pursuant to existing Department of Defense procedures, the evidence in petitioner's file will not be used again as a basis for revoking petitioner's clearance.
9
5. Petitioner is eligible under applicable regulations for compensation for wages lost during the time he was unemployed due to the clearance revocation and denial.
10
In view of the fact that petitioner has received clearance, the ultimate relief which he demanded, and in view of the representations of the Solicitor General to the effect that petitioner stands in precisely the same position as all others who have been granted clearance, that the evidence in petitioner's file will not be used against him in the future, and that the findings against petitioner have been expunged, this case is moot.
11
The judgment of the District Court is vacated and the case is remanded to that court with instructions to dismiss the complaint as moot.
12
It is so ordered.
13
Judgment of the District Court vacated and case remanded with instructions.
*
The respondents have filed a letter in this Court from the General Counsel of the Department of Defense which makes an identical representation.
| 23
|
360 U.S. 622
79 S.Ct. 1376
3 L.Ed.2d 1473
Matter of Disciplinary Proceedings against Harriet Bouslog SAWYER, Petitioner.
No. 326.
Arued May 19, 20, 1959.
Decided June 29, 1959.
Mr. John T. McTernan, Los Angeles, Cal., for petitioner.
Mr. A. William Barlow, Honolulu, Hawaii, for respondent.
Mr. Justice BRENNAN announced the judgment of the Court, and delivered an opinion, in which The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice DOUGLAS join.
This case is here on writ of certiorari, 358 U.S. 892, 79 S.Ct. 153, 3 L.Ed.2d 119, to review petitioner's suspension from the practice of law for one year, ordered by the Supreme Court of the Territory of Hawaii, 41 Haw. 403, and affirmed on appeal by the Court of Appeals for the Ninth Circuit, 260 F.2d 189.1
Petitioner has been a member of the Territorial Bar in Hawaii since 1941. For many months beginning in late 1952 she participated, in the United States District Court at Honolulu, as one of the defense counsel in the trial of an indictment against a number of defendants for conspiracy under the Smith Act, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. The trial was before Federal District Judge Jon Wiig and a jury. United States v. Fujimoto, D.C., 107 F.Supp. 865. Both disciplinary charges against petitioner had to do with the Smith Act trial. One charge related to a speech she made about six weeks after the trial began. The speech was made on the Island of Hawaii, at Honokaa, a village some 182 miles from Honolulu, Oahu, on a Sunday morning. The other charge related to interviews she had with one of the jurors after the trial concluded.
The Bar Association of Hawaii preferred the charges2 which were referred by the Territorial Supreme Court to the Association's Legal Ethics Committee for investigation. The prosecutor who represented the Government at the Smith Act trial conducted the investigation and presented the evidence before the Committee. The Committee submitted the record and is findings to the Territorial Supreme Court. Because the suspension seems to us to depend on it, see 79 S.Ct. 1384, infra, we deal first with the charge relating to the speech. The gist of the Committee's findings was that the petitioner's speech reflected adversely upon Judge Wiig's impartiality and fairness in the conduct of the Smith Act trial and impugned his judicial integrity. The Committee concluded that petitioner 'in imputing to the Judge unfairness in the conduct of the trial, in impugning the integrity of the local Federal courts and in other comments made at Honokaa, was guilty of violation of Canons 1 and 22 of the Canons of Professional Ethics of the American Bar Association3 and should be disciplined for the same.' The Territorial Supreme Court held that '* * * she engaged and participated in a willful oral attack upon the administration of justice in and by the said United States District Court for the District of Hawaii and by direct statement and implication impugned the integrity of the judge presiding therein * * * and thus tended to also create disrespect for the courts of justice and judicial officers generally * * *. She has thus committed what this court considers gross misconduct.' 41 Haw. at pages 422—423.
1
We think that our review may be limited to the narrow question whether the facts adduced are capable of supporting the findings that the petitioner's speech impugned Judge Wiig's impartiality and fairness in conducting the Smith Act trial and thus reflected upon his integrity in the dispensation of justice in that case. We deal with the Court's findings, not with 'misconduct' in the abstract. Although the opinions in the Court of Appeals and the argument before us have tended in varying degrees to treat the petitioner's suspension as disciplie i mposed for obstructing or attempting to obstruct the administration of justice, in a way to embarrass or influence the tribunal trying the case, such was neither the charge nor the finding or professional misconduct upon which the suspension was based. Since no obstruction or attempt at obstruction of the trial was charged, and since it is clear to us that the finding upon which the suspension rests is not supportable by the evidence adduced, we have no occasion to consider the applicability of Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; or Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546, which have been extensively discussed in the briefs. We do not reach or intimate any conclusion on the constitutional issues presented.
2
Petitioner's clients included labor unions, among them the International Longshoremen's and Warehousemen's Union. Some of the defendants in the Smith Act trial were officers and members of that union and their defense was being supported by the union. The meeting at Honokaa was sponsored by the ILWU and was attended in large part by its members. The petitioner spoke extemporaneously and no transcript or recording was made of her speech. Precisely what she did say is a matter of dispute. Neither the Territorial Supreme Court nor the Court of Appeals saw the witness, but both courts, on reading the record, resolved matters of evidentiary conflict in the fashion least favorable to the petitioner. For the purposes of our review here, we may do the same. The version of the petitioner's speech principally relied upon by the Court of Appeals, 260 F.2d at 197—198, is derived from notes made by a newspaper reporter, Matsuoka, who attended the meeting and heard what the petitioner said. These were not Matsuoka's original notes the originals were lost—but an expanded version prepared by him at the direction of his newspaper superiors after interest in the speech was aroused by Matsuoka's account of it in the newspaper.4 We set forth the notes in full as an Appendix to this opinion, and summarize them here, as an account of what petitioner said. The summary will illumine the basis of our conclusion that the finding that the petitioner's speech impugned the integrity of Judge Wiig or reflected upon his impartiality and fairness in presiding at the Smith Act trial is without support. The fact finding below does not remove this Court's duty of examining the evidence to see whether it furnishes a rational basis for the characterization put on it by the lower courts. See Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108. Speculation cannot take over where the proofs fail. We conclude that there is no support for any further factual inference than that petitioner was voicing strong criticism of Smith Act cases and the Government's manner of proving them, and that her references to the happenings at the Honolulu trial were illustrative of this, and not a reflection in any wise upon Judge Wiig personally or his conduct of the trial.
3
Petitioner said that the Honolulu trial was really an effort to get at the ILWU. She wanted to tell about some 'rather shocking and horrible things that go on at the trial.' The defendants, she said, were being tried for reading books written before they were born. Jack Hall, one of the defendants, she said, was on trial because he had read the Communist Manifesto. She spoke of the nature of criminal conspiracy prosecutions, as she saw them, and charged that when the Government did not have enough evidence 'it lumps a number together and says they agreed to do something.' 'Conspiracy means to charge a lot of people for agreeing to do something you have never done.' She generally attacked the FBI, saying they spent too much time investigating people's minds, and next dwelt further on the remoteness of the evidence in the case and the extreme youth of some of the defendants at the time to which the evidence directly related. She said 'no one has a memory that good, yet they use this kind of testimony. Why? Because they will do anything and everything necessary to convict.' Government propaganda carried on for 10 years before the jurors entered the box, she charged, made it 'enough to say a person is a communist to cook his goose.' She charged that some of the witnesses had given prior inconsistent testimony but that the Government went ahead and had them 'say things in order to convict.' 'Witnesses testify what Government tells them to.' The Government, she claimed, read in evidence for two days Communist books because one of the defendants had once seen them in a duffel bag. Unless people informed on such defendants, the FBI would try to make them lose their jobs. 'There's no such thing as a fair trial in a Smith Act case. All rules of evidence have to be scrapped or the Government can't make a case.' She related how in another case (in the territorial courts) she was not allowed to put in evidence of a hearsay nature to exonerate a criminal defendant she was representing,5 but in the present case 'a federal judge sitting on a federal bench permits Crouch (a witness) to testify about 27 years ago, what was said then * * * here they permit a witness to tell what was said when a defendant was five years old.' She then declared, 'There's no fair trial in the case. They just make up the rules as they go along.' She gave the example of the New York Smith Act trial before Judge Medina, see Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, where she claimed 'The Government can't make a case if it tells just what they did so they widened the rules and tell what other people did years ago, including everything including the kitchen sink.' She declared, 'Unless we stop the Smith trial in its tracks here there will be a new crime. People will be charged with knowing what is included in books ideas.' Petitioner said in conclusion that if things went on the freedom to read and freedom of thought and action would be subverted. She urged her auditors to go out and explain what a vicious thing the Smith Act was.
4
The specific utterances in the speech that the Legal Ethics Committee and the Supreme Court found as furnishing the basis for the findings that petitioner impugned Judge Wiig's integrity were the references (which we have quoted in full above) to 'horrible and shockig' things at the trial; the impossibility of a fair trial; the necessity, if the Government's case were to be proved, of scrapping the rules of evidence; and the creation of new crimes unless the trial were stopped at once. We examine these points in particular, though of course we must do so in the context of the whole speech. In so doing we accept as obviously correct the ruling of the courts below that petitioner's remarks were not a mere generalized discourse on Smith Act prosecutions but included particular references to the case going on in Honolulu.
5
I. We start with the proposition that lawyers are free to criticize the state of the law. Many lawyers say that the rules of evidence relative to the admission of statements by those alleged to be co-conspirators are overbroad or otherwise unfair and unwise;6 that there are dangers to defendants, of a sort against which trial judges cannot protect them, in the trial of numerous persons jointly for conspiracy;7 and that a Smith Act trial is apt to become a trial of ideas.8 Others disagree. But all are free to express their views of these matters, and no one would say that this sort of criticism constituted an improper attack on the judges who enforced such rules and who presided at the trials. This is so, even though the existence of questionable rules of law might be said in a sense to produce unfair trials.9 Such criticism simply cannot be equated with an attack on the motivation or the integrity or the competence of the judges. And surely permissible criticism may as well be made to a lay audience as to a professional; oftentimes the law is modified through popular criticism;10 Bentham's strictures on the state of the common law and Dickens' novels come to mind.11 And needless to say, a lawyer may criticize the law-enforcement agencies of the Government, and the prosecution, even to the extent of suggesting wrongdoing on their part, without by that token impugning the judiciary. Simply to charge, for example, the prosecution with the knowing use of perjured testimony in a case is not to imply in the slightest any complicity by the judge in such actions. To charge that the Government makes overmuch use of the conspiracy form of criminal prosecution, and this to bolster weak cases, is not to suggest any unseemly complicity by the judiciary in the practice.12
6
In large part, if not entirely, Matsuoka's notes of petitioner's speech do not reveal her as doing more than this. She dwelt extensively on the nature of Smith Act trials and on conspiracy prosecutions. The Honolulu trial, to be sure, was the setting for her remarks, but they do not indicate more than that she referred to it as a typical, present example of the evils thought to be attendant on such trials. The specific statements found censurable (without which the bringing of the charge would have been inconceivable) are not in the least inconsistent with this, even though they must be taken to relate to the trial in progress. These specific statements are hardly damning by themselves, and clearly call for the light examination in context may give them; so examined, they do not furnish any basis for a finding of professional misconduct. She said that there were 'horrible' and 'shocking' things going on at the trial, but this remark, introductory to the speech, of course was in the context of what she further said about conspiracy prosecutions, Smith Act trials, and the prosecution's conduct. Petitioner's statement that a fair trial was impossible in context obviously related to the state of law and to the conduct of the prosecution and the FBI, not to anything that Judge Wiig personally was doing or failing to do. It occurred immediately after an account of the FBI's alleged pressuring of witnesses. The same seems clearly the case with the remark about the necessity of scrapping the rules of evidence.13 The statement that if the trial went on to a conviction, new crimes—those of thought or ideas—would be created14 could hardly be thought to reflect on the trial judge's integrity no matter how divorced from context it be considered. How any of this reflected on Judge Wiig, except insofar as he might be thought to lose stature because he was a judge in a legal system said to be full of imperfections, is not shown. To say that 'the law is an ass, a idiot' is not to impugn the character of those who must administer it. To say that prosecutors are corrupt is not to impugn the character of judges who might be unaware of it, or be able to find no method under the law of restraining them. Judge Wiig was not by name mentioned in the speech, and there was virtually none of petitioner's complaints that was phrased in terms of what 'the judge' was doing. For aught that appears from petitioner's speech, Judge Wiig might have been totally out of sympathy, as a personal matter, with the Smit Ac t, the practice of trying criminal offenses on a conspiracy basis, and the rules of evidence in conspiracy trials, but felt bound to apply the law as laid down by higher courts.15
7
Even if some passages can be found which go so far as to imply that Judge Wiig was taking an erroneous view of the law perhaps the comparison made between the case in the Territorial Courts where a hearsay statement was excluded and the admission of evidence in the Smith Act case might be of this nature, and much is made of it here though the Committee and the courts below made nothing of it—we think there was still nothing in the speech warranting the findings. If Judge Wiig was said to be wrong on his law, it is no matter; appellate courts and law reviews say that of judges daily, and it imputes no disgrace. Dissenting opinions in our reports are apt to make petitioner's speech look like tame stuff indeed. Petitioner did not say Judge Wiig was corrupt or venal or stupid or incompetent. The public attribution of honest error to the judiciary is no cause for professional discipline in this country. See In re Ades, D.C., 6 F.Supp. 467, 481. It may be said that some of the audience would infer improper collusion with the prosecution from a charge of error prejudicing the defense. Some lay persons may not be able to imagine legal error without venality or collusion, but it will not do to set our standards by their reactions. We can indulge in no involved speculation as to petitioner's guilt by reason of the imaginations of others.
8
But it is said that while it may be proper for an attorney to say the law is unfair or that judges are in error as a general matter, it is wrong for counsel of record to say so during a pending case. The verbalization is that it is impermissible to litigate by day and castigate by night. See 260 F.2d at page 202. This line seems central to the Bar Association's argument, as it appears to have been to the reasoning of the court below,16 and the dissent here is much informed by it, but to us it seems totally to ignore the charges made and the findings. The findings were that petitioner impugned the integrity of Judge Wiig and made an improper attack on his administration of justice in the Honolulu trial. A lawyer does not acquire any license to do these things by not being presently engaged in a case. They are equally serious whether he currently in engaged in litigation before the judge or not. We can conceive no ground whereby the pendency of litigation might be thought to make an attorney's out-of-court remarks more censurable, other than that they might tend to obstruct the administration of justice. Remarks made during the course of a trial might tend to such obstruction where remarks made afterwards would not. But this distinction is foreign to this case, because the charges and findings in no way turn on an allegation of ostr uction of justice or of an attempt to obstruct justice, in a pending case. To the charges made and found, it is irrelevant whether the Smith Act case was still pending. Judge Wiig remained equally protected from statements impugning him, and petitioner remained equally free to make critical statements that did not cross that line. We find that hers cannot be said to have done so. Accordingly, the suspension order, based on the charge relating to the speech, cannot stand.
9
II. Petitioner was also charged by the Committee, and found by the Supreme Court, to have misconducted herself by interviewing a juror shortly after the completion of the Smith Act trial. The juror had become mentally unsettled, in an obvious fashion, very shortly after the rendition of the verdict and apparently as a result of his participation on the jury. It was at this point that petitioner, having been first requested by his sister, serveral times interviewed him, and spoke with members of his family. The Supreme Court recognized that it had been common practice for attorneys in the Territory to interrogate jurors after the rendition of their verdicts and their discharges. Nevertheless, it found her action professional misconduct. The versions of the witnesses as to exactly what transpired at the interviews varied considerably, but the court made no findings of fact on the matter, and it is difficult to grasp the basis on which it singled petitioner's juror interviews out for censure against the pattern of a common practice of such interviews in the Territory.17 While there is clearly some delicacy involved in approaching a juror who has become mentally unsettled, evidence that a juror was incompetent at the time of the rendition of the verdict might be admissible to impeach a verdict where evidence of the jury's mental and reasoning processes is not. While the interviews were undertaken under unusual circumstances, it is difficult to say whether the circumstances furnish more or less justification than is present in the average juror interview—which we do not read the Supreme Court's opinion as holding censurable, except as to the future.18 The Legal Ethics Committee had charged petitioner with concealment of facts in her affidavit as to the juror interview filed with Judge Wiig in support of her motion for a new trial for the Smith Act defendants, but we do not find anything in the Supreme Court's opinion agreeing with these charges.
10
But we need not explore further what the basis was for the Territorial Supreme Court's finding on this charge. As to it, the court said that the suspension order it rendered on the charge relating to the speech would suffice.19 The Court of Appeals was of opinion that if the charge as to the speech were insupportable, in the present posture of the case the suspension could not stand, 260 F.2d at page 202, and we agree. We cannot read the Supreme Court's opinion as imposing any penalty solely by reason of the interview with the juror. Accordingly, we do not believe it would be appropriate in the posture of the case for us finally to adjudicate the validity of the finding of misconduct by reason of the interviews.
11
III. The Court of Appeals expressed doubt as to its jurisdiction to hear the appeal from the Territorial Supreme Court, and respondent here urges that that court was without jurisdiction. Since our jurisdiction to hear the case on the merits must stand or fall with that of the Court of Appeals, we examine the objections. They are without merit. The Court of Appeals for the Ninth Circuit has jurisdiction of appeals from final judgments of the Supreme Court of the Territory of Hawaii, pursuant to 28 U.S.C. § 1293, 28 U.S.C.A. § 1293, in 'civil cases where the value in controversy exceeds $5,000, exclusive of interest and costs.'20 The suspension order would have the effect of removing petitioner from the practice of law for at least one year, and she filed an uncontroverted affidavit that her annual net income from the practice of law had been for years, and would continue foreseeably, in excess of $5,000.21 It is insisted that petitioner's right cannot be reduced to monetary terms, because it is 'priceless,' and so it is, in a manner of speaking; but besides the professional aspects of her status, her continuance in a specific form of gainful employment is in issue, see Bradley v. Fisher, 13 Wall. 335, 355, 20 L.Ed. 646, and hence the jurisdictional amount was present.
12
Finally, we find no inhibition as to the scope of review we have given the judgment of the Territorial Court. The Territorial Court is one created under the sovereignty of the National Government, O'Donoghue v. United States, 289 U.S. 516, 535, 53 S.Ct. 740, 744, 77 L.Ed. 1356, and hence this Court (once the jurisdictional Act is satisfied) is not limited as it would be in reviewing the judgment of the highest court of a State. Of course this Court and the Courts of Appeals must give the Territorial Courts freedom in developing principles of local law, and in interpreting local legislation. See Bonet v. Texas Co., 308 U.S. 463, 60 S.Ct. 349, 84 L.Ed. 401; DeCastro v. Board of Commissioners, 322 U.S. 451, 454—458, 64 S.Ct. 1121, 1122—1125, 88 L.Ed. 134. But it hardly needs elaboration to make it clear that the question of the total insufficiency of the evidence to sustain a serious charge of professional misconduct, against a backdrop of the claimed constitutional rights of an attorney to speak as freely as another citizen, is not one which can be subsumed under the headings of local practice, customs or law.
13
Reversed.
14
APPENDIX TO OPINION OF MR. JUSTICE BRENNAN.
15
The Expanded Notes of the Reporter, Matsuoka, Relative to Petitioner's Speech.
16
'She followed Samuel M. Bento, who said he wanted to say good morning to the Tribune-Herald, pointing generally toward the paper's reporter from Hilo and the paper's Honokaa correspondent who were sitting side by side. Mrs. Sawyer preceded Jack W. Hall. She began speaking at 11 a.m. and ended 11:30 a.m.
17
'Notes on what she said in the order of how she proceeded: The trial is really a trial of Jack Hall to which has been added six others. It's to get at the ILWU. 'Said she wanted to tell about some rather shocking and horrible things that go on at the trial.
18
'She was appointed some years ago (3 or 4 years ago) by a court to defend a man who had no money to hire his own counsel. He was charged with pimping and procuring. The complaining witness in the case was a woman who had been in business 20 years in the territory who claimed she had reformed and repented but this vicious man had driven her back again into the business. It turned out that the hotel where he had kept her had 27 doors unlocked. Likened this to pukas in the Smith act.
19
'Said men in power are trying to put men in jail because of their thoughts. and books written before he was born.
20
'One of the reasons Jack Hall is on trial is because it is said he once got a book, the Communist Manifesto, written in 1898, before Jack Hall was a gleam in his father's eye.
21
'She quoted from manifesto: a spectre is haunting Europe; the spectre is communism. she explained spectre means ghost. said spectre still seems to be haunting people today.
22
'She turned next to conspiracy. noted there was a conspiracy trial in 1937 of filipino brothers. conspiracy to advocate violence and criminal sindicalism. explained conspiracy means agreement. government never has used conspiracy when it had a case. when it hasn't got enough evidence it lumps a number together and says they agreed to do something. the government does not say * * * advocated overthrow but says they agreed to. conspiracy means to charge a lot of people for agreeing to do something you have never done.
23
'touched on myth of agents of fbi. they're supposed to be extra special. radio programs, movies, publicity tell how wonderful they are. but when you see hundreds of tax fraud cases go by and when they spend most of their time investigating people's minds it's time to cut them down to size. said she had told this to a honolulu gathering. labor day? fbi agents should be called federal cops. said has slogan: put away your thoughts here come the federal cops. cops push people around.
24
'paul crouch. difficult to understand why he's witness. but he was here in 1924; because he was once in Hawaii, so guess that's why. he testified what he did in russia in 1927. he told what he was told by generals etc. usually you cannot testify on what people told you when there is no chance for those to be cross examined. aileen fujimoto was four years old then. what has crouch's galloping over the plains of russia got any bearing on her. jack hall was 13. but the government goes on with testimony for two weeks on what crouch did between 1927 and 1941 without ever mentioning the defendants.
25
'he told of infiltration of the armed forces and plots * * * it used to be the idea that a man is responsible for what he did and said—not what someone else did. not a single one of the defendants was of age at the time he's talking about. the jury is not going to pay attention to what Crouch says. but it's the old smear. The prosecution sayscro uch did this and that and we (prosecution) say the defendants are communist party members so they must have done the same.
26
'but government propaganda has been going on for 10 years before the jurors went into the jury box.
27
'it's enough to say a person is a communist to cook his goose. the government says there was an agreement to violate the smith act which was passed in 1940. then the defendants agreed to violate it before it was passed. crouch said he was at a communist meeting in 1941 and saw five or six people there. it was the first time he'd seen them. but he was satisfied when he came to honolulu 12 years later that one was Koji Ariyoshi. she urged audience try to recall what they did 12 years ago. said she can't recall details. god knows no one has a memory that good. yet they use this kind of testimony.
28
'why? because they will do anything and everything necessary to convict.
29
'some of the witnesses testified differently from what they testified previously. the government knows this but deliberately goes ahead and have him say things in order to convict. mentioned izuka in reinecke trial testimony. said something about izuka saying he didn't know the party advocated overthrow of government until he got out of party.
30
'witnesses testify what government tells them to. just as they read portions of books like overthrow the government and leave out the rest which says czarist government showing it dealt with russia.
31
'johnson testimony. said he came back from san francisco with communist books and literature in a duffle bag. he said when he got to Honolulu he told Jack Hall the names of some of the books. then the government for two days reads from books supposed to have been in the duffel bag. they're not dealing with what jack hall said. on cross examination johnson said he did not tell the names of the books but just showed jack hall the duffel bag. so jack hall violated the smith act because he saw a duffel bag with some books on overthrowing the government in it. it's silly. why does the government use your money and mine to put people in jail for thoughts
32
'the government has carried on a barrage of propaganda for many years and expects people in the jury to have hysteria just hearing about communist is enough to jail. said has a friend who worked for sears roebuck and has family of three children and wife. he made a terrible mistake one time. in 1941 he lived in the same house as jack hall. the fbi wanted him to testify. he said i feel jack hall is one of the finest people i have known. apparently the fbi didn't like this. so they suggested to sears and roebuck to fire him because he wouldn't cooperate with the government.
33
'he wasn't fired so they went to the Los Angeles and Chicago offices of sears and roebuck and convinced them he had to be fired. he was fired because he refused to be a stool pigeon and informer. the government gets away with it by making people fear that if they don't do as it wants they'll be branded red and lose their jobs.
34
'there's no such thing as a fair trial in a smith act case. all rules of evidence have to be scrapped or the government can't make a case.
35
'referred to her habeas corpus move in the palakiko—majors case.
36
'said a woman came to her with report she heard vernon stevens say he bet a confession out of one of them. she testified but the supreme court refused to let the evidence in because vernon stevens was not here and had no chance to deny this. with the same situation a federal judge sitting on a federal bench permits crouch to testify about 27 years ago. what was said then. in the previous case it was the life and death of one. and yet here they permit a witness to tell what was said when a defendant was five years old.
37
'there's no fair trial in the case. they just make up the rules as they go along. the first smith act case was in 1949 of the new york top leaders. attorneys contended they should have the right to say what they did from 1924. medina permitted them to say what the defendants themselves did from 1934 on. but the government can't make a case if it tells just what they did so they widened the rules and tell what other people did years ago, including everything including the kitchen sink.
38
'unless we stop the smith trial in its tracks here there will be a new crime. people will be charged with knowing what is included in books. ideas.
39
'mentioned los angeles trial in which someone said there was no evidence that someone had instructed persons not to read some books.
40
'said there'll come a time when the only thing to do is to keep your children from learning how to read. then not only will unions be destroyed by (sic) so will freedom of thoughts and action. there'll be dark ages of thought control when people won't be able to speak freely in taverns and other places.
41
'she urged audience to go out and explain what a vicious thing the smith act is. people are tried for books written years ago.'
42
Mr. Justice BLACK, concurring.
43
Assuming that there is a specific law of some kind in Hawaii which purports to authorize petitioner's suspension or disbarment upon the charges against her, I agree with Mr. Justice BRENNAN, for the reasons he gives, that the charges were not proved. My agreement is not to be considered however as indicating a belief that Hawaii has such a law, that it would be valid if it existed, or that petitioner was given the kind of trial which federal courts must constitutionally afford before imposing such a drastic punishment as was inflicted on petitioner.
44
Mr. Justice STEWART, concurring in the result.
45
If, as suggested by my Brother FRANKFURTER, there runs through the principal opinion an intimation that a lawyer can invoke the constitutional right of free speech to immunize himself from even-handed discipline for proven unethical conduct, it is an intimation in which I do not join. A lawyer belongs to a profession with inherited standards of propriety and honor, which experience has shown necessary in a calling dedicated to the accomplishment of justice. He who would follow that calling must conform to those standards.
46
Obedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech. For example, I doubt that a physician who broadcast the confidential disclosures of his patients could rely on the constitutional right of free speech to protect him from professional discipline.
47
In the present case, if it had been charged or if it had been found that the petitioner attempted to obstruct or prejudice the due administration of justice by interfering with a fair trial, this would be the kind of a case to which the language of the dissenting opinion seems largely directed.* But that was not the charge here, and it is not the ground upon which the petitioner has been disciplined. Because I agree with the conclusion that there is not enough in this record to support the charge and the findings growing out of the petitioner's speech in Honokaa, I concur in the Court's judgment.
48
Mr. Justice FRANKFURTER, whom Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.
49
Petitioner was suspended from the practice of law in the Territory of Hawaii for one year. The charges on which the suspension rde r was based related (1) to a speech made by petitioner at Honokaa, Hawaii, while a criminal trial was in progress, in Honolulu, in which she was attorney of record and an active lawyer for the defense, and (2) to petitioner's interview of a juror, after the trial had terminated in a verdict of guilty. The judge presiding at the trial requested the Bar Association to investigate Mrs. Sawyer's conduct. Following investigation, charges and a recommendation of disciplinary action were filed with the Hawaii Supreme Court which referred the matter to its Legal Ethics Committee. Following a full hearing the Committee, in the main, agreed with the charges of the Bar Association and submitted its conclusion to the Hawaii Supreme Court which made a de novo examination of the record, resulting in the order now before us. The suspension order was based upon the Honokaa speech, although the Hawaii Supreme Court also found that the interview of the juror, in view of the circumstances under which it was made, constituted professional misconduct. The Court today finds the conclusions of the Hawaii Supreme Court, on which the suspension order is based, wanting in a reasonable foundation and directs the Hawaii court to readmit Mrs. Sawyer to the practice of law. Since this Court finds that the suspension order was grounded on the speech, it leaves unreviewed the finding of professional misconduct growing out of the juror interview. When the case goes back to Hawaii, the Hawaii Supreme Court is apparently free to take further disciplinary action. Putting to one side the charge of misconduct relating to the interview of the juror, I think the judgment below should stand since the suspension based on the misconduct relating to the Honokaa speech is fully supported by the record.
50
'We think,' says the opinion of Mr. Justice BRENNAN, 'that our review may be limited to the narrow question whether the facts adduced are capable of supporting the findings that the petitioner's speech impugned Judge Wiig's impartiality and fairness in conducting the Smith Act trial and thus reflected upon his integrity in the dispensation of justice in that case.' The limited reach of this question is illumined by the limited use made of the evidence in the record in Mr. Justice BRENNAN'S opinion. If the record contained no more than the portions of it that are drawn upon in Mr. Justice BRENNAN'S opinion, one would be led to conclude that the sole question in the case was whether the verbal content of the petitioner's speech, in disregard of all else, supported the findings of the Hawaii Supreme Court on which petitioner's suspension was based. Such is not the issue that the record as an entirety presents. In the law as elsewhere the answer to a problem largely depends on the way the question it presents is put. A wrong question is not likely to beget a right answer.
51
Brother BRENNAN'S formulation of the problem before us and the resulting restriction on its use of the record, misconceive the findings upon which petitioner's suspension was based and neglect important aspects of the relevant evidence. As a result, the Court seriously impairs the responsibility of the bar and, more particularly, of criminal lawyers engaged in the conduct of trials, by encouraging cases to be tried on the hustings and in the press, instead of within a court-room and subject to its constitutionally circumscribed safeguards.
52
Since the case must be seen in its true scope and perspective, it is important to state in full the findings of the Hawaii Supreme Court relevant to the speech:
53
'It is the finding and conclusion of this court that the allegations contained in the complaint of the Bar Association of Hawaii, more particularly paragraphs 'I,' 'II,' and 'III' thereof * * * have been sustained by convincing proof, by credible evidence of more than a mere preponderance; that the said respondent licensee, a member of the Bar of this court and an attorney at la, d uly licensed and admitted to practice before all of the courts of the Territory of Hawaii * * * did, as charged in said paragraph II, being then an attorney of record for a defendant in a then pending case in the United States District Court for the District of Hawaii * * * during the course of trial of said case, to wit, on or about December 14, 1952, say during a speech to a public gathering in Honokaa, Hawaii, that horrible and shocking things were going on at said trial; that a fair trial was impossible; that all of the rules of evidence were being scrapped so the government could make its case; that the rules of evidence and procedure were made up as the case proceeded; and that unless the trial was stopped in its tracks certain new crimes would be created. * * *
54
'Upon its finding and conclusion as stated supra, this court deems that in saying what she did in her speech to a public gathering at Honokaa, Hawaii, on December 14, 1952 * * * when there was then pending * * * a case under the Smith Act * * * she engaged and participated in a willful oral attack upon the administration of justice in and by the said United States District Court for the District of Hawaii and by direct statement and implication impugned the integrity of the judge presiding therein and in the said pending case * * * and thus tended to also create disrespect for the courts of justice and judicial officers generally, contra to the obligations and duties assumed, as incident to the license, by her and by every person to whom a license has or shall have been issued by this court to practice in the courts of the Territory of Hawaii. She has thus committed what this court considers gross misconduct.' 41 Haw. 403, at pages 421 423.
55
These conclusions, which essentially adopted the charges and conclusions of the Legal Ethics Committee,1 rested on a de novo examination of the record of a full hearing before the Legal Ethics Committee, 'unprejudiced' by the findings of that Committee or of the Bar Association. A majority of the Court of Appeals agreed that the record supported the conclusions. 260 F.2d 189. Of course we are not a court of first instance in reviewing these findings. We are not empowered to set aside the conclusions of the Supreme Court of Hawaii, affirmed by the Court of Appeals, if its conclusions find reasonable support—that is, if conscientious judges could not unreasonably have reached such a conclusion on the strength of the evidence disclosed by the record and the inferences fairly to be drawn from it.
56
Thus, the real issue before us is whether evidence supports the conclusion that Mrs. Sawyer in her speech, in the full setting and implications of what she said, engaged in a willful attack on the administration of justice in the particular trial in which she was then actively participating, and patently impugned, even if by clear implication rather than by blatant words, the integrity of the presiding judge, and thereby violated the obligations of one in her immediate situation, judged by conventional professional standards, so as to be reasonably deemed to have committed what the Hawaii Supreme Court termed 'misconduct.'
57
One of the elements of the misconduct found by the Hawaii Supreme Court and the Court of Appeals was, without doubt, the attack on the integrity of the judge presiding at the trial in which she was engaged. Surely that does not mean she must have referred to Judge Wiig by name. Nor does it mean, as the opinion of Mr. Justice BRENNAN seems to assume, that any evidence which does not consist of a direct attack on the judge is irrelevant to the ultimate question: could the Hawaii Supreme Court have found petitioner guilty of misconduct as set forth in its opinion?
58
By carefully isolating various portions of the Matsuoka notes,2 concentrating on them as a self-contained, insulated document, the opinion of Mr. Justice BRENNAN labors to put a neutral, if indeed not an innocently attractive, patina on Mrs. Sawyer's remarks. But the speech must be interpreted in its entirety, not distorted as an exercise in disjointed parsing. It must be placed in its context of time and circumstances. Nor can we neglect the fact that what people say is what others reasonably hear and are meant to hear. When this is done what emerges is no abstract attack on the state of the law, no analysis of the dubieties of Smith Act trials with which even judges may agree or, at all events, which critics have an unquestioned right to make, no Dickensian strictures on the injustices of legal proceedings, but a plainly conveyed attack on the conduct of a particular trial, presided over by a particular judge, involving particular defendants in whose defense Mrs. Sawyer herself was professionally engaged. There is ample support for the reasonable conclusion that, in making the fairness of the conduct of this particular trial the target of her appeal to a crowd outside while the trial was proceeding inside the court-room, Mrs. Sawyer was including in her assault the judicial officer who both in fact and in common understanding bears ultimate responsibility for the fairness and evenhandedness of judicial proceedings—the presiding judge. In examining this record sight must never be lost of the limited scope of our reviewing power. We are only concerned with whether the findings have fair support in the record. If the findings are so supported we have the right to strike down the suspension only if it transgresses constitutional limits. We must indeed have in mind, as the opinion of Mr. Justice BRENNAN reminds us, the entire 'context' of this speech. We must endeavor to understand the complete utterance in its setting, as it sounded and was meant to sound to its auditors in Honokaa, Hawaii, on December 14, 1952.
59
The Honokaa meeting was sponsored by a committee for the defense of Jack Hall, one of the principal defendants in the Smith Act trial then under way in Honolulu,3 in which Mrs. Sawyer was one of the group of lawyers for the defense. It was publicly announced and advertised that the topic of the meeting would be the Smith Act trial in Honolulu. The general public was invited and members of the press were present, as well they might be expected to be at a meeting where among the principal speakers were a defendant and a defense attorney in a highly controversial trial. It was controversial, not an obscure, run-of-the-mill trial; it had been receiving front-page publicity in the Hawaii press for weeks.4 The defendant Hall himself was one of the principal speakers and Mrs. Sawyer was on the platform. Her function was, as stated by Mr. Hall, 'to explain the legal aspects of the prosecution.' Certainly this setting precludes a naive conclusion that Mrs. Sawyer was delivering herself of an abstract dissertation on Smith Act trials, using illustrations from the Honolulu trial merely as 'typical present examples' of the evils of such prosecutions. The enveloping environment of her talk, intensified by much other evidence, gives substantial support to the conclusion that Mrs. Sawyer was, in the main, discussing and attacking the Honolulu trial and that her more general condemnations were directed toward, and designed to have particular applicability to, that trial.
60
The fullest account of the speech is found in the notes made by Matsuoka, a newspaperman covering the meeting. These notes, though not themselves contemporaneous, are a slightly expanded version of handwritten contemporaneous notes which Matsuoka took and used as the basis for his news story of the meeting.5 Matsuoka testified that the notes were full and accurate and contained 'almost everything' of what Mrs. Sawyer said. It is significant that more than half of the notes contain comments directly and solely relating to the Honolulu trial.6 However, these notes were not the only evidence of the cotent of the speech. Several persons who had been in the audience at Honokaa testified before the Legal Ethics Committee, and their testimony was part of the record considered by the Hawaii Supreme Court. This testimony lends substantial support to the finding that the basic intent and purport of the speech was to attack the conduct of the trial in which Mrs. Sawyer had been engaged on the day she made her speech and would again be engaged the next morning.
61
Thus, Matsuoka testified that Mrs. Sawyer spoke about
62
'The Smith Act trial; that was under way in Honolulu. She said she wanted to tell the people about some of the shocking, horrible things that went on, and that the Smith Act trial could not be a fair one, and that they just had to go around and make rules to fit the situation. That was, I think, the general trend.'
Another witness testified that
63
'She said that the trial was against Jack Hall, and six others were just brought in, and that its purpose was to get at the ILWU; she said that Jack Hall was being tried on something that he read many years ago, and she said that in the Smith Act trial there were no rules, and that they were making up the rules as they went along, and she said that the F.B.I. could be called Federal cops, and that when the government—they were stressing this case, and when the government—that witnesses were afraid to testify, and they testified usually what the government wanted them to testify.'
64
Here is another quotation from the testimony before the Hawaiian court:
65
'Q. Will you tell the Committee what Mrs. Bouslog said? A. Well, that the defendant in the Smith Act trial cannot get a fair trial.
66
'Q. What Smith Act trial was she talking about? A. The one in Honolulu.'
67
When to this evidence is added the setting we have described, and the fact that to those who read the Hawaii papers 'the' Smith Act trial, was the notorious, much-exploited trial of the 'Hawaii Seven,' how can one reasonably escape, on the basis of the record which determines our adjudication, the conclusion that Mrs. Sawyer was directly castigating the administration of the very trial in which she was then professionally engaged?7 So viewed the specific statements which she made lose the aura of innocence the Court has cast about them and support the finding that Mrs. Sawyer was guilty of professional misconduct in attacking the administration of justice in the Honolulu trial and impugning the integrity of its presiding judge.
68
Matsuoka's notes reveal that Mrs. Sawyer began her speech by announcing that the Honolulu trial was 'to get at the ILWU (International Longshoremen's and Warehousemen's Union).' She next said that 'she wanted to tell about some rather shocking and horrible things that go on at the trial.' The opinion of Mr. Justice BRENNAN views these remarks as merely 'introductory' to her later 'general' comments, neglecting the fact that most of her later comments were not general at all but related directly to the trial of Hall, and similarly neglecting the entire milieu in which the speech was delivered. The remarks were 'introductory,' but introductory in that they set the tone and temper of all that followed. There is ample testimony that her audience so understood the remarks. Their understanding was justified by what she said, and that they so reasonably understood what she said establishes the reasonableness of the conclusion that she intended them so to understand. This is the way the speech was remembered by one of her audience.
69
'I think she gave a very excellent speech, and what I can remember quite well was that she said she would like to tell the audience of the horrible and shocking things that went on at the Smith Act trial in Honolulu, and she also gave several illustrations, but, I am sorry, I cannot remember them * * *.'
70
Another witness when asked if Mrs. Sawyer had said that there were shocking and horrible things going on, responded that those phrases had been specifically directed at the 'Jack Hall trial.' Again, after testifying that Mrs. Sawyer had said the trial at Honolulu was not a fair trial, still another witness went on to say that 'she gave various examples of things, that I don't recall, that were going on, in what she called the horrifying shocking trial.'
71
That this theme of 'horrifying and shocking' so forcefully impressed itself on the people to whom she spoke strips the words of any neutral interpretation, and certainly justifies, if it does not compel, the inference that it formed the motif for the entire speech.
72
This evidence establishes more than that Mrs. Sawyer was attacking the conduct of the Honolulu trial at large. It clearly reflects on the judge who was permitting or participating in these 'shocking and horrible' things; at the lowest it allows the inference to be drawn, as the Hawaii Supreme Court did draw the inference, that she did so reflect. To suggest that the only reasonable inference we may draw from her speech is that petitioner was indicting the general state of the law or merely reflecting on the prosecution, is to deny the obvious fact that when a lawyer harangues a lay audience, wholly unskilled in drawing subtle distinctions for exculpatory purposes, about the horrible and shocking things going on in a judicial proceeding, he inevitably reflects upon the total conduct of that trial and upon the integrity of all, not excluding the judge, responsible for the conduct of the trial. Certainly if we, as lawyers, (sic) a confession out of one of them. of the horrible and shocking things that go on at X hospital, and the speaker dwelt on specific examples of conduct at that particular hospital, we would not assume that merely the general sad state of medicine was being impugned rather than the doctors and the administrators at that hospital.
73
Petitioner also declared in her speech that 'there's no fair trial in the case. they just make up the rules as they go along.' And again, 'there's no such thing as a fair trial in a smith act case. all ruled of evidence have to be scrapped or the government can't make a case.' By an evaporating reading these comments are made to say that they 'obviously related to the state of the law, and to the conduct of the prosecution and the FBI * * *.' But the materials used to illustrate these charges were specific examples of the unconscionable use of evidence drawn from this particular trial, as the defendant Hall himself pointed out at he hearing before the Legal Ethics Committee. In fact, a large part of the speech was taken up with such specific examples. To say that petitioner was attacking the 'state of the law,' or the 'prosecution,' or, what is more to the point, to suggest that this is the only conclusion the Hawaii court could reasonably draw, rejects the obvious force of the evidence that her references throughout were to the manner in which this particular trial was being conducted8 and disregards, it cannot be too often emphasized, the whole tone, nature and setting of her speech.
74
To be sure, petitioner often did not specify who was guilty of the sins which she chaged were being committed at this trial; the sins of unfairness, of ignoring or making up the rules, of doing 'anything and everything necessary to convict.' When such broadside attacks are made a court is not compelled to make the ingenuous assumption that they were directed only at those who are legitimately subject to such attack, when it is made by a trial lawyer in the midst of a case in a haranguing speech to a public gathering. It takes no master of psychology to know that if the speaker does not discriminate neither will the audience. Inevitably the accusation covers all those who in the common understanding have responsibility. Whatever secret reservations the speaker may have when he speaks does not infuse what he conveys. Even the most sophisticated audience is not so trained in withholding judgment that the heavy and repeated charges of unfairness in the conduct of this trial impliedly relieved the presiding judge, who bears basic responsibility for judicial proceedings, of all responsibility for this unfairness.
75
More than that, the attack on the judge presiding at the trial does not rest merely on implication. It was direct and clear. Again the remarks about unfairness and the rules that were 'made up' must be read not in isolation but in context. After outlining several examples of what she considered to be the outrageous evidence being admitted in this case, petitioner made her remark that there was 'no such thing as a fair trial in a smith act case. all rules of evidence have to be scrapped or the government can't make a case.' Matsuoka's notes reveal that she then proceeded to illustrate this remark by relating that in an earlier case of hers, in which the voluntariness of an accused's confession had been in issue, 'a woman came to her with report she heard vernon stevens (Stevens was a police officer) say he bet (sic) a confession out of one of them. she testified but the supreme court (of Hawaii) refused to let the evidence in because vernon stevens was not here and had no chance to deny this. with the same situation a federal judge sitting on a federal bench permits crouch9 to testify about 27 years ago. what was said then. in the previous case it was the life and death of one. and yet here they permit a witness to tell what was said when a defendant was five years old.' This graphic illustration was followed by the remark that 'there's no fair trial in the case. they just make up the rules as they go along.' Crouch was a witness in the Honolulu trial whose testimony had been attacked earlier in the speech, and the 'federal judge' was Judge Wiig who was presiding over that trial. This portion of the speech dispels any illusions that the condemnatory remarks made by petitioner could not reasonably be thought to relate to the conduct of this trial. In the context of the entire speech it is inescapably a direct reflection on the fairness and integrity of this particular judge in this particular case. This was no abstract assault on the rigors of hearsay. Petitioner attacked the fairness of the trial and the scrapping of the rules of evidence. She then pointed to a ruling of Judge Wiig which she said was highly prejudicial and hardly left doubt that it was made in this particular trial. She then repeated her charge that the trial was unfair and the rules made up. To suggest that the only reasonable inference to be drawn from these remarks is that the conduct of the prosecution or the law of evidence in the abstract was impugned, is really asking too much from judges, even if we accept Mr. Justice Holmes' view that judges 'are apt to be naif, simple-minded men.' Holmes, Collected Legal Papers, p. 295. The attacks on fairness and the misuse of rules are made vivid by the illustration used—and that illustration directly involved Judge Wiig.10
76
It is true that the charges which were found proven as the basis of the suspension did not state in terms that petitioner intended to obstruct justice. To reverse the two courts below on this ground is to resurrect the worst niceties of long-interred common-law pleading. The charges on the basis of which the petitioner was found guilty of misconduct are not to be read with 'the inability of the seventeenth century common law to understand or accept a pleading that did not exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert.' Paraiso v. United States, 207 U.S. 368, 372, 28 S.Ct. 127, 129, 52 L.Ed. 249. It was found that her attacks on the fairness of the trial and the integrity of the judge at a 'public' meeting, while she was actively engaged in the conduct of the defense, rose to the level of 'gross misconduct.' This is not a charge of an attack made in a private conversation between friends. Whether there has been professional misconduct must depend upon the situation in which improper remarks were uttered. Thus, we would have to ignore what the Hawaii court had before it and was compelled to consider, did we not take into account the severely aggravating circumstances under which this speech was made. This attack was made at a public gathering announced as such. It was advertised as a discussion of the Smith Act trial then under way. That trial was a matter of great controversy and public interest and was being reported daily on the front page of the Honolulu newspapers.11 It is true that the speech was made on the Island of Hawaii, not on Oahu where the trial took place. However, Hawaii in 1952 was not the inaccessible wilds of Africa in the time of Dr. Livingston, but part of a community bound together by modern means of communication and transportation, and news could be, and was in this very case, transmitted instantaneously by radiophone to Honolulu. See the Honolulu Star Bulletin for Dec. 15, 1952, p. 5. The news story of petitioner's speech was in the Honolulu newspapers the next day. Ibid. The speech was made at a time when motions concerning the very evidence which petitioner was castigating were still sub judice. The attacks on fairness, the descriptions of the trial as horrible and shocking, were made while the jury was open and receptive to media of communication, to the impregnating atmosphere to which juries, certainly in this country, are subjected. Even though petitioner may not have had a provable desire, the specific intent, to affect the pending trial and its outcome, are we really required to attribute to the petitioner a child-like unawareness of the inevitability that her remarks would be reported and find their way to judge or jury, as they did? The very next day the speech ame to the judge's attention and registered so powerfully that he felt called upon to defend his conduct of the trial in open court.
77
The record is thus replete with evidence to support the conclusion that virtually the entire speech constituted a direct attack on the judicial conduct of this trial during its progress by one of the lawyers for the defense. When a lawyer attacks the fairness, the even-handedness, and the integrity of the proceedings in a trial in which he himself is actively engaged, in the inflammatory, public fashion that this record reveals, supplemented with specific attack on the presiding judge, how can the conclusion be escaped that it was not rules of law in the abstract which were assailed, but the manner in which the processes of justice in the particular case were being conducted? More particularly, such an attack inescapably impugns the integrity of the judge. It is he who truly embodies the law as the guardian of the rights of defendants to justice under law. If a record is to be considered in its entirety, and not to be read through exculpatory glasses, the proof will be found to be conclusive that the findings of the Hawaii Supreme Court are supported by the evidence, and that, in relation to a pending trial, those findings constituted a fair basis for the conclusion that petitioner has 'committed * * * gross misconduct.'
78
Having arrived at this conclusion, our task is at an end, and the order suspending Mrs. Sawyer from the practice of law for one year should be affirmed. But throughout the opinion of Mr. Justice BRENNAN runs the strong intimation that if the findings are supportable, a suspension based on them would be unconstitutional. This must be the import of the opinion's discussion of a lawyer's right to criticize law. For if we find that the evidence supports the findings, no matter what we think of the wisdom of suspending an attorney on the basis of such findings, we can only reverse if the Constitution so commands. Nor does it matter whether the suspension was based on an act of the Hawaii Legislature or was an exercise of the judicial power of the Hawaii Supreme Court. The controlling question is the power of a Territory, like a State, as a whole, whatever the organ through which a State speaks. Rippey v. Texas, 193 U.S. 504, 509, 24 S.Ct. 516, 517, 48 L.Ed. 767; Castillo v. McConnico, 168 U.S. 674, 683, 18 S.Ct. 229, 233, 42 L.Ed. 622; State of Missouri v. Dockery, 191 U.S. 165, 171, 24 S.Ct. 53, 54, 48 L.Ed. 133; Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 244, 52 S.Ct. 133, 135, 76 L.Ed. 265; Skiriotes v. Florida, 313 U.S. 69, 79, 61 S.Ct. 924, 930, 85 L.Ed. 1193. (There is no basis for suggesting that Congress has restricted the judicial power of Hawaii so as to bar the action taken by the Supreme Court of Hawaii.)
79
The problem raised by this case—is the particular conduct in which this petitioner engaged constitutionally protected from the disciplinary proceedings of courts of law?—cannot be disposed of by general observations about freedom of speech. Of course, the free play of the human mind is an indispensable prerequisite of a free society. And freedom of thought is meaningless without freedom of expression. But the two great Justices to whom we mostly owe the shaping of the constitutional protection of freedom of speech, Mr. Justice Holmes and Mr. Justice Brandeis, did not erect freedom of speech into a dogma of absolute validity nor enforce it to doctrinaire limits. Time, place and circumstances determine the constitutional protection of utterance. The First Amendment and the Fourteenth Amendment, insofar as it protects freedom of speech, are no exception to the law of life enunciated by Ecclesiastes: 'For everything there is a season, and a time for every purpose under heaven.' And one of the instances specifically enumeraed by the Preacher controls our situation: '(A) time to keep silence, and a time to speak.' Eccles. 3:1, 7. Of course, a lawyer is a person and he too has a constitutional freedom of utterance and may exercise it to castigate courts and their administration of justice. But a lawyer actively participating in a trial, particularly an emotionally charged criminal prosecution, is not merely a person and not even merely a lawyer. If the prosecutor in this case had felt hampered by some of the rulings of the trial judge, and had assailed the judge for such rulings at a mass meeting, and a conviction had followed, and that prosecutor had been disciplined for such conduct according to the orderly procedure for such disciplinary action, is it thinkable that this Court would have found that such conduct by the prosecutor was a constitutionally protected exercise of his freedom of speech, or, indeed, would have allowed the conviction to stand?
80
Only the other day, the Court of Appeals for the Second Circuit (Swan, Madden and Hincks, JJ.) severely reprimanded a United States attorney for a speech in response to a prior invitation by alumni of a law school but made while he was conducting an important criminal trial, although the speech contained no reference to the pending case or to any of its defendants but merely 'expatiated on the menace of organized crime.' United States v. Stromberg, 268 F.2d 256. Even under the most favoring circumstances—an able, fearless, and fastidiously impartial judge, competent and scrupulous lawyers, a befittingly austere courtroom atmosphere—trial by jury of a criminal case where public feeling is deeply engaged is no easy accomplishment, as every experienced lawyer knows, if due regard is to be had to the letter and spirit of the Constitution for such a trial. It is difficult enough to seal the courtroom, as it were, against outside pressures. The delicate scales of justice ought not to be willfully agitated from without by any of the participants responsible for the fair conduct of the trial. To be sure, a prosecutor carries a somewhat heavier responsibility in the maintenance of the standards of criminal justice than does counsel for the defense. But the difference in responsibility is surely not so vast that counsel for defense has a constitutionally guarded freedom to conduct himself as this petitioner has been found to do, when that same conduct would bring condign punishment for the prosecutor.
81
What we are concerned with is the specific conduct, as revealed by this record, of a particular lawyer, and not whether like findings applied to an abstract situation relating to an abstract lawyer would support a suspension. All the circumstances we have set forth must determine judgment. Here was a public meeting addressed by counsel for the defense, haranguing a crowd on the unfairness to the defendant of the proceedings in court, with the high probability indeed almost certainty under modern conditions that the goings-on of the meeting would come to the attention of the presiding judge and the jury. It took place in a case in which public interest and public tempers had been aroused. When the story of the meeting came to the attention of the judge, he felt obliged publicly to defend his conduct. It is hard to believe that this Court should hold that a member of the legal profession is constitutionally entitled to remove his case from the court in which he is an officer to the public and press, and express to them his grievances against the conduct of the trial and the judge. 'Legal trials,' said this Court, 'are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.' Bridges v. California, 314 U.S. 252, 271, 62 S.Ct. 190, 197.
82
Even in the absence of the substantial likelihood that what was said at a public gathering would reach the judge or jury, conduct of the kind found here cannot be deemed to be protected by the Constitution. An attorney actively engaged in the conduct of a tral is not merely another citizen. He is an intimate and trusted and essential part of the machinery of justice, an 'officer of the court' in the most compelling sense. He does not lack for a forum in which to make his charges of unfairness or failure to adhere to principles of law; he has ample chance to make such claims to the courts in which he litigates. As long as any tribunal bred in the fundamentals of our legal tradition, ultimately this Court, still exercises judicial power those claims will be heard and heeded.
83
Certainly courts are not, and cannot be, immune from criticism, and lawyers, of course, may indulge in criticism. Indeed, they are under a special responsibility to exercise fearlessness in doing so. But when a lawyer goes before a public gathering and fiercely charges that the trial in which he is a participant is unfair, that the judge lacks integrity, the circumstances under which he speaks not only sharpen what he says but he imparts to his attack inflaming and warping significance. He says that the very court-room into which he walks to plead his case is a travesty, that the procedures and reviews established to protect his client from such conduct are a sham. 'We are a society governed by law, whose integrity it is the lawyer's special role to guard and champion.' In re Howell, 10 N.J. 139, 142, 89 A.2d 652, 653 (concurring opinion). No matter how narrowly conceived this role may be, it has been betrayed by a lawyer who has engaged in the kind of conduct here found by the Hawaii court. Certainly this Court, the supreme tribunal charged with maintaining the rule of law, should be the last place in which these attacks on the fairness and integrity of a judge and the conduct of a trial should find constitutional sanction.
84
I would affirm the judgment.
85
Mr. Justice CLARK, dissenting.
86
While I join in the dissenting opinion of Mr. Justice FRANKFURTER, I think it appropriate to add a few words by way of emphasis. Three different fact finders, including an administrative body, the Supreme Court of Hawaii, and a United States Court of Appeals, have agreed on the facts and conclusions of fact as shown by this record. Mrs. Sawyer, while of counsel in a Smith Act case then on trial before a jury, and Jack Hall, the chief defendant in the case, each made a speech before a large public gathering sponsored by a committee for Hall's defense. In Mrs. Sawyer's speech, she charged 'that horrible and shocking things were going on at said trial; that a fair trial was impossible; that all of the rules of evidence were being scrapped so the Government could make its case; that the rules of evidence and procedure were made up as the case proceeded; and that unless the trial was stopped in its tracks certain new crimes would be created.' No one, least of all Mrs. Sawyer, denies that she said what she was charged with saying. Hawaii has declared her action gross misconduct violative of the Canons of Professional Ethics as adopted by its court.
87
But this Court says, strangely enough, that these facts are not 'capable of supporting the findings' that in so doing Mrs. Sawyer 'impugned the integrity of the judge presiding * * * in the said pending case * * * and thus tended to also create disrespect for the courts of justice and judicial officers generally.' 41 Haw. at page 422. The principal opinion says that Mrs. Sawyer's conduct was merely an innocent general attack on the Smith Act and judicial trials held thereunder.
88
But this broad brush leaves the whitewash too thin. For not only Mrs. Sawyer's testimony but also the statement of her own lawyer stand out clear and unanswerable. At the initial hearing in Hawaii, Mrs. Sawyer's then counsel said that hers 'was a talk about what was going on in the Smith Act trial here in Honolulu. Now let's not fool ourselves about that.' Her present counsel has talked the Court into doing just that and in so doing has also made a fool of our judicial processes.
89
To say that there is no reasonable support n t he evidence for Hawaii's conclusion, as disclosed by a fair reading of the record some six and a half years later and some 5,000 miles away, is only to say that the 12 concurring officials, all of whom are trained in the law and who under oath made and passed upon these findings at trial and on appeal, arrived at a conclusion no reasonable man could reach. By thus at this late date second-guessing those constituted authorities who in regular course have decided the facts to the contrary, the Court impugns the intelligence of the 12 individuals so participating and scatters to the winds the sincere effort of the Supreme Court of Hawaii to preserve and protect its own integrity and respect as well as that of the law. I regret that the highest court in our land has today set these winds into motion—particularly in our farthest outpost—when respect for the courts, the bar, and the law, as well as for orderly procedure, is so much needed in the world.
1
The affirmance was by a 4—3 vote. The appeal was heard en banc by 9 judges but was decided by 7 because of retirement of one judge and the death of another.
2
At the conclusion of the Smith Act trial, District Judge Wiig requested the local Bar Association to investigate the conduct of petitioner. The Bar Association took no action as the Attorney General of the Territory conducted an investigation. As the Rules of the Supreme Court of the Territory then stood, only the Attorney General or a person aggrieved could file charges of unprofessional conduct against an attorney. After investigating the matter, the Attorney General did not file a complaint. A Committee of the Bar Association then proceeded to study the question of bringing charges against petitioner, and, in the wrds of the then President of the Association:
'The committee subsequently made a report to the Executive Board of the Association, ruling that a complaint be filed against Mrs. Bouslog. However, under the rules then in existence—that is, the rules of the Supreme Court, the Bar Association could not be a complainant. Consequently, the matter was again referred to the Committee on Legal Ethics to study amendments to the Rules of the Supreme Court, and the Chairman of the Committee on Legal Ethics took the matter up with the Chief Justice. And as I recall, the amendment to Rule 19—that is the rule on complaints for unprofessional conduct—I think was amended in April of 1954.
'Thereafter, the chairman of the Committee on Legal Ethics submitted a proposed draft of the Complaint. The Executive Board studied the draft, recommended certain changes, and then, finally, the form of the complaint was, as filed, was (sic) agreed upon, and I, as president of the Bar Association, was authorized to file that complaint in the name of the Bar Association.'
3
Canon 1 is entitled 'The Duty of the Lawyer to the Courts.' It reads:
'It is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor. Whenever there is proper ground for serious complaint of a judicial officer, it is the right and duty of the lawyer to submit his grievances to the proper authorities. In such cases, but not otherwise, such charges should be encouraged and the person making them should be protected.'
Canon 22 is entitled 'Candor and Fairness.' It reads:
'The conduct of the lawyer before the Court and with other lawyers should be characterized by candor and fairness.
'It is not candid or fair for the lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the language or the argument of opposing counsel, or the language of a decision or a text-book; or with knowledge of its invalidity, to cite as authority a decision that has been overruled, or a statute that has been repealed; or in argument to assert as a fact that which has not been proved, or in those jurisdictions where a side has the opening and closing arguments to mislead his opponent by concealing or withholding positions in his opening argument upon which his side then intends to rely.
'It is unprofessional and dishonorable to deal other than candidly with the facts in taking the statements of witnesses, in drawing affidavits and other documents, and in the presentation of causes.
'A lawyer should not offer evidence which he knows the Court should reject, in order to get the same before the jury by argument for its admissibility, nor should he address to the Judge arguments upon any point not properly calling for determination by him. Neither should he introduce into an argument, addressed to the Court, remarks or statements intended to influence the jury or bystanders.
'These and all kindred practices are unprofessional and unworthy of an officer of the law charged, as is the lawyer, with the duty of aiding in the administration of justice.'
We do not perceive any specification by the Committee of the respect in which Canon 22 was thought to have been violated by petitioner's speech, and such a violation does not occur to us.
4
The portion of the article, in the Hilo Tribune-Herald, that deals with petitioner's speech is as follows:
'Mrs. Sawyer, speaking for a half hour, spoke of 'some rather shocking and horrible things that go on at the trial.'
'There's 'no such thing as a fair trial in a Smith act case,' she charged. 'All rules of evidence have to be scrapped or the government can't make a case.'
'They 'just make up the rules as they go along,' she told her listeners.
"Unless we stop the Smith act trial in its tracks here' there will be a 'new crime' that of knowing what's in books and will lead to 'dark ages of thought control,' asserted the chic and attractive woman lawyer.
'She referred to reading by the prosecution of books 'supposed to have been in a duffel bag' owned by a witness, Henry Johnson. She urged her listeners to tell others 'what a vicious thing the Smith Act is.' Persons are 'tried for boos w ritten years ago' by others, she said.'
5
The case was Application of Palakiko and Majors, 39 Haw. 167, affirmed sub nom. Palakiko v. Harper, 9 Cir., 209 F.2d 75. The case was a habeas corpus application, in which petitioner sought to put in evidence the statement of a woman that a police officer had said that he had beaten a confession out of petitioner's client. The Territorial Supreme Court held a lengthy evidentiary hearing on the petition, which covered many other matters, and at it excluded the evidence in question. The court's opinion does not discuss the point, but it is mentioned in the Court of Appeals' opinion on affirmance. 209 F.2d at pages 102 103.
6
One of the classic statements of this point of view is Mr. Justice Jackson's concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790: 'But the order of proof of so sprawling a charge (as conspiracy) is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of the existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.'
7
'The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto, suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice. * * *
'The interchangeable use of conspiracy doctrine in civil as well as penal proceedings opens it to the danger, absent in the case of many crimes, that a court having in mind only the civil sanctions will approve lax practices which later are imported into criminal proceedings. * * *
'* * * (T)he order of proof of so sprawling a charge is difficult for a judge to control. * * *
'* * * There are many practical difficulties in defending against a charge of conspiracy which I will not enumerte. * * *
'(A survey conducted) which accords with out observation, will hardly convince one that a trial of this kind is the highest exemplification of the working of the judicial process.' Jackson, J., concurring in Krulewitch v. United States, 336 U.S. 440, 445 446, 451—452, 453, 454, 69 S.Ct. 716, 719, 722, 723.
8
This idea has been expressed in this Court also. See the dissenting opinion of Mr. Justice Douglas in Dennis v. United States, 341 U.S. 494, 581, 583, 71 S.Ct. 857, 903, 904, 95 L.Ed. 1137, and the separate opinion of Mr. Justice Black in Yates v. United States, 354 U.S. 298, 343—344, 77 S.Ct. 1064, 1089—1090, 1 L.Ed.2d 1356.
9
'(L)oose practice as to this offense (conspiracy) constitutes a serious threat to fairness in our administration of justice.' Jackson, J., concurring in Krulewitch v. United States, 336 U.S. 440, 446, 69 S.Ct. 716, 719.
10
'England has just completed a century of struggle for procedural reform, and it is to the energy and determination of the public, and not to the leadership of the bar, that the credit for the present English practice is due.' Sunderland, The English Struggle for Procedural Reform, 39 Harv.L.Rev. 725, 727 (1926).
11
Both were at the bar. Bentham was of Lincoln's Inn and Dickens of the Middle Temple.
12
'(I)t is for prosecutors rather than courts to determine when to use a scatter gun to bring down the defendant * * *.' Jackson, J., concurring in Krulewitch v. United States, 336 U.S. 440, 452, 69 S.Ct. 716, 722.
13
Again cf. Jackson, J., concurring in Krulewitch v. United States, 336 U.S. 440, 453—454, 69 S.Ct. 716, 723: 'The hazard from loose application of rules of evidence is aggravated where the Government institutes mass trials.'
14
In Yates v. United States, 354 U.S. 298, 318, 77 S.Ct. 1064, 1076, this court said: 'We are thus faced with the question whether the Smith Act prohibits advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end, so long as such advocacy or teaching is engaged in with evil intent. We hold that it does not.'
The convictions of petitioner's Smith Act trial clients were all reversed in the Court of Appeals on the authority of Yates, and judgment ordered entered for them. Fujimoto v. United States, 9 Cir., 251 F.2d 342.
15
Lower federal court judges have in the past questioned conspiracy indictment practice. See the statement of the 1925 Conference of Senior Circuit Judges, as quoted in Annual Report of the Attorney General, 1925, pp. 5—6; L. Hand, J., in United States v. Falcone, 2 Cir., 109 F.2d 579, 581.
16
For example, the petitioner argued in the Court of Appeals that a law professor at Yale had made criticisms in more pungent terms than hers. Said the court: 'We would uphold Professor Rodell's right to say from his Yale vantage point just about what he wants to say. But when he speaks he is not simultaneously harassing the very court in which he is trying an unfinished case.' 260 F.2d at page 200.
17
The court said: 'It appears from the transcript which we have examined pursuant to the pretrial order herein, that her first visit to said David Fuller (the juror) was made by the respondent licensee upon request by his sister. It also appears that it has not been uncommon, if not in fact common practice, heretofore and within the Territory of Hawaii, for attorneys as well as others to interrogate jurors, after rendition of verdict by them, as to what may have been decisive in reaching a verdict.
'However, even if she relied upon the request of his sister when she first visited David Duller, and upon a belief that it was common practice, locally, to interrogate trial jurors after verdict, such reliance thereon is not acceptable as excuse for her repeated visits to and studied interrogation of Fuller under the circumstances and as set forth in her affidavit, incorporated in the bill of particulars * * *.' 41 Haw. at pages 423—424.
18
The court gave a warning to the future conduct of the Bar that interrogation of jurors as to occurrences in the jury room and as to the reasons why the jury reached its verdict would be at the peril of the interrogator. 41 Haw. at page 425.
19
'However, in the instant matter, this court will let its hereinbefore expressed disciplinary order—suspending the said respondent licensee from the practice of law in the territorial courts for one year and requiring her to pay costs—suffice, although also deeming gross misconduct her said repeated interviews with and interrogations of David Fuller.' Ibid.
20
'The courts of appeals for the First and Ninth Circuits shall have jurisdiction of appeals from all final decisions of the supreme Courts of Puerto Rico and Hawaii, respectively in all cases involving the Constitution, laws or treaties of the United States or any authority exercised thereunder, in all habeas corpus proceedings, and in all other civil cases where the value in controversy exceeds $5,000, exclusive of interest and costs.' 28 U.S.C. § 1293, 28 U.S.C.A. § 1293.
21
'Where the power of any court of appeals to review a case depends on the amount or value in controversy, such amount or value, if not otherwise satisfactorily disclosed upon the record, may be shown and ascertained by the oath of a party to the case or by other competent evidence.' 28 U.S.C. § 2108, 28 U.S.C.A. § 2108.
*
See Canon 20 of the Canons of Professional Ethics of the American Bar Association. 'Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the Court; but even in extreme cases it is better to avoid any ex parte statement.' Canons of Professional and Judicial Ethics, American Bar Association, 1957.
1
After the Bar Association had filed a complaint against Mrs. Sawyer, a complaint that was essentially in terms of findings of fact as to what she had said at Honokaa, a full investigation was made by the Legal Ethics Committee. This Committee then reported its findings of fact, conclusions and charges to the Hawaii Supreme Court which heard argument and made a de novo examination of the record. It is clear that these charges fully encompassed the basis for the Hawaii Supreme Court's own findings and that Mrs. Sawyer was fully and fairly apprised of the charges against her and the factual matters that were in dispute.
The Report of the Legal Ethics Committee, insofar as it was relevant to the speech, charged as follows:
'The Legal Ethics Committee * * * has investigated a complaint filed by the Bar Association of Hawaii and makes this report of the charges, facts and conclusions of the Committee pursuant to Rule 19.
'The Charges:
'The two charges made in this complaint have to do with (1) the alleged improper conduct of Mrs. Harriet Bouslog Sawyer, referred to in this report as 'Mrs. Bouslog,' in making a speech at Honokaa, Hawaii, on December 14, 1952, and (2) the alleged improper conduct in connection with her interview of the juror David P. Fuller, as more fully set forth in the Bill of Particulars dated September 29, 1954.
'The Facts:
'The Committee finds that Mrs. Bouslog was one of the attorneys appearing for certain defnda nts in the United States District Court for the District of Hawaii entitled 'United States of America, Plaintiff, against Charles Kazuyuki Fujimoto, et als., Defendants,' being Criminal 10495 in that Court (107 F.Supp. 865); that on December 14, 1952, during the course of the trial, she made a speech at a public gathering at Honokaa, at which she said, among other things, that horrible and shocking things were going on at the trial; that there was no fair trial in the case; that they just made up the rules as they went along; that unless the Smith Act trial was stopped in its tracks in Honolulu there would be a new crime.
'Conclusions and Recommendations:
'The Committee is of the unanimous opinion that the Bar Association of Hawaii has sustained the allegations in paragraphs II and III of its complaint and that Mrs. Bouslog, in imputing to the Judge unfairness in the conduct of the trial, in impugning the integrity of the local Federal courts and in other comments made at Honokaa, was guilty of violation of Canons 1 and 22 of the Canons of Professional Ethics of the American Bar Association and should be disciplined for the same.'
2
The Matsuoka notes are reprinted at 260 F.2d 205—207.
3
See Fujimoto v. United States, 9 Cir., 251 F.2d 342.
4
See e.g., the Honolulu Star Bulletin for the month of December. In fact, the same day on which Mrs. Sawyer's speech was reported, a banner, lead headline announced the latest court-room developments, while the story of the action taken by the court in response to the speech occupied the front page for the next few days. See the Honolulu Star Bulletin for Dec. 15, 1952, et seq.
5
The nature of the expansion was explained in the following colloquy between counsel and Matsuoka at the hearing before the Legal Ethics Committee:
'Q. You stated that the transcription of these notes were somewhat expanded from your original notes? A. Yes.
'Q. Would that also be true of the newspaper article? A. When I say expanded, I mean, like, when I take notes, I would not say, 'Robert Dodge yesterday,' I would say, 'Dodge,' or something like that, and expand that to make it understandable to the reader.
'Q. By expanding, not adding toit? A. No, not adding to.
'Q. Or an addition, or anything of that kind, but filling out what your notes indicated, is that it? A. That's right, by expanding on it.'
6
It is fair to say that approximately 80 of the about 140 lines of the Matsuoka notes as reprinted in the record deal specifically with this particular trial and the evidence which was being introduced in Honolulu. Of course, as we have explained above, many of the more general comments could, in the context of this speech, be reasonably taken to refer to the Honolulu trial.
7
Petitioner's lawyer had no doubt regarding the meaning and purport of the speech.
'I will say to the Committee right now—I have read these speeches and I would agree with the conclusion implicit in Mr. Dodge's question; namely that this was a talk about what was going on in the Smith Act trial here in Honolulu. Now, let's not fool ourselves about that. We're lawyers here.'
8
Mrs. Sawyer herself, in explaining her remarks to the court, pointed out that part of her speech 'was devoted to a discussion of the evidence on which the prosecution in this case is seeking to convict Jack Hall and the other six defendants in this case. * * *'
The record discloses that other witnesses also understood that her references were to the 'rules being made up as they went along' at this particular trial.
9
The fact that the notorious Crouch was involved is, of course, wholly irrelevant to the issues in this case. Any grievances arising out of Crouch's testimony were properly to be pursed in the orderly course of justice in trial and appellate courts and eventually here. See Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003.
10
Certainly Mrs. Sawyer's explanation of these remarks does not help us rationally to avoid Holmes' characterization. After a discussion of the refusal of the Hawaii Supreme Court to admit the evidence in the previous trial referred to by Mrs. Sawyer, petitioner was asked:
'Mr. Barlow: In other words, would it be fair to say that you paralleled that with the phrase that Mr. Matsuoka attributes to you: 'With the same situation, a Federal judge, sitting on a Federal Bench, permits Crouch to testify about 27 years ago what was said then'?
'The Witness: I used the Palakiko-Majors case as a contrast to Mr. Crouch's testimony and the hearsay testimony in the conspiracy case.
'Q. That Judge Wiig was allowing in the present Smith Act case, is that right? A. The motions hadn't been argued yet.
'Q. No, but that Judge Wiig was allowing in the present Smith Act case? A. Yes, he was.
'Q. That is what you were critical about? Is that right? A. I was reporting. I left that to the audience.' (Emphasis added.)
11
See, e.g., the Honolulu Star Bulletin for the month of December. There are also references throughout the record to the notorious nature of the trial.
| 23
|
360 U.S. 474
79 S.Ct. 1400
3 L.Ed.2d 1377
William L. GREENE, Petitioner,v.Neil M. McELROY, Thomas S. Gates, Jr., and Robert B. Anderson.
No. 180.
Argued April 1, 1959.
Decided June 29, 1959.
[Syllabus from pages 474-475 intentionally omitted]
Mr. Carl W. Berueffy, Washington, D.C., for the petitioner.
Mr. George Cochran Doub, Washington, D.C., for the respondents.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This case involves the validity of the Government's revocation of security clearance granted to petitioner, an aeronautical engineer employed by a private manufacturer which produced goods for the armed services. Petitioner was discharged from his employment solely as a consequence of the revocation because his access to classified information was required by the nature of his job. After his discharge, petitioner was unable to secure employment as an aeronautical engineer and for all practical purposes that field of endeavor is now closed to him.
2
Petitioner was vice president and general manager of Engineering and Research Corporation (ERCO), a business devoted primarily to developing and manufacturing various mechanical and electronic products. He began this employment in 1937 soon after his graduation from the Guggenheim School of Aeronautics and, except for a brief leave of absence, he stayed with the firm until his discharge in 1953. He was first employed as a junior engineer and draftsman. Because of the excellence of his work he eventually became a chief executive officer of the firm. During his career with ERCO, he was credited with the expedited development of a complicated electronic flight simulator and with the design of a rocket launcher, both of which were produced by ERCO and long used by the Navy.
3
During the post-World War II period, petitioner was given security clearances on three occasions.1 These were required by the nature of the projects undertaken by ERCO for the various armed services.2 On November 21, 1951, however, the Army-Navy-Air Force Personnel Security Board (PSB) advised ERCO that the company's clearances for access to classified information were in jeopardy because of a tentative decision to deny petitioner access to classified Department of Defense information and to revoke his clearance for security reasons.3 ERCO was invited to respond to this notification. The corporation, through its president, informed PSB that petitioner had taken an extended furlough due to the Board's action. The ERCO executive also stated that in his opinion petitioner was a loyal and discreet United States citizen and that his absence denied to the firm the services of an outstanding engineer and administrative executive. On December 11, 1951, petitioner was informed by the Board that it had 'decided that access by you to contract work and information (at ERCO) * * * would be inimical to the best interests of the United States.' Accordingly, the PSB revoked petitioner's clearancs. He was informed that he could seek a hearing before the Industrial Employment Review Board (IERB), and he took this course.4 Prior to the hearing, petitioner received a letter informing him that the PSB action was based on information indicating that between 1943 and 1947 he had associated with Communists, visited officials of the Russian Embassy, and attended a dinner given by an allegedly Communist Front organization.5
4
On January 23, 1952, petitioner, with counsel, appeared before the IERB. He was questioned in detail concerning his background and the information disclosed in the IERB letter. In response to numerous and searching ues tions he explained in substance that specific 'suspect' persons with whom he was said to have associated were actually friends of his ex-wife. He explained in some detail that during his first marriage, which lasted from 1942 through 1947, his then wife held views with which he did not concur and was friendly with associates and other persons with whom he had little in common. He stated that these basic disagreements were the prime reasons that the marriage ended in failure. He attributed to his then wife his attendance at the dinner, his membership in a bookshop association which purportedly was a 'front organization, and the presence in his home of 'Communist' publications. He denied categorically that he had ever been a 'Communist' and he spoke at length about his dislike for 'a theory of Government which has for its object the common ownership of property.' Lastly, petitioner explained that his visits to persons in various foreign embassies (including the Russian Embassy) were made in connection with his attempts to sell ERCO's products to their Governments. Petitioner's witnesses, who included top-level executives of ERCO and a number of military officers who had worked with petitioner in the past, corroborated many of petitioner's statements and testified in substance that he was a loyal and discreet citizen. These top-level executives of ERCO, whose right to clearance was never challenged, corroborated petitioner's testimony concerning his reasons for visiting the Russian Embassy.
5
The Government presented no witnesses. It was obvious, however, from the questions posed to petitioner and to his witnesses, that the Board relied on confidential reports which were never made available to petitioner. These reports apparently were compilations of statements taken from various persons contacted by an investigatory agency. Petitioner had no opportunity to confront and question persons whose statements reflected adversely on him or to confront the government investigators who took their statements. Moreover, it seemed evident that the Board itself had never questioned the investigators and had never seen those persons whose statements were the subject of their reports.
6
On January 29, 1952, the IERB, on the basis of the testimony given at the hearing and the confidential reports, reversed the action of the PSB and informed petitioner and ERCO that petitioner was authorized to work on Secret contract work.
7
On March 27, 1953, the Secretary of Defense abolished the PSB and IERB and directed the Secretaries of the three armed services to establish regional Industrial Personnel Security Boards to coordinate the industrial security program.6 The Secretaries were also instructed to establish uniform standards, criteria, and procedures.7 Cases pending before the PSB and IERB were referred to these new Boards.8 During the interim period between the abolishment of the old program and the implementation of the new one, the Secretaries considered themselves charged with administering clearance activities under previously stated criteria.9
8
On April 17, 1953, respondent Anderson, the Secretary of the Navy, wrote ERCO that he had reviewed petitioner's case and had concluded that petitioner's 'continued access to Navy classified security information (was) inconsistent with the best interests of National Security.' No hearing preceded this notification. He requested ERCO to exclude petitioner 'from any part of your plants, factories or sites at which classified Navy projects are being carried out and to bar him access to all Navy classified information.' He also advised the corporation that petitioner's case was being referred to the Secretary of Defense with the recommendation that the IERB's decision of January 29, 1952, be overruled. ERCO had no choice but to comply with the request.10 This led to petitioner's discharge.11 ERCO informed the Navy of what had occurred and requested an opportunity to discuss the matter in view of petitioner's importance to the firm.12 The Navy replied that '(a)s far as the Navy Department is concerned, any further discussion on this problem at this time will serve no useful purpose.'
9
Petitioner asked for reconsideration of the decision. On October 13, 1953, the Navy wrote to him stating that it had requested the Eastern Industrial Personnel Security Board (EIPSB) to accept jurisdiction and to arrive at a final determination concerning petitioner's status.13 Various letters were subsequently exchanged between petitioner's counsel and the EIPSB. These resulted finally in generalized charges, quoted in the margin, incorporating the information previously discussed with petitioner at his 1952 hearing before the IERB.14
10
On April 28, 1954, ore than one year after the Secretary took action, and for the two days thereafter, petitioner presented his case to the EIPSB and was cross-examined in detail. The hearing began with a statement by the Chairman, which included the following passage:
11
'The transcript to be made of this hearing will not include all material in the file of the case, in that, it will not include reports of investigation conducted by the Federal Bureau of Investigation or other investigative agencies which are confidential. Neither will it contain information concerning the identity of confidential informants or information which will reveal the source of confidential evidence. The transcript will contain only the Statement of Reasons, your answer thereto and the testimony actually taken at this hearing.'
12
Petitioner was again advised that the revocation of his security clearance was based on incidents occurring between 1942 and 1947, including his associations with alleged Communists, his visits with officials of the Russian Embassy, and the presence in his house of Communist literature.
13
Petitioner, in response to a question, stated at the outset of the hearing that he was then employed at a salary of $4,700 per year as an architectural draftsman and that he had been receiving $18,000 per year as Vice President and General Manager of ERCO. He later explained that after his discharge from ERCO he had unsuccessfully tried to obtain employment in the aeronautics field but had been barricaded from it because of lack of clearance.15
14
Petitioner was subjected to an intense examination similar to that which he experienced before the IERB in 1952. During the course of the examination, the Board injected new subjects of inquiry and made it evident that it was relying on various investigatory reports and statements of confidential informants which were not made available to petitioner.16 Petitioner reiterated in great detail the explanations previously given before the IERB. He was subjected to intense cross-examination, however, concerning reports that he had agreed with the views held by his exwife.
15
Petitioner again presented a number of witnesses who testified that he was loyal, that he had spoken approvingly of the United States and its economic system, that he was a valuable engineer, and that he had made valuable and significant contributions to this country's war efforts during World War II and the Korean War.
16
Soon after the conclusion of the hearing, the EIPSB notified petitioner that it had affirmed the Secretary's action and that it had decided that the granting of clearance to petitioner for access to classified information was 'not clearly consistent with the interests of national security.' Petitioner requested that he be furnished with a detailed statement of findings supporting the Board's decision. He was informed, however, that security considerations prohibited such disclosure.17 On September 16, 1955, petitioner requested review by the Industrial Personnel Security Review Board.18 On March 12, 1956, almost three years after the Secretary's action and nearly one year after the second hearing, he received a latter from the Director of the Office of Industrial Personnel Security Review informing him that the EIPSB had found that from 1942—1947 petitioner associated closely with his then wife and her friends, knowing that they were active in behalf of and sympathized with the Communist Party, that during part of this period petitiner maintained a sympathetic association with a number of officials of the Russian Embassy, that during this period petitioner's political views were similar to those of his then wife, that petitioner had been a member of a suspect bookshop association, had invested money in a suspect radio station, had attended a suspect dinner, and had, on occasion, Communist publications in his home, and that petitioner's credibility as a witness in the proceedings was doubtful. The letter also stated that the doubts concerning petitioner's credibility affected the Board's evaluation of his trustworthiness and that only trustworthy persons could be afforded access to classified information.19 The EIPSB determination was affirmed.
17
After the EIPSB decision in 1954, petitioner filed a complaint in the United States District Court for the District of Columbia asking for a declaration that the revocation was unlawful and void and for an order restraining respondents from acting pursuant to it.20 He also asked for an order requiring respondents to advise ERCO that the clearance revocation was void. Following the affirmance of the EIPSB order by the Industrial Personnel Review Board, petitioner moved for summary judgment in the District Court. The Government cross-filed for dismissal of the complaint or summary judgment. The District Court granted the Government's motion for summary judgment, 150 F.Supp. 958, and the Court of Appeals affirmed that disposition, 103 U.S.App.D.C. 87, 254 F.2d 944, 952.
18
The Court of Appeals recognized that petitioner had suffered substantial harm from the clearance revocation.21 But in that court's view, petitioner's suit presented no 'justiciable controversy'—no controversy which the courts could finally and effectively decide. This conclusion followed from the Court of Appeals' reasoning that the Executive Department alone is competent to evaluate the competing considerations which exist in determining the persons who are to be afforded security clearances. The court also rejected petitioner's claim that he was deprived of his livelihood without the traditional safeguards required by 'due process of law' such as confrontation of his accusers and access to confidential reports used to determine his fitness. Central to this determination was the court's unwillingness to order the Government to choose between disclosing the identities of informants or giving petitioner clearance.
19
Petitioner contends that the action of the Dpar tment of Defense in barring him from access to classified information on the basis of statements of confidential informants made to investigators was not authorized by either Congress or the President and has denied him 'liberty' and 'property' without 'due process of law' in contravention of the Fifth Amendment. The alleged property is petitioner's employment; the alleged liberty is petitioner's freedom to practice his chosen profession. Respondents admit, as they must, that the revocation of security clearance caused petitioner to lose his job with ERCO and has seriously affected, if not destroyed, his ability to obtain employment in the aeronautics field. Although the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the 'liberty' and 'property' concepts of the Fifth Amendment, Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; Peters v. Hobby, 349 U.S. 331, 352, 75 S.Ct. 790, 800, 99 L.Ed. 1129 (concurring opinion); cf. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131; Allgeyer v. State of Louisiana, 165 U.S. 578, 589—590, 17 S.Ct. 427, 431, 41 L.Ed. 832; Powell v. Commonwealth of Pennsylvania, 127 U.S. 678, 684, 8 S.Ct. 992, 995, 1257, 32 L.Ed. 253, respondents contend that the admitted interferences which have occurred are indirect by-products of necessary governmental action to protect the integrity of secret information and hence are not unreasonable and do not constitute deprivations within the meaning of the Amendment. Alternatively, respondents urge that even if petitioner has been restrained in the enjoyment of constitutionally protected rights, he was accorded due process of law in that he was permitted to utilize those procedural safeguards consonant with an effective clearance program, in the administration of which the identity of informants and their statements are kept secret to insure an unimpaired flow to the Government of information concerning subversive conduct. But in view of our conclusion that this case should be decided on the narrower ground of 'authorization,' we find that we need not determine the answers to these questions.22
20
The issue, as we see it, is whether the Department of Defense has been authorized to create an industrial security clearance program under which affected persons may lose their jobs and may be restrained in following their chosen professions on the basis of fact determinations concerning their fitness for clearance made in proceedings in which they are denied the traditional procedural safeguards of confrontation and cross-examination.
21
Prior to World War II, only sporadic efforts were made to control the clearance of persons who worked in private establishments which manufactured materials for national defense. Report of the Commission on Government Security, 1957, S.Doc.No.64, 85th Cong., 1st Sess. 236. During World War II the War Department instituted a formalized program to obtain the discharge from war plants of persons engaed in sabotage, espionage, and willful activity designed to disrupt the national defense program. Id., at i37. In 1946, the War Department began to require contractors, before being given access to classified information, to sign secrecy agreements which required consent before their employees were permitted access to Top Secret or Secret information. Id., at 238. At the outset, each armed service administered its own industrial clearance program. Id., at 239. Later, the PSB and IERB were established by the Department of Defense and the Secretaries of the armed services to administer a more centralized program. Ibid. Confusion existed concerning the criteria and procedures to be employed by these boards. Ibid. Eventually, generalized procedures were established with the approval of the Secretaries which provided in part that before the IERB '(t)he hearing will be conducted in such manner as to protect from disclosure information affecting the national security or tending to compromise investigative sources or methods * * *.' See 'Procedures Governing Appeals to the Industrial Employment Review Board, dated 7 November 1949,' note 48 supra, § 4(c). After abolition of these boards in 1953, and the establishment of the dated 7 November 1949,' note 4, supra, were promulgated which likewise provided for the non-disclosure of information 'tending to compromise investigative sources or methods or the identity of confidential informants.'23
22
All of these programs and procedures were established by directives issued by the Secretary of Defense or the Secretaries of the Army, Navy, and Air Force. None was the creature of statute or of an Executive Order issued by the President.24
23
Respondents maintain that congressional authorization to the President to fashion a program which denies security clearance to persons on the basis of confidential information which the individuals have no opportunity to confront and test is unnecessary because the President has inherent authority to maintain military secrets inviolate. And respondents argue that if a statutory grant of power is necessary, such a grant can readily be inferred 'as a necesari ly implicit authority from the generalized provisions' of legislation dealing with the armed services. But the question which must be decided in this case is not whether the President has inherent power to act or whether Congress has granted him such a power; rather, it is whether either the President or Congress exercised such a power and delegated to the Department of Defense the authority to fashion such a program.
24
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots.25 They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right 'to be confronted with the witnesses against him.' This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, e.g., Mattox v. United States, 156 U.S. 237, 242—244, 15 S.Ct. 337, 339—340, 39 L.Ed. 409; Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890; Motes v. United States, 178 U.S. 458, 474, 20 S.Ct. 993, 999, 44 L.Ed. 1150; In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682, but also in all types of cases where administrative and regulatory actions were under scrutiny. E.g., Southern R. Co. v. Commonwealth of Virginia, 290 U.S. 190, 54 S.Ct. 148, 78 L.Ed. 260; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093; Morgan v. United States, 304 U.S. 1, 19, 58 S.Ct. 773, 776, 999, 82 L.Ed. 1129; Carter v. Kubler, 320 U.S. 243, 64 S.Ct. 1, 88 L.Ed. 26; Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63. Nor, as it has been pointed out, has Congress ignored these fundamental requirements in enacting regulatory legislation. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168—169, 71 S.Ct. 624, 646—647, 95 L.Ed.2d 817 (concurring opinion).
25
Professor Wigmore, commenting on the importance of cross-examination, states in his treatise, 5 Wigmore on Evidence (3d ed. 1940) § 1367:
26
'For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.'
27
Little need be added to this incisive summary statement except to point out that under the present clearnce procedures not only is the testimony of absent witnesses allowed to stand without the probing questions of the person under attack which often uncover inconsistencies, lapses of recollection, and bias,26 but, in addition, even the members of the clearance boards do not see the informants or know their identities, but normally rely on an investigator's summary report of what the informant said without even examining the investigator personally.27
28
We must determine against this background, whether the President or Congress has delegated to the Department of Defense the authority to by-pass these traditional and well-recognized safeguards in an industrial security clearance program which can operate to injure individuals substantially by denying to them the opportunity to follow chosen private professions. Respondents cite two Executive Orders which they believe show presidential delegation. The first, Exec. Order No. 10290, 16 Fed.Reg. 9795, 50 U.S.C.A. § 401 note, was entitled 'Prescribing Regulations Establishing Minimum Standards For The Classification, Transmission, And Handling, By Departments And Agencies of the Executive Branch, Of Official Information Which Requires Safeguarding In The Interest Of The Security Of The United States.' It provided, in relevant part:
29
PART V—DISSEMINATION OF CLASSIFIED SECURITY INFORMATION
30
'29. General. a. No person shall be entitled to knowledge or possession of, or access to, classified security information solely by virtue of his office or position.
31
'b. Classified security information shall not be discussed with or in the presence of unauthorized persons, and the latter shall not be permitted to inspect or have access to such information.
32
'c. The head of each agency shall establish a system for controlling the dissemination of classified security information adequate to the needs of his agency.
33
'30. Limitations on dissemination—a. Within the Executive Branch. The dissemination of classified security information shall be limited to persons whose official duties require knowledge of such information. Special measures shall be employed to limit the dissemination of 'Top Secret' security information to the absolute minimum. Only that portion of 'Top Secret' security information necessary to the proper planning and appropriate action of any organizational unit or individual shall be released to such unit or individual.
34
'b. Outside the Executive Branch. Classified security information shall not be disseminated outside the Executive Branch by any person or agency having access thereto or knowledge threo f except under conditions and through channels authorized by the head of the disseminating agency, even though such person or agency may have been solely or partly responsible for its production.'
35
The second, Exec. Order No. 10501, 18 Fed. Reg. 7049, 50 U.S.C.A. § 401 note, which revoked Exec. Order No. 10290, is entitled 'Safeguarding Official Information In The Interests Of The Defense Of The United States' and provides in relevant part:
36
'Sec. 7. Accountability and Dissemination.
37
'(b) Dissemination Outside the Executive Branch. Classified defense information shall not be disseminated outside the executive branch except under conditions and through channels authorized by the head of the disseminating department or agency, even though the person or agency to which dissemination of such information is proposed to be made may have been solely or partly responsible for its production.'
38
Clearly, neither of these orders empowers any executive agency to fashion security programs whereby persons are deprived of their present civilian employment and of the opportunity of continued activity in their chosen professions without being accorded the chance to challenge effectively the evidence and testimony upon which an adverse security determination might rest.28
39
Turning to the legislative enactments which might be deemed as delegating authority to the Department of Defense to fashion programs under which persons may be seriously restrained in their employment opportunities through a denial of clearance without the safeguards of cross-examination and confrontation, we note the Government's own assertion, made in its brief, that '(w)ith petitioner's contention that the Industrial Security Program is not explicitly authorized by statute we may readily agree * * *.'
40
The first proffered statute is the National Security Act of 1947, as amended, 5 U.S.C. § 171 et seq., 5 U.S.C.A. § 171 et seq. That Act created the Department of Defense and gave to the Secretary of Defense and the Secretaries of the armed services the authority to administer their departments. Nowhere in the Act, or its amendments, is there found specific authority to create a clearance program similar to the one now in effect.
41
Another Act cited by respondents is the Armed Service Procurement Act of 1947, as amended. It provides in 10 U.S.C. § 2304, 10 U.S.C.A. § 2304 that:
42
'(a) Purchases of and contracts for property or services covered by this chapter shall be made by formal advertising. However, the head of an agency may negotiate such a purchase or contract, if—
43
'(12) the purchase or contract is for property or services whose procurement he determines should not be publicly disclosed because of their character, ingredients, or components.'
44
It further provides in 10 U.S.C. § 2306, 10 U.S.C.A. § 2306:
45
'(a) The cost-plus-a-percentage-of-cost system of contracting may not be used. Subject to this limitation and subject to subsections (b)—(e), the head of an agency may, in negotiating contracts under section 2304 of this title, make any kind of contract that he considers will promote the best interests of the United States.' Respondents argue that these statutes, together with 18 U.S.C. § 798, 18 U.S.C.A. § 798, which makes it a crime willfully and knowingly to communicate to unauthorized persons information concerning crypto-graphic or intelligence activities, and 50 U.S.C. § 783(b), 50 U.S.C.A. § 783(b),whi ch makes it a crime for an officer or employee of the United States to communicate classified information to agents of foreign governments or officers and members of 'Communist organizations,' reflect a recognition by Congress of the existence of military secrets and the necessity of keeping those secrets inviolate.
46
Although these statutes make it apparent that Congress recognizes the existence of military secrets, they hardly constitute an authorization to create an elaborate clearance program which embodies procedures traditionally believed to be inadequate to protect affected persons.29
47
Lastly, the Government urges that if we refuse to adopt its 'inferred' authorization reasoning, nevertheless, congressional ratification is apparent by the continued appropriation of funds to finance aspects of the program fashioned by the Department of Defense. Respondents refer us to Hearings before the House Committee on Appropriations on Department of Defense Appropriations for 1956, 84th Cong., 1st Sess. 774—781. At those hearings, the Committee was asked to approve the appropriation of funds to finance a program under which reimbursement for lost wages would be made to employees of government contractors who were temporarily denied, but later granted, security clearance. Apparently, such reimbursements had been made prior to that time out of general appropriations. Although a specific appropriation was eventually made for this purpose, it could not conceivably constitute a ratification of the hearing procedures, for the procedures were in no way involved in the special reimbursement program.30
48
Respondents' argument on delegation resolves itself into the following: The President, in general terms, has authorized the Department of Defense to create procedures to restrict the dissemination of classified information and has apparently acquiesced in the elaborate program established by the Secretary of Defense even where application of the program results in restraints on traditional freedoms without the use of long-required procedural protections. Similarly, Congress, although it has not enacted specific legislation relating to clearance procedures to be utilized for industrial workers, has acquiesced in the existing Department of Defense program and has ratified it by specifically appropriating funds to finance one aspect of it.
49
If acquiescence or implied ratification were enough to show delegation of authority to take actions within the area of questionable constitutionality, we might agree with respondents that delegation has been shown here. In many circumstances, where the Government's freedom to act is clear, and the Congress or the President has provided general standards of action and has acquiesced in administrative interpretation, delegation may be inferred. Thus, even in the absence of specific delegation, we have no difficulty in finding, as we do, that the Department of Defense has been authorized to fashion and apply an industrial clearance program which affords affected persons the safeguards of confrontation and cross-examination. But this case does not present that situation. We deal here with substantial restraints on employment opportunities of numerous persons imposed in a manner which is in conflict with our long-accepted notions of fair procedures.31 Before we are asked to judge whether, in the context of security clearance cases, a person may be deprived of the right to follow his chosen profession without full hearings where accusers may be confronted, it must be made clear that the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use. Cf. 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, 3 L.Ed.2d 865. Such decisions cannot be assumed by acquiescence or nonaction. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 113, 2 L.Ed.2d 1204; Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129; Ex parte Endo, 323 U.S. 283, 301—302, 65 S.Ct. 208, 218, 89 L.Ed. 243. They must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized, see Peters v. Hobby, supra, but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.
50
Where administrative action has raised serious constitutional problems, the Court has assumed that Congress or the President intended to afford those affected by the action the traditional safeguards of due process. See, e.g., The Japanese Immigrant Case (Kaoru Yamataya v. Fisher), 189 U.S. 86, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721; Dismuke v. United States, 297 U.S. 167, 172, 56 S.Ct. 400, 80 L.Ed. 561; Ex parte Endo, 323 U.S. 283, 299—300, 65 S.Ct. 208, 217, 89 L.Ed. 243; American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 107— 108, 67 S.Ct. 133, 143, 91 L.Ed. 103; Hannegan v. Esquire, 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586; Wong Yang Sung & McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 453, 94 L.Ed. 616. Cf. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. These cases reflect the Court's concern that traditional forms of fair procedure not be restricted by implication or without the most explicit action by the Nation's lawmakers, even in areas where it is possible that the Constitution presents no inhibition.
51
In the instant case, petitioner's work opportunities have been severely limited on the basis of a fact determination rendered after a hearing which failed to comport with our traditional ideas of fair procedure. The type of hearing was the product of administrative decision not explicitly authorized by either Congress or the President. Whether those procedures under the circumstances comport with the Constitution we do not decide. Nor do we decide whether the President has inherent authority to create such a program, whether congressional action is necessary, or what the limits on executive or legislative authority may be. We decide only that in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.
52
Accordingly, the judgment is reversed and the case is remanded to the District Court for proceedings not inconsistent herewith.
53
It is so ordered.
54
Judgment reversed and case remanded to the District Court with directions.
55
Mr. Justice FRANKFURTER, Mr. Justice HARLAN and Mr. Justice WHITTAKER concur in the judgment on the ground that it has not been shown that either Congress or the President authorized the procedures whereby petitioner's security clearance was revoked, intimating no views as to the validity of those procedures.
56
Mr. Justice HARLAN, concurring specially.
57
What has been written on both sides of this case makes appropriate a further word from one who concurs in the judgment of the Court, but cannot join its opinion.
58
Unlike any brother CLARK who finds this case 'both clear and simple,' I consider the constitutional issue it presents most difficult and far-reaching. In my view the Court quite properly declines to decide it in the present posture of the case. My unwillingness to subscribe to the Court's opinion is due to the fact that it unnecessarily deals with the very issue it disclaims deciding. For present purposes no more need be said than that we should not be drawn into deciding the constitutionality of the security-clearance revocation procedures employed in this case until the use of such procedures in matters of this kind has been deliberately considered and expressly authorized by the Congress or the President who alone are in a position to evaluate in the first instance the totality of factors bearing upon the necessity for their use. That much the courts are entitled to before they are asked to express a constitutional judgment upon an issue fraught with such important consequences both to the Government and the citizen.
59
Ample justification for abstaining from a constitutional decision at this stage of the case is afforded by the Court's traditional and wise rule of not reaching constitutional issues unnecessarily or prematurely. That rle indeed has been consistently followed by this Court when faced with 'confrontation' issues in other security or loyalty cases. See Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129; Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968; cf. Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204. Adherence to that rule is, as I understand it, the underlying basis of today's decision, and it is on that basis that I join the judgment of the Court.
60
It is regrettable that my brother CLARK should have so far yielded to the temptations of colorful characterization as to depict the issue in this case as being whether a citizen has 'a constitutional right to have access to the Government's military secrets,' and to suggest that the Court's action today requires 'the President's Cabinet members to revoke their refusal to give' the petitioner 'access to military secrets,' despite any views they may have as to his reliability. Of course this decision involves no such issue or consequences. The basic constitutional issue is not whether petitioner is entitled to access to classified material, but rather whether the particular procedures here employed to deny clearance on security grounds were constitutionally permissible. With good reason we do not reach that issue as matters now stand. And certainly there is nothing in the Court's opinion which suggests that petitioner must be given access to classified material.
61
Mr. Justice CLARK, dissenting.
62
To me this case is both clear and simple. The respondents, all members of the President's Cabinet, have, after a series of hearings, refused to give Greene further access to certain government military information which has been classified 'secret.' The pertinent Executive Order defines 'secret' information as
63
'defense information or material the unauthorized disclosure of which could result in serious damage to the Nation, such as by jeopardizing the international relations of the United States, endangering the effectiveness of a program or policy of vital importance to the national defense, or compromising important military or defense plans, scientific or technological developments important to national defense, or information revealing important intelligence operations.' Exec. Order No. 10501, Nov. 5, 1953, 18 Fed.Reg. 7049, 3 CFR (1949—1953 Comp.), p. 979, § 1(b), 50 U.S.C.A. § 401 note.
64
Surely one does not have a constitutional right to have access to the Government's military secrets.1 But the Court says that because of the refusal to grant Greene further access, he has lost his position as vice president and general manager, a chief executive officer, of ERCO, whose business was devoted wholly to defense contracts with the United States,2 and that his training in aeronautical engineering, together with the facts that ERCO engages solely in government work and that the Government is the country's largest airplane customer, has in some unaccountable fashion parlayed his employment with ERCO into 'a constitutional right.' What for anyone else would be considered a privilege at best has for Greene been enshrouded in constitutional protection. This sleight of hand is too much for me.
65
But this is not all. After holding that Greene has constitutional protection for his private job, the Court has ordered the President's Cabnet members to revoke their refusal to give Greene access to military secrets.3 It strikes down the present regulations as being insufficiently authorized by either the President or the Congress because the procedures fail to provide for confrontation or cross-examination at Board hearings. Let us first consider that problem.
66
After full consideration the Court concludes 'that in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.' In so doing, as I shall point out, it holds for naught the Executive Orders of both President Roosevelt and President Truman and the directives pursuant thereto of every Cabinet officer connected with our defense since 1942 plus the explicit order of General Dwight D. Eisenhower as Chief of Staff in 1946. In addition, contrary to the Court's conclusion, the Congress was not only fully informed but had itself published the very procedures used in Greene's case.
67
I believe that the Court is in error in holding, as it must, in order to reach this 'authorization' issue, that Greene's 'right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference' is protected by the Fifth Amendment. It cites four cases in support of this proposition and says compare four others. As I read those cases not one is in point.4 In fact, I cannot find a single case in support of the Court's position. Even a suit for damages on the ground of interference with private contracts does not lie against the Government. The Congress specifically exempted such suits from the Tort Claims Act. 28 U.S.C. § 2680(h), 28 U.S.C.A. § 2680(h). But the action today may have the effect of by-passing that exemption since Greene will now claim, as has Vitarelli, see Vitarelli v. Seaton, 1959, 359 U.S. 535, 79 S.Ct. 968, reimbursement for his loss of wages. See Taylor v. McElroy, 360 U.S. 709, 79 S.Ct. 1428. This will date back to 1953. His salary at that time was $18,000 a year.
68
In holding that the Fifth Amendment protects Greene the Court ignores the basic consideration in the case, namely, that no person, save the President, has a constitutional right to access to governmental secrets. Even though such access is necessary for one to keep a job in private industry, he is still not entitled to the secrets. It matters not if as a consequence he is unable to secure a specific job or loses one he presently enjoys. The simple reason for this conclusion is that he has no constitutional right to the secrets. If access to its secrets is granted by the Government it is entirely permissive and may be revoked at any time. That is all that the Cabinet officers did here. It is done every day in governmental operation. The Court seems to hold that the access granted Greene was for his benefit. It was not. Access was granted to secure for the Government the supplies or services it needed. The contract with ERCO specifically provided for the action taken by the Cabinet officers. Greene as General Manager of ERCO knew of its provisions. If every person working on government contracts has the rights Greene is given here the Government is indeed in a box. But as was said in Perkins v. Lukens Steel Co., 1940, 310 U.S. 113, 127—128, 60 S.Ct. 869, 876, 84 L.Ed. 1108:
69
'Like private individuals and businesses the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases. * * * Judicial restraint of those who administer the Government's purchasing would constitute a break with settled judicial practice and a departure into fields hitherto wisely and happily apportioned by the genius of our polity to the administration of another branch of Government.'
70
The Court refuses to pass on the constitutionality of the procedures used in the hearings. It does say that the hearings provided for in the program permit the restraint of 'employment opportunities through a denial of clearance without the safeguards of confrontation and cross-examination.' I think the Court confuses administrative action with judicial trials. This Court has long ago and repeatedly approved administrative action where the rights of cross-examination and confrontation were not permitted. Chicago & Southern Air Lines v. Waterman S.S. Corp., 1948, 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568; Carlson v. Landon, 1952, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547; United States v. Nugent, 1953, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417; United States v. Reynolds, 1953, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727; United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317; Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956, and Jay v. Boyd, 1956, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242.
71
At no time since the programs now in vogue were established in 1942 have the rights of cross-examination and confrontation of witnesses been required. In fact the present regulations were patterned after the Employee Loyalty Program, first inaugurated upon the passage of the Hatch Act in 1939, 5 U.S.C.A. § 118i, in which the rights of confrontation and cross-examination have never been recognized. Every Attorney General since that time has approved these procedures, as has every President. And it should be noted, though several cases here have attacked the regulations on this ground, this Court has yet to strike them down.5
72
I shall not labor the point further than to say that in my opinion the procedures here do comport with that fairness required of administrative action in the security field. A score of our cases, as I have cited, support me in this position. Not one is to the contrary. And the action of the Court in striking down the program for lack of specific authorization is indeed strange, and hard for me to understand at this critical time of national emergency. The defense establishment should know—and now—whether its program is constitutional and, if not, wherein it is deficient. I am sure that it will remember that in order times of emergency—no more grave than the present—it was permitted, without any hearing whatsoever—much less with confrontation and cross-examination—to remove American citizens from their homes on the West Coast and place them in concentration camps. See Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Korematsu v. United States, 1944, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194. My examination of the Japanese exclusion orders indicates clearly that the Executive Order was a general authorization just as the two here. Congress at the time only created criminal offenses for violation of exclusion or curfew orders of the military commander. Likewise we have criminal statutes here. And while the Japanese orders were in time of war, those involved here had their inception in war and have been continued during the national emergency declared by the President. No one informed in present world affairs would say that our safety is less in jeopardy today. In fact we are now spending nearly as much money to protect it as during the war period. In this light it is inescapable that the existing authorizations are entirely sufficient. Let us examine them.
73
II. THE PRESIDENT AND THE CONGRESS HAVE GRANTED SUFFICIENT AUTHORITY TO THE CABINET OFFICERS.
74
Since 1941 the industrial security program has been in operation under express directives from the President. Within a week after the attack on Pearl Harbor, President Roosevelt issued Exec. Order No. 8972, 6 Fed.Reg. 6420, Dec. 12, 1941, which authorized both the Secretary of War and the Secretary of the Navy 'to establish and maintain military guards and patrols, and to take other appropriate measures, to protect from injury and destruction national-defense material, national-defense premises, and national-defense utilities, * * *.' (Emphasis added.) In 1942, under the authority of that Executive Order, the Secretary of War undertook the formulation and execution of a program of industrial security.6 The procedures in operation from 1942 and 1943 are outlined in a 1946 publication of the Department of War entitled 'Suspension of Subversives from Privately Operated Facilities of Importance to the Security of the Nation's Army and Navy Programs.'7 Interestingly enough, the instructions were issued in time of peace, did not give the suspect a hearing, and were signed by the then Chief of Staff—now President—Dwight D. Eisenhower.
75
In 1947, the National Security Act, 61 Stat. 495, 5 U.S.C.A. § 171 et seq., effected a reorganization of the military departments and placed the Secretary of Defense at the head of the National Military Establishment. Section 305(a) of the Act transferred to the new organization '(a)ll laws, orders, regulations, and other actions applicable with respect to any function * * * transferred under this Act * * *.' Section 213 created a Munitions Board within the military establishment and under the supervision of the Secretary of Defense. Among its functions were
76
'(1) to coordinate the appropriate activities within the National Military Establishment with regard to industrial matters, including the procurement * * * plans * * *; (2) to plan for the military aspects of industrial mobilization; * * * and (10) to perform such other duties as the Secretary of Defense may direct.'8
77
In his first report to the President in 1948, Secretary of Defense Forrestal reported that:
78
'* * * the Munitions Board is responsible for necessary action to coordinate internal security within the National Military Establishment with regard to industrial matters. This work is being planned and in some phases carried forward by the following programs:
79
'c. Development of plans and directives to protect classified armed forces information in the hands of industry from potential enemies;
80
'd. Establishment of uniform methods of handling of personnel clearances and secrecy agreements * * *.' First Report of the Secretary of Defense (1948) 102—103.
81
The forerunner of the exact program now in effect was put in operation in 1948 under the supervision of that Board. And, in the Annual Report to the President, in 1949, the Secretary, then Louis Johnson, reported that
82
'Industrial Security.—A program to coordinate and develop uniform practices to protect classified military information placed in the hands of industry under procurement and research contracts was continued by the Munitions Board. Criteria were developed for the granting or denial of personnel and facility clearances in the performance of classified contracts. Work was started to establish a central security clearance register to centralize clearance data for ready reference by all departments and to prevent duplication in making clearance investigations. A joint Personnel Security Board administers this program, and the Industrial Employment Review Board hears appeals from security clearance denials.' Second Report of the Secretary of Defense, for the Fiscal Year 1949 (1950), 85.
83
Transmitted with that report to the President was the Annual Report of the Secretary of the Army, where the number of security cases processed by the Army-Navy-Air Force Personnel Board, and the number of appeals handled by the Industrial Employment Review Board were detailed.9
84
Again in 1950 the Secretary of Defense informed the President, in a report required by law, of the status of the industrial security program.
85
'In the past 6 months, the Munitions Board activated the Industrial Employment Review Board, established procedures under which the latter will operate, and developed a set of uniform criteria stipulating the circumstances under which security clearances will be denied. The Munitions Board also established a Central Index Security Clearance File to serve as a clearing house for all indvid ual and facility clearances and denials, (and) developed a standard security requirements check list * * *.
86
Uniform standards for security investigations of facility and contractors' personnel are being developed * * *. A standard military security agreement is being coordinated to bind potential suppliers to security regulations before a classified contract is awarded, and a manual to give security guidance to industry is being prepared.' Semiannual Report of the Secretary of Defense, July 1 to Dec. 31, 1949 (1950), 97.
87
The President, in 1953, in Reorganization Plan No. 6, 67 Stat. 638, 5 U.S. C.A. § 133z—15 note, transferred all of the 'functions of the Munitions Board' to the Secretary of Defense and dissolved that Board. Since then the program has been in operation under the authority of the Secretary. Also in 1953, the President issued Exec. Order No. 10450, Apr. 27, 1953, 18 Fed.Reg. 2489, 3 CFR (1949—1953 Comp.), p. 936, 5 U.S.C.A. § 631 note. That order dealt with the criteria and procedures to be used in the Federal Loyalty Security Program, which had been instituted under Exec. Order No. 9835, 12 Fed.Reg. 1935, 3 CFR (1943—1948 Comp.), p. 630, Mar. 21, 1947, 5 U.S.C.A. § 631 note. The latter order made clear that federal employees suspected of disloyalty had no right of confrontation.10 And the regulations promulgated under the order provided no such right. See 13 Fed.Reg. 9365, 5 CFR (1949), § 210, Dec. 31, 1948. These procedures were revised under Exec. Order No. 10450, supra, although again, confrontation and cross-examination were not provided. See 19 Fed.Reg. 1503, 32 CFR, p. 288, Mar. 19, 1954. Thus, it was clear that the President had not contemplated that there would be a right of confrontation in the Federal Loyalty Security Program. And the report of the Secretary of the Army—transmitted to the President by the Secretary of Defense—made clear that the criteria of Exec. Order No. 10450 were being utilized not only where the loyalty of a government employee was in doubt, but also in carrying out the industrial security program. Semi-annual Report of the Secretary of the Army, Jan. 1, 1954, to June 30, 1954, 135 136.
88
Thus we see that the program has for 18 years been carried on under the express authority of the President, and has been regularly reported to him by his highest Cabinet officers. How the Court can say, despite these facts, that the President has not sufficiently authorized the program is beyond me, unless the Court means that it is necessary for the President to write out the Industrial Security Manual in his own hand.
89
Furthermore, I think Congress has sufficiently authorized the program, as it has been kept fully aware of its development and has appropriated money to support it. During the formative period of the program, 1949—1951, the Congress, through appropriation hearings, was kept fully informed as to the activity. In 1949 D. F. Carpenter, Chairman of the Munitions Board, appeared before a Subcommittee of the House Committee on Appropriations to testify concerning the requested appropriation for the Board. While the report indicates much of the testimony was 'off the record,' it does contain specific references to the program here under attack.11 Significantly the appropriation bill for 1950 included an item of $11,300,000 for the maintenance, inter alia, of the Board.
90
Again, in 1950 General Timberlake, a member of the Board, testified:
91
'Then we are going to intensify the industrial mobilization planning within the Department of Defense, with particular emphasis on industrial security * * *.' House of Representatives, Hearings before a Subcommittee of the Committee on Appropriations on the Supplemental Appropriation for 1951, 81st Cong., 2d Sess. 264.
92
While, again, some of the testimony was 'off the record' it was sufficiently urgent and detailed for the Congress to appropriate additional funds for the Board for 1951.12
93
By the 1953 Reorganization Plan, the functions of the Munitions Board were transferred to various Assistant Secretaries of Defense. The industrial security program was put under the Assistant Secretary of Defense for Manpower, Personnel, and Reserve Forces. Of course, this office received an appropriation each year. These hearings, to cite but two, certainly indicate an awareness on the part of Congress of the existence of the industrial security program, and the continued appropriations hardly be-speak an unwillingness on the part of Congress that it be carried on. In 1955, the Eighty-fourth Congress, on the motion of Senator Wiley for unanimous consent, caused to be printed the so-called Internal Security Manual, S. Doc. No. 40, 84th Cong., 1st Sess. It is a compilation of all laws, regulations, and congressional committees relating to the national security. Contained in the volume is the 'Industrial Personnel Security Review Regulation,' i.e., a verbatim copy of the regulations set up by the Secretary of Defense on February 2, 1955. This Manual outlined in detail the hearing procedures which are here condemned by the Court. And it is important to note that the final denial of Greene's clearance was by a Board acting under these very regulations. Still not one voice was raised either within or without the Halls of Congress that the Defense Department had exceeded its authority or that contractor employees were being denied their constitutional rights. In other cases we have held that the inaction of the Congress, in circumstances much less specific than here, was a clear ratification of a program as it was then being carried out by the Executive. Why, I ask, do we not do that here where it is so vital? We should not be 'that 'blind' Court * * * that does not see what '(a)ll others can see and understand' * * *' United States v. Rumely, 1953, 345 U.S. 41, 44, 73 S.Ct. 543, 545, 97 L.Ed. 770.
94
While it certainly is not clear to me, I suppose that the present fastidiousness of the Court can be satisfied by the President's incorporating the present industrial security program into a specific Executive Order or the Congress' placing it on the statute books. To me this seems entirely superfluous in light of the clear authorization presently existing in the Cabinet officers. It also subjects the Governmet t o multitudinous actions and perhaps large damages—by reason of discharges made pursuant to the present procedures.
95
And I might add a nota bene. Even if the Cabinet officers are given this specific direction, the opinion today, by dealing so copiously with the constitutional issues, puts a cloud over both the Employee Loyalty Program and the one here under attack. Neither requires that hearings afford confrontation or cross-examination. While the Court disclaims deciding this constitutional question, no one reading the opinion will doubt that the explicit language of its broad sweep speaks in prophecy. Let us hope that the winds may change. If they do not the present temporary debacle will turn into a rout of our internal security.
1
Petitioner was given a Confidential clearance by the Army on August 9, 1949, a Top Secret clearance by the Assistant Chief of Staff G—2, Military District of Washington on November 9, 1949, and a Top Secret clearance by the Air Material Command on February 3, 1950.
2
ERCO did classified contract work for the various services. In 1951, in connection with a classified research project for the Navy, it entered into a security agreement in which it undertook 'to provide and maintain a system of security controls within its * * * own organization in accordance with the requirements of the Department of Defense Industrial Security Manual * * *.' The Manual, in turn, provided in paragraphs 4(e) and 6:
'The Contractor shall exclude (this does not imply the dismissal or separation of any employee) from any part of its plants, factories, or sites at which work for any military department is being performed, any person or persons whom the Secretary of the military department concerned or his duly authorized representative, in the interest of security, may designate in writing.
'No individual shall be permitted to have access to classified matter unless cleared by the Government or the Contractor, as the case may be, as specified in the following subparagraphs and then he will be given access to such matter only to the extent of his clearance. * * *'
3
The PSB was created pursuant to an interim agreement dated October 9, 1947, between the Army, Navy, and Air Force and pursuant to a memorandum of agreement between the Provost Marshal General and the Air Provost Marshal, dated March 17, 1948. 'It was a three-man board, with one representative from each of the military departments * * *. Its functions were to grant or deny clearance for employment on aeronautical or classified contract work when such consent was required, and to suspend individuals, whose continued employment was considered inimical to the security interests of the United States, from employment on classified work.' Report of the Commission on Government Security, 1957, S.Doc. No. 64, 85th Cong., 1st Sess. 239. It established its own procedures which were approved by the Secretaries of the Army, Navy, and Air Force. See 'Procedures Governing the Army-Navy-Air Force Personnel Security Board, dated 19 June 1950.'
4
The IERB was a four-member board which was given jurisdiction to hear and review appeals from decisions of the PSB. Its charter, dated 7 November 1949 and signed by the Secretaries of the Army, Navy, and Air Force, contemplated that it would afford hearings to persons denied clearance. And see 'Procedures Governing Appeals to the Industrial Employment Review Board, dated 7 November 1949.'
5
The letter read, in part:
'That over a period of years, 1943—1947, at or near Washington, D.C., you have closely and sympathetically associated with persons who are reported to be or to have been members of the Communist Party; that during the period 1944—1947 you entertained and were visited at your home by military representatives of the Russian Embassy, Washington, D.C.; that, further, you attended social functions during the period 1944—1947 at the Russian Embassy, Washington, D.C.; and on 7 April 1947 attended the Southern Conference for Human Welfare, Third Annual Dinner, Statler Hotel Washington, D.C., Cited as Communist Front organization, Congressional Committee on Un-American Activities).'
6
The Boards were abolished pursuant to a memorandum of March 27, 1953, issued by the Secretary of Defense to the Secretaries of the Army, Navy, and Air Force and to the Chairman of the Munitions Board. It provided in part:
'5. The Department of the Army, Navy and Air Force shall establish such number of geographical regions within the United States as seems appropriate to the work-load in each region. There shall then be established within each region an Industrial Personnel Security Board. This board shall consist of two separate and distinct divisions, a Screening Division and an Appeal Division, with equal representation of the Departments of the Army, Navy and Air Force on each such division. The Appeal Division shall have jurisdiction to hear appeals from the decision of the Screening Division and its decisions shall be determined by a majority vote which shall be fina, § ubject only to reconsideration on its own motion or at the request of the appellant for good cause shown or at the request of the Secretary of any military department.'
7
The memorandum from the Secretary of Defense also provided:
'6. The Secretaries of the Army, Navy and Air Force, shall within thirty days (30), establish such geographical regions and develop joint uniform standards, criteria, and detailed procedures to implement the above-described program. In developing the standards, criteria, and procedures, full consideration shall be given to the rights of individuals, consistent with security requirements. After approval by the Secretaries of the Army, Navy, and Air Force, the standards, criteria, and procedures shall govern the operation of the Board.'
8
The memorandum provided:
'7. All cases pending before the Army-Navy-Air Force Personnel Security Board and the Industrial Employment Review Board shall be referred for action under this order to the appropriate Industrial Personnel Security Board.'
9
The memorandum further provided:
'4. The Criteria Governing Actions by the Industrial Employment Review Board, dated 7 November 1949, as revised 10 November 1950, and approved by the Secretaries of the Army, Navy, and Air Force, shall govern security clearances of industrial facilities and industrial personnel by the Secretaries of the Army, Navy and Air Force until such time as uniform criteria are established in connection with paragraph 6 of this memorandum.'
10
See note 2, supra.
11
The Chairman of the Board of ERCO, Colonel Henry Berliner, later testified by affidavit as follows:
'During the year 1953, and for many years previous thereto, I was the principal stockholder of Engineering and Research Corporation, a corporation which had its principal place of business at Riverdale, Maryland. I was also the chairman of the board, and the principal executive officer of this corporation.
'I am acquainted with William Lewis Greene. Prior to the month of April, 1953, Mr. Greene was Vice-President in charge of engineering and General Manager of Engineering and Research Corporation. He has been employed by this corporation since 1937. His progress in the company had been consistent. He was one of our most valued and valuable employees, and was responsible for much of the work which Engineering and Research Corporation was doing. In April, 1953, the company received a letter from the Secretary of the Navy advising us that clearance had been denied to Mr. Greene and advising us that it would be necessary to bar him from access to our plant. In view of his position with the company, there was no work which he could do in light of this denial of clearance by the Navy. As a result, it was necessary for the company to discharge him. There was no other reason for Mr. Greene's discharge, and in the absence ofthe letter referred to, he could have continued in the employment of Engineering and Research Corporation indefinitely.'
12
The President of ERCO wrote to the Secretary of the Navy as follows:
'The Honorable R. B. Anderson
'Secretary of the Navy
'Washington 25, D.C.
'My dear Mr. Secretary:
'Receipt is acknowledged of your letter of April 17, 1953 in which you state that you have reviewed the case history file on William Lewis Greene and have concluded that his continued access to Navy classified security information is inconsistent with the best interests of National Security.
'You request this company to exclude Mr. Greene from our plants,
factories or sites and to bar him from information, in the interests of protecting Navy classified projects and classified security information.
'In accordance with your request, please be advised that since receipt of your letter this company has excluded Mr. Greene from any part of our plants, factories or sites and barred him access to all classified security information.
'For your further information, Mr. Greene tendered his resignation as an officer of this corporation and has left the plant. We shall have no further contact with him until his status is clarified although we have not yet formally accepted his resignation.
'Mr. Greene is Vice President of this company in charge of engineering. His knowledge, experience and executive ability have proven of inestimable value in the past. The loss of his services at this time is a serious below to company operations. Accordingly, we should like the privilege of a personal conference to discuss the matter further.
'Furthermore, you state that you are referring the case to the Secretary of Defense recommending that the Industrial Employment Review Board's decision of January 29, 1952 be overruled. If it is appropriate, we should like very much to have the privilege of discussing the matter with the Secretary of Defense.
'Please accept our thanks for any official courtesies which you are in a position to extend.
'Respectfully yours,
'Engineering and Research Corporation
'By /s/L. A. Wells'
13
On May 4, 1953, pursuant to the memorandum of the Secretary of Defense dated March 27, 1953, see note 6, supra, the Secretaries of the military departments established regional Industrial Personnel Security Boards governed by generalized standards, criteria, and procedures.
14
The specifications were contained in a letter to petitioner's counsel dated April 9, 1954, which was sent nineteen days before the hearing. That letter provided in part:
'Security considerations permit disclosure of the following information that has thus far resulted in the denial of clearance to Mr. Greene:
'1. During 1942 Subject was a member of the Washington Book Shop Association, an organization that has been officially cited by the Attorney General of the United States as Communist and subversive.
'2. Subject's first wife, Jean Hinton Greene, to whom he was married from approximately December 1942 to approximately December 1947, was an ardent Communist during the greater part of the period of the marriage.
'3. During the period of Subject's first marriage he and his wife had many Communist publications in their home, including the 'Daily Worker'; 'Soviet Russia Today'; 'In Fact'; and Karl Marx's 'Das Kapital.'
'4. Many apparently reliable witnesses have testified that during the period of Subject's first marriage his personal politica sympathies were in general accord with those of his wife, in that he was sympathetic towards Russia; followed the Communist Party 'line'; presented 'fellow-traveller' arguments; was apparently influenced by 'Jean's wild theories'; etc. (Nothing in the record establishes that any witness 'testified' at any hearing on these subjects and everything in the record indicates that they could have done no more than make such statements to investigative officers.)
'5. In about 1946 Subject invested approximately $1000. in the Metropolitan Broadcasting Corporation and later became a director of its Radio Station WQQW. It has been reliably reported that many of the stockholders of the Corporation were Communists or pro-Communists and that the news coverage and radio programs of Station WQQW frequently paralleled the Communist Party 'line.' (This station is now Station WGMS, Washington's 'Good Music Station.' Petitioner stated that he invested money in the station
because he liked classical music and he considered it a good investment.)
'6. On 7 April 1947 Subject and his wife Jean attended the Third Annual Dinner of the Southern Conference for Human Welfare, an organization that has been officially cited as a Communist front. (This dinner was also attended by many Washington notables, including several members of this Court.)
'7. Beginning about 1942 and continuing for several years thereafter Subject maintained sympathetic associations with various officials of the Soviet Embassy, including Major Constantine I. Ovchinnikov, Col. Pavel F. Berezin, Major Pavel N. Asseev, Col. Ilia M. Saraev, and Col. Anatoly Y. Golkovsky. (High-level executives of ERCO, as above noted, testified that these associations were carried on to secure business for the corporation.)
'8. During 1946 and 1947 Subject had frequent sympathetic association with Dr. Vaso Syrzentic of the Yugoslav Embassy. Dr. Syrzentic has been identified as an agent of the International Communist Party. (Petitioner testified that he met this individual once in connection with a business transaction.)
'9. During 1943 Subject was in contact with Col. Alexander Hess of the Czechoslovak Embassy, who has been identified as an agent of the Red Army Intelligence. (This charge was apparently abandoned as no adverse finding was based on it.)
'10. During 1946 and 1947 Subject maintained close and sympathetic association with Mr. and Mrs. Nathan Gregory Silvermaster and William Ludwig Ullman. Silvermaster and Ullman have been identified as members of a Soviet Espionage Apparatus active in Washington, D.C., during the 1940's. (Silvermaster was a top economist in the Department of Agriculture and the direct superior of petitioner's ex-wife who then worked in that department.)
'11. Subject had a series of contacts with Laughlin Currie during the period 1945—48. Currie has also been identified as a member of the Silvermaster espionage group. (Petitioner met Currie in the executive offices of the President at a time when Currie was a Special Assistant to the President.)
'12. During the period between 1942 and 1947 Subject maintained frequent and close associations with many Communist Party members,
including R_ _ S_ _, and his wife E_ _, B_ _ W_ _ and his wife M_ _, M_ _ P_ _, M_ _ L. D_ _, R_ _ N_ _ and I_ _ S_ _. (These persons were apparently friends of petitioner's ex-wife.)
'13. During substantially the same period Subject maintained close association with many persons who have been identified as strong supporters of the Communist conspiracy, including S_ _ J. R_ _, S_ _ L_ _, O_ _ L_ _, E_ _ F_ _ and V_ _ G_ _. (These persons were apparently friends of his ex-wife.)
'It is noted that all of the above information has previously been discussed with Mr. Greene at his hearing before the Industrial Employment Review Board, and that a copy of the transcript of that hearing was made available to you in August of last year.'
15
Petitioner stated by affidavit in support of his motion for summary judgment that '(a)fter my discharge from Engineering and Research Corporation, I made every possible effort to secure other employment at a salary commensurate with my experience, but I was unable to do so because all of my work history had been in the field of aeronautics. In spite of everything I could do, the best position I could obtain was a draftsman-engineer in an architectural firm. I was obliged to go to work for a salary of $4,400 per year, because the basis upon which a higher salary would be justified was experience in a field which was not particularly useful in the type of work which I was able to obtain. As a result of the actions of the defendants complained of, the field of aeronautical engineering was closed to me.'
16
For instance, the following questions were asked in connection with the so-called 'left wing' radio station in which petitioner owned stock, petitioner's acquaintanceship with alleged subversives and petitioner's business relationships with foreign governments:
'Q. We have information here, Mr. Greene, that one particular individual specifically called your attention to the fact that (Congressman) Rankin and (Senator) Bilbo had characterized this station as a Communist station, run by and for Communists?
'Q. We have information here, this has come from an informant characterized to be of known reliability in which he refers to conversations he had with you about January of 1947 in which you told him that you had visited M_ _ P_ _ the previous evening and had become rather chummy with him, do you wish to comment on that?
'Q. Concerning your relationship with S_ _ L_ _, we have
information here from an informant characterized as being one of known reliability, in hic h S_ _ L_ _ told this informant that shortly following her Western High School speech in 1947, she remarked to you that probably many people will learn things about Russia and she quoted you as replying, 'Well I hope they learn something good, at least.' Do you wish to say anything about that?
'Q. Information we have, Mr. Greene, indicates first of all, that you didn't meet these Russians in 1942 but you met them in early 1943.
'Q. Now, we have further information, Mr. Greene, indicating that the initiative of these contacts came from Col. Berezin.
'Q. We have information here indicating that as a matter of fact, sir, we do know that the meeting between you and Col. Berezin was arranged through Hess and Hochfeld as you indicated. We also have information from a source identified as being one of known reliability referring to a conversation that this source had with Hess in April 1943 in which Hess stated that he had been talking to one Harry, not further identified but presumed to be Hochfeld and that Harry said to Hess that he had a young engineer who is a good friend of ours and of our cause and Harry wanted Hess to set up a meeting between Berezin and yourself. Can you give us some reason why Harry might have referred to you as a good friend of our cause?
'Q. Of course, we can make certain assumptions as to why Col. Berezin might have wanted to meet you back in December 1942 when we look at a statement like this indicating that you were considered a good friend of their's and of their cause. Of course, some weight is lent to this assumption by the fact that your wife was strongly pro-Communist and after she left you she became very active in Communist affairs, in case you don't know that, I'll pass it on to you.' And the following questions were asked of various witnesses presented
by petitioner evidently because the Board had confidential information that petitioner's ex-wife was 'eccentric.'
'Q. Now you were in Bill's home, that red brick house that you're talking about.
'Q. Was there anything unusual about the house itself, the interior of it, was it dirty?
'Q. Were there any beds in their house which had no mattresses on them?
'Q. Did you ever hear it said that Jean Slept on a board in order to keep the common touch?
'Q. When you were in Jean's home did she dress conventionally when she received her guests?
'Q. Let me ask you this, conventionally when somebody would invite you for dinner at their home would you expect them, if they were a woman to wear a dress and shoes and stockings and the usual clothing of the evening or would you expect them to appear in overalls?'
17
The notification stated:
'Security considerations prohibit the furnishing to an appellant of a detailed statement of the findings on appeal inasmuch as the entire file is considered and comments made by the Appeal Division panel on security matters which could not for security reasons form the basis of a statement of reasons.'
18
This Board was created by the Secretary of Defense on February 2, 1955, and given power to review adverse decisions rendered by the regional boards.
19
This was the first time that petitioner was charged or found to be untrustworthy.
20
The complaint was filed before the establishment of the Industrial Personnel Security Review Board. See note 18, supra.
21
The Court of Appeals stated: 'We have no doubt that Greene has in fact been injured. He was forced out of a job that paid him $18,000 per year. He has since been reduced, so far as this record shows, to working as an architectural draftsman at a salary of some $4,400 per year. Further, as an aeronautical engineer of considerable experience he says (without real contradiction) that he is effectively barred from pursuit of many aspects of his profession, given the current dependence of most phases of the aircraft industry on Defense Department contracts not only for production but for research and development work as well. * * * Nor do we doubt that, following the Government's action, some stigma, in greater or less degree, has attached to Greene.' 103 U.S.App.D.C. 87, 95—96, 254 F.2d 944, 952—953.
22
We note our agreement with respondents' concession that petitioner has standing to bring this suit and to assert whatever rights he may have. Respondents' actions, directed at petitioner as an individual, caused substantial injuries, Joint Anti-Fascist .refugee Committee v. McGrath, 341 U.S. 123, 152, 71 S.Ct. 624, 638, 95 L.Ed. 817 (concurring opinion), and, were they the subject of a suit between private persons, they could be attacked as an invasion of a legally protected right to be free from arbitrary interference with private contractual relationships. Moreover, petitioner has the right to be free from unauthorized actions of government officials which substantially impair his property interests. Cf. Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570.
23
The Industrial Personnel Security Review Regulation, 20 Fed.Reg. 1553, recommended by the Secretaries of the Army, Navy, and Air Force, and approved by the Secretary of Defense, provided:
§ 67.1—4. Release of information.
All personnel in the Program will comply with applicable directives pertaining to the safeguarding of classified information and the handling of investigative reports. No classified information, nor any information which might compromise investigative sources or methods or the identity of confidential informants, will be disclosed to any contractor or contractor employee, or to his lawyer or representatives, or to any other person not authorized to have access to such information. In addition, in a case involving a contractor employee the contractor concerned will be advised only of the final determination in the case to grant, deny, or revoke clearance, and of any decision to suspend a clearance granted previously pending final determination in the case. The contractor will not be given a copy of the Statement of Reasons issued to the contractor employee except at the written request of the contractor employee concerned.'
24
See 'Charter of the Industrial Employment Review Board, dated 7 November 1949,' note 4, supra; 'Charter of the Army-Navy-Air Force Personnel Security Board, dated 19 June 1950,' note 3, supra; Memorandum issued by the Secretary of Defense to the Secretaries of the Army, Navy, and Air Force and to the Chairman of the Munitions Board, dated March 27, 1953, notes 6, 7, 8 and 9, supra; 'The Industrial Personnel and Facility Security Clearance Program,' effective May 4, 1953, note 13, supra; 'The Industrial Personnel Security Review Regulation,' 20 Fed.Reg. 1553, 32 CFR Part 67 (1958 Supp.); Industrial Security Manual for Safeguarding Classified Information, 20 Fed.Reg. 6213, 21 Fed.Reg. 2814.
25
When Festus more than two thousand years ago reported to King Agrippa that Felix had given him a prisoner named Paul and that the priests and elders desired to have judgment against Paul, Festus is reported to have stated: 'It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have license to answer for himself concerning the crime laid against him.' Acts 25:16.
Professor Wigmore explains in some detail the emergence of the principle in Anglo-American law that confrontation and cross-examination are basic ingredients in a fair trial. 5 Wigmore on Evidence (3d ed. 1940) § 1364. And see O'Brian, National Security and Individual Freedom, 62.
26
For instance, in the instant case, to establish the charge that petitioner's 'personal political sympathies were in general accord with those of his wife,' the EIPSB apparently relied on statements made to investigators by 'old' friends of petitioner. Thus, the following questions were asked petitioner:
'Q. I'd like to read to you a quotation from the testimony of a person who had identified himself as having been a very close friend of yours over a long period of years. He states that you, as saying to him one day that you were reading a great deal of pro-Communist books and other literature. Do you wish to comment on that?
'Q. Incidentally this man's testimony concerning you was entirely favorable in one respect. He stated that he didn't think you were a Communist but he did state that he thought that you have been influenced by Jean's viewpoints and that he had received impressions definite that it was your wife who was parlor pink and that you were going along with her.
'Q. This same friend testified that he believed that you were influenced by Jean's wild theories and he decided at that time to have no further association with you and your wife * * *.
'Q. * * * Here's another man who indicates that he has been a friend of yours over a long period of time who states that he was a visitor in your home on occasions and that regarding some of these visits, he met some of your wife's friends, these people we've been talking about in the past and that one occasion, he mentioned in particular, the topic of conversation was China and that you set forth in the conversation and there seemed general agreement among all of you at that time that the revolutionists in China were not actually Communists but were agrarian reformists which as you probably know is part of the Communist propaganda line of several years back. * * *
'Q. Mr. Greene we've got some information here indicating that during the period of your marriage to your first wife that she was
constantly finding fault with the American institutions, opposing the American Capitalistic System and never had anything but praise for the Russians and everything they attempted to do. Did you find that to be the case?
'Q. We have a statement here from another witness with respect to yourself in which he states that you felt that the modern people in this country were too rich and powerful, that the capitalistic system of this country was to the disadvantage of the working people and that the working people were exploited by the rich.
'Q. I have a statement from another one of your associates to the effect that you would at times, present to him a fellow-traveler argument. This man indicated to us that he was pretty well versed on the Communist Party line himself at that time and found you parroting arguments which he assumed that you got from your wife. Do you wish to comment on that?' Confrontation of the persons who allegedly made these statements would have been of prime importance to petitioner, for cross-examination might have shown that these 'witnesses' were hazy in recollecting long-past incidents, or were irrationally motivated by bias or vindictiveness.
27
This is made clear by the following testimony of Jerome D. Fenton, Director, Industrial Personnel Security, Department of Defense, before the Subcommittee on Constitutional Rights of the Senate Judiciary Committee, given on November 23, 1955:
'(Q.) * * * What other type of evidence is received by the hearing boards besides the evidence of persons under oath (A .) The reports from the various governmental investigative agencies.
'(Q.) And the reports of the various governmental investigations might, themselves, be hearsay, might they not? (A.) I think that is a fair statement.
'(Q.) In fact, they might be, as the Court of Appeals for the Ninth District (sic) said with respect to the port security program, second,
or third, or fourth-hand hearsay, might they not? (This question refers to the opinion of the Court of Appeals for the Ninth Circuit in Parker v. Lester, 227 F.2d 708.)
'(A.) The answer is 'Yes.'
'(Q.) Can you tell me what type of help is given to the hearing board in these reports with respect to the matter of evaluation? What is the nature of the evaluation that is used for this purpose? (A.) Well, each board has a person who is called a security adviser, who is an expert in that particular area. Each screening board has one, and those individuals are well-trained people who know how to evaluate reports and evaluate information. They know how to separate the wheat from the chaff, and they assist these boards.
'(Q.) This expert, then, has to take the report and make his own determination in assisting the board as to the reliability of a witness that he has never seen, or perhaps hasn't even had the opportunity to see the person who interviewed the witness? (A.) Well, he has nothing to do with the witness; no.
'(Q.) What is that? (A.) He has not interviewed the witness; no.'
Hearings before Subcommittee on Constitutional Rights, Senate Judiciary Committee, on S.Res. 94, 84th Cong., 2d Sess. 623—624. And cf. Richardson, The Federal Employee Loyalty Program, 51 Col.L.Rev. 546, and Hearings before a Subcommittee of the Senate Foreign Relations Committee on S.Res. 231, 81st Cong., 2d Sess., 327—339 (statement of J. Edgar Hoover, Director Federal Bureau of Investigation).
28
No better, for this purpose, is Exec. Order No. 8972, 6 Fed.Reg. 6420, filed on December 12, 1941, which empowered the Secretary of War 'to establish and maintain military guards and patrols, and to take other appropriate measures, to protect from injury or destruction national defense material, national-defense premises, and national-defense utilities * * *.' Even if that order is relevant authority for programs created after World War II, which is doubtful, it provides no specific authorization for nonconfrontation hearings.
29
As far as appears, the most substantial official notice which Congress had of the non-confrontation procedures used in screening industrial workers was embodied in S.Doc. No. 40, 84th Cong., 1st Sess., a 354-page compilation of laws, executive orders, and regulations relating to internal security, printed at the request of a single Senator, which reproduced, among other documents and without specific comment, the Industrial Personnel Security Review Regulation.
30
At the hearings to which we have been referred, the following passage from the testimony of the Department of Defense representative constitutes the only description made to the Committee concerning the procedures used in the Department's clearance program:
'In connection with the procurement programs of the Department of Defense, regulations have been prescribed to provide uniform standards and criteria for determining the eligibility of contractors, contractor employees, and certain other individuals, to have access to classified defense information. The regulations also establish administrative procedures governing the disposition of cases in which a military department, or activity thereof, has made a recommendation or determination (a) with respect to the denial, suspension, or revocation of a clearance of a contractor or contractor employee; and (b) with respect to the denial or withdrawal of authorization for access by certain other individuals.
'While the Department of Defense assumes, unless information to the contrary is received, that all contractors and contractor employees are loyal to the Government of the United States, the responsibilities of the Military Establishment necessitate vigorous application of policies designed to minimize the security risk incident to the use of classified information by such contractors and contractor employees. Accordingly, measures are taken to provide continuing assurance that no contractor or contractor employee will be granted a clearance if available information indicates that the granting of such clearance may not be clearly consistent with the interests of national security. At the same time, every possible safeguard within the limitations of national security will be provided to ensure that no contractor or contractor employee will be denied a clearance without an opportunity for a fair hearing.' Id., at 774. This description hardly constitute ev en notice to the Committee of the nature of the hearings afforded. Thus the appropriation could not 'plainly show a purpose to bestow the precise authority which is claimed.' Ex parte Endo, 323 U.S. 283, 303, note 24, 65 S.Ct. 208, 219, 89 L.Ed. 243. Likewise, appropriations of specific amounts for the Munitions Board or its successors, agencies with multifold objectives, without any mention of the uses to which the funds could be put, cannot be considered as a ratification of the use of the specified hearing procedures.
31
It is estimated that approximately three million persons having access to classified information are covered by the industrial security program. Brown, Loyalty and Security (1958), 179—180; Association of the Bar of the City of New York. Report of the Special Committee on the Federal Loyalty-Security Program (1956), 64.
1
My brother HARLAN very kindly credits me with 'colorful characterization' in stating this as the issue. While I take great pride in authorship, I must say that in this instance I merely agreed with the statement of the issue by the Solicitor General and his co-counsel in five different places in the Brief for the United States. See pp. 2, 17, 19, 29, 59.
2
ERCO agreed in its government contract, as was well known to Greene, to exclude any individual from any part of its plant at which work under the contract was being performed who had not been cleared by the Navy for access to military secrets.
3
Brother HARLAN states that I suggest 'that the Court's action today requires 'the President's Cabinet members to revoke their refusal to give' the petitioner 'access to military secrets,' despite any views they may have as to his reliability. * * *' Government officials, well versed in the application of this Court's judgments to the practicalities of government operation, say that the relief which Greene seeks here—and which the Court now grants—is 'in substance, a mandatory injunction requiring that the Government show him (or, in practice, allow contractors to show him) defense secrets, notwithstanding the judgment of the executive branch that such disclosure might jeopardize the national safety.' Brief for the United States, 48.
I. THE CONSTITUTIONAL ISSUE.
4
Dent v. State of West Virginia, 1889, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623, held that a West Virginia statute did not deprive one previously practicing medicine of his rights without due process by requiring him to obtain a license under the Act. Schware v. Board of Bar Examiners, 1957, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, likewise a license case, did not pass upon the 'right' or 'privilege' to practice law, merely holding that on the facts the refusal to permit Schware to take the examination was 'invidiously discriminatory.' In Peters v. Hobby, 1955, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129, the Court simply held the action taken violated the Executive Order involved. The concurring opinion, Douglas, J., 349 U.S. at page 350, 75 S.Ct. at page 800, went further but alone on the question of 'right.' The Court did not discuss that question, much less pass upon it. Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, held that the summary dismissal without further evidence by New York of a school teacher because he had pead ed the Fifth Amendment before a United States Senate Committee violated due process. The case merely touched on the 'right' to plead the Fifth Amendment, not to 'property' rights. Truax v. Raich, 1915, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Allgeyer v. State of Louisiana, 1897, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832, and Powell v. Commonwealth of Pennsylvania, 1888, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253, were equal protection cases wherein discrimination was claimed. Greene alleges no discrimination.
5
See Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, affirmed by an equally divided Court, 1951, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352; Peters v. Hobby, 1955, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129.
6
Report of the Commission on Government Security (1957), S.Doc. No. 64, 85th Cong., 1st Sess. 237, n. 7.
7
War Department Pamphlet No. 32—4 (1946) provided both criteria and procedures for removal of subversives. The basic criterion was 'good cause to suspect an employee of subversive activity * * *', the latter being defined as 'sabotage, espionage, or any other wilful activity intended to disrupt the national defense program.' The basic procedure for removal was set out in 10:
'10. When adequate investigation has revealed that there is good cause to suspect an employee of subversive activity on a national defense project of importance to Army or Navy procurement, the vital success f t he project, as well as the security of the loyal employees, may require that the Army or Navy, without revealing the nature or source of its evidence, request the immediate removal of such individual from the project. To this end the cooperation of the organizations representative of organized labor is solicited for the following program: * * *' Clearly this procedure did not anticipate confrontation or cross-examination.
8
The National Security Act Amendments of 1949, 63 Stat. 578, amended § 213 so as to delete subparagraph 10.
9
Annual Report of the Secretary of the Army for the Fiscal Year 1949 (1950), 192.
10
Part IV, § 2 of Exec.Order No. 9835 specifically stated that: '* * * the investigative agency may refuse to disclose the names of confidential informants, provided it furnishes sufficient information about such informants on the basis of which the requesting department or agency can make an adequate evaluation of the information furnished by them, and provided it advises the requesting department or agency in writing that it is essential to the protection of the informants or to the investigation of other cases that the identity of the informants not be revealed. * * *'
11
House of Representativs, Hearings before the Subcommittee of the Committee on Appropriations on the National Military Establishment Appropriation Bill for 1950, 81st Cong., 1st Sess. 91.
12
The reason for the dearth of legislative reference to the program appears in some 1955 hearings on an appropriation bill. Under consideration at the time was a proposal for a fund to reimburse contractor employees who had been suspended during a security check and subsequently cleared. General Moore testified that, in the past, such reimbursement had been made by the service secretaries out of their contingency funds. Then followed this colloquy:
'Mr. Mahon. Under that (the contingency fund) you can buy a boy a top, or a toy, provided the Secretary of Defense thinks it is proper?
'Gen. Moore. That is right, and we come down here and explain to this committee with respect to this in a very secret session how much we have spent and precisely what we have spent it for.' House of Representatives, Hearings before the Subcommittee of the Committee on Appropriations on Department of Defense Appropriations for 1956, 84th Cong., 1st Sess. 780.
| 23
|
360 U.S. 548
79 S.Ct. 1322
3 L.Ed.2d 1422
PENNSYLVANIA RAILROAD COMPANY, Petitioner,v.George M. DAY, Administrator Ad Litem of the Estate of Charles A. DePriest.
No. 397.
Argued March 26, 1959.
Decided June 29, 1959.
Mr. Richard N. Clattenburg, Philadelphia, Pa., for the petitioner.
Mr. James M. Davis, Jr. Mt. Holly, N.J., for the respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
In April 1955 Charles A. DePriest began an action in the District Court for the District of New Jersey, claiming $27,000 in additional compensation from the Pennsylvania Railroad. DePriest had been employed as a locomotive engineer by the Railroad from May 1918 to March 1955, at which time he resigned his employment and applied for an annuity. He alleged that under the terms of a collective bargaining agreement between the Railroad and Brotherhood of Locomotive Engineers of which he was a member, he was entitled to an extra day's pay for each of the 1,000—1,500 times he had been assigned to leave his switching limits and perform service for his employer on tracks belonging to the Baltimore and Ohio Railroad Co. He relied on a provision of the collective bargaining agreement which provided extra compensation for engineers who were used beyond their switching limits under specially defined circumstances. DePriest further alleged that his claim had been rejected by his employer's representatives, including the Railroad's chief operating officer for the region in which he was employed. His retirement from service occurred immediately after this alleged rejection. Jurisdiction was based on diversity of citizenship. The District Court stayed the proceedings awaiting the disposition of similar claims against the Pennsylvania Railroad then pending before the First Division of the National Railroad Adjustment Board, DePriest v. Pennsylvania R. Co., D.C., 145 F.Supp. 596. An appeal from this interlocutory decision, not one granting or denying an injunction, was dismissed. 3 Cir., 243 F.2d 485. In the interim DePriest died and was replaced by an administrator. Following a rejection by the National Railroad Adjustment Board of claims against the Pennsylvania Railroad involving the same provisions of the collective bargaining agreement, the District Court dismissed the complaint on the ground that the Board's interpretations were final and as such binding on respondent, D.C., 155 F.Supp. 695. The Court of Appeals reversed, 3 Cir., 258 F.2d 62, holding that the determination by the Board of claims to which respondent was not a party was not binding on him, and that the District Court had jurisdiction over the claim. We granted certiorari, 358 U.S. 878, 79 S.Ct. 124, 3 L.Ed.2d 108, since this decision raised an important question in the administration of the Railway Labor Act of 1934. That Act, 48 Stat. 1185, 45 U.S.C. § 151 et seq., 45 U.S.C.A. § 151 et seq., established a broad framework for the regulation and adjustment of industrial controversies involving railroads.
2
The Act establishes, inter alia, the National Railroad Adjustment Board with thefol lowing purposes and functions:
3
'The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.' Railway Labor Act, § 3, First (i), 45 U.S.C. § 153, First (1), 45 U.S.C.A. § 153, subd. 1(i).
4
The clash of economic forces which led to the passage of this Act, the history of its enactment, and the legislative policies which it expresses and which guide judicial interpretation have been too thoroughly and recently canvassed by this Court to need repetition.1 On the basis of these guides to judicial construction we have held that the National Railroad Adjustment Board had exclusive primary jurisdiction over disputes between unions and carriers based on the provisions of a collective bargaining agreement. Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795. On the same day, we also decided Order of Railway Conductors of America v. Southern Ry. Co., 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811, holding that the principles of Slocum were fully applicable to a claim by a group of conductors that they were entitled to extra compensation for certain 'side trips' under the terms of their agreement with the carrier. That case, like the case now before us, involved claims for compensation which could only be adjudicated by a determination of the relevant facts and construction of the collective bargaining agreement. However, here, as was not the case in Order of Railway Conductors of America the claimant has retired from railroad service. The immediate question is whether that factual difference makes a legal difference.
5
The Act grants jurisdiction to the Board of 'disputes between an employee * * * and a carrier * * *.' It defines 'employee' as including:
6
'* * * every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission * * *.'
7
The National Railroad Adjustment Board was established as a tribunal to settle disputes arising out of the relationship between carrier and employee. All the considerations which led Congress to entrust an expert administrative board with the interpretation of collective bargaining agreements are equally applicable when, as here, the employee has retired from service after initiating a claim for compensation for work performed while on active duty. The nature of the problem and the need for experience and expert knowledge remain the same. The same collective bargaining agreement must be construed with the same need for uniformity of interpretation and orderly adjustment of differences. There is nothing in the Act which requires that the employment relationship subsist throughout the entire process of administrative settlement. The purpose of the Act is fulfilled if the claim itself arises out of the employment relationship which Congress regulated. The Board itself has accepted this construction and ajud icates the claims of retired employees.2 This uniform administrative interpretation is of great importance, reflecting, as it does, the needs and fair expectations of the railroad industry for which Congress has provided what might be termed a charter for its internal government. Moreover, the discharged employee may challenge the validity of his discharge before the Board, seeking reinstatement and back pay. See Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351. Thus it is plain both from a reading of the Act in light of its purpose and the needs of its administration and from the settled administrative interpretation that the Board has jurisdiction over respondent's claim for compensation.
8
Since the Board has jurisdiction, it must have exclusive primary jurisdiction. All the considerations of legislative meaning and policy which have compelled the conclusion that an active employee must submit his claims to the Board, and may not resort to the courts in the first instance, are the same when the employee has retired and seeks compensation for work performed while he remained on active service. A contrary conclusion would create a not insubstantial class of preferred claimants.3 Retired employees would be allowed to bypass the Board specially constituted for hearing railroad disputes whenever they deemed it advantageous to do so, whereas all other employees would be required to present their claims to the Board. This case forcefully illustrates the difficulties of such a construction. Several active workers have had claims similar to that of respondent rejected by the Board. To allow respondent now to try his claim in the District Court would only accentuate the danger of inequality of treatment and its consequent discontent which it was the aim of the Railway Labor Act to eliminate. We can take judicial notice of the fact that provisions in railroad collective bargaining agreements are of a specialized technical nature calling for specialized technical knowledge in ascertaining their meaning and application. Wholly apart from the adaptability of judges and juries to make such determinations, varying jury verdicts would imbed into such judgments varying constructions not subject to review to secure uniformity. Not only would this engender diversity of proceedings but diversity through judicial construction and through the construction of the Adjustment Board. Since nothing is a greater spur to conflicts, and eventually conflicts resulting in strikes, than different pay for the same work or unfair differentials, not to respect the centralized determination of these questions through the Adjustment Board would hamper if not defeat the central purpose of the Railway Labor Act.
9
Our decision in Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, does not stand in the way of this. The decision in that case has been given its proper, limited scope in Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795. Moore carved out from the controlling doctrine of primary jurisdiction the unusual and special situation of wrongful discharge where the aggrieved employee had been expelled from the employment relationship. Moreover, since the discharge had been accepted as final by the employee, it is probable that the damagesacc rued primarily after the employment relationship had terminated.
10
Our consistent regard for the importance of having disputes between railroad employees and carriers settled by the administrative Board which Congress established for that purpose requires respondent to resort to the NRAB for adjudication of his claim.
11
The judgment is reversed, and the cause remanded, in order that the case may be returned to the District Court, with instructions to dismiss the complaint for lack of jurisdiction.
12
Reversed and remanded.
13
Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
14
I would affirm the judgment of the Court of Appeals for two reasons: I do not agree that the Railway Labor Act requires retired railroad employees to submit their back-wage claims to the National Railroad Adjustment Board; I believe that Act, as here construed to grant railroads court trials of wage claims against them while compelling the employees to submit their claims to the Board for final determination, denies employees equal protection of the law in violation of the Due Process Clause of the Fifth Amendment. Cf. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.
I.
15
The Court holds that the Railway Labor Act gives the National Railroad Adjustment Board exclusive jurisdiction of back-pay disputes between retired railroad employees and their ex-employer railroads. I cannot read the Labor Act that way. The controlling provision, § 3, First (i), confers power on the Board to adjust 'disputes between an employee or a group of employees and a carrier or carriers * * *.'1 Seemingly to highlight the fact that the Act is to govern active workers only, Congress defined 'employee' as 'every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee * * *.'2 The railway engineer who brought this suit was not an employee within this definition. Prior to suit he had resigned his job, and had claimed an annuity under the Railroad Retirement Act of 1937, which requires a worker making such a claim to relinquish all rights to return to railroad service in the future.3 Under these circumstances, the retired employee could not be, and was not 'in the service' of the railroad or 'subject to its continuing authority to supervise * * * the manner of rendition of his service.' No other language in the Act brings retired railroad employees within the exclusive jurisdiction of the Adjustment Board. I think the Court's holding represents an altogether unjustifiable interpretative liberty.
16
There are perhaps few statutes providing less of an excuse for departing from congressional language than the Railway Labor Act, at least insofar as its coverage is concerned. It is but one step in a series of congressional efforts to establish machinery for peaceful settlement of quarrels between railroads and railroad workers in order to avoid strikes and resulting interruption of railroad service. The Act as a whole is a product of many years of thought, study, conferences, discussions, and experiments. Many witnesses, including representatives of railroads and employees, have testified at many congressional hearings. The hearings show a solicitous interest by both groups in the language of the legislation. The Act touches sensitive subjects of importance to industrial peace, and represented as enacted a balance of interests reasonably satisfactory to all groups. As such, the plain meaning of its language should not lightly be disturbed.
17
The Court finds reasons outside the language of the Act, however, for expanding the Board's jurisdiction beyond thebou ndaries set by the definitions of Congress. These reasons, in my judgment, do not support the expansion of the Act's coverage which the Court makes. The Court argues that 'All the considerations which led Congress to entrust an expert administrative board with the interpretation of collective bargaining agreements are equally applicable when, as here, the employee has retired from service after initiating a claim for compensation for work performed while on active duty.' I am afraid this statement assumes a knowledge which the Court does not and cannot have. Of course some of the same considerations apply. I agree, for example, that the same collective bargaining agreement must be construed whether wages are claimed by an ex-employee or by an active employee. This is equally true, however, when an ex-employee sues for wrongful discharge under a collective bargaining agreement. Yet we have not hesitated on three separate occasions to say that such actions for wrongful discharge can be adjudicated in the courts, and that the courts themselves may construe the bargaining agreement. Moore v. Illinois Central R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Transcontinental & Western Air, Inc., v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325. Similarly, when the Board makes an award adverse to the railroad and the employee is forced to go to the courts to have the award enforced, courts have felt free to interpret collective bargaining agreements differently from the way the Board had.4
18
Moreover, I do not agree with the Court that the problems involved in suits by ex-employees and active employees are necessarily the same. One cannot know all the complex of considerations which led Congress to adopt the Act. One can only surmise its reasons for carefully limiting the Act's scope to disputes between active railroad workers and their employers. It is clear, however, that active employees work together from day to day; their work frequently makes them live together in the same neighborhood; they, in fact, constitute almost a separate family of people, discussing their interests and affairs, and airing among themselves their complaints and grievances against the company. In such an atmosphere individual dissatisfactions tend to become those of the group, breeding industrial disturbances and strikes. We cannot know that this is true of retired employees, as the Court seems to take for granted. Instead, the very opposite would seem a much more likely assumption. Retired employees give up their daily work contact with active workers, frequently even move a long way off from their old working localities, and therefore their personal grievances are not so likely to breed group dissatisfaction leading to strikes. Consequently, it seems wrong to intimate that the grievances retired workers may have over claims for back pay are as likely to create strife productive of railroad strikes as the same grievances would, if entertained by active railroad workers. Certainly, the Court's questionable assumption to this effect supplies a very slim basis for departing from the clear language of the Act.
19
But if external considerations are to be used to interpret the statute, I think that the 'lop-sided' effect courts have given to the Act's provisions for review of Board awards furnishes a very weighty reason for excluding retired employees from the exclusive jurisdiction of the Board. The Act provides that either a railroad worker or an employee can invoke the compulsory jurisdiction of the Adjustment Board.5 Section 3, First (m) states that 'awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award.'6 As constued , this provision prohibits an employee from seeking review of an adverse Board ruling in the courts.7 And courts, determining that a Board denial of an employee's money claim is not a 'money award' falling within the exception of § 3, First (m), have refused workers a judicial trial of their money claims against the railway after these have been rejected by the Board.8 Today's decision in Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, appears to adopt this position. In contrast, however, a railroad may obtain a trial substantially de novo of any award adverse to it. For, under § 3, First (p) of the Act, if a carrier does not voluntarily comply with the Board's award, including wage awards for money damages, a wage earner can enforce the Board's order only by bringing, in a United States District Court, a suit which 'shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated * * *.'9
20
Construed this way, the Act creates a glaring inequality of treatment between workers and railroads. After denial by the Adjustment Board, workers can get no judicial trial of their claims; railroads, however, can get precisely the same kind of trial they would have were there no Adjustment Board, except that the Board's findings constitute prima facie evidence in the case. For the reasons stated by Mr. Justice Douglas in his dissent in Price, I think the Railway Labor Act should be construed to grant a railroad employee the same kind of redetermination by judge and jury of a Board order denying him a 'money award' that the Act affords a railroad for a money award against it. The Court rejected this view in Price. The unfairness of the discriminatory procedure there upheld seems manifest to me. In my judgment, it is bound to incite the kind of bitter resentment among railroad workers which will produce discord and strikes interrupting the free flow of commerce and creating the very evil Congress sought to avoid by this Act. These reasons seem to me to provide compelling arguments against judicial expansion of the Act to retired railroad workers plainly not covered by its language. Since the Court refuses to construe the Act to exclude such workers, however, I am forced to reach and consider the constitutional contentions raised by respondent.
II.
21
Respondent argues that giving the Adjustment Board jurisdiction to make a 'final and binding' determination of hiswag e claim deprives him of a jury trial in violation of the Seventh Amendment since wage disputes were 'Suits at common law * * *.'10 His contention is all the more serious where, as here, he is compelled to submit his claim to the Board and—as I understand the Court's holding here and in Price—is never allowed to take it to the courts for trial. In a comparable situation, Congress amended the reparation provisions of the Interstate Commerce Act for the specific purpose of avoiding constitutional difficulties by guaranteeing a railroad a full jury trial of money claims against it.11 Significantly, § 3, First (p) of the Railway Labor Act, which provides the kind of court trial a railway can get before an award against it can be enforced, is copied substantially verbatim from § 16(2) of the amended Commerce Act.12 That section (§ 16(2) had been construed by this Court long before the Railway Labor Act was passed so as to assure that it did not 'abridge the right of trial by jury, or take away any of its incidents.' Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 335, 59 L.Ed. 644. It is hard for me to believe that Congress enacted the Railway Labor Act on the assumption that a railroad worker is any less entitled to a jury trial under the Constitution than is a railroad. And I would construe the Act on the basis that Congress believed both are entitled to such a trial. See Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 1360 (dissenting opinion). Instead the Court in Price rejects this construction, from which it must follow that respondent here is deprived of a jury trial, although the railroad can get one.
22
It would surely not be easy to uphol th e constitutionality of a procedure which takes away from both parties to a wage dispute their ancient common-law right to a trial by court and jury.13 It should be impossible to uphold it when, as here, the procedure grants both parties an administrative hearing and then gives one of them a second chance before a judge and jury while denying it to the other. Such an unequal procedure cannot be a fair trial since it gives one side a far better chance to win than the other. Analogous practices in both criminal and civil cases have been consistently struck down by this and many other courts.14 Yet today the Court upholds this procedure without so much as discussing it. It does this although I can hardly think of a case where discrimination between litigants is less justified. Indeed, the only 'justification' that has been attempted is that at the time the Railway Labor Act was passed certain representatives of the Railroad Brotherhoods were willing to forego their right to trial by judge and jury in exchange for certain benefits the law allegedly gave them. See Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351. Taken as a whole I do not read the legislative history of the law as supporting any such concession by the unions. But even if it did, I would not be able to uphold the procedure here involved. For, assuming that an individual can contract away his constitutional right to an equal trial, and assuming additionally the still more doubtful proposition that representatives of an organization can, by contract, estop its members from claiming equal treatment in the courts in cases or controversies arising thereafter, I cannot agree that the statements of some union leaders to Congress when it enacted this law can be taken to have such an effect. A fair trial is too valuable a safeguard of our liberty for us to allow it to be so easily discarded. I would hold that respondent has a right to jury trial equal to that accorded the railroad, and that his constitutional contention is well taken.
23
For all these reasons I would affirm the judgment of the Court of Appeals.
24
Mr. Byron N. Scott, Washington, D.C., for respondents.
25
Mr. Justice HARLAN announced the judgment of the Court, and delivered an opinion, in which Mr. Justice FRANKFURTER, Mr. Justice CLARK, and Mr. Justice WHITTAKER join.
26
We are called upon in this case to weigh in a particular context two considerations of high importance which now and again come into sharp conflict—on the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or illfounded damage suits brought on account of action taken in the exercise of their official responsibilities.
27
This is a libel suit, brought in the District Court of the District of Columbia by respondents, former employees of the Office of Rent Stabilization. The alleged libel was contained in a press release issued by the office on February 5, 1953, at the direction of petitioner, then its Acting Drector.1 The circumstances which gave rise to the issuance of the release follow.
28
In 1950 the statutory existence of the Office of Housing Expediter, the predecessor agency of the Office of Rent Stabilization, was about to expire. Respondent Madigan, then Deputy Director in charge of personnel and fiscal matters, and respondent Matteo, chief of the personnel branch, suggested to the Housing Expediter a plan designed to utilize some $2,600,000 of agency funds earmarked in the agency's appropriation for the fiscal year 1950 exclusively for terminal-leave payments. The effect of the plan would have been to obviate the possibility that the agency might have to make large terminal-leave payments during the next fiscal year out of general agency funds, should the life of the agency be extended by Congress. In essence, the mechanics of the plan were that agency employees would be discharged, paid accrued annual leave out of the $2,600,000 earmarked for terminal-leave payments, rehired immediately as temporary employees, and restored to permanent status should the agency's life in fact be extended.
29
Petitioner, at the time General Manager of the agency, opposed respondnts ' plan on the ground that it violated the spirit of the Thomas Amendment, 64 Stat. 768,2 and expressed his opposition to the Housing Expediter. The Expediter decided against general adoption of the plan, but at respondent Matteo's request gave permission for its use in connection with approximately fifty employees, including both respondents, on a voluntary basis.3 Thereafter the life of the agency was in face extended.
30
Some two and a half years later, on January 28, 1953, the Office of Rent Stabilization received a letter from Senator John J. Williams of Delaware, inquiring about the terminal-leave payments made under the plan in 1950. Respondent Madigan drafted a reply to the letter, which he did not attempt to bring to the attention of petitioner, and then prepared a reply which he sent to petitioner's office for his signature as Acting Director of the agency. Petitioner was out of the office, and a secretary signed the submitted letter, which was then delivered by Madigan to Senator Williams on the morning of February 3, 1953.
31
On February 4, 1953, Senator Williams delivered a speech on the floor of the Senate strongly criticizing the plan, stating that 'to say the least it is an unjustifiable raid on the Federal Treasury, and heads of every agency in the Government who have condoned this practice should be called to task.' The letter above referred to was ordered printed in the Congressional Record. Other Senators joined in the attack on the plan.4 Their comments were widely reported in the press on February 5, 1953, and petitioner, in his capacity as Acting Director of the agency, received a large number of inquiries from newspapers and other news media as to the agency's position on the matter.
32
On that day petitioner served upon respondents letters expressing his intention to suspend them from duty, and at the same time ordered issuance by the office of the press release which is the subject of this litigation, and the text of which appears in the margin.5
33
Respondents sued, charging that the press release, in itself and as coupled with the contemporaneous news reports of senatorial reaction to the plan, defamed them to their injury, and alleging that its publication and terms had been actuated by malice on the part of petitioner. Petitioner defended, inter alia, on the ground that the issuance of the press release was protected by either a qualified or an absolute privilege. The trial court overruled these contentions, and instructed the jury to return a verdict for respondents if it found the release defamatory. The jury found for respondents.
34
Petitioner appealed, raising only the issue of absolute privilege. The judgment of the trial court was affirmed by the Court of Appeals, which held that 'in explaining his decision (to suspend respondents) to the general public (petitioner) * * * went entirely outside his line of duty' and that thus the absolute privilege, assumed otherwise to be available, did not attach. 100 U.S.App.D.C. 319, 244 F.2d 767, 768. We granted certiorari, vacated the Court of Appeals' judgment, and remanded the case 'with directions to pass upon petitioner's claim of a qualified privilege.' 355 U.S. 171, 173, 78 S.Ct. 204, 206, 2 L.Ed.2d 179. On remand the Court of Appeals held that the press release was protected by a qualified privilege, but that there was evidence from which a jury could reasonably conclude that petitioner had acted maliciously, or had spoken with lack of reasonable grounds for believing that his statement was true, and that either conclusion would defeat the qualified privilege. Accordingly it remanded the case to the District Court for retrial. 103 U.S.App.D.C. 176, 256 F.2d 890. At this point petitioner again sought, and we again granted certiorari, 358 U.S. 917, 79 S.Ct. 287, 3 L.Ed.2d 237, to determine whether in the circumstances of this case petitioner's claim of absolute privilege should have stood as a bar to maintenance of the suit despite the allegations of malice made in the complaint.
35
The law of privilege as a defense by officers of government to civil damage suits for defamation and kindred torts has in large part been of judicial making, although the Constitution itself gives an absolute privilege to members of both Houses of Congress in respect to any speech, debate, vote, report, or action done in session.6 This Court early held that judges of courts of superior or general authority are absolutely privileged as respects civil suits to recover for actions taken by them in the exercise of their judicial functions, irrespective of the motives with which those acts are alleged to have been performed, Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646, and that a like immunity extends to other officers of government whose duties are related to the judicial process. Yaselli v. Goff, 2 Cir., 12 F.2d 396, 56 A.L.R. 1239, affirmed per curiam, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395, involving a Special Assistant to the Attorny G eneral.7 Nor has the privilege been confined to officers of the legislative and judicial branches of the Government and executive officers of the kind involved in Yaselli. In Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780, petitioner brought suit against the Postmaster General, alleging that the latter had maliciously circulated widely among postmasters, past and present, information which he knew to be false and which was intended to deceive the postmasters to the detriment of the plaintiff. This Court sustained a plea by the Postmaster General of absolute privilege, stating that 161 U.S. at pages 498—499, 16 S.Ct. at page 637:
36
'In exercising the functions of his office, the head of an executive department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he was subjected to any such restraint. He may have legal authority to act, but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals.'8
37
The reasons for the recognition of the privilege have been often stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties—suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. The matter has been admirably expressed by Judge Learned Hand:
38
'It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officrs who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs doen by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. * * *
39
'The decisions have, indeed, always imposed as a limitation upon the immunity that the official's act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment's reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. * * *' Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581.
40
We do not think that the principle announced in Vilas can properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts.9 The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.10
41
To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails. It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted—the relation of the act complained of to 'matters committed by law to his control or supervision,' Spalding v. Vilas, supra, 161 U.S. at page 498, 16 S.Ct. at page 637,—which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits.
42
Judged by these standards, we hold that petitioner's plea of absolute privilege in defense of the alleged libel published at his direction must be sustained. The question is a close one, but we cannot say that it was not an appropriate exercise of the discretion with which an executive officer of petitioner's rank is necessarily clothed to publish the press release here at issue in the circumstances disclosed by this record. Petitioner was the Acting Director of an important agency of government,11 and was clothed by redelegation with 'all powers, duties, and functions conferred on the President by Title II of the Housing and Rent Act of 1947 * * *.'12 The integrity of the internal operations of the agency which he headed, and thus his own integrity in his public capacity, had been directly and severely challenged in charges made on the floor of the Senate and given wide publicity; and without his knowledge correspondence which could reasonably be read as impliedly defending a position very different from that which he had from the beginning taken in the matter had been sent to a Senator over his signature and incorporated in the Congressional Record. The issuance of press releases was standard agency practice, as it has become with many governmental agencies in these times. We think that under these circumstances a publicly expessed statement of the position of the agency head, announcing personnel action which he planned to take in reference to the charges so widely disseminated to the public, was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively. It would be an unduly restrictive view of the scope of the duties of a policy-making executive official to hold that a public statement of agency policy in respect to matters of wide public interest and concern is not action in the line of duty. That petitioner was not required by law or by direction of his superiors to speak out cannot be controlling in the case of an official of policy-making rank, for the same considerations which underlie the recognition of the privilege as to acts done in connection with a mandatory duty apply with equal force to discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority.13
43
The fact that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint, for as this Court has said of legislative privilege:
44
'The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upo a jury's speculation as to motives.' Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019.
45
We are told that we should forbear from sanctioning any such rule of absolute privilege lest it open the door to wholesale oppression and abuses on the part of unscrupulous government officials. It is perhaps enough to say that fears of this sort have not been realized within the wide area of government where a judicially formulated absolute prvilege of broad scope has long existed. It seems to us wholly chimerical to suggest that what hangs in the balance here is the maintenance of high standards of conduct among those in the public service. To be sure, as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good. And there are of course other sanctions than civil tort suits available to deter the executive official who may be prone to exercise his functions in an unworthy and irresponsible manner. We think that we should not be deterred from establishing the rule which we announce today by any such remote forebodings.
46
Reversed.
47
Mr. Justice BLACK, concurring.
48
I concur in the reversal of this judgment but briefly summarize my reasons because they are not altogether the same as those stated in the opinion of Mr. Justice HARLAN.
49
The petitioner Barr, while acting as Director of the Office of Rent Stabilization, a United States Government Agency, issued a press release in which he gave reasons why he intended to suspend the respondents Matteo and Madigan, who were also officers of the Agency. There is some indication in the record that there was an affirmative duty on Mr. Barr to give press releases like this, but however that may be it is clear that his action was forbidden neither by an Act of Congress nor by any governmental rule duly promulgated and in force. It is also clear that the subject matter discussed in the release was germane to the proper functioning of the Rent Stabilization Agency and Mr. Barr's duties in relation to it. In fact, at the time the release was issued congressional inquiries were being made into the operations of the Agency and the controversy upon which the threatened suspensions were based, and the press release revealed that Barr had requested an opportunity to testify before a Congressional Committee with respect to the whole dispute.
50
The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees. Such an informed understanding depends, of course, on the freedom people have to applaud or to criticize the way public employees do their jobs, from the least to the most important.
51
Mr. Barr was peculiarly well qualified to inform Congress and the public about the Rent Stabilization Agency. Subjecting him to libel suits for criticizing the way the Agency or its employees perform their duties would certainly act as a restraint upon him. So far as I am concerned, if federal employees are to be subjected to such restraints in reporting their views about how to run the government better, the restraint will have to be imposed expressly by Congress and not by the general libel laws of the States or of the District of Columbia.* How far the Congress itself could go in barring federal officials and employees from discussing public matters consistently with the First Amendment is a question we need not reach in this case. It is enough for me here that the press release was neither unauthorized nor plainly beyond the scope of Mr. Barr's official business, but instead related more or less to general matters committed by law to his control and supervision. See Spalding v. ila s, 161 U.S. 483, 493, 498—499, 16 S.Ct. 631, 635—637, 40 L.Ed. 780.
52
Mr. Chief Justice WARREN, with whom Mr. Justice DOUGLAS joins, dissenting.
53
The principal opinion in this case purports to launch the Court on a balancing process in order to reconcile the interest of the public in obtaining fearless executive performance and the interest of the individual in having redress for defamation. Even accepting for the moment that these are the proper interests to be balanced, the ultimate disposition is not the result of a balance. On the one hand, the principal opinion sets up a vague standard under which no government employee can tell with any certainty whether he will receive absolute immunity for his acts. On the other hand, it has not given even the slightest consideration to the interest of the individual who is defamed. It is a complete annihilation of his interest.
54
I could understand it—though I could not agree—if the Court adopted a broad absolute privilege for certain classes of government officials, or indeed for the entire executive, by broadly extending Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780. At least that result would yield certainty by allowing government officials to know in advance whether they might issue absolutely privileged statements. But the opinion's tests sets no standard to guide executive conduct. As the Government acknowledged on oral argument, Congress, when it creates executive agencies, almost never expressly authorizes the new agency to issue press releases as part of its functions. Nor does it decree which employees of the new agency will have such duties and which will not. By necessity, therefore, the decision will require a de novo appraisal of almost every charge of defamation by a government official. The records will probably be no more satisfactory than the one now before us—with little more than bald assertions that a specific official has the power to do what resulted in the defamation. The principal opinion cannot even say that Barr's position authorized the press release; the most it can and does say is that it cannot say that the release was not an appropriate exercise of discretion by Barr in this precise situation. 360 U.S. at page 575, 79 S.Ct. at page 1341. This creates a presumption that the challenged action is within the officer's scope of duty unless the plaintiff can prove otherwise. Since it has been admitted that, as in this case, these duties are rarely enumerated, an executive assertion on the official's bahalf may place an impossible burden of proof on the plaintiff seeking to avoid the defense of absolute privilege. By this unusual approach, the traditional rule that it is the defendant who must sustain his affirmative defense of privilege—and not the plaintiff who must negate that defense—is apparently disregarded.1
I.
55
The history of the privileges conferred upon the three branches of Government is a story of uneven development. Absolute legislative privilege dates back to at least 1399.2 This privilege is given to Congress in the United States Constitution3 and to State Legislatures in the Constitutions of almost all of the States of the Union.4 The absolute immunity arising out of judicial proceedings existed at least as early as 1608 in England.5
56
But what of the executive privilege? Apparently, the earliest English case presenting the problem of immunity outside the legislative and judicial branches of government is Sutton v. Johnstone, 1 T.R. 493, decided in 1786. There, the plaintiff, captain of a warship, sued the commander-in-chief of his squadron for charging plaintiff, maliciously and without probable cause, with disobedience of orders and putting him under arrest and forcing him to face a court-martial. The Court of Exchequer took jurisdiction of the case but was reversed, 1 T.R. 510, on the ground that purely military matters were not within the cognizance of the civil courts.6 During the next century several other military cases were decided.7
57
In Chatterton v. Secretary of State for India, (1895) 2 Q.B. 189, the defendant had been apprised that his action with respect to the plaintiff would be made the subject of a parliamentary inquiry. In the communication alleged to be libelous, the defendant told his Under Secretary what answer should be made if the question were asked him in Parliament. The court affirmed dismissal of the complaint relying on Fraser on The Law of Libel and Slander (1st ed.), p. 95, where the author, with no citations, observed, after relating the history of the military cases:
58
'For reasons of public policy the same protection would, no doubt, be given to anything in the nature of an act of state, e.g., to every communication relating to state matters made by one minister to another, or to the Crown.'8
59
This was the actual birth of executive privilege in England.
60
Such was the state of English law when, the next year, this Court decided Spalding v. Vilas, supra. In granting the Postmaster General absolute immunity for 'matters committed by law to his control or supervision,' this Court relied exclusively on the judicial privilege cases and the English military cases. Thus, leaving aside the military cases, which are unique, the executive privilege in defamation actions would appear to be a judicial creature of less than 65 years' existence. Yet, without statute, this relatively new privilege is being extended to open the possibility of absolute privilege for innumerable government officials.
61
It may be assumed, arguendo, that a government employee should have absolute immunity when according to his duty he makes internal reports to his superior or to another upon his superior's order. Cf. Taylor v. Glotfelty, 6 Cir., 201 F.2d 51; Farr v. Valentine, 38 App.D.C. 413; De Arnaud v. Ainsworth, 24 App.D.C. 167, 5 L.R.A.,N.S., 163. This might be a practical necessity of government that would find its justification in the need for a free flow of information within every executive department. It may not be unreasonable to assume that if a maliciously false libel is uttered in an internal report, it will be recognized as such and discredited without further dissemination.
62
Spalding v. Vilas, supra, presents another situation in which absolute privilege may be justified. There the Court was dealing with the Postmaster General—a Cabinet officer personally responsible to the President of the United States for the operation of one of the major departments of government. Cf. Glass v. Ickes, 73 App.D.C. 3, 117 F.2d 273, 132 A.L.R. 1328; Mellon v. Brewer, 57 App.D.C. 126, 18 F.2d 168, 53 A.L.R. 1519. The importance of their positions in government as policymakers for the Chief Executive and the fact that they have the expressed trust and confidence of the President who appointed them and to whom they are personally and directly responsible suggest that the absolute protection partakes of presidential immunity. Perhaps the Spalding v. Vilas rationale would require the extension of such absolute immunity to other government officials who are appointed by the President and are directly responsible to him in policy matters even though they do not hold Cabinet positions.9 But this extension is not now before us, since it is clear that petitioner Barr was not appointed by the President nor was he directly responsible to the President. Barr was exercising powers originally delegated by the President to the Director of Economic Stabilization who redelegated them to the Director of Rent Stabilization.10 And it is not contended that petitioner was under any order to issue a statement in this matter.
63
I would not extend Spalding v. Vilas to cover public statements of lesser officials. Releases to the public from the executive branch of government imply far greater dangers to the individual claiming to have been defamed than do internal libels. First, of course, a public statement—especially one arguably libelous—is normally intended for and reaches a larger audience than an internally communicated report. Even if the release can later be shown libelous, it is most unusual for a libeled person to obtain the same hearing that was available for the original press release. Second, a release is communicated to a public in no position to evaluate its accuracy; where the report is made internally, the superior is usually in a position to do so. If the report is false, the superior can undo much of the harm of the report by countermanding it or halting its spread.
64
Giving officials below cabinet or equivalent rank qualified privilege for statements to the public would in no way hamper the internal operation of the executive department of government, nor would it unduly subordinate the interest of the individual in obtaining redress for the public defamation uttered against him. Cf. Colpoys v. Gates, 73 App.D.C. 193, 118 F.2d 16.
II.
65
The foregoing discussion accepted for the purpose of argument the majority's statement of the interest involved here. But as so often happens in balancing cases, the wrong interests are being balanced. Cf. Barenblatt v. United States, 360 U.S. 109, 134, 79 S.Ct. 1081, 1097 (dissenting opinion). This is not a case where the only interest is in plaintiff's obtaining redress of a wrong. The public interest in limiting libel suits against officers in order that the public might be adequately informed is paralleled by another interest of equal importance: that of preserving the opportunity to criticize the administration of our Government and the action of its officials without being subjected to unfair—and absolutely privileged—retorts. If it is important to permit government officials absolute freedom to say anything they wish in the name of public information, it is at least as important to preserve and foster public discussion concerning our Government and its operation.
66
It is clear that public discussion of the action of the Government and its officials is accorded no more than qualified privilege. In most States, even that privilege is further restricted to situations in which the speaker is accurate as to his facts and where the claimed defamation results from conclusions or opinions based on those facts. Only in a minority of States is a public critic of Government even qualifiedly privileged where his facts are wrong.11 Thus, at best, a public critic of the Government has a qualified privilege. Yet here the Court has given some amorphous group of officials—who have the most direct and personal contact with the public—an absolute privilege when their agency or their action is criticized. In this situation, it will take a brave person to criticize government officials knowing that in reply they may libel him with immunity in the name of defending the agency and their own position. This extension of Spalding v. Vilas can only have the added effect of deterring the desirable public discussion of all aspects of our Government and the conduct of its officials. It will sanctify the powerful and silence debate. This is a much more serious danger than the possibility that a government official might occasionally be called upon to defend his actions and to respond in damages for a malicious defamation.
III.
67
The principal opinion, while attempting to balance what it thinks are the factors to be weighed, has not effectuated the goal for which it originally strove. Rather, its rsul t has been an uncertain standard whose effect can unfold only on a case-to-case basis, and which does not provide a guide for executive conduct. But more important, the opinion has set out the wrong interests and by its extension of absolute privilege in this case has seriously weakened another great public interest—honest and open discussion and criticism of our Government.
68
Mr. Justice BRENNAN, dissenting.
69
I think it is demonstrable that the solution of Mr. Justice HARLAN's opinion to the question whether an absolute privilege should be allowed in these cases is not justified by the considerations offered to support it, and unnecessarily deprives the individual citizen of all redress against malicious defamation. Surely the opinion must recognize the existence of the deep-rooted policy of the common law generally to provide redress against defamation. But the opinion in sweeping terms extinguishes that remedy, if the defamation is committed by a federal official, by erecting the barrier of an absolute privilege. In my view, only a qualified privilege is necessary here, and that is all I would afford the officials. A qualified privilege would be the most the law would allow private citizens under comparable circumstances.1 It would protect the government officer unless it appeared on trial that his communication was (a) defamatory, (b) untrue, and (c) 'malicious.'2 We write on almost a clean slate here, and even if Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780, allows a Cabinet officer the defense of an absolute privilege in defamation suits,3 I see no warrant for extending its doctrine to the extent done—apparently to include every official having some color of discretion to utter communications to Congress or the public. As Judge Magruder pointed out below, 1 Cir., 250 F.2d 912, 915, present applications of the doctrine of absolute privilege of public officials are narrowly confined,4 and I think in the light of the considerations involved very rightly so. But Mr. Justice HARLAN's approach seems to clothe with immunity the most obscure subforeman on an arsenal production line who has been delegated authority to hire and fire and who maliciously defames one he discharges.
70
A qualified privilege, as I have described, would, in giving the official protection against the consequences of his honest mistakes, give him all the protection he could properly claim. As is quoted, if that were all that there were to the matter, it would be indeed 'monstrous' to grant the absolute defense and preclude all examination of the matter at the suit of a citizen claiming legal injury. But what more is involved? The opinion's position is simply that there are certain societal interests in relieving federal officials from judicial inquiry into their motives that outweigh all interest in affording relief. There is adopted Judge Learned Hand's statement of this added factor that is said to make an absolute privilege imperative: 'it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.' Gregoire v. Biddle, 177 F.2d 579, 581. In the first place, Professors Harper and James have, I think, squarely met and refuted that argument on its own terms: 'Where the charge is one of honest mistake we exempt the officer because we deem that an actual holding of liability would have worse consequences than the possibility of an actual mistake (which under the circumstances we are willing to condone). But it is stretching the argument pretty far to say that the mere inquiry into malice would have worse consequences than the possibility of actual malice (which we would not, for a minute, condone). Since the danger that official power will be abused is greatest where motives are improper, the balance here may well swing the other way.' Harper and James, Torts (1956), p. 1645. And in the second place, the courts should be wary of any argument based on the fear that subjecting government officers to the nuisance of litigation and the uncertainties of its outcome may put an undue burden on the conduct of the public business. Such a burden is hardly one peculiar to public officers; citizens generally go through life subject to the risk that they may, though in the right, be subject to litigation and the possibility of a miscarriage of justice. It is one of the goals of a well-operating legal system to keep the burden of litigation and the risks of such miscarriages to a minimum; in this area, which is govened by federal law, proof of malice outside of the bare fact of the making of the statement should be forthcoming,5 and summary judgment practice offers protection to the defendant; but the way to minimizing the burdens of litigation does not generally lie through the abolition of a right of redress for an admitted wrong. The method has too much of the flavor of throwing out the baby with the bath—today's sweeping solution insures that government officials of high and low rank will not be involved in litigation over their allegedly defamatory statements, but it achieves this at the cost of letting the citizen who is defamed even with the worst motives go without remedy.
71
There is an even more basic objection to the opinion. It deals with large concepts of public policy and purports to balance the societal interests involved in them. It denies the defamed citizen a recovery by characterizing the policy favoring absolute immunity as 'an expression of a policy designed to aid in the effective functioning of government.' The explanation is said to be that it is 'important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties—suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.' This, I fear, is a gossamer web self-spun without a scintilla of support to which one can point. To come to this conclusion, and to shift the line from the already extensive protection given the public officer by the qualified privilege doctrine, demands the resolution of large imponderables which one might have thought would be better the business of the Legislative Branch. To what extent is it in the public interest that the Executive Branch carry on publicity campaigns in relation to its activities? (Without reviewing all the history, one can say this is a matter on which Congress and the Executive have not always seen eye to eye. See 38 Stat. 212, 5 U.S.C. § 54, 5 U.S.C.A. § 54.) To what extent does fear of litigation actually inhibit the conduct of officers in carrying out the public business? To what extent should it? Where does healthy administrative frankness and boldness shade into bureaucratic tyranny? To what extent is supervision by an administrator's superiors effective in assuring that there will be little abuse of a freedom from suit? To what extent can the referral of constituent complaints by Congressmen to the executive agencies (already myriad in number and quite routinized in processing) take the place of actions in the courts of law in securing the injured citizen redress? Can it be assumed, as the opinion appears to assume, that an absolute privilege so broadly enjoyed will not be subject to severe abuse? Does recent history afford instructive parallels in the experience with constitutionally recognized forms of governmental privilege—say the legislative privilege? I do not purport to know the answers to these questions, and I simply submit that the nature of the questions themselves should lead us to forsake any effort on our own to modify over so wide an area the line the common law generally indicates is to be drawn here. This is particularly so in an area not foreclosed by our previous cases, and one combining the maximum exposure of the citizen's reputation with the most attenuated of interests in the operation of the Government.
72
The courts, it must be remembered, are not the only agency for fashioning policy here. One would think, in fact, if the solution afforded through a qualified privilege (which would apply between private parties under analogous circumstances)6 were to be modified on the strength of considerations such as those discussed today, that Congress would provide a more appropriate forum for the determination. The preenc e of the imponderables I have discussed, their political flavor, and their intimate relation to the practicalities of government management would support this conclusion. If the fears expressed materialized and great inconvenience to the workings of the Government arose out of allowing defamation actions subject to a showing of malice, Congress might well be disposed to intervene. And its intervention might take a less drastic form than the solution today. Pursuant to an Act of Congress, the inconvenience to the government officials made defendants in these suits has been alleviated through the participation of the Department of Justice. Rev.Stat. § 359, as amended, 5 U.S.C. § 309, 5 U.S.C.A. § 309; Booth v. Fletcher, 69 App.D.C. 351, 101 F.2d 676. Congress might be disposed to intervene further and pay the judgments rendered against executive officers, or provide for a Tort Claims Act amendment to encompass such actions,7 eliminating the officer as a formal party. We ought not, as I fear we do today, for all practical purposes foreclose such consideration of the problem by expanding on the comparable common-law privilege and wholly immunizing federal officials from defamation suits whenever they can show that their act was incidental to their jobs.8
73
I would affirm.
74
Mr. Justice STEWART, dissenting.
75
My brother HARLAN'S opinion contains, it seems to me, a lucid and persuasive analysis of the principles that should guide decision in this troublesome area of law. Where I part company is in the application of these principles to the facts of the present case.
76
I cannot agree that the issuance by the petitioner of this press release was 'action in the line of duty.' The statement to the press (set out in note 5 of Mr. Justice HARLAN'S opinion) did not serve to further any agency function. Instead, it represented a personally motivated effort on the petitioner's part to disassociate himself from the alleged chicanery with which the agency had been charged.
77
By publicizing the action which he intended to take when he became permanent Acting Director, and his past attitude as a lesser functionary, the petitioner was seeking only to defend his own individual reputation. This was not within, but beyond 'the outer perimeter of petitioner's line of duty.'
78
For dissenting opinion of Mr. Justice BRENNAN, see 360 U.S. 564, 79 S.Ct. 1347.
1
See, e.g., Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622; Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Order of Railway Conductors of America v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318; Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886.
2
E.g., National Railroad Adjustment Board, First Division, Award No. 15406; id., Awards Nos. 11888 (with interpretation of this award contained in Volume 81 of awards), 12418, 16129.
3
In the year 1956—1957 there were 361,000 retired railroad employees receiving benefits under the Railroad Retirement Act, 45 U.S.C.A. § 228a et seq. H.R.Doc. No. 278, 85th Cong., 2d Sess.
The inapplicability of United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, to the problem of this case, like its inapplicability to the problem in Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, is dealt with in the Court's opinion in that case.
1
48 Stat. 1191, 45 U.S.C. § 153, First (i), 45 U.S.C.A. § 153, subd. 1(i).
2
44 Stat. 577, as amended, 45 U.S.C. § 151 Fifth, 45 U.S.C.A. § 151, subd. 5.
3
50 Stat. 309, as amended, 45 U.S.C. § 228b, 45 U.S.C.A. § 228b.
4
Brotherhood of Railway and S.S. Clarks, Freight Handlers, Express and Station Employees v. Railway Express Agency, Inc., 6 Cir., 238 F.2d 181; Dahlberg v. Pittsburgh & L.E.R. Co., 3 Cir., 138 F.2d 121.
5
We recently held, over the vigorous protest of the railroad workers, that this jurisdiction is not only compulsory, but that a union can be enjoined from striking while the Board's jurisdiction is being exercised. Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622.
6
48 Stat. 1191, 45 U.S.C. § 153, First (m), 45 U.S.C.A. § 153, subd. 1(m).
7
See, e.g., note 8, infra. Courts have intimated, however, that review of Board rulings adverse to the employee is permissible to the extent of insuring that the employee was not deprived of procedural rights protected by due process. Ellerd v. Southern Pacific R. Co., 7 Cir., 241 F.2d 541; Barnett v. Pennsylvania-Reading Seashore Lines, 3 Cir., 245 F.2d 579.
8
E.g., Reynolds v. Denver & Rio Grande Western R. Co., 10 Cir., 174 F.2d 673; Parker v. Illinois Central R. Co., D.C., 108 F.Supp. 186; Ramsey v. Chesapeake & O.R. Co., D.C., 75 F.Supp. 740.
9
48 Stat. 1192, 45 U.S.C. § 153, First (p), 45 U.S.C.A. § 153, subd. 1(p).
The comparable provision in the Interstate Commerce Act has been construed to give very limited effect to the Board's findings in such a suit. Meeker v. Lehigh Valley R. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 335, 59 L.Ed. 644; United States v. Interstate Commerce Commission, 337 U.S. 426, 435, 69 S.Ct. 1410, 1415, 93 L.Ed. 1451. See also, Dahlberg v. Pittsburgh & L.E.R. Co., 3 Cir., 138 F.2d 121.
10
'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.
11
See Lehigh Valley R. Co. v. Clark, 3 Cir., 207 F. 717; Western New York & P.R. Co. v. Penn Refining Co., Limited, 3 Cir., 137 F. 343, 349—350. See also United States v. Interstate Commerce Commission, 337 U.S. 426, 444, 454—455, 69 S.Ct. 1410, 1420, 1425, 93 L.Ed. 1451 (dissenting opinion); Councill v. Western & A.R. Co., 1 I.C.C. 339, 344—345; Heck v. East Tennessee, V. & G.R. Co., 1 I.C.C. 495, 502. And in his dissent in Union Pacific R. Co. v. Price, 360 U.S. 617, 79 S.Ct. 1360, Mr. Justice Douglas calls attention to the fact that the provisions of the Interstate Commerce Act have been construed, in United States v. Interstate Commerce Comm'n, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451, to provide for review of Commission reparation orders by shippers as well as by the railways.
12
Section 3, First (p) of the Railway Labor Act reads in part: 'Such suit in the District Court of the United States shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated * * *.' 48 Stat. 1192, 45 U.S.C. § 153, First (p), 45 U.S.C.A. § 153, subd. 1(p).
Section 16(2) of the Interstate Commerce Act reads in part: 'Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the commission shall be prima facie evidence of the facts therein stated.' 34 Stat. 590, as amended, 49 U.S.C. § 16(2), 49 U.S.C.A. § 16(2).
'Since both Acts (Interstate Commerce Act and Railway Labor Act) came out of the same Congressional Committees one finds, naturally enough, that the provisions for enforcement and review of the Adjustment Board's awards were based on those for reparation orders by the Interstate Commerce Commission.' Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 749, 760, 65 S.Ct. 1282, 1302, 1307, 89 L.Ed. 1886 (dissenting opinion).
13
See 3 Blackstone Commentaries (15th ed. 1809) 162; 2 id., at 442.
If an employee can be compelled to submit his wage claim to the Adjustment Board for final determination, there would seem to be no reason, despite the clear mandate of the Seventh Amendment, why he could not also be compelled to submit common-law tort claims for negligent injury to an administrative or semi-administrative board. Cf. Barnett v. Pennsylvania-Reading Seashore Lines, 3 Cir., 245 F.2d 579 (Board adjudication of contract action between railroad and injured railroad worker who claimed that he had been given contract of employment for life in settlement of prior negligent injury suit held to preclude court suit by employee).
14
E.g., Burns v. State of Ohio, 358 U.S. 919, 79 S.Ct. 292, 3 L.Ed.2d 238; 79 S.Ct. 1164 (state required to allow indigent defendant to appeal in forma pauperis from criminal conviction where appeal as of right allowed other defendants); Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (same); City of Spartanburg v. Cudd, 132 S.C. 264, 128 S.E. 360 (right to jury redetermination of administrative award in condemnation suit must be allowed municipality if permitted to property owner); Georgia Power Co. v. brooks, 207 Ga. 406, 62 S.E.2d 183 (statute allowing one party to a condemnation valuation suit to introduce evidence of 'similar sales' while other party is not, held invalid); People v. Sholem, 238 Ill, 203, 87 N.E. 390 (appeal from administrative determination of valuation of an estate for tax purposes must be allowed State if allowed other party); Hecker v. Illinois Central R. Co., 231 Ill. 574, 83 N.E. 456 (statute providing for state supreme court review of facts after trial court's findings reversed without grant of new trial by intermediate appellate court, but denying such review if trial court's findings upheld, found invalid).
It is not surprising in view of this long history that courts ad j udges have questioned the constitutionality of compelling railroad workers to submit disputes to the Adjustment Board while denying
them the same trial by jury which is allowed a railroad. See Washington Terminal Co. v. Boswell, 75 U.S.App.D.C. 1, 11, 124 F.2d 235, 245, affirmed by an equally divided Court, 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694; Barnett v. Pennsylvania-Reading Seashore Lines, 3 Cir., 245 F.2d 579, 581. See also United States v. Interstate Commerce Commission, 337 U.S. 426, 444, 459, 69 S.Ct. 1410, 1420, 1429, 93 L.Ed. 1451 (dissenting opinion); Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 719, 65 S.Ct. 1282, 1287, 89 L.Ed. 1886.
1
Petitioner was appointed Acting Director of the agency effective February 9, 1953. On February 5 he occupied that position by designation of the retiring Director, who was absent from the city.
2
This statute, part of the General Appropriation Act of 1951, provided that:
'No part of the funds, of, or available for expenditure by any corporation or agency included in this Act, including the government of the District of Columbia, shall be available to pay for annual leave accumulated by any civilian officer or employee during the calendar year 1950 and unused at the close of business on June 30, 1951 * * *.'
3
The General Accounting Office subsequently ruled that the payments were illegal, and respondents were required to return them. Respondent Madigan challenged this determination in the Court of Claims, which held that the plan was not in violation of law. Madigan v. United States, 142 Ct.Cl. 641.
4
The plan was referred to by various Senators as 'a highly questionable procedure,' a 'raid on the Federal Treasury,' 'a conspiracy to defraud the Government of funds,' 'a new racket,' and as 'definitely involv(ing) criminal action.' It was suggested that it might constitue 'a conspiracy by the head of an agency to defraud the Government of money,' and that 'it is highly irregular, if not actually immoral, for the heads of agencies to use any such device * * *.' 90 Cong.Rec. 868—871.
5
'William G. Barr, Acting Director of Rent Stabilization today served notice of suspension on the two officials of the agency who in June 1950 were responsible for the plan which allowed 53 of the agency's 2,681 employees to take their accumulated annual leave in cash.
'Mr. Barr's appointment as Acting Director becomes effective Monday, February 9, 1953, and the suspension of these employees will be his first act of duty. The employees are John J. Madigan, Deputy Director for Administration, and Linda Matteo, Director of Personnel.
"In June 1950,' Mr. Barr stated, 'my position in the agency was not one of authority which would have permitted me to stop the action. Furthermore, I did not know about it until it was almost completed.
'When I did learn that certain employees wre receiving cash annual leave settlements and being returned to agency employment on a temporary basis, I specifically notified the employees under my supervision that if they applied for such cash settlements I would demand their resignations and the record will show that my immediate employees complied with my request.
"While I was advised that the action was legal, I took the position that it violated the spirit of the Thomas Amendment and I violently opposed it. Monday, February 9th, when my appointment as Acting Director becomes effective, will be the first time my position in the agency has permitted me to take any action on this matter, and the suspension of these employees will be the first official act I shall take.'
'Mr. Barr also revealed that he has written to Senator Joseph McCarthy, Chairman of the Committee on Government Operations, and to Representative John Phillips, Chairman of the House Subcommittee on Independent Offices Appropriations, requesting an opportunity to be heard on the entire matter.'
6
U.S.Const. Art. I, § 6. See Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377.
7
See also Cooper v. O'Connor, 69 App.D.C. 100, 99 F.2d 135, 118 A.L.R. 1440; compare Brown v. Shimabukuro, 73 App.D.C. 194, 118 F.2d 17.
8
The communication in Spalding v. Vilas was not distributed to the general public, but only to a particular segment thereof which had a special interest in the subject matter. Statements issued at the direction of Cabinet officers and disseminated to the press in the form of press releases have also been accorded an absolute privilege, so long as their contents and the occasion for their issuance relate to the duties and functions of the particular department. Mellon v. Brewer, 57 App.D.C. 126, 18 F.2d 168, 53 A.L.R. 1519; Glass v. Ickes, 73 App.D.C. 3, 117 F.2d 273, 132 A.L.R. 1328.
9
As to suits for defamation see, e.g., Taylor v. Glotfelty, 6 Cir., 201 F.2d 51; Smith v. O'Brien, 66 App.D.C. 387, 88 F.2d 769; De Arnaud v. Ainsworth, 24 App.D.C. 167, 5 L.R.A.,N.S., 163; Farr v. Valentine, 38 App.D.C. 413; United States to Use of Parravicino v. Brunswick, 63 App.D.C. 65, 69 F.2d 383; Carson v. Behlen, D.C., 136 F.Supp. 222; Tinkoff v. Campbell, D.C., 86 F.Supp. 331; Miles v. McGrath, D.C., 4 F.Supp. 603. See also, as to other torts, Jones v. Kennedy, 73 App.D.C. 292, 121 F.2d 40; Adams v. Home Owners' Loan Corp., 8 Cir., 107 F.2d 139; Gregoire v. Biddle, supra; De Busk v. Harvin, 5 Cir., 212 F.2d 143; Lang v. Wood, 67 App.D.C. 287, 92 F.2d 211.
10
See the striking description in Cummings and McFarland, Federal Justice (1937), pp. 80—81, quoted in Cooper v. O'Connor, supra, 69 App.D.C. 100, 107, 99 F.2d 135, 142, note 28, of the office of Attorney General of the United States in the early days of the Republic:
"Not only were there no records but the government provided neither an office nor clerical assistance. As far back as December 1791, Attorney General Randolph, through President Washington, without success had urged Congress to provide a clerk. President Madison, when it became evident that residence at Washington had greatly increased the Attorney General's labor, in 1816 urged that he be supplied with 'the usual appurtenances to a public office.' A bill to provide offices and a clerk came to the Senate floor on January 10, 1817.' * * * 'Thirty years had passed since the federal government was first organized. Now, Congress provided offices in the Treasury and a clerk at $1,000 a year, with an additional small contingent fund of $500 for such essentials as stationery, fuel, and 'a boy to attend the menial duties.'"
11
The record indicates that in 1950 the Office of Housing Expediter had some 2,500 employees.
12
61 Stat. 193, 50 U.S.C.A.Appendix, § 1881 et seq. See 16 Fed.Reg. 7630.
13
Compare United States v. Macdaniel, 7 Pet. 1, 14, 8 L.Ed. 587; United States v. Birdsall, 233 U.S. 223, 230—231, 34 S.Ct. 512, 514, 58 L.Ed. 930.
*
This case concerns District of Columbia law. In a companion case, Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, the Court rejects an attempt to hold a federal employee liable under the libel law of Massachusetts.
1
See, e.g., Restatement, Torts, § 613, and Prosser, Torts (2d ed. 1955), 629 and cases cited.
2
See Veeder, Absolute Immunity in Defamation: Legislative and Executive Proceedings, 10 Col.L.Rev. 131, 132. See also Tenney v. Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 786, 95 L.Ed. 1019.
3
U.S.Const. Art, I, § 6.
4
See Tenney v. Brandhove, 341 U.S. 367, 375, note 5, 71 S.Ct. 783, 787, 95 L.Ed. 1019.
However, this immunity has not been extended to inferior delibeative bodies. As to city councils, see e.g., Mills v. Denny, 245 Iowa 584, 63 N.W.2d 222, 40 A.L.R.2d 933; Greenwood v. Cobbey, 26 Neb. 449, 42 N.W. 413; Ivie v. Minton, 75 Or. 483, 147 P. 395; but cf. Tanner v. Gault, 20 Ohio App. 243, 153 N.E. 124. See also Weber v. Lane, 99 Mo.App. 69, 71 S.W. 1099 (board of aldermen); Bradford v. Clark, 90 Me. 298, 38 A. 229 (town meeting); Smith v. Higgins, 16 Gray (Mass.) 251 (town meeting).
5
Floyd v. Barker, 12 Co.Rep. 23. See also The King v. Skinner, Lofft 55. An excellent history of the development of this privilege may be found in Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Col.L.Rev. 463. For the development of this privilege in the United States, see Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646.
6
This conclusion was justified on the following basis:
'Commanders, in a day of battle, must act upon delicate suspicions; upon the evidence of their own eye; they must give desperate commands; they must require instantaneous obedience. In case of a general misbehaviour, they may be forced to suspend several officers, and put others in their places.
'A military bribunal is capable of feeling all these circumstances, and understanding that the first, second, and third part of a soldier is obedience. But what condition will a commander be in, if, upon the exercising of his authority, he is liable to be tried by a common law judicature?
'The person unjustly accused is not without his remedy. He has the properest among military men. Reparation is done to him by an acquittal. And he who accused him unjustly is blasted for ever, and dismissed from the service.' 1 T.R., at 549—550.
The House of Lords affirmed. 1 Bro.P.C. 76.
7
In Home v. Bentinck, 2 B. & B. 130 (1820), the court upheld a privilege asserted by the defendant against producing in court the document alleged to contain the libel. This effectively foreclosed the action. See also Dickson v. The Earl of Wilton, 1 F. & F. 419 (1859); Keighly v. Bell, 4 F. & F. 763 (1866); Dawkins v. Lord F. Paulet, L.R. 5 Q.B. 94 (1869); Grant v. Secretary of State for India, L.R. 2 C.P.D. 445 (1877). Though this last case was a suit against a civil officer, it arose out of a military situation.
8
In 1895 the Secretary of State for India was an important figure in the Government and was a member of the Cabinet. The Statesman's Year-Book (1895) 10.
Throughout these years, suits were brought against members of the executive branches of the British Government but wer di smissed on the theory that the officer had acted solely as an agent for the Government and therefore was not personally liable. E.g., Macbeath v. Haldimand, 1 T.R. 172 (1786); Gidley v. Lord Palmerston, 3 B. & B. 275 (1822).
9
This might well, for example, include Barr's superior in 1953—the Director of Economic Stabilization.
10
Barr's position as Deputy Director was such, on the date of the libel, that he recognized that he was not then entitled to suspend or fire the respondents and could not do so until several days later. (The Government asserted on oral argument that the full powers of the Director would devolve upon anyone who—by virtue of his superiors' leaving town—was in fact the highest ranking member of the agency at the moment. It was in this light that Barr was 'Acting' Director on the date of the libel.) Even after Barr officially because Acting Director on February 9, 1953, the Government admitted that the Director of Economic Stablization 'could have' directed Barr either to make or not to make press releases. When Barr took action against respondents, they appealed the decision to the Director of Economic Stabilization and ultimately wre reinstated.
11
An extensive compilation of which States adhere to each view may be found in Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 896—897, n. 102—106.
1
Prosser, Torts (2d ed. 1955), § 95.
2
Actual 'malice' is required to vitiate a qualified privilege, not simply the 'constructive' malice that is inferred from the publication. See Harper and James, Torts (1956), § 5.27. Definitions of actual 'malice' are essayed in Prosser, Torts (2d ed. 1955), pp. 625—629; Harper and James, Torts (1956), § 5.27. See Restatement, Tots, §§ 599—605.
3
The suit in Spalding seems to have been as much, if not more, a suit for malicious interference with advantageous relationships as a libel suit. The Court reviewed the facts and found no false statement. See 161 U.S. at pages 487—493, 16 S.Ct. at pages 633—635. The case may stand for no more than the proposition that where a Cabinet officer publishes a statement, not factually inaccurate, relating to a matter within his Department's competence, he cannot be charged with improper motives in publication. The Court's opinion leaned heavily on the fact that the contents of the statement (which were not on their face defamatory) were quite accurate, in support of its conclusion that publishing the statement was within the officer's discretion, foreclosing inquiry into his motives. Id., 161 U.S. at pages 489 493, 16 S.Ct. at pages 633—635. Different considerations suggest themselves where a statement is defamatory and untrue; it is one thing to say that public officers must answer as to their motives for any official action adversely affecting private interests and another that they must as to the publication of defamatory, untrue matter.
4
The opinion's rationale covers the entire federal bureaucracy, as compared to the numerically much less extensive legislative and judicial privileges. And as to the former, the Constitution speaks, and the resolution of the factors involved in the latter is very obviously within the courts' special competence.
5
See note 2, supra.
6
See the opinion of the court below in No. 350, 103 U.S.App.D.C. 176, 177, 256 F.2d 890, 891.
7
They presently are excluded. 28 U.S.C. § 2680(h), 28 U.S.C.A. § 2680(h).
8
There is controversy as to whether it was mandatory upon petitioner in No. 57 to make his report to the Congressmen. It is not contended that it was mandatory for him to use the words he did, and only if this were so, under my approach, could there possibly be an absolute defense. See Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525, 79 S.Ct. 1302.
| 78
|
360 U.S. 712
79 S.Ct. 1443
3 L.Ed.2d 1539
WISCONSIN et al.v.ILLINOIS et al. MICHIGAN v. ILLINOIS et al. NEW YORK v. ILLINOIS et al. ILLINOIS v. MICHIGAN et al.
Nos. 2, 3, 4, 15, Original.
Supreme Court of the United States
June 29, 1959
[Syllabus intentionally omitted]
Messrs. William C. Wines, Asst.Atty.Gen., and Charles A. Bane (Messrs. Latham Castle, Atty.Gen., George E. Billett and Calvin D. Trowbridge, Special Asst.Attys.Gen., on the brief), for the Stat of Illinois.
Messrs. Stewart G. Honeck, John Reynolds, Attys.Gen., and Roy G. Tulane, Asst. Atty.Gen., for the State of Wisconsin.
Messrs. Miles Lord, Atty.Gen., Melvin J. Peterson, Deputy Atty.Gen., and Raymond A. Haik, Special Asst.Atty.Gen., for the State of Minnesota.
Messrs. William Saxbe, Mark McElroy, Attys.Gen., Robert E. Boyd and J. Harold Read, Asst.Attys.Gen., for the State of Ohio.
Mr. Thomas D. McBride, Anne X. Alpern, Attys.Gen., and Lois G. Forer, Deputy Atty.Gen., for the State of Pennsylvania.
Mr. Herbert H. Naujoks, Special Asst. to the Attorneys General.
Messrs. Paul L. Adams, Atty.Gen., Samuel J. Torina, Sol.Gen., and Nicholas V. Olds, Asst.Atty.Gen., for the State of Michigan.
Solicitor General Rankin (Messrs. Oscar H. Davis, John F. Davis and George S. Swarth, on the brief), for the United States, as amicus curiae in No. 15.
Messrs. Louis J. Lefkowitz, Atty.Gen., Richard H. Shepp, Dunton F. Tynan, Asst.Atty.Gen. (Mr. John R. Davison, on the brief for the Power Authority of New York), for the State of New York.
Messrs. Latham Castle, Atty.Gen. of Illinois, William C. Wines, Asst.Atty.Gen., George A. Lane, Lawrence J. Fenlon, Joseph B. Fleming, Joseph H. Pleck and Thomas M. Thomas, for defendants in Nos. 2, 3, 4.
Solicitor General Rankin, Messrs. John F. Davis and George S. Swarth, for the United States, as amicus curiae in Nos. 2, 3, 4.
Messrs. Sydney G. Craig and David M. Gooder, for Chicago Association of Commerce and Industry, as amicus curiae in Nos. 2, 3, 4.
PER CURIAM.
1
The motion of Chicago Association of Commerce and Industry for leave to file brief in Nos. 2, Original, 3, Original and 4, Original, as amicus curiae, is granted. The amended application of complainants for a reopening of the decree of April 21, 1930, in Nos. 2, Original, 3, Original, and 4, Original, is granted.
2
The motion for leave to file a bill of complaint in No. 15, Original, is granted.
3
It is ordered that Honorable Albert B. Maris, United States Senior Circuit Judge, be, and he is hereby, appointed special master in each of these causes, with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for. The master is directed to hold hearings with all convenient speed, and to submit such reports as he may deem necessary.
4
The master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic and clerical assistants, the cost of printing his report, and all other proper expenses, shall be charged against and be borne by the parties in such proportion as the Court hereafter may direct.
| 1011
|
360 U.S. 593
79 S.Ct. 1331
3 L.Ed.2d 1454
W. E. HOWARD, Jr., Petitioner,v.Kenneth T. LYONS and Joseph S. McAteer.
No. 57.
Reargued April 20, 21, 1959.
Decided June 29, 1959.
Rehearing Denied Oct. 12, 1959.
See 80 S.Ct. 40.
Mr. Daniel M. Friedman, Washington, D.C., for petitioner.
Mr. Clause L. Dawson, Washington, D.C., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This is a companion case to Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335. Petitioner Howard in 1955 was a Captain in the United States Navy and Commander of the Boston Naval Shipyard. Respondent Lyons was National Commander of the Federal Employees Veterans Association, Inc., and respondent McAteer a local officer of that Association. Both respondents were at all material times civilian employees at the Boston Naval Shipyard, and for several years before September 8, 1955, the Association was recognized by the shipyard as an employees' representative group. On that date petitioner withdrew official recognition of the Association—an action which is not here challenged.
2
Respondents brought suit in the Massachusetts District Court, invoking diversity jurisdiction, and making the following allegations: that on September 8, 1955, petitioner circulated a statement defaming them; that the statement purported to be an official memorandum to the Chief of the Bureau of Ships and the Chief of Navy Industrial Relations, but was released by petitioner 'outside of his official duties' to various newspapers and wire services and to the members of the Massachusetts delegation in the Congress of the United States; that in circulating the statement petitioner acted 'maliciously, wilfully, wickedly, recklessly and falsely and with malice aforesight (sic)'; and that the statement was intended to and did injure the reputation of respondents.
3
A copy of the statement complained of was filed with the complaint. It is in the form of an official report directed to the Chief of the Bureau of Ships and the Chief of Industrial Relations of the Department of the Navy, reciting petitioner's dissatisfaction with the activities of the Federal Employees Veterans Association at the shipyard and announcing his intention to withdraw the recognition previously accorded it.1
4
Petitioner answered, stating that the statement complained of was in fact an official communication, and that in sending copies of it to the Massachusetts congressional delegation he was acting within the scope of his duties and pursuant to Department of the Navy policy; and denying that outside of his official duties he had released copies of the communication to the newspapers. He thereupon moved for summary judgment, attaching to the motion his own affidavit essentially repeating the statements from his answer above summarized, and an affidavit from the Commandant of the First Naval District. That affidavit stated that the Commandant was petitioner's commanding officer; that the making of reports to the Bureau of Ships relative to any significant personnel action at the shipyard was one of petitioner's official duties; that also among those duties was the furnishing of copies of such reports to the Massachusetts congressional delegation; and that the dissemination of the report of September 8, 1955, to the newspapers had been made through official channels and approved by the acting Commandant of the First Naval District.
5
The District Court granted summary judgment for petitioner, holding that the uncontradicted affidavits conclusively showed that the statement complained of was published by petitioner 'in the discharge of his official duties and in relation to matters committed to him for determination,' and that it was therefore absolutely privileged. On respondents' appeal, the Court of Appeals held that the sending of the official report to petitioner's superior officers was protected by an absolute privilege, and noted that reliance on the dissemination to the newspapers had been abandoned by respondents on appeal in the face of petitioner's sworn statement that he had not been responsible for that publication. As to the publication to the Massachusetts congressional delegation, however, the court, one judge dissenting, refused to allow more than a qualified privilege, although recognizing that 'it is true that these members of Congress did have an official interest in being kept advised of important developments in labor relations at the Boston Naval Shipyard,' and that 'the Commander of the Boston Naval Shipyard might have conceived it to be a proper exercise of his official functions to see to it that the members of Congress should receive copies of such official report * * *.' Accordingly, it reversed the judgment of the District Court and remanded the case for trial. 1 Cir., 250 F.2d 912, 915.
6
We granted certiorari to consider petitioner's contention that the Court of Appeals had erred in failing to recognize his plea of absolute privilege in respect of the publication to members of Congress. 357 U.S. 903, 78 S.Ct. 1148, 2 L.Ed.2d 1154. Respondents did not cross-petition for certiorari.
7
At the outset, we take note of a question which the Court of Appeals, on its view of the case, did not find it necessary to resolve—whether the extent of the privilege in respect of civil liability for statements allegedly defamatory under state law which may be claimed by officers of the Federal Government, acting in the course of their duties, is a question as to which the federal courts are bound to follow state law. We think that the very statement of the question dictates a negative answer. The authority of a federal officer to act derives from federal sources, and the rule which recognizes a privilege under appropriate circumstances as to statements made in the course of duty is one designed to promote the effective functioning of the Federal Government. No subject could be one of more peculiarly federal concern, and it would deny the very considerations which give the rule of privilege its being to leave determination of its extent to the vagaries of the laws of the several States. Cf. ClearfieldTru st Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838. We hold that the validity of petitioner's claim of absolute privilege must be judged by federal standards, to be formulated by the courts in the absence of legislative action by Congress.
8
Our decision in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, governs this case. As has been observed, petitioner and his commanding officer both stated in uncontradicted affidavits that the sending of copies of the report here at issue to members of the Massachusetts congressional delegation was part of petitioner's official duties. Although of course such an averment by the defendant cannot foreclose the courts from examination of the question, we think that the affidavit of petitioner's commanding officer, and a Memorandum of Instructions issued by the Secretary of the Navy which petitioner has with our leave filed in this Court,2 plainly show that the District Court was correct in finding that the circulation of the report to the Massachusetts congressional delegation was 'in the discharge of (petitioner's) * * * official duties and in relation to matters committed to him for determination.'
9
Reversed.
10
Mr. Justice BLACK concurs for the reasons stated in his concurring opinion in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335.
11
Mr. Chief Justice WARREN with whom Mr. Justice DOUGLAS joins, dissenting.
12
I cannot agree that Captain Howard's action in sending a copy of his report to the Massachusetts Congressional Delegation was absolutely privileged.1 In its argument in this case, the Government consistently distinguished this case from Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, by characterizing Captain Howard as a man who was acting under strict orders and who had no discretion.
13
Until reargument in this Court, the only indications that it was mandatory for Captain Howard to report matters of this sort to Congress were the bald assertions to that effect in Captain Howard's affidavit and in the affidavit of his superior, Admiral Schnackenberg, in the District Court. Not naval regulation was cited and no other authority was offered. It is significant that, in the same affidavit, when Captain Howard was explaining why he had transmitted copies of the report to a superior, he was able to cite chapter and verse of the U.S. Navy Public Information Manual as authority for that action.
14
For the first time on reargument in this Court, the Government produced the letter from the Secretary of the Navy referred to in the Court's opinion. The paragraph relied on is nothing more than a general policy statement applicable only to 'Navy agencies.'2 The letter was in no way directed toward labor problems—and the quoted portion is but a few lines in a five-page letter sent to a general distribution list and apparently never inserted in the Federal Register or any Navy Manual. Obviously, this letter was not cited by Captain Howard because he was unaware of its existence—or its applicability.
15
The short explanation is that the Captain thought that since the plaintiffs had attacked the administrationof the shipyard by sending copies of their newsletters and charges to Congress, he should send Congress his side of the story. This he had a right to do but in doing so he should have no greater privilege than his critic. The plaintiffs in this case at most received qualified privilege for their complaints to Congress,3 yet the Captain's answer is given absolute privilege.
16
As my dissent in Barr v. Matteo indicates, the burden of proof is on the defendant to sustain his claim of privilege. 360 U.S. at page 564, 79 S.Ct. at page 1335. I do not read this record as placing a mandatory duty on Captain Howard to make the report in question to Congress.4
17
I would affirm.
18
For dissenting opinion of Mr. Justice Brennan, see 360 U.S. 564, 79 S.Ct. 1347.
1
No purpose would be served by setting out the entire, lengthy report. It is adequately summarized in the Court of Appeals' opinion as follows:
'This letter alleged that plaintiff Lyons by name, and the other plaintiff by description, 'exercise a predominant influence' in the organizational activities; that the organization has been giving wide distribution to a newsletter or bulletin; that this bulletin has become more and more unfairly critical of the shipyard administration, for the purpose of not only thwarting the aims of the shipyard administration in the accomplishment of its mission, but also to further personal aims and self-interests of the individuals in control of the labor organization; that these 'editorial expletives' have adversely affected the general morale of employees of the shipyard, who are entitled to be protected against such 'overt subversion' by any labor group 'whose methods and whose motives are unethial, uninhibited, and lack the integrity of purpose that could reasonably be expected." 1 Cir., 250 F.2d 912, 913.
2
SECNAV Instruction 5730.5, issued February 3, 1955, paragraph 12: 'Congressional Notification of Actions of Interest. Members of Congress are very anxious to keep in touch with what is going on in their respective states and districts. Navy agencies shall keep them advised, if possible in advance, of any new actions or curtailment of actions which may affect them.'
1
I agree with the Court in its determination that federal law controls this matter.
2
'Navy agencies' is defined in paragraph 2b of the same letter as follows:
'This term includes the Civilian Executive Assistants to the Secretary, the Naval Professional Assistants to the Secretary and the Heads of Offices and Boards of the Navy Department.'
Surely it was never intended that every naval officer who thought that he knew something in which Congress might be interested, was required to contact Congress directly.
3
See, e.g., Sweeney v. Higgins, 117 Me. 415, 104 A. 791; Tyree v. Harrison, 100 Va. 540, 42 S.E. 295; Hancock v. Mitchell, 83 W.Va. 156, 98 S.E. 65.
4
On this record, I cannot believe that Captain Howard would have been derelict in his duty if he had not sent the report to Congress—and it has never been suggested that such action would have warranted disciplinary measures.
| 78
|
361 U.S. 15
80 S.Ct. 22
4 L.Ed.2d 1
Henry J. HARRIS, Petitioner,v.PENNSYLVANIA RAILROAD CO.
No. 81.
Decided Oct. 19, 1959.
Mr. Marshall I. Nurenberg, for petitioner.
Mr. Edwin Knachel, for respondent.
PER CURIAM.
1
The petition for writ of certiorari is granted. The judgment of the Supreme Court of Ohio 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, embodied in answers to Interrogatories to Jury numbers I and II, that employer negligence played a part in producing the petitioner's injury. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493. See also Moore v. Terminal Railroad Ass'n, 358 U.S. 31, 79 S.Ct. 2, 3 L.Ed.2d 25, and cases cited therein. We therefore find it unnecessary to consider the petitioner's challenge to the Ohio procedure governing interrogatories to the jury.
2
For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, Mr. Justice FRANKFURTER is of the view that the writ of certiorari is improvidently granted.
3
Reversed and remanded with directions.
4
Mr. Justice STEWART took no part in the consideration or decision of this case.
5
(For dissenting opinion of Mr. Justice HARLAN, joined by Mr. Justice WHITTAKER, see 80 S.Ct. 29.)
6
Mr. Justice DOUGLAS, concurring.
7
The suggestion that this and related decisions mean that we have eliminated 'all meaningful judicial supervision over jury verdicts' in FELA, 45 U.S.C.A. § 51 et seq., cases prompts me to file this opinion and bring up to date the compilation which I made in Wilkerson v. McCarthy, 336 U.S. 53, 68, 71—73, 69 S.Ct. 413 ,420, 422—423, 93 L.Ed. 497. The Wilkerson case was decided January 31, 1949. The attached Appendix presents a statistical summary1 of our stewardship of these FELA cases from that date to October 19, 1959.
8
Of the 110 petitions for certiorari filed during this period of more than 10 years, 73 were filed by employees and 37 were filed by employers. Of these, 33 were granted, each at the instance of an employee who complained of the lower court's withholding the case from the jury or overturning a jury verdict in his favor. Thirty cases were reversed for usurpation of the jury function; and in each of three the lower court's decision was sustained.
9
Of the 77 petitions denied, 32 were by employees who sought reversal of a lower court's decision to withhold the case from the jury or to upset a jury's verdict. Eight more employees wanted this Court to overturn jury verdicts rendered in the employers' favor.
10
Of the petitions filed by employers, 35 asked this Court to reverse a lower court decision upholding a jury verdict or holding that the case should have been submitted to a jury. Employers in two other petitions complained of the lower court's action in setting aside a jury verdict and granting a new trial.
11
It is apparent from the decisions where we refused to review cases in which lower courts withheld cases from the jury or set aside jury verdicts (or where, having granted certiorari, we sustained the lower courts in that action) that the system of judicial supervision still exists in this as in other types of cases.
12
It is suggested that the Court has consumed too much of its time in reviewing these FELA cases. An examination of the 33 cases in which the Court has granted certiorari during the period of over 10 years covered by the attached Appendix reveals that 16 of these cases were summarily reversed without oral argument and without full opinions. Only 17 cases were argued during this period of more than a decade and, of these, 5 were disposed of by brief per curiam opinions. Only 12 cases in over 10 years were argued, briefed and disposed of with full opinions by the Court. We have granted certiorari in these cases on an average of less than 3 per year and have given plenary consideration to slightly more than 1 per year. Wastage of our time is therefore a false issue.
13
The difference between the majority and minority of the Court in our treatment of FELA cases concerns the degree of vigilance we should exercise in safeguarding the jury trial—guaranteed by the Seventh Amendment and part and parcel of the remedy under this Federal Act when suit is brought in state courts. See Bailey v. Central Vermont R. Co., 319 U.S. 350, 354, 63 S.Ct. 1062, 1065, 87 L.Ed. 1444; Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 363, 72 S.Ct. 312, 315, 96 L.Ed. 398. Whether that right has been impaired in a particular instance often produces a contrariety of views. Yet the practice of the Court in allowing four out of nine votes to control the certiorari docket is well established and of long duration.2 Without it, the vast discretion which Congress allowed us in granting or denying certiorari might not be tolerable. Every member of the Court has known instances where he has strongly protested the action of the minority in bringing a case or type of case here for adjudication. He may then feel that there are more important and pressing matters to which the Court should give its attention. That is, however, a price we pay for keeping our promise to Congress3 to let the vote of four Justices bring up any case here on certiorari. hearings and not secure a decision by the whole court, it is proper to call attention to the very thorough and complete system by which discretionary jurisdiction is exercised. In granting or refusing a prayer for a certiorari the petitioner gets the judgment of the whole court. The application is not disposed of by a single justice. The luminous and informing statement of Mr. Justice Van Devanter tells the whole story:
14
"While the authority of the Supreme Court to take cases on petition for certiorari is spoken of as a discretionary jurisdiction, this does not mean that the court is authorized merely to exercise a will in the matter but rather that the petition is to be granted or denied according to a sound judicial discretion. What actually is done may well be stated here with some particularity. The party aggrieved by the decision of the circuit court of appeals and seeking a further review in the Supreme Court is required to present to it a petition and accompanying brief, setting forth the nature of the case, what questions are involved, how they were decided in the circuit court of appeals, and why the case should not rest on the decision of that court. The petition and brief are required to be served on the other party, and time is given for the presentation of an opposing brief. When this has been done copies of the printed record as it came from the circuit court of appeals and of the petition and briefs are distributed among the members of the Supreme Court, and each judge examines them and prepares a memorandum or note indicating his view of what should be done.
15
"In conference these cases are called, each in its turn, and each judge states his views in extenso or briefly as he thinks proper; and when all have spoken any difference in opinion is discussed and then a vote is taken. I explain this at some length because it seems to be thought outside that the cases are referred to particular judges, as, for instance, that those coming from a particular circuit are referred to the justice assigned to that circuit, and that he reports on them, and the others accept his report. That impression is wholly at variance with what actually occurs.
16
"We do not grant or deny these petitions merely according to a majority vote. We always grant the petition when as many as four think that it should be granted and sometimes when as many as three think that way. We proceed upon the theory that, if that number out of the nine are impressed with the thought that the case is one that ought to be heard and decided by us, the petition should be granted." H.R.Rep. No. 1075, 68th Cong., 2d Sess., p. 3.
17
Appendix to Opinion of Mr. Justice DOUGLAS.
18
I. Cases in Which Certiorari Was Granted.
19
A. Where lower court which withheld the case from the jury or set aside a jury verdict for the employee and ordered a new trial or rendered judgment for the employer was reversed:
20
Hill v. Atlantic Coast Line R. Co., 336 U.S. 911, 69 S.Ct. 507, 93 L.Ed. 1075.
21
Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282.
22
Brown v. Western R. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100.
23
Carter v. Atlanta & St. Andrews Bay R. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236.
24
Stone v. New York, Chicago & St. Louis R. Co., 344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441.
25
Harsh v. Illinois Terminal R. Co., 348 U.S. 940, 75 S.Ct. 362, 99 L.Ed. 736.
26
Smalls v. Atlantic Coast Line R. Co., 348 U.S. 946, 75 S.Ct. 439, 99 L.Ed. 740.
27
O'Neill v. Baltimore & Ohio R. Co., 348 U.S. 956, 75 S.Ct. 447, 99 L.ed. 747.
28
Neese v. Southern R. Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60.
29
Anderson v. Atlantic Coast Line R. Co., 350 U.S. 807, 76 S.Ct. 60, 100 L.Ed. 725.
30
Strickland v. Seaboard Air Line R. Co., 350 U.S. 893, 76 S.Ct. 157, 100 L.Ed. 786.
31
Cahill v. New York, N.H. & H.R. Co., 350 U.S. 898, 351 U.S. 183.
32
Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.
33
Webb v. Illinois Central R. Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503.
34
Arnold v. Panhandle & Santa Fe R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889.
35
Futrelle v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 682, 1 L.Ed.2d 718.
36
Shaw v. Atlantic Coast Line R. Co. et al., 353 U.S. 920, 77 S.Ct. 680, 1 L.Ed.2d 718.
37
Deen v. Gulf, Colorado & Santa Fe R. Co., 353 U.S. 925, 77 S.Ct. 715, 1 L.Ed.2d 721.
38
Thomson v. Texas & Pacific R. Co., 353 U.S. 926, 77 S.Ct. 698, 1 L.ed.2d 722.
39
McBride v. Toledo Terminal R. Co., 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d 1534.
40
Ringhiser v. Chesapeake & Ohio R. Co., 354 U.S. 901, 77 S.Ct. 1093, 1 L.Ed.2d 1268.
41
Gibson v. Thompson, 355 U.S. 18, 78 S.Ct. 2, 2 L.Ed.2d 1.
42
Stinson v. Atlantic Coast Line R. Co., 355 U.S. 62, 78 S.Ct. 136, 2 L.Ed.2d 93.
43
Honeycutt v. Wabash R. Co., 355 U.S. 424, 78 S.Ct. 393, 2 L.Ed.2d 380.
44
Ferguson v. St. Louis-San Francisco R. Co., 356 U.S. 41, 78 S.Ct. 671, 2 L.Ed.2d 571.
45
Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799.
46
Moore v. Terminal R. Assn., 358 U.S. 31, 79 S.Ct. 2, 3 L.Ed.2d 25.
47
Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 765.
48
Conner v. Butler, 361 U.S. 29, 80 S.Ct. 21.
49
Harris v. Pennsylvania R. Co., 361 U.S. 15, 80 S.Ct. 22.
50
B. Where lower court which withheld the case from the jury or set aside a jury verdict for the employee and ordered a new trial or rendered judgment for the employer was sustained:
51
Reynolds v. Atlantic Coast Line R. Co., 336 U.S. 207, 69 S.Ct. 507, 93 L.Ed. 618.
52
Moore v. Chesapeake & Ohio R. Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed. 547.
53
Herdman v. Pennsylvania R. Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508.
54
II. Cases in Which Certiorari Was Denied.
55
A. Where lower court withheld case from the jury or overturned a jury verdict for employee and rendered judgment for the employer:
56
Scocozza v. Erie R. Co., 337 U.S. 907, 69 S.Ct. 1048, 93 L.Ed. 1719.
57
Killian v. Pennsylvania R. Co., 338 U.S. 819, 70 S.Ct. 63, 94 L.Ed. 497.
58
Lavender v. Illinois Central R. Co., 338 U.S. 822, 70 S.Ct. 67, 94 L.Ed. 499.
59
Roberts v. Alabama Great Southern R. Co., 340 U.S. 829, 71 S.Ct. 66, 95 L.Ed. 609.
60
Emmick v. Baltimore & Ohio R. Co., 340 U.S. 831, 71 S.Ct. 43, 95 L.Ed. 611.
61
Roberts v. Missouri-Kansas-Texas R. Co., 340 U.S. 832, 71 S.Ct. 54, 95 L.Ed. 611.
62
Gentry v. Seaboard Air Line R. Co., 340 U.S. 853, 71 S.Ct. 82, 95 L.Ed. 625.
63
Moleton v. Union Pacific R. Co., 340 U.S. 932, 71 S.Ct. 495, 95 L.Ed. 672.
64
Healy v. Pennsylvania R. Co., 340 U.S. 935, 71 S.Ct. 490, 95 L.Ed. 674.
65
Ottley v. St. Louis-San Francisco R. Co., 340 U.S. 948, 71 S.Ct. 533, 95 L.Ed. 683.
66
Craven v. Atlantic Coast Line R. Co., 340 U.S. 952, 71 S.Ct. 571, 95 L.Ed. 686.
67
Jaroszewski v. Central R. Co., 344 U.S. 839, 73 S.Ct. 26, 97 L.Ed. 653.
68
Creamer v. Ogden Union R. & Depot Co., 344 U.S. 912, 73 S.Ct. 333, 97 L.Ed. 703.
69
Frizzell v. Wabash R. Co., 344 U.S. 934, 73 S.Ct. 505, 97 L.Ed. 718.
70
Gill v. Pennsylvania R. Co., 346 U.S. 816, 74 S.Ct. 27, 98 L.Ed. 343.
71
Smith v. Baltimore & Ohio R. Co., 346 U.S. 838, 74 S.Ct. 61, 98 L.Ed. 360.
72
Wetherbee v. Elgin, Joliet & Eastern R. Co., 346 U.S. 867, 74 S.Ct. 104, 98 L.Ed. 378.
73
Shellhammer v. Lehigh Valley R. Co., 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed. 1124.
74
Keiper v. Northwestern Pacific R. Co., 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826.
75
Click v. Jacksonville Terminal Co., 350 U.S. 994, 76 S.Ct. 543, 100 L.Ed. 859.
76
Barnett v. Terminal R. Assn. of St. Louis, 351 U.S. 953, 76 S.Ct. 850, 100 L.Ed. 1476.
77
Lupo v. Norfolk & Western R. Co., 352 U.S. 891, 77 S.Ct. 128, 1 L.Ed.2d 86.
78
Collins v. Atlantic Coast Line R. Co., 352 U.S. 942, 77 S.Ct. 265, 1 L.Ed.2d 238.
79
Bennett v. Southern R. Co., 353 U.S. 958, 77 S.Ct. 865, 1 L.Ed.2d 909.
80
Kelly v. Pennsylvania R. Co., 355 U.S. 892, 78 S.Ct. 265, 2 L.Ed.2d 190.
81
Dessi v. Pennsylvania R. Co., 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1073.
82
Baum v. Baltimore & Ohio R. Co., 358 U.S. 881, 79 S.Ct.
83
B. Where lower court sustained a jury verdict for the employer:
84
Jones v. Illinois Terminal R. Co., 347 U.S. 956, 74 S.Ct. 682, 98 L.Ed. 1101.
85
Conser v. Atchison, Topeka & Santa Fe R. Co., 348 U.S. 828, 75 S.Ct. 45, 99 L.Ed. 653.
86
Metrakos v. Cleveland Union Terminals Co., 348 U.S. 872, 75 S.Ct. 107, 99 L.Ed. 686.
87
Kane v. Chicago, Burlington & Quincy R. Corp., 348 U.S. 943, 75 S.Ct. 365, 99 L.Ed. 738.
88
Daulton v. Southern Pacific Co., 352 U.S. 1005, 77 S.Ct. 564, 1 L.Ed.2d 549.
89
Burch v. Reading Co., 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914.
90
Brinkley v. Pennsylvania R. Co., 358 U.S. 865, 79 S.Ct. 94, 3 L.Ed.2d 97.
91
Masterson v. New York Central R. Co., 361 U.S. 832, 80 S.Ct. 84.
92
C. Where lower court reversed a jury verdict for the employee and directed a new trial:
93
Banning v. Detroit, Toledo & Ironton R. Co., 338 U.S. 815, 70 S.Ct. 54, 94 L.Ed. 493.
94
Dixon v. Atlantic Coast Line R. Co., 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. 628.
95
Thomas v. Chesapeake & Ohio R. Co., 344 U.S. 921, 73 S.Ct. 387, 97 L.Ed. 709.
96
Milom v. New York Central R. Co., 355 U.S. 953, 78 S.Ct. 537, 2 L.Ed.2d 529.
97
Anderson v. Atlantic Coast Line R. Co., 361 U.S. 841, 80 S.Ct. 83.
98
D. Where lower court sustained a jury verdict for the employee or held that the employee's case should have gone to the jury:
99
Atlantic Coast Line R. Co. v. Haselden, 338 U.S. 825, 70 S.Ct. 73, 94 L.Ed. 501.
100
Atlantic Coast Line R. Co. v. Hill, 340 U.S. 814, 71 S.Ct. 42, 95 L.Ed. 598.
101
New York, New Haven & Hartford R. Co. v. Korte, 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 652.
102
Atchison, Topeka & Santa Fe R. Co. v. White, 343 U.S. 915, 72 S.Ct. 648, 96 L.Ed. 1330.
103
Pennsylvania R. Co. v. Donnelly, 344 U.S. 855, 73 S.Ct. 93, 97 L.Ed. 663.
104
Denver & Rio Grande Western R. Co. v. McGowan, 344 U.S. 918, 73 S.Ct. 346, 97 L.Ed. 707.
105
Terminal Railroad Ass'n of St. Louis v. Barnett, 345 U.S. 956, 73 S.Ct. 938, 97 L.Ed. 1377.
106
Southern Pacific Co. v. Miller, 346 U.S. 909, 74 S.Ct. 239, 98 L.Ed. 406.
107
Chicago, Milwaukee, St. Paul & Pacific R. Co. v. Woodrow, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1085.
108
Fort Worth & Denver R. Co. v. Prine, 348 U.S. 826, 75 S.Ct. 42, 99 L.Ed. 651.
109
Chicago, Burlington & Quincy R. Co. v. Bonnier, 348 U.S. 830, 75 S.Ct. 53, 99 L.Ed. 655.
110
Chicago & North Western R. Co. v. Margevich, 348 U.S. 861, 75 S.Ct. 84, 99 L.Ed. 678.
111
Louisiana & Arkansas R. Co. v. Johnson, 348 U.S. 875, 75 S.Ct. 111, 99 L.Ed. 688.
112
Chattanooga Station Co. v. Massey, 348 U.S. 896, 75 S.Ct. 216, 99 L.Ed. 704.
113
Chicago, Rock Island & Pacific R. Co. v. Kifer, 348 U.S. 917, 75 S.Ct. 299, 99 L.Ed. 719.
114
Elgin, Joliet & Eastern R. Co. v. crowley, 348 U.S. 927, 75 S.Ct. 340, 99 L.Ed. 727.
115
Chicago, Rock Island & Pacific R. Co. v. Wright, 349 U.S. 905, 75 S.Ct. 581, 99 L.Ed. 1241.
116
Atlantic Coast Line R. Co. v. Chancey, 349 U.S. 916, 75 S.Ct. 606, 99 L.Ed. 1250.
117
Great Northern R. Co. v. Hallada, 350 U.S. 874, 76 S.Ct. 119, 100 L.Ed. 773.
118
New York Central R. Co. v. Ruddy, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 779.
119
New York, New Haven & Hartford R. Co. v. Cereste, 351 U.S. 951, 76 S.Ct. 848, 100 L.Ed. 1475.
120
Louisiana & Arkansas R. Co. v. Moore, 351 U.S. 952, 76 S.Ct. 849, 100 L.Ed. 1475.
121
Texas & Pacific R. Co. v. Buckles, 351 U.S. 984, 76 S.Ct. 1052, 100 L.Ed. 1498.
122
Kansas City Southern R. Co. v. Justis, 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53.
123
Chicago Great Western R. Co. v. Scovel, 352 U.S. 835, 77 S.Ct. 53, 1 L.Ed.2d 54.
124
New York, Chicago & St. Louis R. Co. v. Masiglowa, 352 U.S. 1003, 77 S.Ct. 562, 1 L.Ed.2d 548.
125
Illinois Central R. Co. v. Bowman, 355 U.S. 837, 78 S.Ct. 63, 2 L.Ed.2d 49.
126
Elgin, Joliet & Eastern R. Co. v. Gibson, 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193.
127
Martin v. Tindell, 355 U.S. 959, 78 S.Ct. 545, 2 L.Ed.2d 534.
128
Kansas City Southern R. Co. v. Thomas, 356 U.S. 959, 78 S.Ct. 995, 2 L.Ed.2d 1066.
129
Missouri-Kansas-Texas R. Co. v. Bush, 358 U.S. 827, 79 S.Ct. 45, 3 L.ed.2d 67.
130
Wabash R. Co. v. Wehrli, 358 U.S. 932, 79 S.Ct. 321, 3 L.Ed.2d 304.
131
Butler v. Watts, 359 U.S. 926, 79 S.Ct. 609, 3 L.Ed.2d 628.
132
Pennsylvania R. Co. v. Byrne, 359 U.S. 960, 79 S.Ct. 798, 3 L.Ed.2d 766.
133
Illinois Central R. Co. v. Andre, 361 U.S. 820, 80 S.Ct. 65.
134
E. Where lower court set aside a jury verdict for the employer because of erroneous instructions and granted a new trial:
135
Wabash R. Co. v. Byler, 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643.
136
Delaware, Lackawanna & Western R. Co. v. Siegrist, 360 U.S. 917, 79 S.Ct. 1435, 3 L.Ed.2d 1533.
137
Mr. Justice HARLAN, whom Mr. Justice WHITTAKER joins, dissenting.
138
The opening of a new Term that confronts the Court with the usual volume of important and exacting business impels me to reiterate the view that cases involving only factual issues and which are of no general importance have no legitimate demands upon our energies, already taxed to the utmost. See Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 559, 77 S.Ct. 443, 459, 478, 1 L.Ed.2d 493 (dissenting opinions). The extreme character of the adjudication which has been made in this case also deserves something more than merely noting my dissent on the merits, for I do not think that the reversal of this judgment is to be justified even under the philosophy of Rogers.
139
Petitioner was injured while engaged, as a member of a 'wreck train crew,' in retracking two derailed boxcars on the line of another railroad during the early morning of a 'sleety, wet and sloppy' day. The operation involved the use on each car of a derrick and four outriggers. Each outrigger was supported from beneath by wooden blocks. The first derailed car was successfully retracked. The equipment then had to be moved for a similar operation on the second car. In this process petitioner wrenched his back while attempting to remove one of the wooden blocks which had become embedded in mud. Being unable to brace his right foot on the narrow surface of the ground between the block and one of the railroad cross-ties, petitioner placed that foot on the tie itself. In answer to interrogatories the jury found that respondent had been negligent in that 'the tie of the track (petitioner) was required to walk was elevated a substantial distance above the ground level and was covered with grease or oil, thereby affording unstable footing.' A verdict in the sum of $25,000 was returned which on review was set aside by the Ohio Supreme Court.
140
The Court does not reach the question as to the applicability of the Ohio rule that this specification of negligence excluded appellate consideration of any others asserted by petitioner. I can hardly believe that the Court quarrels with the state court's ruling that as a matter of law the 'position of the crosstie, slightly elevated above the roadbed' could not support the jury's finding of negligence because such state of affairs was a common and notorious one. Hence justification for the overturning of this judgment must rest upon what the record shows as to the presence of grease on the crosstie and as to the respondent's culpability for that alleged condition.
141
Unless liability in FELA cases may be predicated upon mere conjecture, this record for me is manifestly deficient. The only evidence that there was grease on the crosstie was petitioner's statement on cross-examination that he found some grease on the sole of the shoe of his right foot, and the testimony of a section foreman of the other railroad that grease was used on that railroad's switches, which were customarily lubricated at least twice a week. Petitioner had not mentioned on direct examination, in his pre-trial deposition, or in a written account of the accident made shortly after it occurred, that he had encountered grease at any stage of the operation, and even on cross-examination did not claim that he had seen grease anywhere in the vicinity, still less on the particular crosstie where his foot had rested. With respect to the foreman's testimony, there is no evidence at all in the record before us as to the position of any of the switches in relation to the crosstie in question—whether any of them were adjacent to it or far removed.
142
But even if this evidence be considered as justifying the jury's conclusion that there was grease on this particular crosstie, there was, in the words of the Ohio court, no evidence whatever that respondent 'placed it there, knew about it, or, in the exercise of ordinary care, should have known about it.' Evidence as to how long the alleged greasy condition of this crosstie had existed was wholly lacking. The tie on the day in question was covered with mud. And the section foreman of the other railroad testified that there was nothing untoward about the condition of the area when he inspected it the next morning. How in these circumstances it could 'with reason' be said that the respondent failed in some duty of inspection is beyond me.
143
I cannot understand how on this record even the 'scintilla' rule of Rogers and its progeny, see dissenting opinion in Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 332, 78 S.Ct. 758, 763, 2 L.Ed.2d 799, can be thought to justify the overturning of this judgment. I fear that this decision confirms my growing suspicion that the real but unarticulated meaning of Rogers is that in FELA cases anything that a jury says goes, with the consequence that all meaningful judicial supervision over jury verdicts in such cases has been put at an end. See separate memorandum in Gibson v. Thompson, 355 U.S. 18, 19, 78 S.Ct. 2, 3, 2 L.Ed.2d 1. If so, I think the time has come when the Court should frankly say so. If not, then the Court should at least give expression to the standards by which the lower courts are to be guided in these cases. Continuance of the present unsatisfactory state of affairs can only lead to much waste motion on the part of lower courts and defense lawyers.
144
I would affirm.
1
Cases in which petitions for certiorari have been granted but which have not yet been decided on the merits have not been included nor have cases been included which did not present issues of negligence or causation under the Act. Moreover, petitions seeking review of judgments of state courts granting new trials are not included because we usually treat them as not being 'final' judgments. See 28 U.S.C. § 1257, 28 U.S.C.A. § 1257; Bruce v. Tobin, 245 U.S. 18, 38 S.Ct. 7, 62 L.Ed. 123.
2
When the Act of February 13, 1925 (43 Stat. 936), which broadened our certiorari jurisdiction, was before the Congress, Mr. Justice Van Devanter, speaking for the Court, made explicit that the 'rule of four' governs the grant of petitions for certiorari. He testified before the Subcommittee of the Senate Judiciary Committee as follows:
'* * * if there were five votes against granting the petition and four in favor of granting it, it would be granted, because we proceed upon the theory that when as many as four members of the court, and even three in some instances, are impressed with the propriety of our taking the case the petition should be granted. This is the uniform way in which petitions for writs of certiorari are considered.' Hearings on S. 2060, Feb. 2, 1924, 68th Cong., 1st Sess., p. 29. And see Hearings on H.R. 8206, Dec. 18, 1924, 68th Cong., 2d Sess., p. 8.
3
The 'rule of four' was given as one of the reasons why the Congress thought that the increase of our discretionary jurisdiction was warranted. The House Report stated:
'Lest it should be thought that the increase of discretionary jurisdiction might impair the administration of justice and lead to partial
| 78
|
361 U.S. 29
80 S.Ct. 21
4 L.Ed.2d 10
J. C. CONNER, Petitioner,v.J. Turner BUTLER.
No. 328.
Decided Oct. 19, 1959.
Mr. William S. Frates, for petitioner.
Mr. George F. Gilleland, for respondents.
PER CURIAM.
1
The petition for writ of certiorari is granted. The judgment of the District Court of Appeal of Florida, Third District, is reversed and the case is remanded for further proceedings in conformity with this opinion. We hold that the proofs were sufficient to submit to the jury the question whether employer negligence played a part in producing the petitioner's injury. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.
2
For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, Mr. Justice FRANKFURTHER is of the view that the writ of certiorari is improvidently granted.
3
Reversed and remanded with directions.
| 78
|
361 U.S. 39
80 S.Ct. 1
4 L.Ed.2d 169
UNITED STEELWORKERS OF AMERICA, Petitioner,v.UNITED STATES of America.
No. 504.
Supreme Court of the United States
December 7, 1959
Mr. Arthur J. Goldberg, Washington, D.C., for the petitioner.
Solicitor General J. Lee Rankin, Washington, D.C., for the United States.
PER CURIAM.
1
The Attorney General sought and obtained in the District Court for the Western District of Pennsylvania an injunction against the continuation of an industry-wide strike of workers in the basic steel industry pursuant to § 208 of the Labor Management Relations Act, 1947, 61 Stat. 155, 29 U.S.C. § 178, 29 U.S.C.A. § 178. We granted certiorari, 361 U.S. 878, 80 S.Ct. 143, to review the judgment of the Court of Appeals for the Third Circuit, 271 F.2d 676, affirming the District Court, 178 F.Supp. 297. In pertinent part, § 208 provides that if the District Court—
2
'finds that * * * (a) threatened or actual strike or lockout—
3
'(i) affects an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the production of goods for commerce; and
4
'(ii) if permitted to occur or to continue, will imperil the national health or safety, it shall have jurisdiction to enjoin any such strike or lockout, or the continuing thereof, and to make such other orders as may be appropriate.'
5
The arguments of the parties here and in the lower courts have addressed themselves in considerable part to the propriety of the District Court's exercising its equitable jurisdiction to enjoin the strike in question once the findings set forth above had been made. These arguments have ranged widely into broad issues of national labor policy, the availability of other remedies to the Executive, the effect of a labor injunction on the collective bargaining process, consideration of the conduct of the parties to the labor dispute in their negotiations, and conjecture as to the course of those negotiations in the future. We do not believe that Congress in passing the statute intended that the issuance of injunctions should depend upon judicial inquiries of this nature. Congress was not concerned with the merits of the parties' positions or the conduct of their negotiations. Its basic purpose seems to have been to see that vital production should be resumed or continued for a time while further efforts were made to settle the dispute. To carry out its purposes, Congress carefully surrounded the injunction proceedings with detailed procedural devices and limitations. The public report of a board of inquiry, the exercise of political and executive responsibility personally by the President in directing the commencement of injunction proceedings, the statutory provisions looking toward an adjustment of the dispute during the injunction's pendency, and the limited duration of the injunction, represent a congressional determination of policy factors involved in the difficult problem of national emergency strikes. This congressional determination of the policy factors is of course binding on the courts.
6
The statute imposes upon the courts the duty of finding, upon the evidence adduced, whether a strike or lockout meets the statutory conditions of breadth of involvement and peril to the national health or safety. We have accordingly reviewed the concurrent findings of the two lower courts. Petitioner here contests the findings that the continuation of the strike would imperil the national health and safety. The parties dispute the meaning of the statutory term 'national health'; the Government insists that the term comprehends the country's general well-being, its economic health; petitioner urges that simply the physical health of the citizenry is meant. We need not resolve this question, for we think the judgment below is amply supported on the ground that the strike imperils the national safety.* Here we rely upon the evidence of the strike's effect on specific defense projects; we need not pass on the Government's contention that 'national safety' in this context should be given a broader construction and application.
7
The petitioner suggests that a selective reopening of some of the steel mills would suffice to fulfill specific defense needs. The statute was designed to provide a public remedy in times of emergency; we cannot construe it to require that the United States either formulate a reorganization of the affected industry to satisfy its defense needs without the complete reopening of closed facilities, or demonstrate in court the unfeasibility of such a reorganization. There is no room in the statute for this requirement which the petitioner seeks to impose on the Government.
8
We are of opinion that the provision in question as applied here is not violative of the constitutional limitation prohibiting courts from exercising powers of a legislative or executive nature, powers not capable of being conferred upon a court exercising solely 'the judicial power of the United States.' Keller v. Potomac Elec. Power Co., 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed. 731; Federal Radio Comm. v. General Elec. Co., 281 U.S. 464, 50 S.Ct. 389, 74 L.Ed. 969. Petitioner contends that the statute is constitutionally invalid because it does not set up any standard of lawful or unlawful conduct on the part of labor or management. But the statute does recognize certain rights in the public to have unimpeded for a time production in industries vital to the national health or safety. It makes the United States the guardian of these rights in litigation. Cf. United States v. American Bell Tel. Co., 128 U.S. 315, 370, 9 S.Ct. 90, 98, 32 L.Ed. 450; Sanitary District of Chicago v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352. The availability of relief, in the common judicial form of an injunction, depends on findings of fact, to be judicially made. Of the matters decided judicially, there is no review by other agencies of the Government. Cf. Gordon v. United States, 2 Wall. 561, 17 L.Ed. 921, 117 U.S. 697. We conclude that the statute entrusts the courts only with the determination of a 'case or controversy,' on which the judicial power can operate, not containing any element capable of only legislative or executive determination. We do not find that the termination of the injunction after a specified time, or the machinery established in an attempt to obtain a peaceful settlement of the underlying dispute during the injunction's pendency, detracts from this conclusion.
9
The result is that the judgment of the Court of Appeals for the Third Circuit, affirming that of the District Court, is affirmed. Our mandate shall issue forthwith.
10
It is so ordered.
11
Mr. Justice FRANKFURTER and Mr. Justice HARLAN: In joining the Court's opinion we note our intention to file in due course an amplification of our views upon the issues involved which could not be prepared within the time limitations imposed by the necessity of a prompt adjudication in this case. See 80 S.Ct. 177.
12
Separate opinion of Mr. Justice FRANKFURTER and Mr. Justice HARLAN, concurring in the opinion of the Court dated November 7, 1959.
13
This action by the United States for an injunction under § 208 of the Labor Management Relations Act, 1947 (61 Stat. 155, 29 U.S.C. § 178, 29 U.S.C.A. § 178) was commenced by the Attorney General at the direction of the President of the United States in the District Court for the Western District of Pennsylvania on October 20, 1959. The strike which was the concern of the action arose out of a labor dispute between petitioner, the collective bargaining agent of the workers, and the steel companies, and was nationwide in scope. The strike began on July 15, 1959, fifteen days after the contracts between the steel companies and petitioner expired. On October 9, 1959, the President created the Board of Inquiry provided by §§ 206 and 207 of the Act, 29 U.S.C.A. §§ 176, 177, to inquire into the issues involved in the dispute. The President deemed the strike to affect a 'substantial part of * * * an industry,' and concluded that, if allowed to continue, it would imperil the national 'health and safety.' On October 19 the Board submitted its report, which concluded: '(T)he parties have failed to reach an agreement and we see no prospects for an early cessation of the strike. The Board cannot point to any single issue of any consequence whatsoever upon which the parties are in agreement.' The President filed the report with the Federal Mediation and Conciliation Service and made its contents public, in accordance with § 206, and ordered the Attorney General to commence this action, reiterating his former pronouncements that the continuance of the strike constituted a threat to the national health and safety.
14
Pursuant to stipulations of the parties, the District Court heard the case on affidavits. On October 21 it granted the injunction. Its order was stayed by the Court of Appeals for the Third Circuit, pending that court's final determination of petitioner's appeal. On October 27 it affirmed the decision of the District Court (one judge dissenting) and granted an additional stay to enable petitioner to seek relief here. On October 28 this Court denied the motion of the United States to modify the stay. On October 30 we granted certiorari, set the argument down for November 2, and extended the stay pending final disposition. In a per curiam opinion on November 7, this Court affirmed the decision of the Court of Appeals, Mr. Justice Douglas dissenting. We noted our intention to set forth at a later time the grounds for our agreement with the Court's disposition and not delay announcement of the result until such a statement could be prepared.
15
The injunction was challenged on three grounds: (1) the lower courts were not entitled to find that the national emergency, upon which the District Court's jurisdiction is dependent under § 208, existed; (2) even if the emergency existed, the District Court failed to exercise the discretion, claimed to be open to it under § 208, whether or not to grant the relief sought by the United States; (3) even if the injunction was otherwise unassailable it should have been denied because § 208 seeks to charge the District Courts with a duty outside the scope of 'judicial power' exercisable under Art. III, § 2, of the Constitution.
16
Section 208 provides that the District Court 'shall have jurisdiction to enjoin' a 'threatened or actual strike or lockout' if the court finds that it '(i) affects an entire industry or a substantial part thereof engaged in * * * commerce * * * or engaged in the production of goods for commerce; and (ii) if permitted to occur or to continue, will imperil the national health or safety * * *.' The District Court found, and it was not contested here, that the strike satisfied the first condition in that it affected a substantial portion of the steel industry. Petitioner urged, however, that the lower courts had no basis for concluding that it satisfied the second.
17
In its finding of fact No. 15, the District Court described four instances of serious impediment to national defense programs as a result of existing and prospective procurement problems due to the strike. The programs affected included the missible, nuclear submarine and naval shipbuilding, and space programs. Each of these findings had, as the Court of Appeals found, ample support in the affidavits submitted by the United States. According to the affidavit of Thomas S. Gates, Jr., Acting Secretary of Defense, delays in delivery of materials critical to the creation of the Atlas, Titan and Polaris missile systems had become so severe that each additional day of the strike would result in an equal delay in project completion; and a 'significant portion of the steel specified in the procurement contracts is of a composition not common to commercial usage nor available from existing civilian inventories by exercise of allocation or eminent domain powers of the Government. * * * (T) hese programs in many cases require special sizes and shapes, many of which can be fabricated only by firms having a long experience in their production and the necessary special facilities therefor. * * *'
18
The affidavit of Hugh L. Dryden, Deputy Administrator of the Aeronautics and Space Administration, stated, in some detail, that space projects, including tracking centers, rocket engine test stands, and other critical facilities, were, at the time of the hearing in the District Court, already subjected to delays of as much as seven weeks, with longer delays anticipated from the continuation of the strike. The affidavit of A. R. Luedecke, the General Manager of the Atomic Energy Commission, stated that minor delays in projects had, at the time of its making, already been experienced in critical programs of the Atomic Energy Commission, and that if the strike should continue into 1960 'there would be an appreciable effect upon the weapons program.'
19
In view of such demonstrated unavailability of defense materials it is irrelevant that, as petitioner contended and the United States conceded, somewhat in excess of 15% of the steel industry remained unaffected by the stoppage, and that only about 1% of the gross steel product is ordinarily allocated to defense production.
20
However, petitioner also contested the sufficiency of the affidavits on the ground that they did not present the facts giving rise to the asserted emergencies with sufficient particularity to justify the findings made. This objection raises an issue which was essentially for the trier of fact, and the two lower courts found the affidavits sufficient. It is not for the judiciary to canvass the competence of officers of cabinet rank, with responsibility only below that of the President for the matters to which they speak under oath, to express the opinions set forth in these affidavits. Findings based directly upon them surely cannot be said to be 'clearly erroneous.' Fed.Rules Civ.Proc., rule 52(a), 28 U.S.C.A.
21
Moreover, under § 208 the trier of these facts was called upon to make a judgment already twice made by the President of the United States: once when he convened the Board of Inquiry; and once when he directed the Attorney General to commence this action. His reasoned judgment was presumably based upon the facts we have summarized, and it is not for us to set aside findings consistent with them. The President's judgment is not controlling; § 208 makes it the court's duty to 'find' the requisite jurisdictional fact for itself. But in the discharge of its duty a District Court would disregard reason not to give due weight to determinations previously made by the President, who is, after all, the ultimate constitutional executive repository for assuring the safety of the Nation, and upon whose judgment the invocation of the emergency provisions depends.
22
The petitioner next asserted that the findings made were insufficient as a matter of law to support the District Court's jurisdiction under § 208. Conceding that peril to the national defense is peril to the national safety, it asserted that the peril to the national safety which is made an element of the court's jurisdiction by part (ii) of § 208(a) must result from the substantial character of the effect upon an industry required by part (i), and that if it does not so result a District Court is without power to enjoin the stoppage or any part of it. Alternately, it urged that the jurisdiction which is conferred by the section is limited to relief against such part of the total stoppage as is found to be the cause in fact of the peril. Petitioner claimed that as a matter of fact the procurement embarrassments found by the courts below were the result not of the entire steel stoppage or even of a substantial part of it, but only of the closing of a 'handful' of the hundreds of plants affected; and that therefore the entire industry-wide strike should not have been enjoined under either construction of § 208 which it asserted.
23
In the first place, the requisite fact was found against petitioner's contention. The Court of Appeals found that '(t)he steel industry is too vast and too complicated to be segmented' so as to alleviate the existing and foreseeable peril to the national defense by the mere reopening of a few plants. It expressly relied upon the affidavit of Dr. Raymond J. Saulnier, Chairman of the Council of Economic Advisers of the Federal Government, which was before both the lower courts. Dr. Saulnier stated that:
24
'Steel is produced through closely interrelated processes that often cannot be separated technically or economically to allow production of items 'needed' * * * while omitting items 'not needed.' * * * '(I)n order to satisfy defense requirements alone from the standpoint of size, grade, and product, it would be necessary to reactivate 25 to 30 hot rolling mills, together with supporting blast furnaces, and Bessemer, electric, open hearth, and vacuum-melting furnaces. Additional facilities for pickling, coating, heat treating, cold finishing, shearing, cutting, testing, and the like would also be required. To reopen these plants for the production of steel products to meet only defense requirements would be totally impracticable. The problems of scheduling the limited tonnages involved, plus the cost and technical difficulty of start-ups and shutdowns would appear to be insurmountable." The lower courts had before them, as did this Court, the conflicting affidavit of Robert Nathan, the economist for the Steelworkers. But the trier of fact was not bound to prefer the arguments, however weighty, of petitioner's economist, however estimable, as against the views of the highest officers in the land and their economic advisers regarding the means for securing necessary defense materials.
25
Nor we it a refutation of the finding of the Court of Appeals to suggest, as petitioner did here, that 'needed' facilities might be opened for all purposes. The problem is self-evidently one of programming months in advance every specialized commodity needed for defense purposes, a project which itself would require months of effort and the delays such effort would entail. Other obvious difficulties are not less formidable. Upon what basis would the plants to be reopened be chosen, assuming the number of plants needed could be determined? According to what standard would the production of particular complexes of plants be regulated? What of problems of cost and overhead, and the cost of and time required for intra-company planning to determine the practicality of partially restricting the operation of giant complexes such as those of the major producers?
26
No doubt a District Court is normally charged with the duty of independently shaping the details of a decree when sitting in equity in controversies that involve simple and relatively few factors; factors, that is, far less in number, less complicated and less interrelated than in the case before us. But a court is not qualified to devise schemes for the conduct of an industry so as to assure the securing of necessary defense materials. It is not competent to sit in judgment on the existing distribution of factors in the conduct of an integrated industry to ascertain whether it can be segmented with a view to its reorganization for the supply exclusively, or even primarily, of government-needed materials. Nor is it able to readjust or adequately to reweigh the forces of economic competition within the industry or to appraise the relevance of such forces in carrying out a defense program for the Government. Against all such assumptions of competence, the finding of the Court of Appeals was amply supported by the record.
27
Even without such a finding, however, petitioner's contention would fail. There are controlling reasons for concluding that § 208 neither imposes upon the United States, as a condition for securing an injunction, the burden of establishing that the peril shown proceeds from the unavailability of a 'substantial number' of particular facilities, nor limits the scope of the court's injunctive process to such part of the total stoppage as appears to be the cause in fact of the peril.
28
First, on its face § 208 states two separate criteria, both of which must be satisfied before an injunction may issue against a strike, and it states no other relationship between them than that both must proceed from ' such strike.' No other relationship is suggested by the legislative history of these emergency provisions. There is, accordingly, no foundation for the drastic limitation on their scope which would be imposed if petitioner's contention had been adopted, that a District Court is without jurisdiction unless the abstract quantitatively substantial character of the effect of the stoppage is found to be the cause in fact of the peril.
29
The legislative history confirms what the provisions themselves amply reveal, that this portion of the Taft-Hartley Act contains a dual purpose, on the one hand to alleviate, at least temporarily, a threat to the national health or safety; and on the other to promote settlement of the underlying dispute of industry-wide effect. The former purpose is to be accomplished by the injunction, and by whatever additional remedies the President may seek and the Congress grant in pursuance of the command of § 210 of the Act, 29 U.S.C.A. § 180, that the matter be returned to Congress by the President with full report in the event of a failure of settlement within the injunction period. The latter purpose is to be accomplished by the command of § 209, 29 U.S.C.A. § 179, that the parties to the dispute 'make every effort to adjust and settle their differences'; by the secret ballot of employees provided by § 209 with reference to the last offer of the companies; and finally by further action by the President and Congress pursuant to § 210. To hold, as petitioner alternatively urged, that a District Court may enjoin only that part of the total stoppage which is shown to be the cause in fact of the peril, would at best serve only the purpose of alleviating the peril, while stultifying the provisions designed to effect settlement of the underlying dispute.
30
Second, the evidentiary burdens upon the Government which would have resulted from the adoption of either of the constructions urged by petitioner would tend to cripple the designed effectiveness of the Act. It is extremely doubtful whether in strikes of national proportion information would be available to the United States within a reasonable time to enable it to show that particular critical orders were placed with particular facilities no longer available; or whether the United States could, within such time, effect a theoretical reorganization of its procurement program so as to demonstrate to a court that it cannot successfully be conducted without the reopening of particular facilities.
31
Finally, § 208 is not to be construed narrowly, as if it were merely an exception to the policies which led to the restrictions on the use of injunctions in labor disputes embodied in the Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C. §§ 101—115, 29 U.S.C.A. §§ 101—115. Totally different policies led to the enactment of the national emergency provisions of the 1947 Act. The legislative history of these provisions is replete with evidence of the concern of both the proponents and the opponents of the bill to deal effectively with large-scale work stoppages which endanger the public health or safety. To stop or prevent public injury, both management and labor were brought within the scope of the injunctive power, and both were subjected to the command to 'make every effort to adjust and settle their differences * * *.' § 209. The preamble to the Act succinctly states this purpose:
32
'Industrial strife which interferes with the normal flow of commerce * * * can be avoided or substantially minimized if employers, employees and labor organizations each * * * above all recognize under law that neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest * * *.' Labor Management Relations Act (1947), § 1(b), 61 Stat. 136, 29 U.S.C. § 141(b), 29 U.S.C.A. § 141(b).
33
The Norris-LaGuardia Act had limited the power of the federal courts to employ injunctions to affect labor disputes. The purpose of that Act was rigorously to define the conditions under which federal courts were empowered to issue injunctions in industrial controversies as between employers and employees, and to devise a safeguarding procedure for the intervention of the federal judiciary in the course of private litigation. It is not without significance that this Act was found not to deprive a federal court of jurisdiction to issue an injunction at the behest of the Government as industrial operator. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. Moreover, as the preamble to the Norris-LaGuardia Act indicated, the formulation of policy of that statute was made in 1932 'under prevailing economic conditions.' 29 U.S.C.A. § 102. Congress at different times and for different purposes may gauge the demands of 'prevailing economic conditions' differently or with reference to considerations outside merely 'economic conditions.' Here Congress has made the appraisal that the interests of both parties must be subordinated to the overriding interest of the Nation. The following observations of Mr. Justice Brandeis are apposite:
34
'Because I have come to the conclusion that both the common law of a state and a statute of the United States declare the right of industrial combatants to push their struggle to the limits of the justification of self-interest, I do not wish to be understood as attaching any constitutional or moral sanction to that right. All rights are derived from the purposes of the society in which they exist; above all rights rises duty to the community. The conditions developed in industry may be such that those engaged in it cannot continue their struggle without danger to the community. But it is not for judges to determine whether such conditions exist, nor is it their function to set the limits of permissible contest and to declare the duties which the new situation demands. This is the function of the legislature which, while limiting individual and group rights of aggression and defense, may substitute processes of justice for the more primitive method of trial by combat.' Duplex Printing Press Co. v. Deering, 1921, 254 U.S. 443, 488, 41 S.Ct. 172, 184, 65 L.Ed. 349 (dissent).
35
These sections were designed to provide machinery for safeguarding the comprehensive interest of the community, and to promote the national policy of collective bargaining. They must be construed to give full effect to the protections they seek to afford.
36
Petitioner's final contention with regard to the statutory standard of peril to the national safety appears to have been that the United States must resort to other modes of relief than this Act to meet the national peril created by a stoppage in a substantial part of an industry, before such peril can be said to exist or be threatened. In substance petitioner urged: (1) that the United States has powers under the Defense Production Act of 1950, 64 Stat. 798, 50 U.S.C.App. § 2061, 50 U.S.C.A.Appendix, § 2061, the exercise of which would, even during the course of these proceedings, have permitted it to alleviate the critical shortages which in fact resulted or threatened to result from the strike; and (2) that the United States failed to reveal to petitioner or to the courts what plants might have been reopened so as to remove the peril to the national defense. In the light of what we have already said, it is apparent that neither of these matters is relevant to the judicial determination required by § 208. The remedy available to the United States under these provisions is independent of other powers possessed by it and is not encumbered by any burden upon it to seek to persuade or enable the defendants to effect a piecemeal alteration of their conduct to avoid the court's jurisdiction.
37
Because the District Court's finding of peril to the national safety resulting from impediments to the programs for national defense was itself sufficient to satisfy the requirement of § 208(a)(ii), it is not necessary to determine whether perils to defense exhaust the scope of 'safety' as used in this statute, or to consider its findings with regard to peril to the national health.
38
Having decided that the strike was one which created a national emergency within the terms of the statute, the next question is whether, upon that finding alone, the 'eighty-day' injunction for which the Government prayed should have issued, or whether the District Court was to exercise the conventional discretionary function of equity in balancing conveniences as a preliminary to issuing an injunction. The petitioner argued that under the Act a District Court has 'discretion' whether to issue an 'eighty-day' injunction, even though a national emergency be found. It argued that the district judge in this case did not consider that he had such 'discretion.' Alternatively, it argued that if the district judge did exercise 'discretion' he abused it, for the broad injunctive relief he granted was not justifiable in this case. The contention was that the relief had the effect of hindering rather than promoting a voluntary settlement of the dispute, and of unnecessarily coercing hundreds of thousands of employees, when an injunction of only a small part of the strike, or other non-injunctive remedies, assertedly less drastic, were available, and would have equally well averted the threat to public safety. We do not think it necessary to embark upon the speculative consideration whether the district judge in fact made a discretionary determination, and, if be did, whether that determination was justifiable. We conclude that under the national emergency provisions of the Labor Management Relations Act it is not for judges to exercise conventional 'discretion' to withhold an 'eighty-day' injunction upon a balancing of conveniences.
39
'Discretionary' jurisdiction is exercised when a given injunctive remedy is not commanded as a matter of policy by Congress, but is, as a presupposition of judge-made law, left to judicial discretion. Such is not the case under this statute. The purpose of Congress expressed by the scheme of this statute precludes ordinary equitable discretion. In this respect we think the role of the District Courts under this statute is like the role of the Courts of Appeals under provisions for review by them of the orders of various administrative agencies, such as the National Labor Relations Board. 29 U.S.C. § 160(e), 29 U.S.C.A. § 160(e). This Court has held that it the Board's findings are sustained, the remedy it thought appropriate must be enforced. National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226.
40
In the national emergency provisions of the Labor Management Relations Act, Congress has with particularity described the duration of the injunction to be granted and the nature of specific collateral administrative procedures which are to be set in motion upon its issuance. We think the conclusion compelling that Congress has thereby manifested that a District Court is not to indulge its own judgment regarding the wisdom of the relief Congress has designed. Congress expressed its own judgment and did not leave it to a District Court. The statute embodies a legislative determination that the particular relief described is appropriate to the emergency, when one is found to exist. Moreover, it is a primary purpose of the Act to stop the national emergency at least for eighty days, which would be defeated if a court were left with discretion to withhold an injunction and thereby permit continuation of an emergency it has found to exist. The hope is that within the period of the injunction voluntary settlement of the labor dispute will be reached, and to that end the statute compels bargaining between the parties during that time. If no voluntary settlement is concluded within the period of the injunction, the President is to report to Congress so that that body may further draw upon its constitutional legislative powers. How else can these specific directions be viewed but that the procedures provided are, in the view of Congress, the way to meet the emergencies which come within the statute? It is not for a court to negative the direction of Congress because of its own confident prophecy that the 'eighty-day' injunction and the administrative procedures which follow upon it will not induce voluntary settlement of the dispute, or are too drastic a way of dealing with it.
41
We are also persuaded by the fact that, before the statute is invoked, there must be a Presidential determination that the 'eighty-day' injunction is the promising method for dealing with the emergency arising from the labor dispute. Section 206 provides that whenever the President is of the 'opinion' that a strike or lockout will create a national emergency, he may appoint a board of inquiry, which shall submit to him a report containing the facts relating to the dispute and the positions of the parties to it. Upon receiving this report the President 'may' direct the Attorney General to petition to enjoin the strike or lockout. It is undoubtedly one of the factors in the President's decision to direct the Attorney General to act that he considers such an injunction the best available course to relieve the emergency. Such a decision by the President to invoke the courts' jurisdiction to enjoin, involving, as it does, elements not susceptible of ordinary judicial proof nor within the general range of judicial experience, is not within the competent scope of the exercise of equitable 'discretion.' It may be that the assumptions on the basis of which Congress legislated were ill-founded or have been invalidated by experience. It may be that the considerations on the basis of which the President exercised his judgment in invoking the legislation will be found wanting by hindsight. These are not matters within the Court's concern. They are not relevant to the construction of § 208 nor to its judicial enforcement. They certainly do not warrant the Judiciary's intrusion into the exercise by Congress and the President of their respective powers and responsibilities.
42
Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754, heavily relied on, dealt with quite a different situation. There we held that the application of the Administrator of the Emergency Price Control Act of 1942 for an injunction of violations of that Act might be refused, in the exercise of the District Court's 'discretion.' But the scheme of the statute in Hecht v. Bowles was significantly different from that of the statute in this case. The Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 925(a), provided that the District Court should grant, at the Administrator's application, 'a 'permanent or temporary injunction, restraining order, or other order." This Court emphasized the alternative character of this provision for an 'other order' an imparting to the District Court discretion to withhold an injunction. 321 U.S., at page 328, 64 S.Ct. at page 591. Under the Labor Management Relations Act the District Court is given jurisdiction to enjoin 'and to make such other orders as may be appropriate.' Congress thus provided a jurisdiction additional to the power to grant an injunction, not alternative to it: an 'other order' may only supplement an injunction, it may not supplant it. Beyond this difference are the considerations that, under the Emergency Price Control Act of 1942, an injunction did not, as it does here, bring into play other carefully prescribed relief designed by Congress to alleviate the cause of the evil which it was the purpose of the statute to correct, nor was the duration of the injunction specifically limited as in this case. There was not, therefore, in Hecht v. Bowles the strong showing we have here that the Congress has resolved the question of the appropriate form of relief for the condition the statute is meant to correct, and the Court there concluded that the Administrator's application for judicial relief was an appeal to the ordinary equity jurisdiction and 'discretion' of the District Court. In Hecht v. Bowles itself the Court recognized that there might be 'other federal statutes governing administrative agencies which * * * make it mandatory that those agencies take action when certain facts are shown to exist.' 321 U.S., at page 329, 64 S.Ct. at page 591. In essence this describes the situation under the Labor Management Relations Act.
43
We come finally to the petitioner's contention that the grant to the District Courts by § 208(a) of the Labor Management Relations Act of jurisdiction to enjoin strikes such as this one is not a grant of 'judicial Power' within the meaning of Art. III, § 2, of the Constitution, and was therefore beyond the power of Congress to confer on the District Courts. What proceedings are 'Cases' and 'Controversies' and thus within the 'judicial Power' is to be determined, at the least, by what proceedings were recognized at the time of the Constitution to be traditionally within the power of courts in the English and American judicial systems. Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power could come into play only in matters such as were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel of lawyers constituted 'Cases' or 'Controversies.'
44
Beginning at least as early as the sixteenth century the English courts have issued injunctions to abate public nuisances. Bond's Case, Moore 238 (1587); Jacob Hall's Case, 1 Ventris 169, 1 Mod. 76 (1671); The King v. Betterton, 5 Mod. 142 (1696); Baines v. Baker, 3 Atk. 750, 1 Amb. 158 (1752); Mayor of London v. Bolt, 5 Ves. 129 (1799). See also Eden, Injunctions (3d ed. 1852), Vol. II, 259; Blackstone, Commentaries (12th ed. 1795), Vol. IV, 166. This old, settled law was summarized in 1836 by the Lord Chancellor in the statement that 'the court of exchequer, as well as this Court, acting as a court of equity, has a well established jurisdiction, upon a proceeding by way of information to prevent nuisances to public harbours and public roads; and, in short, generally to prevent public nuisances.' Attorney General v. Forbes, 2 M. & C. 123, 133. And two years later this Court recognized that 'it is now settled, that a court of equity may take jurisdiction in cases of public nuisance by an information filed by the attorney general.' City of Georgetown v. Alexandria Canal Co., 1838, 12 Pet. 91, 98, 9 L.Ed. 1012. See also Payne v. Hook, 7 Wall. 425, 430, 19 L.Ed. 260. Since that time this Court has impressively enforced the judicial power to abate public nuisances at the suit of the Government. In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. The crux of the Debs decision, that the Government may invoke judicial power to abate what is in effect a nuisance detrimental to the public interest, has remained intact. The heart of the case was approvingly cited by Mr. Justice Brandeis for the Court in Jacob Ruppert, Inc. v. Caffey, 251 U.S. 264, 301, 40 S.Ct. 141, 150, 64 L.Ed. 260. The scope of the injunction in the Debs case no doubt gave rise to the much-criticized extensive use of the injunction in ordinary employer-employee controversies. See Frankfurter and Greene, The Labor Injunction, pp. 18 et seq., 62—63, and 190, and for the terms of the decree see p. 253. Congress dealt with this proliferating and mischievous use of the labor injunction first through the Clayton Act, 29 U.S.C.A. § 52, and later through the Norris-LaGuardia Act. But even the severest critics of the Debs injunction have recognized that it was not a 'new invention.' See, Id., p. 20. The judicial power to enjoin public nuisance at the instance of the Government has been a commonplace of jurisdiction in American judicial history. See., e.g., Attorney General v. Tudor Ice Co., 1870, 104 Mass. 239, 244; Village of Pine City v. Munch, 1890, 42 Minn. 342, 343, 44 N.W. 197, 6 L.R.A. 763; Board of Health of City of Grand Rapids v. Vink, 1915, 184 Mich. 688, 151 N.W. 672.
45
The jurisdiction given the District Courts by § 208(a) of the Labor Management Relations Act to enjoin strikes creating a national emergency is a jurisdiction of a kind that has been traditionally exercised over public nuisances. The criterion for judicial action—peril to health or safety—is much like those upon which courts ordinarily have acted. Injunction relief is traditionally given by equity upon a showing of such peril, and the court, as was traditional, acts at the request of the Executive. There can therefore be no doubt that, being thus akin to jurisdiction long historically exercised, the function to be performed by the District Courts under § 208(a) is within the 'judicial Power' as contemplated by Art. III, § 2, and is one which Congress may thus confer upon the courts. It surely does not touch the criteria for determining what is 'judicial Power' that the injunction to be issued is not a permanent one, and may last no longer than eighty days. Given the power in Congress to vest in the federal courts the function to enjoin absolutely, it does not change the character of the power granted or undermine the professional competence of a court for its exercise that Congress has directed the relief to be tempered.
46
These controlling constitutional considerations were sought to be diverted by the petitioner through abstract discussion about the necessity for Congress to define legal rights and duties. The power of Congress to deal with the public interest does not derive from, nor is it limited by, rights and duties as between parties. Congress may impose duties and enforce obligations to the Nation as a whole, as it has so obviously done in the Labor Management Relations Act. Such congressional power is not to be subordinated to a sterile juristic dialectic.
47
Mr. Justice DOUGLAS, dissenting.
48
Great cases, like this one, are so charged with importance and feeling that, as Mr. Justice Holmes once remarked (Northern Securities Co. v. United States, 193 U.S. 197, 400—401, 24 S.Ct. 436, 468, 48 L.Ed. 679, dissenting opinion), they are apt to generate bad law. We need, therefore, to stick closely to the letter of the law we enforce in order to keep this controversy from being shaped by the intense interest which the public rightfully has in it. The statute, which Congress had authority to pass, speaks in narrow and guarded terms. Section 206 of the Labor Management Relations Act 1947, 61 Stat. 155, 29 U.S.C. § 176, 29 U.S.C.A. § 176, gives the President power to invoke the aid of a board of inquiry whenever he is of the opinion that a strike or lock out will imperil 'the national health or safety.' The President, in appointing the board of inquiry in this case, stated:
49
'The strike has closed 85 percent of the nation's steel mills, shutting off practically all new supplies of steel. Over 500,000 steel workers and about 200,000 workers in related industries, together with their families, have been deprived of their usual means of support. Present steel supplies are low and the resumption of full-scale production will require some weeks. If production is not quickly resumed, severe effects upon the economy will endanger the economic health of the nation.'
50
It is plain that the President construed the word 'health' to include the material well-being or public welfare of the Nation. When the Attorney General moved under § 208 for an injunction in the District Court based on the opinion of the President and the conclusions of the board of inquiry, the union challenged the conclusion that 'the national health or safety' was imperiled, as those words are used in the Act. The District Court found otherwise, stating five ways in which the strike would, if permitted to continue, imperil 'the national health and safety':
51
'(a) Certain items of steel required in top priority military missile programs of the United States are not made by any mill now operating, nor available from any inventory or from imports. Any further delay in resumption of steel production would result in an irretrievable loss of time in the supply of weapons systems essential to the national defense plans of the United States and its allies.
52
'(b) The planned program of space activities under the direction of the National Aeronautics and Space Administration has been delayed by the strike and will be further delayed if it is continued. Specifically, project MERCURY, the nation's manned satellite program, which has the highest national priority, has been delayed by reason of delay in construction of buildings essential to its operation. This program is important to the security of the nation. Other planned space programs will be delayed or threatened with delay by a continuation of the strike.
53
'(c) Nuclear Submarines and the naval shipbuilding program other than submarines, including new construction, modernization, and conversion, have been affected by reason of the inability to secure boilers, compressors, and other component parts requiring steel. Products of the steel industry are indispensable to the manufacture of such items and delay in their production will irreparably injure national defense and imperil the national safety.
54
'(d) Exported steel products are vital to the support of the United States bases overseas and for the use of NATO allies and similar collective security groups. The steel strike, if permitted to continue, will seriously impair these programs, thus imperiling the national safety.
55
'(e) A continuation of the strike will have the ultimate effect of adversely affecting millions of small business enterprises, almost all of which are directly or indirectly dependent upon steel products and most of which lack the resources to stock large inventories. In addition, it will have the effect of idling millions of workers and a large proportion of the facilities in industries dependent upon steel for their continued operation. Manufacturing industries directly dependent on steel mill products account for the employment of approximately 6,000,000 workers and normal annual wages and salaries totalling approximately $34,000,000,000. The products of these industries are valued at over $125,000,000,000. The national health will be imperiled if the strike is permitted to continue.'
56
Here again it is obvious that 'national health' was construed to include the economic well-being or general welfare of the country. The Court of Appeals, in sustaining the injunction, was apparently of the same view. This seems to me to be an assumption that is unwarranted. I think that Congress, when it used the words 'national health,' was safeguarding the heating of homes, the delivery of milk, the protection of hospitals, and the like. The coal industry, closely identified with physical health of people, was the industry paramount in the debates on this measure. The coal industry is indeed cited on the Senate side in illustration of the need for the measure. S.Rep.No.105, 80th Cong., 1st Sess., p. 14. There were those in the Senate who wanted to go so far as to outlaw strikes 'in utilities and key Nation-wide industries' in order to protect the 'public welfare.' 93 Cong.Rec. A1035. Reference was, indeed, made to strikes in industries 'like coal or steel' among those to be barred in 'the public interest.' Ibid. But the Senate did not go that far. The Senate bill reached only situations where there was peril to the 'national health or safety.'1 The House bill went further and included cases where there was peril to 'the public health, safety, or interest.'2 The Senate view prevailed, its version being adopted by the Conference.3 Some light is thrown on the wide difference between those two standards—if words are to be taken in their usual sense—by the following colloquy on the floor of the House:4
57
'Mr. KENNEDY. I believe that this country should certainly be in a position to combat a strike that affects the health and safety of the people. Therefore, I feel that the President must have the power to step in and stop those strikes. I am not in the position of opposing everything in this bill, but there are certain things in the bill that are wrong. I do not see how the President is going to have the power to stop strikes that will affect the health and safety of the people under the procedure listed in section 203. I think he must have that power.
58
'I agree with you that any bill providing for an injunction should carefully consider the position of the striking union and make sure that their rights are protected. I think that in those cases Federal seizure until the dispute is settled would perhaps equalize the burden in the fairest possible manner.
59
'Mr. OWENS. Will not the gentleman admit that we have a third word in there? It is 'interest.' Could we not better use the word 'welfare' instead of 'interest,' because the word 'welfare' occurs in the Constitution? It is just as broad as the word 'interest' and more practical.
60
'Mr. KENNEDY. The proposal embraces two separate things, health and safety. Because the remedy is drastic these two, in my opinion, are sufficient. I believe we should apply this remedy when the strike affects health or safety, but not the welfare and interest, which may mean anything. I would not interfere in an automobile strike because while perhaps that affects national interest, it does not affect health and safety.
61
'Mr. OWENS. Does not the gentleman agree that 'welfare' is the stronger and in line with the President's idea?
62
'Mr. KENNEDY. No. Both 'welfare' and 'interest' are too indefinite. They could cover anything. I would not have the law apply except in cases where the strike affected health and safety.'
63
To read 'welfare' into 'health' gives that word such a vast reach that we should do it only under the most compelling necessity. We must be mindful of the history behind this legislation. In re Debs, 158 U.S. 564, 584, 15 S.Ct. 900, 906, 39 L.Ed. 1092, stands as ominous precedent for the easy use of the injunction in labor disputes. Freewheeling Attorneys General used compelling public demands to obtain the help of courts in stilling the protests of labor. The revulsion against that practice was deep, and it led ultimately to the enactment of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101, 29 U.S.C.A. § 101.5 We deal, of course, with a later Congress and an Act that by § 208(b) sets aside pro tanto the earlier Act. What Congress has created Congress can refashion. But we should hesitate to conclude that Congress meant to restore the use of the injunction in labor disputes whenever that broad and all-inclusive concept of the public welfare is impaired. The words used—' national health or safety'—are much narrower.
64
Congress in the same Act knew how to speak when it spoke all-inclusively. The declaration of policy in the Labor Management Relations Act, 1947, speaks in broad terms. There is a declaration in § 1(b) that 'neither party has any right in its relations with any other to engage in acts or practices which jeopardize the public health, safety, or interest.' 61 Stat. 136. The words 'public * * * interest' cover five titles of a far-reaching regulatory measure. Yet, when Congress came to define the jurisdiction of courts to intervene in strikes or lockouts, it spoke in more restricted terms, confining the judiciary to injunctions where there is impending peril to 'the national health or safety.' That narrow reading is, indeed, the only one that can be squared with Senator Taft's explanation of the use of an injunction in a strike situation. The strike, he said, must not only affect substantially 'an entire industry,' it must also 'imperil the national health or safety, a condition which, it is anticipated, will not often occur.'6 Yet if 'national health' includes the public welfare, injunctions will issue whenever any important industry is involved—whether it be steel or automobiles or coal or any group of industries where one union makes collective agreements for each of the component unions.
65
It is a fact of which we can take judicial notice that steel production in its broadest reach may have a great impact on 'national health.' Machinery for processing food is needed; hospitals require surgical instruments; refrigeration is dependent on steel; and so on. Whether there are such shortages that imperil the 'national health' is not shown by this record. But unless these particularized findings are made no case can be made out for founding the injunction on impending peril to the 'national health.'
66
Nor can this broad injunction be sustained when it is rested solely on 'national safety.' The heart of the District Court's finding on this phase of the case is in its statement, 'Certain items of steel required in top priority military missile programs of the United States are not made by any mill now operating, nor available from any inventory or from imports.' Its other findings, already quoted, are also generalized. One cannot find in the record the type or quantity of the steel needed for defense, the name of the plants at which those products are produced, or the number or the names of the plants that will have to be reopened to fill the military need. We do know that for one and a half years ending in mid-1959 the shipments of steel for defense purposes accounted for less than 1% of all the shipments from all the steel mills. If 1,000 men, or 5,000 men, or 10,000 men can produce the critical amount the defense departments need, what authority is there to send 500,000 men back to work?
67
There can be no doubt that the steel strike affects a 'substantial' portion of the industry. Hence the first requirement of § 208(a) of the Act is satisfied.7 But we do know that only a fraction of the production of the struck industry goes to defense needs. We do not know, however, what fraction of the industry is necessary to produce that portion.8 Without that knowledge the District Court is incapable of fashioning a decree that will safeguard the national 'safety,' and still protect the rights of labor. Will a selective reopening of a few mills be adequate to meet defense needs? Which mills are these? Would it be practical to reopen them solely for defense purposes or would they have to be reopened for all civilian purposes as well? This seems to me to be the type of inquiry that is necessary before a decree can be entered that will safeguard the rights of all the parties. Section 208(a) gives the District Court 'jurisdiction to enjoin' the strike. There is no command that it shall enjoin 100% of the strikers when only 1% or 5% or 10% of them are engaged in acts that imperil the national 'safety.' We are dealing here with equity practice which has several hundred years of history behind it. We cannot lightly assume that Congress intended to make the federal judiciary a rubber stamp for the President. His findings are entitled to great weight, and I along with my Brethren accept them insofar as national 'safety' is concerned. But it is the court, not the President, that is entrusted by Article III of the Constitution to shape and fashion the decree. If a federal court is to do it, it must act in its traditional manner, not as a military commander ordering people to work willy-nilly, nor as the President's Administrative Assistant. If the federal court is to be merely an automaton stamping the papers an Attorney General presents, the judicial function rises to no higher level than an IBM machine. Those who grew up with equity and know its great history should never tolerate that mechanical conception.
68
An appeal to the equity jurisdiction of the Federal District Court is an appeal to its sound discretion. One historic feature of equity is the molding of decrees to fit the requirements of particular cases. See Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756. Equity decrees are not like the packaged goods this machine age produces. They are uniform only in that they seek to do equity in a given case.9 We should hesitate long before we conclude that Congress intended an injunction to issue against 500,000 workers when the inactivity of only 5,000 or 10,000 of the total imperils the national 'safety.' That would be too sharp a break with traditional equity practice for us to accept, unless the statutory mandate were clear and unambiguous. In situations no more clouded with doubt than the present one we have refused to read a statutory authority to issue a decree as a command to do it. Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754. We there said, 'A grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances.' 321 U.S. at page 329, 64 S.Ct. 591. And see Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332. The concurring opinion seeks to distinguish the Bowles case by laying great stress on the language of the statute there in issue to the effect that remedy by injunction 'or other order' shall be granted, as distinguished from the use of the words 'and to make such other orders' in § 208 presently involved. In the Bowles case, however, we expressly declined to reach the question whether it was an abuse of discretion for the District Court to deny any relief, which is what it did in that case. 321 U.S. at page 331, 64 S.Ct. 592. Moreover, the language of the statute in the Bowles case stated that an injunction or other order 'shall be granted.' We have here no such command, since § 208 only provides that the District Court 'shall have jurisdiction' to issue an injunction and other orders, as may be appropriate.
69
Plainly there is authority in the District Court to protect the national 'safety' by issuance of an injunction. But there is nothing in this record to sustain the conclusion that it is necessary to send 500,000 men back to work to give the defense department all the steel it needs for the Nation's 'safety.' If more men are sent back to work than are necessary to fill the defense needs of the country, other objectives are being served than those specified in the statute. What are these other objectives? What right do courts have in serving them? What authority do we have to place the great weight of this injunction on the backs of labor, when the great bulk of those affected by it have nothing to do with production of goods necessary for the Nation's 'safety' in the military sense of that word? Labor injunctions were long used as cudgels—so broad in scope, so indiscriminate in application as once to be dubbed 'a 'scarecrow' device for curbing the economic pressure of the strike.' See Frankfurter and Greene, The Labor Injunction (1930), pp. 107—108. The crop of evils that grew up during those regimes was different in some respects from those generated by this decree. The problems of vagueness, of uncertainty, of detailed judicial supervision that made police courts out of equity courts are not present here. But the same indiscriminate leveling of those within and those without the law is present. The injunction applies all the force of the Federal Government against men whose work has nothing to do with military defense as well as against those whose inactivity imperils the 'national safety.' It is not confined to the precise evil at which the present Act is aimed. Like the old labor injunctions that brought discredit to the federal judiciary this is a blanket injunction broad and all-inclusive, bringing within its scope men whose work has nothing whatsoever to do with the defense needs of the Nation. Being wide of the statutory standard it has, to use the words of Mr. Justice Brandeis, all the vices of the injunction which is used 'to endow property with active, militant power which would make it dominant over men.' See Truax v. Corrigan, 257 U.S. 312, 354, 368, 42 S.Ct. 124, 137, 143, 66 L.Ed. 254 (dissenting opinion). I cannot believe that Congress intended the federal courts to issue injunctions that bludgeon all workers merely because the labor of a few of them is needed in the interest of 'national safety.'
70
Labor goes back to work under the present injunction on terms dictated by the industry, not on terms that have been found to be fair to labor and to industry. The steel industry exploits a tremendous advantage:
71
'Our steel mills can produce in nine months all the metal the country can use in a year. That means a three-month strike costs the companies nothing in annual sales, and Uncle Sam picks up the tab for half of their out-of-pocket strike losses in the form of eventual tax adjustments.
72
'The industry's final insurance against any acute financial pinch is the certainty that the President will have to step in with a national emergency injunction under the Taft-Hartley Act whenever steel stockpiles shrink to the danger level. This takes much of the bite out of the union's assault on the pocketbooks of the steel producers.'10
73
This is a matter which equity should take into consideration. For a chancellor sits to do equity.
74
Some years ago this Court struck down as unconstitutional state statutes making arbitration of labor disputes mandatory. Wolff Packing Co. v. Industrial Relations Court, 262 U.S. 522, 43 S.Ct. 630, 67 L.Ed. 1103; Dorchy v. State of Kansas, 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686. Those cases held that compulsory arbitration violated the Due Process Clause of the Fourteenth Amendment. One can only guess as to what institutions of adjudication we might have in this field today had that experiment been given a chance. The experiment, however, did not survive, and we have had little experience with it.11 Collective bargaining and mediation are today the norm, except for the period of time in which an injunction is in force. By the terms of § 209, however, any injunction rendered may not continue longer than 80 days. The Act thus permits an injunction restricted in duration and narrowly confined by the requirements of the 'national health or safety.' When we uphold this injunction we force men back to work when their inactivity has no relation to 'national health or safety.' Those whose inactivity produces the peril to 'national health or safety' which the Act guards against and only those should be covered in the injunction. The rest—who are the vast majority of the 500,000 on strike—should be treated as the employers are treated. They should continue under the regime of collective bargaining and mediation until they settle their differences or until Congress provides different or broader remedies. When we assume that all the steelworkers are producing steel for defense when in truth only a fraction of them are, we are fulfilling the dreams of those who sponsored the House bill and failed in their efforts to have Congress legislate so broadly.
75
Though unlikely, it is possible that, had the District Court given the problem the consideration that it deserves, it could have found that the only way to remove the peril to national safety caused by the strike was to issue the broad, blanket injunction. It may be that it would be found impractical to send only part of the steelworkers back to work. The record in this case, however, is devoid of evidence to sustain that position.12 Furthermore, there is no indication that the District Court ever even considered such a possibility. I am unwilling to take judicial notice that it requires 100% of the workers to produce the steel needed for national defense when 99% of the output is devoted to purposes entirely unconnected with defense projects.
76
The trier of fact under our federal judicial system is the District Court—not this Court nor the Court of Appeals. No finding was made by the District Court on the feasibility of a limited reopening of the steel mills and it is not, as the concurring opinion suggests, the province of the Court of Appeals to resolve conflicts in the evidence that was before the District Court.
77
I would reverse this decree and remand the cause to the District Court for particularized findings13 as to how the steel strike imperils the 'national health' and what plants need to be reopened to produce the small quantity of steel now needed for the national 'safety.'14 There would also be open for inquiry and findings any questions pertaining to 'national health' in the narrow sense in which the Act uses those words.
*
The evidence in this regard is reflected in the District Court's findings of fact Nos. 15(a), (b), (c), and (d), as follows:
'(a) Certain items of steel required in top priority military missile programs of the United States are not made by any mill now operating, nor available from any inventory or from imports. Any further delay in resumption of steel production would result in an irretrievable loss of time in the supply of weapons systems essential to the national defense plans of the United States and its allies.
'(b) The planned program of space activities under the direction of the National Aeronautics and Space Administration has been delayed by the strike and will be further delayed if it is continued. Specifically, project MERCURY, the nation's manned satellite program, which has the highest national priority, has been delayed by reason of delay in construction of buildings essential to its operation. This program is important to the security of the nation. Other planned space programs will be delayed or threatened with delay by a continuation of the strike.
'(c) Nuclear Submarines and the naval shipbuilding program other than submarines, including new construction, modernization, and conversion, have been affected by reason of the inability to secure boilers, compressors, and other component parts requiring steel. Products of the steel industry are indispensable to the manufacture of such items and delay in their production will irreparably injure national defense and imperil the national safety.
'(d) Exported steel products are vital to the support of United States bases overseas and for the use of NATO allies and similar collective security groups. The steel strike, if permitted to continue, will seriously impair these programs, thus imperiling the national safety.'
1
Legislative History of the Labor Management Relations Act, 1947 (Gov.Print.Off. 1948), Vol. I, pp. 274, 276.
2
Legislative History, Vol. I, supra, Note 1, pp. 214—215.
3
H.R.Rep. No. 510, 80th Cong., 1st Sess., p. 64.
4
93 Cong.Rec. 3513.
5
For discussion of the abusive use of blanket injunctions in labor controversies, see Allen, Injunction and Organized Labor, 28 Am.L.Rev. 828; Chafee, The Inquiring Mind, p. 198; Dunbar, Government by Injunction, 13 L.Q.Rev. 347; Frey, The Labor Injunction: An Exposition of Government by Judicial Conscience and its Menace; Lane, Civil War in West Virginia; Pepper, Injunctions in Labor Disputes, 49 A.B.A.Rep. 174; Royce, Labor, The Federal Anti-Trust Laws, and the Supreme Court, 5 N.Y.U.L.Q.Rev. 19; Stimson, The Modern Use of Injunctions, 10 Pol.Sci.Q. 189.
On the Norris-LaGuardia Act and what Congress intended to abolish by it, see Norris, Injunctions in Labor Disputes, 16 Marq.L.Rev. 157; Witte, The Federal Anti-Injunction Act, 16 Minn.L.Rev. 638.
6
93 Cong.Rec. 6860.
Senator Smith said in like vein:
'Furthermore in title II of the bill we provide for the extreme cases which threaten national paralysis. To meet an industry-wide stoppage of some kind which may cause injury to the health or safety of 140,000,000 people, such as a transportation strike, or a coal strike, we have set up special machinery which will enable the Attorney General, on his own initiative, to petition the courts to prevent either a shut-down or a walk-out, until the mediation processes have had time to function.' 93 Cong.Rec. 4281.
7
Section 208(a) provides:
'Upon receiving a report from a board of inquiry the President may direct the Attorney General to petition any district court of the United States having jurisdiction of the parties to enjoin such strike or lock-out or the continuing thereof, and if the court finds that such threatened or actual strike or lock-out—
'(i) affects an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the production of goods for commerce; and
'(ii) if permitted to occur or to continue, will imperil the national health or safety, it shall have jurisdiction to enjoin any such strike or lock-out, or the continuing thereof, and to make such other orders as may be appropriate.'
8
The record shows, as does the President's statement, supra, that mills accounting for at least 15% of the Nation's steel production are still in operation and are unaffected by the strike.
9
Equity has contrived its remedies and has always preserved the elements of flexibility and expansiveness so that new ones may be invented, or old ones modified, to meet the requirements of every case. Union Pacific R. Co. v. Chicago, R.I. & P.R. Co., 163 U.S. 564, 601, 16 S.Ct. 1173, 1187, 41 L.Ed. 265. And the extent to which the Court may grant or withhold its aid, and the manner of molding its remedies may be affected by the public interest involved. United States v. Morgan, 307 U.S. 183, 194, 59 S.Ct. 795, 801, 83 L.Ed. 1211; Securities & Exchange Comm. v. United States Realty & Improvement Co., 310 U.S. 434, 435, 455, 60 S.Ct. 1044, 1053, 84 L.Ed. 1293. There is in fact no limit to the variety of equitable remedies which can be applied to the circumstances of a particular case. 1 Pomeroy's Equity Jurisprudence (5th ed.) § 109.
An equity court may, by trial for a limited term, determine just how much relief is required to meet the situation, and thereby avoid unnecessary hardship to any of the parties. McClintock on Equity (2d ed.) § 30; Pomeroy, supra, §§ 115, 116. This principle has been applied by this Court several times, e.g., where an injunction was sought against the polution of a stream, the defendant was permitted to construct settling basins to alleviate the injury to the plaintiff and the injunction was modified to allow experiments toward that end. Arizona Copper Co. v. Gillespie, 230 U.S. 46, 33 S.Ct. 1004, 57 L.Ed. 1384. And when defendants' smelters emitted noxious fumes an injunction was withheld to permit them to devise a practical method of installing purifying devices. Georgia v. Tennessee Copper Co., 237 U.S. 474, 35 S.Ct. 631, 59 L.Ed. 1054. See also Alexander v. Hillman, 296 U.S. 222, 56 S.Ct. 204, 80 L.Ed. 192. A more recent instance where an equity decree was fashioned to meet problems far more complicated than those presented here will be found in Nebraska v. Wyoming, 325 U.S. 589, 665—672, 65 S.Ct. 1332, 66 S.Ct. 1—4. The problem there was the division of waters among the States where enforcement of strict legal rights would have resulted in uneconomic and inequitable results. The multitude of factors weighed and appraised there makes the difficulties of the present case seem to be largely the product of imagination or prejudice, not realties of modern plant management.
10
Reskin, To Prove Karl Marx Was Wrong, N.Y. Times Magazine, Oct. 25, 1959, pp. 12, 84
11
It was stated in S.Rep. No. 105, 80th Cong., 1st Sess., pp. 13—14, in reference to the new machinery for settling labor disputes:
'Under the exigencies of war the Nation did utilize what amounted to compulsory arbitration through the instrumentality of the War Labor Board. This system, however, tended to emphasize unduly the role of the Government, and under it employers and labor organizations tended to avoid solving their difficulties by free collective bargaining. It is difficult to see how such a system could be operated indefinitely without compelling the Government to make decisions on economic issues which in normal times should be solved by the free play of economic forces.' And see Dishman, The Public Interest in Emergency Labor Disputes, 45 Am.Pol.Sci.Rev. 1100 (1951).
12
Such an opinion was stated in an affidavit by the Chairman of the Council of Economic Advisers; but that is conclusional only. There has been no sifting of the facts to determine whether defense needs can be satisfied by practical means short of sending all men back to work.
13
The particularized findings necessary are illustrated by those in United States v. United Steelworkers of America, 2 Cir., 202 F.2d 132, 134:
'At its Dunkirk plant the company was then engaged in commerce and in the production of goods for commerce, primarily in the 'heat exchanger, pressure vessel and prefabricated pipe industry'; the threatened strike would not have affected all, or a substantial part, of that industry. A major part of the Dunkirk plant's production was to carry out contracts the company had with the Atomic Energy Commission and certain of its prime contractors to furnish specialized articles which were essential to the completion of the Commission's program for construction of facilities needed to produce atomic bombs for the national defense. These essential articles were heat exchanger shells used in the production of heavy water needed to operate nuclear reactors capable of producing fissionable materials, gas converter assemblies and other critical items all of which could have been obtained elsewhere only after other potential sources had been equipped to produce them. Resort to other sources would, consequently, have involved months of delay and set back correspondingly the construction program of the Commission and the production of fissionable materials and atomic weapons vital to the national defense. The threatened strike would have affected a substantial part of the atomic weapon industry and would have imperiled the national safety.'
14
The factor of 'safety' may well involve, for example, the need for replacement of equipment on railroad trains. An affidavit of the Secretary of Commerce states:
'The continuing availability of most of these steel supplies is vital to the nation's health and safety, used as they are for the production of personal necessities, including surgical instruments, heating and refrigeration equipment, and articles used in the preparation and preservation of food. Steel is also essential to transportation, to the production and transmission of light and power, to the provision of sanitation services, and in the construction and mining industries.'
But the Government in oral argument conceded that neither that aspect of 'safety' nor any other aspect of 'safety' apart from military defense is presented by this record, since there are no findings showing the extent to which inventories for those other purposes may be in short supply.
| 67
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361 U.S. 78
80 S.Ct. 12
4 L.Ed.2d 25
UNITED STATES of America, Petitioner,v.SEABOARD AIR LINE RAILROAD COMPANY.
No. 10.
Argued Oct. 19, 1959.
Decided Nov. 9, 1959.
Mr. John F. Davis, Washington, D.C., for petitioner.
Mr. Eppa Hunton, IV, Richmond, Va., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a suit for statutory penalties, instituted by the United States, charging respondent with the operation of four trains in violation of the Safety Appliance Act, 27 Stat. 531, as amended, 32 Stat. 943, 45 U.S.C. §§ 1, 6, 9, 45 U.S.C.A. §§ 1, 6, 9. That Act requires every 'train' moving in interstate traffic1 to have power brakes on not less than 50% of the cars (§§ 1, 9)—a requirement which the Interstate Commerce Commission by regulation has increased to 85%. 49 CFR § 132.1. The penalties are $100 for each violation.2 § 6.
2
The District Court rendered judgment for respondent and the Court of Appeals affirmed by a divided vote. 258 F.2d 262. We granted the petition for a writ of certiorari because of the seeming conflict between that ruling and our prior decisions. 358 U.S. 926, 79 S.Ct. 319, 3 L.Ed.2d 301.
3
Respondent has a 'classification or assembly yard' in Hopewell, Virginia. Trains to and from Hopewell use it for breaking up incoming trains and for assembling cars into outgoing trains. A track extends from this 'classification' yard for about two miles through the city. In this stretch the tracks make an interchange connection with another railroad and cross, at grade, five streets, two private roads and four tracks of another railroad. Nine spur tracks branch off these tracks to industrial sidings. About two miles from the 'classification' yard are plants of the Allied Chemical & Dye Company and Continental Can Company.
4
The complaint charged four violations: First, moving a locomotive and 26 cars as a single unit, without stops, from the track of Allied Chemical to the 'classification' yard. Second, moving a locomotive and 28 cars as a single unit, without stops, from the 'classification' yard to the track of Allied Chemical. Third, moving a locomotive and 29 cars as a single unit, without stops, from a track near Allied Chemical for about a mile to the interchange track where the locomotive was detached, coupled to 20 additional cars, and then recoupled to the 29 cars. The 49 cars were then hauled, without stops, for about a mile to the 'classification' yard. Fourth, moving a locomotive and 23 cars as a single unit, without stops, from the 'classification' yard to the track of Continental Can.3
5
The meaning of the word 'train' as used in the Act has been before the Court four times. In United States v. Erie R. Co., 237 U.S. 402, 35 S.Ct. 621, 59 L.Ed. 1019, it was recognized that while 'switching operations' were not 'train' movements within the meaning of the Act, the movement of cars from one yard to another yard of the same carrier was covered. It was emphasized that this movement, like other main-line movements, took the cars over switches and other tracks where the traffic was exposed to the hazards against which the Act was designed to afford protection. The same result was reached in United States v. Chicago, B. & Q.R. Co., 237 U.S. 410, 35 S.Ct. 634, 635, 59 L.Ed. 1023, where the movements were of transfer trains, shifting cars from one yard in Kansas City to another on the opposite side of the Missouri River. It was again emphasized that this was 'not shifting cars about in a yard or on isolated tracks devoted to switching operations,' but moving traffic over a line where there were great hazards in the operation. Id., 237 U.S. 412, 35 S.Ct. 635, Louisville & Jeffersonville Bridge Co. v. United States, 249 U.S. 534, 39 S.Ct. 355, 63 L.Ed. 757, involved movements of cars for about three-quarters of a mile from one company's terminal to that of another, the cars passing over city streets, at grade, and along and over other tracks. The Court, in holding that these movements were covered by the Act, emphasized that this was not 'a sorting, or selecting, or classifying' of cars 'involving coupling and uncoupling, and the movement of one or a few at a time for short distances,' but an operation involving the typical hazards which gave rise to the need for the Act. Id., 249 U.S. 538, 39 S.Ct. 356. United States v. Northern Pacific R. Co., 254 U.S. 251, 41 S.Ct. 101, 65 L.Ed. 249, involved so-called transfer trains running between points, four miles apart, within one yard. The railroad contended that the Act did not apply because the movement was within a yard and because no through or local trains moved over these tracks. The tracks did cross streets and other tracks at grade; and the trains were run without stops the four miles. It was held that these movements were covered by the Act. 'A moving locomotive with cars attached is without the provision of the act only when it is not a train; as where the operation is that of switching, classifying and assembling cars within railroad yards for the purpose of making up trains.' Id., 254 U.S. 254—255, 41 S.Ct. 102.
6
We think this case, judged by the principles announced in the earlier four, was erroneously decided.
7
The end of each trip was characteristic of the usual freight run: cars were either received from a consignor or delivered to the consignee. This was not 'sorting, or selecting, or classifying' cars 'involving coupling and uncoupling, and the movement of one or a few at a time for short distances' (Louisville & Jeffersonville Bridge Co. v. United States, supra, 249 U.S. 538, 39 S.Ct. 356) nor any other type of movement that is comparable to 'switching.' In three of the movements there was a run of two miles without stops. In one, there was one stop to pick up additional cars; but a mile run preceded that stop and another mile of uninterrupted travel followed it. The prior decisions make clear that it is immaterial that the run was not on the main line but in a yard. The fact that switching preceded or followed these movements is likewise irrelevant to the statutory test. It may properly be said there is no 'train' in a true 'switching' operation. But when cars—at least in substantial number—are being received from consignors or delivered to consignees in an assembled unit of engine and cars that moves a substantial distance, the operation is intrinsically no different, for purposes of the Act, than a main-line haul.
8
The District Court found that 'The movements complained of would not have been less hazardous to employees or the public if air brakes had been coupled and used.' Yet it is not for courts to determine in particular cases whether this safety measure is or is not needed. Congress determined the policy that governs us in applying the law. Traditionally, movements of assembled cars for substantial distances involved the hazards of crossing public highways and the tracks of other lines with attendant risks to the public. More important, they involved risks to those who ride the trains,4 particularly the men who operate them. History showed that hundreds of workers had been injured or killed by the stopping of unbraked cars, by the operation of hand brakes, and by the use of hand couplers. This history, well known to Congress,5 was the primary purpose behind the legislation. The Act, therefore, should be liberally construed as a safety measure. Movements which, though miniature when compared with main-line hauls, have the characteristics of the customary 'train' movement and its attendant risks are to be included.
9
Reversed.
1
Section 1 provides, in relevant part:
'It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with * * * appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.'
2
The statute was amended August 14, 1957, to increase the penalty to $250 (71 Stat. 352, 45 U.S.C.(Supp. V) § 6, 45 U.S.C.A. § 6).
3
Respondent since 1951 had used air brakes on the cars in these movements after inspectors of the Interstate Commerce Commission had advised that it was necessary to do so. But it discontinued the practice in 1956, justifying the discontinuance on the ground that switching movements were involved, that the use of air brakes caused a delay of about 40 minutes in each movement, and that the increased annual cost for the use of air brakes was $30,000.
4
The title of the original Act described it as 'An act to promote the safety of employees and travelers upon railroads * * *' etc. 27 Stat. 531.
5
See H.R.Rep. No. 1678, 52d Cong., 1st Sess., p. 3, where it is noted that for the years 1889 and 1890 '38 per cent of the total number of deaths and 46 per cent of the total number of injuries sustained by railway employe s, resulted while coupling cars or setting brakes.'
On page 7 of a report of a subcommittee submitted as a part of S.Rep. No. 1930, 57th Cong., 1st Sess., the following statement of a witness appearing before the subcommittee was made:
'If only a portion of the equipped cars are operated, trainmen are exposed to great danger arising from the breakage of an air hose, or a coupling between the cars so braked, which causes an instantaneous and extremely powerful application of the power brakes, which causes the front cars in the train to quickly slacken speed and stop, and the other cars behind them, which are not braked, to rush forward against them, thus causing a severe shock, which often wrecks the train and jars the trainmen off and injures them, and in some cases they fall under the wheels and are killed. If the brakes on all of the cars were operated this would not be so, for the brakes would be applied equally all over the train, and the cars on the rear end would slacken their speed just as quickly as those on the front end, and thus prevent their running forward against the front cars and producing the shock just described. There is no way for trainmen to escape these injuries, for they are still required by the companies to ride out on the tops of trains, and when one of these shocks comes, it comes to them without warning, for the noise of the running train, together with darkness at night, prevents them from detecting any trouble ahead.
'Wrecks caused in this way do not only cause injury to the trainmen on the train which is wrecked, but also on double-tracked roads the opposite track is immediately blocked with wrecked cars, thus endangering not only the lives and limbs of trainmen, but passengers as well, who may be on trains approaching on the opposite track, which can not be stopped before striking the obstruction. I personally know of several bad wrecks of this character myself.'
| 78
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361 U.S. 87
80 S.Ct. 144
4 L.Ed.2d 127
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Fred N. ACKER.
No. 13.
Argued Oct. 19, 1959.
Decided Nov. 16, 1959.
Mr. Ralph S. Spritzer, Washington, D.C., for petitioner.
Mr. Fred N. Acker, pro se, for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
This case presents the question whether, under the Internal Revenue Code of 1939, the failure of a taxpayer to file a declaration of estimated income tax, as required by § 58,1 not only subjects him to the addition to the tax prescribed by § 294(d)(1)(A) for failure to file the declaration, but also subjects him to the further addition to the tax prescribed by § 294(d)(2) for the filing of a 'substantial underestimate' of his tax.
2
Section 294(d)(1)(A) provides, in substance, that if a taxpayer fails to make and file 'a declaration of estimated tax,' within the time prescribed, there shall be added to the tax an amount equal to 5% of each installment due and unpaid, plus 1% of such unpaid installments for each month except the first, not exceeding an aggregate of 10% of such unpaid installments.2
3
Section 294(d)(2), in pertinent part, provides:
4
'(2) Substantial underestimate of estimated tax.
5
'If 80 per centum of the tax (determined without regard to the credits under sections 32 and 35) * * * exceeds the estimated tax (increased by such credits), there shall be added to the tax an amount equal to such excess, or equal to 6 per centum of the amount by which such tax so determined exceeds the estimated tax so increased, whichever is the lesser * * *.' 26 U.S.C. (1952 ed.) § 294(d)(2), 26 U.S.C.A. § 294(d)(2).
6
Section 29.294—1(b)(3)(A) of Treasury Regulation 111, promulgated under the Internal Revenue Code of 1939, contains the statement that:
7
'In the event of a failure to file the required declaration, the amount of the estimated tax for the purposes of (§ 294(d)(2)) is zero.'
8
Respondent, without reasonable cause, failed to file a declaration of his estimated income tax for any of the years 1947 through 1950. The Commissioner imposed an addition to the tax for each of those years under § 294(d)(1)(A) for failure to file the declaration, and also imposed a further addition to the tax for each of those years under § 294(d)(2) for a 'substantial underestimate' of the tax. The Tax Court sustained the Commissioner's imposition of both additions. The Court of Appeals affirmed with respect to the addition imposed for failure to file the declaration, but reversed with respect to the addition imposed for substantial underestimation of the tax, holding that § 294(d)(2) does not authorize the treatment of a taxpayer's failure to file a declaration of estimated tax as the equivalent of a declaration estimating no tax, and that the regulation, which purports to do so, is not supported by the statute and is invalid. 258 F.2d 568. Because of a conflict among the circuits3 we granted the Commissioner's petition for certiorari. 358 U.S. 940, 79 S.Ct. 346, 3 L.Ed.2d 348.
9
The first and primary question that we must decide is whether there is any expressed or necessarily implied provision or language in § 294(d)(2) which authorizes the treatment of a taxpayer's failure to file a declaration of estimated tax as, or the equivalent of, a declaration estimating his tax to be zero.
10
We are here concerned with a taxing Act which imposes a penalty.4 The law is settled that 'penal statutes are to be construed strictly,' Federal Communications Commission v. American Broadcasting Co., 347 U.S. 284, 296, 74 S.Ct. 593, 601, 98 L.Ed. 699, and that one 'is not to be subject to a penalty unless the words of the statute plainly impose it,' Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362, 25 S.Ct. 443, 445, 49 L.Ed. 790. See, e.g., Tiffany v. National Bank of Missouri, 18 Wall. 409, 410, 21 L.Ed. 862; Elliott v. Railroad Co., 99 U.S. 573, 576, 25 L.Ed. 292.
11
Viewing § 294(d)(2) in the light of this rule, we fail to find any expressed or necessarily implied provision or language that purports to authorize the treatment of a taxpayer's failure to file a declaration of estimated tax as, or the equivalent of, a declaration estimating his tax to be zero. This section contains no words or language to that effect, and its implications look the other way. By twice mentioning, and predicating its application upon, 'the estimated tax' the section seems necessarily to contemplate, and to apply only to, cases in which a declaration of 'the estimated tax' has been made and filed. The fact that the section contains no basis or means for the computation of any addition to the tax in a case where no declaration has been filed would seem to settle the point beyond all controversy. If the section had in any appropriate words conveyed the thought expressed by the regulation it would thereby have clearly authorized the Commissioner to treat the taxpayer's failure to file a declaration as the equivalent of a declaration estimating his tax at zero and, hence, as constituting a 'substantial underestimate' of his tax. But the section contains nothing to that effect, and, therefore, to uphold this addition to the tax would be to hold that it may be imposed by regulation, which, of course, the law does not permit. United States v. Calamaro, 354 U.S. 351, 359, 77 S.Ct. 1138, 1143, 1 L.Ed.2d 1394; Koshland v. Helvering, 298 U.S. 441, 446—447, 56 S.Ct. 767, 769 770, 80 L.Ed. 1268; Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 399, 80 L.Ed. 528.
12
The Commissioner points to the fact that both the Senate Report5 which accompanied the bill that became the Current Tax Payment Act of 1943,6 and the Conference Report7 relating to that bill, contained the statement which was later embodied in the regulation. He then argues that by reading § 294(d) (2) in connection with that statement in those reports it becomes evident that Congress intended by § 294(d)(2) to treat the failure to file a declaration as the equivalent of a declaration estimating no tax. He urges us to give effect to the congressional intention which he thinks is thus disclosed. However, these reports pertained to the forerunner of the section with which we are now confronted, and not to that section itself. Bearing in mind that we are here concerned with an attempt to justify the imposition of a second penalty for the same omission for which Congress has specifically provided a separate and very substantial penalty, we cannot say that the legislative history of the initial enactment is so persuasive as to overcome the language of § 294(d)(2) which seems clearly to contemplate the filing of an estimate before there can be an underestimate.
13
The Commissioner next argues that the fact that Congress, with knowledge of the regulation, several times amended the 1939 Code but left § 294(d)(2) unchanged, shows that Congress approved the regulation, and that we should accordingly hold it to be valid. This argument is not persuasive, for it must be presumed that Congress also knew that the courts, except the Tax Court, had almost uniformly held that § 294(d)(2) does not authorize an addition to the tax in a case where no declaration has been filed, and that the regulation is invalid.8 But the point is immaterial, for Congress could not add to or expand this statute by impliedly approving the regulation.
14
These considerations compel us to conclude that § 294(d)(2) does not authorize the treatment of a taxpayer's failure to file a declaration of estimated tax as the equivalent of a declaration estimating his tax to be zero. The questioned regulation must therefore be regarded 'as no more than an attempted addition to the statute of something which is not there.' United States v. Calamaro, supra, 354 U.S. at page 359, 77 S.Ct. at page 1143.
15
Affirmed.
16
Mr. Justice FRANKFURTER, whom Mr. Justice CLARK and Mr. Justice HARLAN join, dissenting.
17
English courts would decide the case as it is being decided here. They would do so because English courts do not recognize the relevance of legislative explanations of the meaning of a statute made in the course of its enactment. If Parliament desires to put a gloss on the meaning of ordinary language, it must incorporate it in the text of legislation. See Plucknett, A Concise History of the Common Law (5th ed.), 330—336; Amos, The Interpretation of Statutes, 5 Camb.L.J. 163; Davies, The Interpretation of Statutes, 35 Col.L.Rev. 519; Lord Haldane in Viscountiss Rhondda's Claim, (1922) 2 A.C. 339, 383—384. Quite otherwise has been the process of statutory construction practiced by this Court over the decades in scores and scores of cases. Congress can be the glossator of the words it legislatively uses either by writing its desired meaning, however odd, into the taxt of its enactment, or by a contemporaneously authoritative explanation accompanying a statute. The most authoritative form of such explanation is a congressional report defining the scope and meaning of proposed legislation. The most authoritative report is a Conference Report acted upon by both Houses and therefore unequivocally representing the will of both Houses as the joint legislative body.
18
No doubt to find failure to file a declaration of estimated income to be a 'substantial underestimate' would be to attribute to Congress a most unlikely meaning for that phrase in § 294(d)(2) simpliciter. But if Congress chooses by appropriate means for expressing its purpose to use language with an unlikely and even odd meaning, it is not for this Court to frustrate its purpose. The Court's task is to construe not English but congressional English. Our problem is not what do ordinary English words mean, but what did Congress mean them to mean. 'It is said that when the meaning of language is plain we are not to resort to evidence in order to raise doubts. That is rather an axiom of experience than a rule of law and does not preclude consideration of persuasive evidence if it exists.' Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 54, 73 L.Ed. 170.
19
Here we have the most persuasive kind of evidence that Congress did not mean the language in controversy, however plain it may be to the ordinary user of English, to have the ordinary meaning. These provisions were first enacted in the Current Tax Payment Act of 1943, c. 120, 57 Stat. 126, as additions to § 294(a) of the Internal Revenue Code of 1939. The Conference Report, H.R.Conf.Rep. No. 510, p. 56, and the Senate Report, S.Rep.No. 221, p. 42, both gave the provision dealing with substantial underestimation of taxes the following gloss:
20
'In the event of a failure to file any declaration where one is due, the amount of the estimated tax for the purposes of this provision will be zero.'
21
The revision of the section eight months later by the Revenue Act of 1943, c. 63, 58 Stat. 21, did not affect its substance, and this provision, therefore, continued to carry the original gloss. While the Court adverts to this congressional definition, it disregards its controlling significance.*
22
I agree with the construction placed upon the provision by the Third, Fifth, and Ninth Circuits. Abbott v. Commissioner, 3 Cir., 1958, 258 F.2d 537; Patchen v. Commissioner, 5 Cir., 1958, 258 F.2d 544; Hansen v. Commissioner, 9 Cir., 1958, 258 F.2d 585.
1
Section 58, as amended, provides, in pertinent part, that:
'Every individual * * * shall, at the time prescribed in subsection (d), make a declaration of his estimated tax for the taxable year if (his gross income from wages or other sources can reasonably be expected to exceed stated sums, showing) the amount which he estimates as the amount of tax under this chapter for the taxable year, without regard to any credits under Sections 32 and 35 for taxes withheld at source * * *; the amount which he estimates as (such) credits * * *; and (that) the excess of the (estimated tax) over the (estimated credits) shall be considered the estimated tax for the taxable year.' 26 U.S.C. (1952 ed.) § 58, 26 U.S.C.A. § 58.
2
Section 294(d)(1)(A), as amended, provides, in pertinent part, that:
'(A) Failure to file declaration.
'In the case of a failure to make and file a declaration of estimated tax within the time prescribed * * * there shall be added to the tax 5 per centum of each installment due but unpaid, and in addition, with respect to each such installment due but unpaid, 1 per centum of the unpaid amount thereof for each month (except the first) or fraction thereof during which such amount remains unpaid. In no event shall the aggregate addition to the tax under this subparagraph with respect to any installment due but unpaid, exceed 10 per centum of the unpaid portion of such installment. For the purposes of this subparagraph the amount and due date of each installment shall be the same as if a declaration had been filed within the time prescribed showing an estimated tax equal to the correct tax reduced by the credits under sections 32 and 35.' 26 U.S.C. (1952 ed.) § 294(d)(1)(A), 26 U.S.C.A. § 294(d)(1)(A).
3
After the Sixth Circuit had delivered its opinion in this case but before it had decided the Commissioner's petition for rehearing, the Third Circuit, in Abbott v. Commissioner, 258 F.2d 537, and the Fifth Circuit, in Patchen v. Commissioner, 258 F.2d 544, held that the failure of a taxpayer to file a declaration of estimated tax subjected him not only to the 'addition to the tax' imposed by
§ 294(d)(1)(A) for failure to file a declaration, but also to the 'addition to the tax' imposed by § 294(d)(2) for a 'substantial underestimate' of his tax. Less than two months earlier, the Ninth Circuit, too, had so held in Hansen v. Commissioner, 258 F.2d 585.
From the beginning of litigation involving the question here presented, a large majority of the published opinions of the District Courts have held that § 294(d)(2) does not authorize the treatment of a taxpayer's failure to file any declaration at all as the equivalent of a declaration estimating his tax to be zero, and that the regulation attempts to amend and extend the statute and is therefore invalid. See, e.g., United States v. Ridley, D.C., 120 F.Supp. 530, 538; United States v. Ridley, D.C., 127 F.Supp. 3, 11; Owen v. United States, D.C., 134 F.Supp. 31, 39, modified on another point sub nom. Knop v. United States, 8 Cir., 234 F.2d 760; Powell v. Granquist, D.C., 146 F.Supp. 308, 312, affirmed 9 Cir., 252 F.2d 56; Hodgkinson v. United States, 57—1 U.S.T.C. 9294; Jones v. Wood, D.C., 151 F.Supp. 678; Glass v. Dunn, 56—2 U.S.T.C. 9840; Stenzel v. United States, D.C., 150 F.Supp. 364; Todd v. United States, 57—2 U.S.T.C. 9768; Erwin v. Granquist, 57—2 U.S.T.C. 9732, affirmed Erwin v. Cranquist, 9 Cir., 253 F.2d 26; Barnwell v. United States, D.C., 164 F.Supp. 430. Three District Court opinions have held the other way, Palmisano v. United States, 158 F.Supp. 98; Farrow v. United States, 150 F.Supp. 581; and Peterson v. United States, 141 F.Supp. 382; and the Tax Court has consistently so held. See, e.g., Buckley v. Commissioner, 29 T.C. 455; Garsaud v. Commissioner, 28 T.C. 1086, 1090.
The 1954 Internal Revenue Code has eliminated the question here presented as respects taxable years beginning after January 1, 1955, by providing for a single addition to the tax of 6% of the amount of underpayment, whether for failure to file a declaration of estimated tax or timely to pay the quarterly installmants or for a substantial underestimation of the tax. 26 U.S.C. (1952 ed., Supp. V) § 6654, 26 U.S.C.A. § 6654. But the question is still a live one because of the pendency of a substantial number of cases which arose under and are governed by the 1939 Code.
4
Although the Commissioner concedes that the addition to the tax imposed by § 294(d)(1)(A) for failure to file a declaration of estimated tax is a penalty, he contends that the addition to the tax imposed by § 294(d)(2) for substantial underestimation of the tax may not be so regarded. He attempts to support a distinction upon the ground that the amount of the addition imposed by § 294(d) (1)(A) of 5%, plus 1% per month of unpaid installments, not exceeding an aggregate of 10% of such unpaid installments, does not represent a normal interest rate, whereas, he argues, the addition of the maximum of 6% that may be imposed under § 294(d)(2) is a normal interest rate and should not be regarded as a penalty but as interest to compensate the Government for delayed payment.
We think this argument is unsound, for both of the additions are imposed for the breach of statutory duty, and both are characterized by the same language. Each is stated in the respective sections to be an 'addition to the tax' itself; and, being such, it cannot be interest. Moreover, being 'addition(s) to the tax,' both additions are themselves as subject to statutory interest as the remainder of the tax. 26 U.S.C. (1952 ed.) § 292(a), 26 U.S.C.A. § 292(a).
5
S.Rep. No. 221, 78th Cong., 1st Sess., p. 42; 1943 Cum.Bull. 1314, 1345.
6
Section 5(b) of the Current Tax Payment Act of 1943, c. 120, 57 Stat. 126, introduced into the 1939 Code what, as amended, is now § 294(d)(2) of that Code.
7
H.R.Conf.Rep. No. 510, 78th Cong., 1st Sess., p. 56; 1943 Cum.Bull. 1351, 1372.
8
See Note 3.
*
The essential reliance of the Court is on its characterization of § 294(d) (2) as a penalty. No adequate justification for this exists. Section 294(d)(2) on its face indicates that it is in the nature of an interest charge, designed to compensate the Treasury for delay in receipt of funds which a reasonably accurate estimate would have disclosed to be due and owing. Significantly, this charge is imposed regardless of fault, while § 294(d)(1)(A), a true penalty provision, authorizes no addition to tax when the failure to file is shown 'to be due to reasonable cause and not to willful neglect.' Had taxpayer here had reasonable cause for failure to file, the 10% addition under § 294(d) (1)(A) could not have been imposed. Yet taxes would have been withheld by him pending the filing of a final return for the year. Section 294(d)(2) provides the Government a definite means for ascertaining the compensation for this loss of funds.
| 1112
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361 U.S. 115
80 S.Ct. 212
4 L.Ed.2d 148
J. ARON & COMPANY, Inc.,v.MISSISSIPPI SHIPPING COMPANY, Inc.
No. 450.
Supreme Court of the United States
November 23, 1959
As Amended Dec. 14, 1959.
Messrs. Eberhard P. Deutsch, Brunswick G. Deutsch and Rene H. Himel, Jr., for petitioner.
As Amended Dec. 14, 1959.
On Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
PER CURIAM.
1
It appearing from the petitioner's suggestion of mootness that, subsequent to the judgment of reversal by the Court of Appeals of the original interlocutory decree of the District Court and the filing of the petition for writ of certiorari, a consent judgment for damages and costs was entered by the District Court, 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 with directions to dismiss the appeal as moot.
| 89
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361 U.S. 98
80 S.Ct. 168
4 L.Ed.2d 134
John Patrick HENRY, Petitioner,v.UNITED STATES.
No. 17.
Argued Oct. 20, 21, 1959.
Decided Nov. 23, 1959.
Mr. Edward J. Calihan, Jr., Chicago, Ill., for petitioner.
Mr. Kirby W. Patterson, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner stands convicted of unlawfully possessing three cartons of radios valued at more than $100 which had been stolen from an interstate shipment. See 18 U.S.C. § 659, 18 U.S.C.A. § 659. The issue in the case is whether there was probable cause for the arrest leading to the search that produced the evidence on which the conviction rests. A timely motion to suppress the evidence was made by petitioner and overruled by the District Court; and the judgment of conviction was affirmed by the Court of Appeals on a divided vote. 7 Cir., 259 F.2d 725. The case is here on a petition for a writ of certiorari, 359 U.S. 904, 79 S.Ct. 580, 3 L.Ed.2d 570.
2
There was a theft from an interstate shipment of whiskey at a terminal in Chicago. The next day two FBI agents were in the neighborhood investigating it. They saw petitioner and one Pierotti walk across a street from a tavern and get into an automobile. The agents had been given, by the employer of Pierotti, information of an undisclosed nature 'concerning the implication of the defendant Pierotti with interstate shipments.' But, so far as the record shows, he never went so far as to tell the agents he suspected Pierotti of any such thefts. The agents followed the car and saw it enter an alley and stop. Petitioner got out of the car, entered a gangway leading to residential premises and returned in a few minutes with some cartons. He placed them in the car and he and Pierotti drove off. The agents were unable to follow the car. But later they found it parked at the same place near the tavern. Shortly they saw petitioner and Pierotti leave the tavern, get into the car, and drive off. The car stopped in the same alley as before; petitioner entered the same gangway and returned with more cartons. The agents observed this transaction from a distance of some 300 feet and could not determine the size, number or contents of the cartons. As the car drove off the agents followed it and finally, when they met it, waved it to a stop. As he got out of the car, petitioner was heard to say, 'Hold it; it is the G's.' This was followed by, 'Tell him he (you) just picked me up.' The agents searched the car, placed the cartons (which bore the name 'Admiral' and were addressed to an out-of-state company) in their car, took the merchandise and petitioner and Pierotti to their office and held them for about two hours when the agents learned that the cartons contained stolen radios. They then placed the men under formal arrest.
3
The statutory authority of FBI officers and agents to make felony arrests without a warrant is restricted to offenses committed 'in their presence' or to instances where they have 'reasonable grounds to believe that the person to be arrested has committed or is committing' a felony. 18 U.S.C. § 3052, 18 U.S.C.A. § 3052. The statute states the constitutional standard, for it is the command of the Fourth Amendment that no warrants for either searches or arrests shall issue except 'upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
4
The requirement of probable cause has roots that are deep in our history. The general warrant,1 in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed,2 both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of 'probable cause' before a magistrate was required. The Virginia Declaration of Rights, adopted June 12, 1776, rebelled against that practice:
5
'That general warrants, whereby any 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.' The Maryland Declaration of Rights (1776), Art. XXIII, was equally emphatic:
6
'That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous 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.'
7
And see North Carolina Declaration of Rights (1776), Art. XI; Pennsylvania Constitution (1776), Art. X; Massachusetts Constitution (1780), Pt. I, Art. XIV.
8
That philosophy later was reflected in the Fourth Amendment. And as the early American decisions both before3 and immediately after4 its adoption show, common rumor or report, suspicion, or even 'strong reason to suspect'5 was not adequate to support a warrant for arrest. And that principle has survived to this day. See United States v. Di Re, 332 U.S. 581, 593—595, 68 S.Ct. 222, 227, 228, 92 L.Ed. 210; Johnson v. United States, 333 U.S. 10, 13 15, 68 S.Ct. 367, 368, 369, 92 L.Ed. 436; Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503. Its high water was Johnson v. United States, supra, where the smell of opium coming from a closed room was not enough to support an arrest and search without a warrant. It was against this background that two scholars recently wrote, 'Arrest on mere suspicion collides violently with the basic human right of liberty.'6
9
Evidence required to establish guilt is not necessary. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035. And see Director General of Railroads v. Kastenbaum, 263 U.S. 25, 28, 44 S.Ct. 52, 53, 68 L.Ed. 146; United States v. Di Re, supra, 332 U.S. 592, 68 S.Ct. 227; Giordenello v. United States, supra, 357 U.S. 486, 78 S.Ct. 1250. It is important, we think, that this requirement be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543. And while a search without a warrant is, without limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. Carroll v. United States, supra, 267 U.S. at pages 155—156, 45 S.Ct. at pages 285—286. This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen. We turn then to the question whether prudent men in the shoes of these officers (Brinegar v. United States, supra, 338 U.S. at page 175, 69 S.Ct. at page 1310) would have seen enough to permit them to believe that petitioner was violating or had violated the law. We think not.
10
The prosecution conceded below, and adheres to the concession here,7 that the arrest took place when the federal agents stopped the car. That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a crime had been committed. The fact that afterwards contraband was discovered is not enough. An arrest is not justified by what the subsequent search discloses, as Johnson v. United States, supra, holds.
11
It is true that a federal crime had been committed at a terminal in the neighborhood, whisky having been stolen from an interstate shipment. Petitioner's friend, Pierotti, had been suspected of some implication in some interstate shipments, as we have said. But as this record stands, what those shipments were and the manner in which he was implicated remain unexplained and undefined. The rumor about him is therefore practically meaningless. On the record there was far from enough evidence against him to justify a magistrate in issuing a warrant. So far as the record shows, petitioner had not even been suspected of criminal activity prior to this time. Riding in the car, stopping in an alley, picking up packages, driving away—these were all acts that were outwardly innocent. Their movements in the car had no mark of fleeing men or men acting furtively. The case might be different if the packages had been taken from a terminal or from an interstate trucking platform. But they were not. As we have said, the alley where the packages were picked up was in a residential section. The fact that packages have been stolen does not make every man who carries a package subject to arrest nor the package subject to seizure. The police must have reasonable grounds to believe that the particular package carried by the citizen is contraband. Its shape and design might at times be adequate. The weight of it and the manner in which it is carried might at times be enough. But there was nothing to indicate that the cartons here in issue probably contained liquor. The fact that they contained other contraband appeared only some hours after the arrest. What transpired at or after the time the car was stopped by the officers is, as we have said, irrelevant to the narrow issue before us. To repeat, an arrest is not justified by what the subsequent search discloses. Under our system suspicion is not enough for an officer to lay hands on a citizen. It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest.
12
The fact that the suspects were in an automobile is not enough. Carroll v. United States, supra, liberalized the rule governing searches when a moving vehicle is involved. But that decision merely relaxed the requirements for a warrant on grounds of practicality. It did not dispense with the need for probable cause.
13
Reversed.
14
Mr. Justice BLACK concurs in the result.
15
Mr. Justice CLARK, whom THE CHIEF JUSTICE joins, dissenting.
16
The Court decides this case on the narrow ground that the arrest took place at the moment the Federal Bureau of Investigation agents stopped the car in which petitioner was riding and at that time probable cause for it did not exist. While the Government, unnecessarily it seems to me, conceded that the arrest was made at the time the car was stopped, this Court is not bound by the Government's mistakes.*
17
The record shows beyond dispute that the agents had received information from co-defendant Pierotti's employer implicating Pierotti with interstate shipments. The agents began a surveillance of petitioner and Pierotti after recognizing them as they came out of a bar. Later the agents observed them loading cartons into an automobile from a gangway up an alley in Chicago. The agents had been trailing them, and after it appeared that they had delivered the first load of cartons, the suspects returned to the same platform by a circuitous route through streets and alleys. The agents then saw petitioner load another set of cartons into the car and drive off with the same. A few minutes later the agents stopped the car, alighted from their own car, and approached the petitioner. As they did so, petitioner was overheard to say: 'Hold it; it is the G's,' and 'Tell him he (you) just picked me up.' Since the agents had actually seen the two suspects together for several hours, it was apparent to them that the statement was untrue. Upon being questioned, the defendants stated that they had borrowed the car from a friend. During the questioning and after petitioner had stepped out of the car one of the agents happened to look through the door of the car which petitioner had left open and saw three cartons stacked up inside which resembled those petitioner had just loaded into the car from the gangway. The agent saw that the cartons bore Admiral shipping labels and were addressed to a company in Cincinnati, Ohio. Upon further questioning, the agent was told that the cartons were in the car when the defendants borrowed it. Knowing this to be untrue, the agents then searched the car, arrested petitioner and his companion, and seized the cartons.
18
The Court seems to say that the mere stopping of the car amounted to an arrest of the petitioner. I cannot agree. The suspicious activities of the petitioner during the somewhat prolonged surveillance by the agents warranted the stopping of the car. The sighting of the cartons with their interstate labels in the car gave the agents reasonable ground to believe that a crime was in the course of its commission in their very presence. The search of the car and the subsequent arrest were therefore lawful and the motion to suppress was properly overruled.
19
In my view, the time at which the agents were required to have reasonable grounds to believe that petitioner was committing a felony was when they began the search of the automobile, which was after they had seen the cartons with interstate labels in the car. The earlier events certainly disclosed ample grounds to justify the following of the car, the subsequent stopping thereof, and the questioning of petitioner by the agents. This interrogation, together with the sighting of the cartons and the labels, gave the agents indisputable probable cause for the search and arrest.
20
When an investigation proceeds to the point where an agent has reasonable grounds to believe that an offense is being committed in his presence, he is obligated to proceed to make such searches, seizures, and arrests as the circumstances require. It is only by such alertness that crime is discovered, interrupted, prevented, and punished. We should not place additional burdens on law enforcement agencies.
21
I would affirm the judgments on the rationale of Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, and Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.
1
Declared illegal by the House of Commons in 1766. 16 Hansard, Parl.Hist.Eng. 207.
2
Quincy's Miss.Rep. 1761—1772, Appendix, p. 469.
3
Frisbie v. Butler, Kirby's Rep. (Conn.) 1785—1788, p. 213.
4
Conner v. Commonwealth, 3 Bin.(Pa.) 38; Grumon v. Raymond, 1 Conn. 40; Commonwealth v. Dana, 2 Metc.(Mass.) 329.
5
Conner v. Commonwealth, supra, note 4, 3 Bin. at page 43.
6
Hogan and Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1, 22.
Uniform Crime Reports for the United States, compiled by the Federal Bureau of Investigation (Vol. XXVIII, No. 1, Semiannual Bull., 1957), pp. 64, 65, shows 1956 arrest statistics for 1,025 cities in the United States, including 26 cities over 250, 000 population and 458 cities under 10,000 population.
The report states that 111,274 were arrested on suspicion (but not in connection with any specific offense) and subsequently released without prosecution. This was at the rate of 280.4 per 100,000 inhabitants.
The grand total of persons arrested—both for a specific offense (but excluding traffic offenses) and on suspicion alone and released without being held for prosecution was 264,601. This was at the rate of 666.7 per 100,000 inhabitants.
7
An alternative theory that the arrest took place at a subsequent time was discussed by the Government only to make clear that it would press that position on the facts of another case (359 U.S. 965, 79 S.Ct. 881, 3 L.Ed.2d 833) now pending here, No. 52, Rios v. United States.
*
It may be that the Government is doing some wishful thinking in regard to the relaxation of the standards incident to the 'probable cause' requirement by making this a test case. We should not lend ourselves to such indulgence.
| 01
|
361 U.S. 107
80 S.Ct. 173
4 L.Ed.2d 142
Daniel J. SENTILLES, Petitioner,v.INTER-CARIBBEAN SHIPPING CORP.
No. 6.
Argued Oct. 19, 1959.
Decided Nov. 23, 1959.
Mr. Milton Kelner, Miami, Fla., for petitioner.
Mr. Robert J. Beckham, Miami, Fla., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The petitioner brought this suit against the respondent to recover damages sustained by him allegedly as a consequence of a shipboard accident while serving as a crewmember on the respondent's vessel in the Carribbean. As the vessel encountered a heavy sea, petitioner was pitched into the air and fell back to the deck, where, upon landing, a wave washed him a considerable distance. Shortly after the accident, the petitioner became quite ill and was hospitalized and treated for a serious case of tuberculosis. The respondent's liability for the accident was predicated on fault under the Jones Act, 41 Stat. 1007, 46 U.S.C.A. § 688, 46 U.S.C.A. § 688, and alternatively on breach of the maritime duty to furnish a seaworthy vessel. The petitioner's theory was that the accident activated or aggravated a previously latent tubercular condition.1 The case was submitted to a jury in the District Court, where a verdict was returned for the petitioner, and judgment entered thereon. In the Court of Appeals, the respondent did not argue that the jury could not have with reason found it liable for the accident, but contended solely that the evidence did not justify the jury's conclusion that the accident caused the serious illness that followed it. The Court of Appeals agreed with the respondent's contention and reversed, 5 Cir., 256 F.2d 156. We granted certiorari on a petition in which it was asserted that the Court of Appeals had applied an improper standard in reviewing the medical evidence and in examining the judgment rendered on the jury's verdict. 359 U.S. 923, 79 S.Ct. 604, 3 L.Ed.2d 627.
2
There was evidence that petitioner (whose medical history was an active one) had been examined several times by his regular physician in the year preceding the accident, as recently as two months before it, with no appearance of tuberculosis being then noted. During the petitioner's acute tuberculosis subsequent to the accident, a specialist reexamined X-ray pictures taken in the years preceding the accident, and concluded that they did in fact reveal a pulmonary lesion, at first involving a 'small scarred inactive area.' 'In retrospect,' the specialist felt that the lesion had been tubercular. In response to a hypothetical question as to the effect of an accident like petitioner's on the aggravation or activation of a pre-existing, dormant tubercular condition, the specialist gave an opinion that 'acute dissemination of the tuberculosis' might be a consequence of the accident. Another specialist, who had treated petitioner during his hospitalization after the accident, posited the trauma and petitioner's pre-existing diabetic condition as the most likely causes of the aggravation of the tuberculosis, though he was not able to state 'which of the two it is more likely was responsible in this instance.' Another medical expert, who had not personally examined petitioner, when questioned hypothetically, was of opinion that the accident 'probably aggravated his condition,' though he would not say definitely: 'We don't ever select one item and say that is the cause of any particular aggravation.'
3
The jury's power to draw the inference that the aggravation of petitioner's tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively negated by the proofs. The matter does not turn on the use of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation.2 They were entitled to take all the circumstances, including the medical testimony into consideration. See Sullivan v. Boston Elevated R. Co., 185 Mass. 602, 71 N.E. 90; Miami Coal Co. v. Luce, 76 Ind.App. 245, 131 N.E. 824.3 Though this case involves a medical issue, it is no exception to the admonition that, 'It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. * * * The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. * * * Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.' Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520. The proofs here justified with reason the conclusion of the jury that the accident caused the petitioner's serious subsequent illness. See Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.
4
Reversed.
5
Mr. Justice WHITTAKER, finding in the record direct medical testimony expressing the opinion that petitioner's latent tubercular condition actually was activated by the trauma complained of, concurs.
6
Mr. Justice STEWART, concurring.
7
Cases like this, I am firmly convinced, do not belong in this Court. To review individualized personal injury cases, in which the sole issue is sufficiency of the evidence, seems to me not only to disregard the Court's proper function, but also to deflect the Court's energies from the mass of important and difficult business properly here. All this has been elaborated in extenso by others, and there is no point in repeating or paraphrasing their words. Suffice it to note that I agree with who they have said. See, e.g., Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493 (dissenting opinion); Dick v. New York Life Ins. Co., 359 U.S. 437, 447, 79 S.Ct. 921, 927, 3 L.Ed.2d 935 (dissenting opinion).
8
Yet under our rule, when four members of the Court vote to grant a petition for certiorari, the case is taken. If this rule is not to be frustrated, I can, as presently advised, see no escape from the duty of considering a case brought here on the merits, unless considerations appear which were not apprehended at the time certiorari was granted. In short, on this score I agree with the views expressed by Mr. Justice Harlan in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 559, 77 S.Ct. 443, 478 (dissenting opinion). See Mr. Chief Justice Stone's concurring opinion in Bailey v. Central Vermont R. Co., 319 U.S. 350, at page 358, 63 S.Ct. 1062, at page 1066, 87 L.Ed. 1444.
9
Upon an independent review of the record in this case, I concur in the result.
10
Mr. Justice HARLAN concurs in this opinion.
11
Mr. Justice FRANKFURTER, dissenting.
12
'We do not grant a certiorari to review evidence and discuss specific facts.' United States v. Johnston, 268 U.S. 220, 227, 45 S.Ct. 496, 497, 69 L.Ed. 925. Thus Mr. Justice Holmes, speaking for a unanimous Court thirty-five years ago, summarized the practice of the Court in abstaining from exercising its certiorari jurisdiction for the purpose of reviewing facts and weighing evidence in relation to them. This practice obviously derived from the Evarts Act of 1891, by which Congress established intermediate courts of appeals to free this Court from reviewing the great mass of federal litigation in order to enable the Nation's ultimate tribunal adequately to discharge its responsibility for the wise adjudication of cases 'involving principles the settlement of which is of importance to the public, as distinguished from that of the parties,' Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393, 43 U.S. 422, 423, 67 L.Ed. 712. Since Mr. Chief Justice Taft announced this for the Court in 1923, cases of obvious public importance demanding the Court's attention have increased in number and difficulty. The practice of not taking cases turning solely on the evaluation of evidence has been consistently adhered to, barring an occasional sport like Dick v. New York Life Insurance Co., 359 U.S. 437, 79 S.Ct. 921, except in the special class of cases arising under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. and its twin, the Jones Act, 46 U.S.C.A. § 688. The fluctuating interest in this special class of cases by the necessary number of Justices for granting certiorari, first on behalf of employers, see Frankfurter and Landis, The Business of the Supreme Court (1928), 207—209, and more recently on behalf of employees, has disregarded the normal practice.
13
The oral argument overwhelmingly confirmed what the petition had already made clear, that this is the kind of case which, in the language of my Brother Stewart, does not 'belong in this Court.' To entertain the case merely because argument has been had does not lessen the disregard of the Court's practice, formulated in Rule 19, 28 U.S.C.A. The Court has in scores of cases dismissed the writ of certiorari even after oral argument, when the true basis for a certiorari was lacking. Even in criminal cases involving sentences of life imprisonment this practice has been followed. See Triplett v. State of Iowa, 357 U.S. 217, 78 S.Ct. 1358, 2 L.Ed.2d 1361; Joseph v. Indiana, 359 U.S. 117, 79 S.Ct. 720, 3 L.Ed.2d 673. Again to quote Mr. Chief Justice Taft in Layne & Bowler Corp. v. Western Well Works, Inc., supra, 261 U.S. at page 393, 43 S.Ct. at page 423, 'it is very important that we be consistent in not granting the writ of certiorari * * *.' As a general practice the Court does not review cases involving merely individualized circumstances not unlike the type of factual situations arising in the application of the Federal Employers' Liability Act and the Jones Act. Since this case does not 'belong in this Court,' to have brought it here was an undue exercise of judicial discretion. Accordingly, I would dismiss the writ as improvidently granted. See my opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493.
1
Maintenance and cure in respect of the illness were also claimed; this was viewed as presenting a causation problem similar to that posed by the claim for indemnity damages.
2
For a discussion of the reluctance of medical opinion to assign trauma as the cause of disease, and of the varying medical and legal concepts of causation, seen Small, Gaffing at a Thing Called Cause: Medico-Legal Conflicts in the Concept of Causation, 31 Tex.L.Rev. 630.
3
The medical testimony in the case last cited moved the court to say: 'Indeed, if it were not for the saving grace of what we call common sense, justice would be defeated in almost every case where opinion evidence is admitted.' Id., 76 Ind.App. at page 249, 131 N.E. at page 826.
| 78
|
361 U.S. 125
80 S.Ct. 253
4 L.Ed.2d 167
Frank DE SIMONE, petitioner,v.UNITED STATES of America.
No. 202.
Supreme Court of the United States
December 7, 1959
Mr. Joseph K. Hertogs, for petitioner.
Solicitor General Rankin, Assistant Attorney General Wilkey and Beatrice Rosenberg, for the United States.
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. It appears from the Government's suggestion of mootness and the memoranda filed in connection therewith that the petitioner is no longer in custody of the warden to whom the writ of habeas corpus ad testificandum was directed, and that the Government will take no further action under any order pursuant to which petitioner might be held in contempt. Accordingly, the judgment of the Court of Appeals; the order of the District Court, issued May 29, 1959, directing the petitioner to appear before the grand jury; the order to show cause issued by the District Court on May 19, 1959; and the order of the District Court, entered April 3, 1959, denying the petitioner's motion to quash the writ of habeas corpus ad testificandum, and directing him to appear before the grand jury on April 9, 1959, are vacated. The cause is remanded to the District Court with instructions to dismiss the proceeding as moot.
| 89
|
361 U.S. 118
80 S.Ct. 189
4 L.Ed.2d 161
Edgar Allen WEST, Petitioner,v.UNITED STATE v. America, United States Department of Commerce, Maritime Administration, et al.
No. 11.
Argued Nov. 12, 1959.
Decided Dec. 7, 1959.
Mr. Abraham E. Freedman, Philadelphia, Pa., for petitioner.
Mr. Leavenworth Colby, Washington, D.C., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is a libel filed pursuant to the Public Vessels Act, 46 U.S.C. § 781 et seq., 46 U.S.C.A. § 781 et seq., and involving the liability of a shipowner for injuries suffered by an employee of an independent contractor while working inside the main engine of a vessel as it was undergoing a complete overhaul at the contractor's repair docks in Philadelphia. Petitioner claims the vessel was unseaworthy and that respondent was negligent, in any event, in not furnishing him a safe place to work. The District Court denied recovery, 143 F.Supp. 473, and the Court of Appeals affirmed 3 Cir., 256 F.2d 671. We granted certiorari. 359 U.S. 924, 79 S.Ct. 606, 3 L.Ed.2d 627. We affirm the judgment.1
2
The findings of the trial judge, approved by the Court of Appeals, show that the S.S. Mary Austin is owned by the United States and was built during World War II as a 'Liberty' ship. It had been in the 'moth-ball fleet' at Norfolk, Virginia, in total deactivation for several years, with its pipes, boilers, and tanks completely drained, and an oil preservative injected through them to prevent rusting. In 1951 the vessel was ordered reactivated and a contractor, Atlantic Port Contractors, Inc., was selected to prepare her for sea duty, Under the specifications of the contract, Atlantic was to overhaul and reactivate the Mary Austin completely, 'cleaning and repairing all water lines, replacement of all defective or missing plugs and other parts, and the testing of all lines before closing and placing them in active operating condition.' The contractor was to have complete responsibility and control of the making of the repairs, with the right in the United States to inspect the work and materials to insure compliance with the contract. For this purpose, the United States placed six of its men—a captain, chief mate, second mate, chief engineer, assistant engineer, and steward—on board the vessel. However, they signed no shipping articles and had no 'control of the ship in the ordinarily accepted context,' their sole function being to serve as inspectors for the United States. Thereafter the respondent towed the Mary Austin to the repair docks of the contractor at Philadelphia and turned her over to it for the performance of the repair contract.
3
The petitioner, a shore-based employee of the contractor, was working inside the low pressure cylinder of the main engine of the ship when he was injured. He was kneeling on his right knee when an end plug from a one-inch pipe in the water system was propelled through the top of the open cylinder and hit his left knee. The findings indicate that the plug was loosely fitted on an overhead water pipe and that, when another employee of the contractor turned on the water without warning, the plug was forced off, hitting petitioner.
4
Recovery was sought on the theory that the vessel was unseaworthy in that the plug had been fitted insecurely on the pipe and was therefore incapable of withstanding the water pressure exerted upon it. In addition, petitioner claimed that the United States was liable for negligence in not maintaining a safe place for him to work, a duty asserted to be non-delegable and absolute.
I.
5
Petitioner contends that he comes under the doctrine of Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and subsequent cases, holding that the warranty of seaworthiness applies to shore-based workers while on board ship and performing work traditionally done by seamen. We do not think so. In Sieracki, the Court said that the warranty applied because such a shore worker 'is, in short, a seaman * * * doing a seaman's work and incurring a seaman's hazards.' Id., 328 U.S. 99, 66 S.Ct. 880. The findings here, however, show that, for several years, the Mary Austin was withdrawn from any operation whatever while in storage with the 'moth ball fleet.' The water had been drained from her water system and an antirust preservative was injected therein. Her subsequent towing to Philadelphia was for the specific purpose of delivery to Atlantic to render her seaworthy. The representation of the repair contract specifications was that she was not seaworthy for a voyage and that the major repairs called for therein would be necessary before one would be undertaken. It is evident that the sole purpose of the ship's being at Atlantic's repair dock at Philadelphia was to make her seaworthy. The totality of the reparation on the vessel included compliance with the hundreds of specifications in the contract calling for the repairing, reconditioning, and replacement, where necessary, of equipment so as to make fit all the machinery, equipment, gear, and every part of the vessel. Strangely enough, the defective water line and the metal plug specifically pointed to by petitioner as being defective were listed in the specifications for 'cleaning and repairing' and the 'replacement of all defective or missing plugs.' In short, as the trial court said, the work to be done on the vessel was equivalent to 'home port structural repairs.'
6
On the other hand, the vessels involved in the cases depended upon by petitioner2 were, at the times of the injuries, in the hands and under the control of the owners or charterers, and, instead of undergoing general repairs, were in active maritime service in the course of loading or unloading cargo pursuant to voyages. The workmen, like the seamen, depended upon the seaworthiness of the ships, their equipment, and gear. They were obliged to work with whatever the shipowners supplied and it was only fair for the latter to be subjected to the absolute warranty that the ships were seaworthy. But no such situation is present here. The Mary Austin, as anyone could see, was not in maritime service. She was undergoing major repairs and complete renovation, as the petitioner knew. Furthermore, he took his orders from the contractor, not the shipowner. He knew who was in control. This undertaking was not 'ship's work' but a complete overhaul of such nature, magnitude, and importance as to require the vessel to be turned over to a ship repair contractor and docked at its pier for the sole purpose of making her seaworthy. It would be an unfair contradiction to say that the owner held the vessel out as seaworthy in such a case. It would appear that the focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done, rather than the specific type of work that each of the numerous shore-based workmen is doing on shipboard at the moment of injury. The job analysis which the latter would call for would lead to fortuitous results. We, therefore, do not believe that the Sieracki line of cases it applicable, which obviates any necessity of our discussion of situations where the vessels themselves are not in the status of the Mary Austin. Here there could be no express or implied warranty of seaworthiness to any person.
II.
7
In presenting his alternative ground of recovery, the petitioner has a dual theory. He first says that the duty to furnish a safe place to work is a non-delegable duty, the violation of which does not depend on fault. If unsuccessful in this position, he insists that respondent's failure to keep the water plug tight was negligence.3
8
Other than the doctrine of seaworthiness, whose nonrelevancy of this case we have set forth, our decisions establish no basis of liability apart from fault. Of course, one aspect of the shipowner's duty to refrain from negligent conduct in embodied in his duty to exercise reasonable care to furnish a safe place to work. But we do not believe that such a duty was owed under the circumstances of this case. Petitioner overlooks that here the respondent had no control over the vessels, or power either to supervise or to control the repair work in which petitioner was engaged. We believe this to be decisive against both aspects of plaintiff's dual theory. There was no hidden fedect in the water system. It was one of the objects to be repaired and its plugs were to be replaced where necessary. Its testing was to be done by the contractor—not by the shipowner. It appears manifestly unfair to apply the requirement of a safe place to work to the shipowner when he has no control over the ship or the repairs, and the work of repair in effect creates the danger which makes the place unsafe. The respondent, having hired Atlantic to perform the overhaul and reconditioning of the vessel including the testing—was under no duty to protect petitioner from risks that were inherent in the carrying out of the contract. The Courts of Appeals seem to have followed this rule. See Filipek v. Moore-McCormack Lines, 2 Cir., 258 F.2d 734. Although some of respondent's employees were on board the ship here, this would not attach liability since they gave no orders, and did not participate in the work or supervise its progress, but were simply inspectors or observers. Id., at page 737.
9
Petitioner cites Crumady v. The Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413, as the chief support for his contention. There the vessel was being unloaded of cargo and its employees had set the safety cutoff device on its winch at twice the tonnage limit of the rigging. When the stevedore, unaware of this situation, brought the winch into play, the rigging snapped and the injury resulted. We found that the safety cutoff had been adjusted by employees of the vessel in a way that made it unsafe and dangerous, and therefore the vessel was liable. But that situation is not comparable. There the vessel was in control of the owner, and he was liable under the absolute warranty of seaworthiness, as well as for the negligence of the ship's employees in setting the ship's safety cutoff device. Any culpability here could be chargeable only to the contractor, not to the shipowner. Nor was United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 1959, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541, a similar situation. In that case the shipowner directed the use of carbon tetrachloride in the confined spaces of the engine room. The resulting fumes fatally injured the shore-based workman, necessitating a remand on the negligence question. But here the owner had no control of the ship; it had been turned over to a repair contractor for extensive overhaul, which was not performed under the direction of the shipowner. While there might be instances of hidden or inherent defects, sometimes called 'latent,' that would make the owner guilty of negligence, even though he had no control of the repairs, we hold that under the circumstances here the shipowner could not be so chargeable. The judgment is therefore affirmed.
10
Affirmed.
1
This obviates the necessity of deciding the respondent's claim over and against the contractor.
2
Atlantic Transport Co. of West Virginia v. Imbrovek, 1914, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208; International Stevedoring Co. v. Haverty, 1926, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157; Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Alaska Steamship Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798; Crumady v. The Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413.
3
There is no claim of negligence in the selection of Atlantic to perform the overhaul on the Mary Austin.
| 78
|
361 U.S. 195
80 S.Ct. 292
4 L.Ed.2d 237
PUBLIC SERVICE COMMISSION OF STATE OF NEW YORKv.FEDERAL POWER COMMISSION et al.
No. 459.
UNITED GAS IMPROVEMENT CO. et al.
v.
FEDERAL POWER COMMISSION et al.
No. 473.
Supreme Court of the United States
December 14, 1959
On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit.
PER CURIAM.
1
The motion to substitute Humble Oil & Refining Company, a Delaware corporation, in the place of Humble Oil & Refining Company, a Texas corporation, as a party respondent, is granted. The motions of Public Service Electric and Gas Company and the Alabama League of Municipalities for leave to file briefs, as amici curiae, are granted.
2
Messrs. Kent H. Brown and George H. Kenny, for petitioner.
3
Messrs. J. David Mann, Jr. and J. Louis Monarch, for petitioner United Gas Improvement Co.
4
Messrs. Vincent P. McDevitt and Samuel Graff Miller, for petitioner in No. 473 Philadelphia Electric Co.
5
Messrs. Willard W. Gatchell and Howard E. Wahrenbrock, for respondent Federal Power Commission.
6
Messrs. Richard J. Connor, John T. Miller, Jr., Thomas F. Brosnan, James B. Henderson, and William N. Bonner, Jr., for respondent Transcontinental Gas Pipe Line Corp.
7
Messrs. W. W. Heard and William J. Grove, for respondent Pan-American Petroleum Corp.
8
Messrs. Chas. B. Ellard and Bernard A. Foster, Jr., for respondent Atlantic Refining Co.
9
Messrs. Gentry Lee and Bernard A. Foster, Jr., for respondent Cities Service Production Co.
10
Messrs. Carl Illig and William J. Merrill, for respondent Humble Oil & Refining Co.
11
Messrs. Clayton L. Orn and James D. Parriott, for respondent Ohio Oil Co.
12
Messrs. Frank C. Bolton and William S. Richardson, for respondent Socony Mobil Oil Co., Inc. (successor to Magnolia Petroleum Co.).
13
Mr. John C. Snodgrass, for respondent Pure Oil Co.
14
Mr. George D. Horning, for respondent Union Oil Co. of California.
15
Mr. Robert E. May, for respondent Hunt, trustee.
16
Messrs. Rayburn L. Foster, Harry D. Turner, Kenneth Heady, Charles E. McGee and Lambert McAllister, for respondent Phillips Petroleum Co.
17
Messrs. Martin A. Row, Robert E. May and Omar L. Crook, for respondent Sun Oil Co.
18
Mr. William M. Bennett, for State of California and Public Utilities Commission of California, as amici curiae.
19
Messrs. John W. Reynolds, Atty. Gen. of Wisconsin, N. S. Hefferman, Deputy Atty. Gen., Roy G. Tulane, Asst. Atty. Gen., and William E. Torkelson, for State of Wisconsin and Public Service Commission of Wisconsin, as amici curiae.
20
Mr. David Berger, for City of Philadelphia, as amici curiae.
21
Mr. David Stahl, for City of Pittsburgh, as amici curiae.
22
Messrs. Joe W. Anderson, Roger Arnebergh, Alexander G. Brown, J. Elliott Drinard, N. H. Goldstick, Dion R. Holm, Claude V. Jones, Walter J. Mattison, John C. Melaniphy, Barnett I. Shur, A. C. Van, Soelen, Charles S. Rhyne and J. Parker Connor, for Member Municipalities of the National Institute of Municipal Law Officers, as amici curiae.
23
Messrs. Charles S. Rhyne and J. Parker Connor, for Alabama League of Municipalities, as amici curiae.
24
Messrs. Edward Munce and Thomas M. Kerrigan, for Pennsylvania Public Utility Commission, as amici curiae.
25
Mr. Edward S. Kirby, for Public Service Electric & Gas Co., as amici curiae.
26
The petition for writs of certiorari is granted. The judgment of the Court of Appeals is vacated and the cases are remanded to that court with directions to remand the cases to the Federal Power Commission for reconsideration and redetermination in the light of Atlantic Refining Co. v. Public Service Commission of New York, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312.
27
Mr. Justice DOUGLAS dissents.
| 78
|
361 U.S. 138
80 S.Ct. 242
4 L.Ed.2d 198
Carl C. INMAN, Petitioner,v.BALTIMORE & OHIO RAILROAD CO.
No. 36.
Argued Nov. 12, 1959.
Decided Dec. 14, 1959.
Mr. Raymond J. McGowan, Akron, Ohio, for petitioner.
Mr. William A. Kelly, Akron, Ohio, for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioner brought this action under the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C. § 51, 45 U.S.C.A. § 51, for personal injuries sustained in the course of his employment. Petitioner for some seven years had been a railroad crossing watchman for respondent at 'Bettes Corners' in Akron, Ohio. He filed suit claiming damages for an injury he received when an intoxicated automobile driver ran into him one midnight while he was on duty flagging traffic for a passing train. Bettes Corners is a heavily traveled vehicular intersection where Tallmadge Avenue, running east and west, is intersected by Home Avenue, which runs northeast and southwest. Three sets of railroad tracks cut diagonally across the intersection in a northwest-southeast direction. The driver of the automobile, heading northeast on Home Avenue, was turning left into Tallmadge Avenue when the accident occurred. Petitioner claims that the railroad 'was negligent in failing to use ordinary care to provide * * * a reasonable safe place to work' at the crossing. He says that his duties—including the flagging of traffic, maintenance of a lookout for other trains, and the reporting of hotboxes on the passing ones—required him to face the train tracks and created a likelihood of his being struck by automobiles at the intersection.
2
The evidence of the manifold duties of petitioner is clear. The evidence of his exposure to injury by traffic includes the layout of Bettes Corners, the cut of the railroad tracks across it, and the duties petitioner was required to perform. Petitioner says that the layout of the crossing was hazardous for one performing the duties assigned to him. In support of this, he points to the answer of one witness as to the action of the car which struck him. This witness stated that, 'like a lot of them I seen there, jumping the gun' at the crossing, the driver of this car, on seeing the tail light of the train approaching, drove around the line of cars on the street adjacent to the train and, as he was turning left onto the other street, hit petitioner, who was standing near the passing train and flagging the traffic. There is no claim that the intersection was dark or that the regular railroad crossing warning, lights, bells, etc., were not properly working at the time. Nor is it disputed that the petitioner was waving a lighted lantern in each hand. Likewise the intoxicated condition of the driver is not in controversy, nor is the fact that he passed through a traffic stop sign immediately before hitting petitioner and violated other local traffic safety measures designed to protect persons from injury at the crossing.
3
The trial court submitted the issue of negligence to the jury, which found the railroad negligent 'in part' because it failed to afford 'enough protection.' Judgment for petitioner was entered on the verdict for $25,000. The Court of Appeals of Ohio reversed, finding that 'there was a complete failure of proof to establish the negligence.' It said that it was not 'reasonably foreseeable' that petitioner 'would be injured by the actions of a drunken driver, violating five traffic statutes * * *.' 108 Ohio App. 124, 161 N.E.2d 60, 66. After the Supreme Court of Ohio dismissed the appeal, 168 Ohio St. 335, 154 N.E.2d 442, we granted certiorari, 359 U.S. 958, 79 S.Ct. 798, 3 L.Ed.2d 765.
4
In Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 506 507, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, we laid down the rule that 'judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.' In measuring Ohio's disposition of the case here by the Rogers yardstick, we must affirm. The Act does not make the employer an insurer. Here petitioner had been working at Bettes Corners for seven years, performing these same duties under like circumstances and, for some three years, on this identical midnight shift. No accidents had occurred during that long period. In light of this background, we believe that the evidence here was so thin that, on a judicial appraisal, the conclusion must be drawn that negligence on the part of the railroad could have played no part in petitioner's injury.
5
The contention of petitioner is that the witness' remark, 'like a lot of them I seen there, jumping the gun,' was testimony of other occurrences at the crossing similar to the one here involved. The burden of proving that the crossing was an unsafe place to work was on petitioner. It depended on some type of testimony showing the hazards at the crossing. There is no evidence of complaint to the railroad, nor is there other testimony of similar occurrences in the record. In making the judicial appraisal of this tenuous proof, Ohio's Court of Appeals held it not sufficient. It found that there was 'no evidence of prior occurrences of the kind here under consideration' in the record. Indeed, unless these 11 words of the witness can be said with reason to be sufficient, there is none. Under such circumstances, they are too slender a reed for us to say that the decision of Ohio's court is erroneous.
6
We therefore conclude, in light of these considerations, that the judgment must be affirmed.
7
Affirmed.
8
Mr. Justice FRANKFURTER.
9
The opinion of my Brother CLARK demonstrates, insofar as demonstration is possible in law, that this case should never have been brought here. In accordance with the views that I expressed in Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, and in which I have since persisted, the appropriate disposition would be dismissal of the writ of certiorari as improvidently granted. If these views were enforced under the special circumstances of this case, affirmance by an equally divided Court would result. Thereby this case would be cast into the limbo of unexplained adjudications, and the lower courts, as well as the profession, would be deprived of knowing the circumstances of this litigation and the basis of our disposition of it. Since I have registered my conviction on what I believe to be the proper disposition of the case, it is not undue compromise with principle for me to join Brother CLARK'S opinion in order to make possible a Court opinion.
10
Mr. Justice WHITTAKER, concurring.
11
I heartily join the Court's opinion. But I derive no pleasure from implying, contrary to the views of my Brothers in the minority, that there was such complete want of evidence of negligence by respondent that 'reasonable men' could not differ about it, for, at the very least, I regard my Brothers who dissent as reasonable men.
12
Notwithstanding this, it seems to me that the facts of this case make it crystal clear that the Court's opinion lacks not a whit in fully comporting with the standards of care of the mythical 'reasonable man,' for, like the Ohio Court of Appeals, I simply cannot see any substantial evidence—or even a scintilla or an iota of evidence—of negligence on the part of respondent that caused, or directly contributed in any degree to cause, petitioner's unfortunate injury.
13
Reduced to substance, the simple facts are that petitioner, a crossing flagman, while standing in a well-lighted intersection alongside a passing train in the nighttime and swinging a lighted red lantern in each hand, was struck, knocked down and run over by a drunken driver. What, I ask, did respondent do or omit that caused or contributed to cause that casualty? How could it have prevented the casualty? Petitioner says that respondent failed to provide him with enough protection.' About the only way, as I perceive, that respondent could protect its crossing flagman against injury from such lawless conduct by third persons would be to provide them with military tanks and make sure they stay in them while within or moving about crossing-intersections in the performance of their duties—and I am not even sure that this method, though ironclad, would be certain protection to a flagman against lawless injury by third persons, for someone might shoot him, an act not very different, it seems to me, from the drunken driver's conduct which injured petitioner in this case, and for which injuries he insists, and four members of this Court agree, a jury should be permitted to require respondent to pay damages. How this can be thought to square with any known concept of 'negligence' by respondent is beyond me.
14
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.
15
Petitioner, a nighttime crossing watchman stationed at respondent's railroad intersection, was seriously injured about midnight when an automobile driven by an intoxicated person ran into him from behind while he was flagging traffic for a passing train. The jury found on a special interrogatory that respondent was negligent in not providing 'enough protection.'
16
The crossing is at Tallmadge and Home Avenues. Tallmadge runs east and west; Home, northeast and southwest. Three of respondent's tracks, running northwest and southeast, extend through the intersection of these two streets, and its trains move over the parallel tracks in opposite directions and often near the same time.
17
There was evidence that at the approach of a train petitioner had duties of the following character: (1) He was supposed to flag highway traffic moving in four directions to a stop, using lanterns and a whistle provided for that purpose. (2) If a second train was to pass at or about the time of another, he had to look for it before clearing the highway traffic. (3) He was to look for hotboxes on all passing trains and signal the conductor if he discovered any. (4) If a train was going east, he was to stand on the west side of the tracks the better to see trains coming from the west.
18
On the night in question petitioner received a signal that an eastbound train was approaching. Accordingly, he stationed himself a few feet west of the tracks, blowing the whistle and swinging the red lantern first toward Tallmadge Avenue traffic and then toward Home Avenue traffic. Then he stationed himself facing the tracks, his back to Tallmadge Avenue traffic.
19
Although respondent's tracks intersect Tallmadge and Home Avenues where those two streets cross, it is possible for a car going north on Home to make a left turn into Tallmadge even while a train is passing. There is, however, a stop sign on Home; and petitioner rightfully had halted all highway traffic. Nevertheless an intoxicated driver came through the stop sign on Home and made a squealing left turn into Tallmadge, hitting petitioner and injuring him.
20
There was evidence that at the time of the accident (1) the caboose of the passing train was just making the crossing; (2) the railroad block signal could not be seen from where petitioner stood; (3) another train from the opposite direction on the adjoining track was due to reach the crossing at any moment and petitioner was looking for its headlight; (4) petitioner remained standing with his back to the highway traffic as he was obliged to do if he performed these manifold duties; (5) this traffic was heavy in both streets; (6) on prior occasions cars had 'jumped the gun' at this same intersection.
21
It may be that if the duty of the petitioner had been restricted to stopping traffic on the approach of a train and waving it on when the train had passed, there would be on this record (unlike that in Cahill v. New York, N.H. & H.R. Co., 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed. 1075)1 no evidence of negligence on respondent's part. Petitioner's duties were much broader, as I have indicated. Yet the Court holds there was no jury question as to whether the place chosen for the performance of those several duties was a reasonably safe one in light of all the circumstances, including the volume of traffic at that intersection. Plainly respondent is not an insurer. It is under no duty to remove all possibilities of injury to its employees or to make, at any cost, the place of work as safe as one's living room. But whether a particular hazard is of sufficient weight and moment to induce a reasonable person to guard against it and whether that danger could be removed or diminished by safety measures reasonably available are matters for the jury to determine. The jury might find that the assignment of part of petitioner's duties to someone else or the installation of mechanical devices to stop traffic would have been undertaken by a reasonable person under the circumstances. It is not clear beyond argument of reasonable men that the respondent could not have foreseen an injury to petitioner by a reckless motorist or that it took every precaution that reasonableness under the circumstances required.
22
The nature of this congested crossing with three sets of railroad tracks cutting diagonally across its four corners and the multiple duties required of petitioner at this hour of the night, were sufficient in my view for a jury to find that petitioner was too busy to protect himself from the vehicular traffic and that the employer did not use reasonable care in furnishing him with a safe place to work, as required by the Act. Bailey v. Central Vermont R. Co., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. The very close division in this Court on that issue reinforces my conclusion.
23
There is no reason why a negligent actor should be insulated from the consequences of his negligence merely because a third party's reckless or criminal act was the immediate cause of the injury. On the contrary, we have unanimously held that the fact that the danger to the employee under the Act lies in intentional or criminal conduct of third parties is not determinative. If foreseeable, there is a duty to make reasonable provisions against such events. Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73. The instructions on this point seem to me to be adequate.2 The Court appears to place great stress on the lack of evidence of prior accidents at this intersection and the fact that petitioner worked there for seven years before being hit by an automobile. But certainly the duty to make a reasonable effort to provide a safe place of work is not conditioned upon an employee's first being injured or killed. Moreover, the liability of the railroad under the Act attaches even though the injury was caused only 'in part' by its negligence. Such is the command of § 1 of the Act, as repeatedly applied. See Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506—507, 77 S.Ct. 443, 448—449, 1 L.Ed.2d 493; Cahill v. New York, N.H. & H.R. Co., supra.
24
Though I think affirmance of the judgment is error, I am happy that we have a full Court turning its attention to an important question of law—whether trial by jury, guaranteed by the Seventh Amendment and an integral part of the remedy provided by Congress under this Act, has been honored by the courts. Moreover, as my Brother FRANKFURTER points out, affirmance of the judgment below by an equally divided Court would deprive the decision of all precedential value, so important in this as in other fields. Furthermore, the withdrawal of a Justice from a decision on the merits after certiorari has been granted impairs the integrity of the practice of allowing the vote of four Justices to bring up any case on certiorari.3 Participation by the whole Court at least in some of these cases (cf. Reynolds v. Atlantic Coast Line R. Co., 336 U.S. 207, 209, 69 S.Ct. 507, 508, 93 L.Ed. 618) is partial performance of our pledge to Congress.
1
For the opinion below see 2 Cir., 224 F.2d 637.
2
'After an accident has happened it is usually easy to see how it could have been avoided but negligence is not a matter to be judged after an occurrence. It is always a question of what reasonably prudent persons under like or similar circumstances would or should have anticipated in the exercise of ordinary care. Where there is no danger reasonably to be anticipated or apprehended, there is no duty to guard against something that in the minds of reasonable men does not exist. However, if such expectation carries a realization that a given set of circumstances is suggestive of danger, then failure to take appropriate safety measures constitutes negligence.'
3
See the legislative history in Harris v. Pennsylvania R. Co., 361 U.S. 15 at p. 18, 80 S.Ct. 22, note 2 (concurring opinion).
| 78
|
361 U.S. 173
80 S.Ct. 229
4 L.Ed.2d 223
MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY, Appellant,v.UNITED STATES of America et al. STATE OF SOUTH DAKOTA et al., Appellants, v. UNITED STATES of America et al. STATE OF MINNESOTA et al., Appellants, v. UNITED STATES of America et al.
Nos. 12, 27, 28.
Argued Nov. 16, 17, 1959.
Decided Dec. 14, 1959.
Rehearing Denied Jan. 18, 1960.
Argued April 18, 1960.
See 361 U.S. 945, 80 S.Ct. 405.
[Syllabus from pages 173-175 intentionally omitted]
Messrs. Max Swiren, Chicago, Ill., and Harold J. Soderberg, for appellants.
Messrs. Robert W. Ginnane, Washington, D.C., and Starr Thomas, Chicago, Ill., for appellees.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
These appeals present questions arising out of rival applications by several rail carriers to the Interstate Commerce Commission under § 5(2) of the Interstate Commerce Act1 for authority to acquire control of Toledo, Peoria & Western Railroad Company.
2
'Western' is an independent, shortline 'bridge carrier'2 of through eastwest traffic by-passing the congested Chicago gateway. Its line is about 234 miles long, extending from its connection with the Pennsylvania Railroad Company ('Pennsylvania') at Effner, on the Illinois-Indiana state line, westward, through Peoria, to its connection with the main line of the Atchison, Topeka & Santa Fe Railway Company ('Santa Fe') at Lomax, Illinois, and thence southwesterly a short distance to Keokuk, Iowa. Its headquarters, shops and yards are located in East Peoria where it has 24 executives and where, and elsewhere along its line, it has about 225 other employees. It has connections for the interchange of traffic with 16 railroads, the principal ones being with the Pennsylvania at Effner, with the Santa Fe at Lomax, and with the New York, Chicago & St. Louis Railroad Company ('Nickel Plate'), the Illinois Terminal Railroad Company, the Chicago, Burlington & Quincy Railroad Company ('Burlington') and the Minneapolis & St. Louis Railway Company ('Minneapolis') at Peoria. Its interchange connections with the other 10 railroads are at 17 other towns along its line.
3
Western has outstanding 90,000 shares of common capital stock, 82% of which is owned by the testamentary trustees of the estate of George P. McNear—Wilmington Trust Company and Guy Gladson—and the remaining 18% is owned by members of the McNeaar family, a bank and the president of Western. In 1954, the trustees determined to sell their Western stock, and rival efforts were commenced by Minneapolis, on the one hand, and by the Santa Fe and Pennsylvania, on the other hand, to purchase it. (Four of Wilmington Trust Company's directors were also directors of Pennsylvania.) Those negotiations culminated in a contract between the trustees and the Santa Fe, dated May 26, 1955, providing for the sale by the former and purchase by the latter of the stock at a price of $135 per share, subject to the Commission's approval.3 Soon afterward, like agreements were made by the Santa Fe with the holders of the remaining 18% of the Western stock.
4
On June 28, 1955, the Santa Fe entered into a contract to sell to the Pennsylvania Company, a wholly owned subsidiary of Pennsylvania, 50 % of fthe outstanding capital of Western at $135 per share,4 subject to approval of the Commission.
5
On July 8, 1955, the Santa Fe and Pennsylvania Company and its parent, Pennsylvania, applied to the Commission under § 5(2) of the Act5 for approval of those stock purchase agreements and the consequent joint control of Western. The Minneapolis intervened and objected to the application, as did also the States of Minnesota and South Dakota and their respective public service regulatory commissions.
6
Thereafter, on October 13, 1955, the Minneapolis applied to the Commission, under the same section of the Act, for authority to acquire sole control of Western, expressing its willingness to enter into contracts with Western's stockholders to purchase their stock at the same price and on the same terms as set forth in their existing contracts with the Santa Fe. The Santa Fe, the Pennsylvania Company and Pennsylvania intervened in the latter proceeding and objected to the Minneapolis application.
7
On motion of Minneapolis, the Commission consolidated the two proceedings. Thereafter, seven other railroads having interchange connections with Western's line intervened. Two of them sought authority, at all events,6 and two others of them sought authority, under stated conditions,7 to participate, under s 5(2)(d) of the Act, in the acquisition of the Western stock on an equal basis with the successful applicant. The State of Illinois, 18 cities or towns and seven chambers of commerce located on or along Western's line, two labor organizations representing Western's employees, and a large number of shippers over Western's line, intervened in support of the Santa Fe-Pennsylvania application and in opposition to the Minneapolis application.
8
After an extended consolidated hearing before him, the Commission's examiner issued a proposed report recommending approval of the Santa Fe-Pennsylvania application and dismissal of the Minneapolis application. Thereafter, upon exceptions, and briefs and arguments in their support, Division 4 of the Commission issued its report. It was confronted, as it said, with four alternative proposals, (1) for authorization of joint control of Western by the Santa Fe and Pennsylvania, (2) for authorization of sole control by the Minneapolis, (3) for authorization to two other railroads, at all events, and of two more railroads, under stated conditions, to participate in the acquisition of the Western stock on an equal basis with the successful applicant,8 and (4) denial of both applications.
9
The Commission observed that '(t)hese proceedings represent a new and more complicated phase in the administration of § 5, since (they involve) 2 applications for authority to control the same property, and petitions by 4 other carriers for inclusion in the transaction under varying circumstances.' It recognized that, under § 5(2) of the Act and the National Transportation Policy,9 it was required to 'weigh whether each application is consistent with the public interest, with or without inclusion of other railroads, considering not only other intervening petitioners seeking such inclusion but also the other applicant and nonparticipating railroads as well.' It thought that the burden of proof was 'most heavy for an applicant in a proceeding like this, because it must not only overbalance the claims of those seeking to share in the control but also of those seeking to exclude it from the transaction.' It conceived it to be its duty, under the Act and the National Transportation Policy, to 'arrive at a standard of public interest and determine which of the various plans of control most nearly approximates it.'
10
The Commission found that the Santa Fe-Pennsylvania plan contemplates that Western 'will continue to be operated as a separate and independent carrier with responsible management located along its lines'; that it 'will continue to maintain its own solicitation forces and will be entirely free to solicit traffic in such manner as best to serve the interests of the Western,' and that all 'existing routes and channels of trade via the Western will be maintained and kept open without discrimination between connecting lines of railroad.' It found, on the other hand, that the Minneapolis plan 'unequivocally contemplates the disappearance of the Western as an independent and neutral connection for the other 15 carriers with which it presently works'; that '(f)or all practical purposes the Western would be integrated, consolidated, and merged into the Minneapolis for ownership, management and operation'; that features of the Minneapolis plan 'would be extremely harmful to other carriers'; that Western's headquarters office at Peoria would be eliminated, leaving only a trainmaster and a roadmaster at that point, and that the employment of most of Western's 24 executives and 225 other employees would be severed.
11
The Commission further found that '(o)nly the Minneapolis and its supporting interveners, the States of Minnesota and South Dakota, advocate the disappearance of the Western as a separate and independent operating carrier,' and that all other parties to, and intervenors in, the proceedings 'insist that the separate and independent operation of the Western under its present local management is a public necessity.' It then found that the '(p)ublic interest demands that the present policies of the Western in all respects be continued.' It thereupon made the ultimate finding, required by § 5(2)(b) of the Act, that the acquisition and plan of operation by the Santa Fe and Pennsylvania, subject to stated conditions, was 'within the scope of § 5(2) of the Interstate Commerce Act, as amended; that the terms and conditions proposed (by them) are just and reasonable, and that the transaction will be consistent with the public interest.' The Commission then entered its order approving the Sante Fe-Pennsylvania application, dismissing the Minneapolis application, and denying the petitions of the several intervening railroads which sought to participate in the acquisition of the Western stock. 295 I.C.C. 523.
12
Thereafter, Minneapolis petitioned the whole Commission for a reconsideration, and alternatively requested that, if the approval of the Santa Fe-Pennsylvania application be permitted to stand, it be authorized to participate equally with those railroads in the purchase of Western's stock on the same terms. That petition was denied.
13
Minneapolis then timely filed a complaint in the District Court for Minnesota against the United States and the Interstate Commerce Commission to vacate the Commission's order. The States of Minnesota and South Dakota and their respective regulatory commissions, being interested in strengthening the Minneapolis, which operates in those States, intervened in support of the complaint. The defendants answered, asserting the full legality of the Commission's order. The Santa Fe, the Pennsylvania, the Pennsylvania Company, the State of Illinois, the 18 cities and seven chambers of commerce and the numerous shippers who were intervenors before the Commission, intervened in opposition to the complaint. The Nickel Plate intervened, complaining that the Commission had improperly denied its request to participate in the purchase of the Western stock.
14
A three-judge court was convened and, after hearing, rendered its opinion and judgment sustaining the Commission's order. 165 F.Supp. 893. On separate appeals by the Minneapolis, the State of Minnesota and its regulatory commission, and the State of South Dakota and its regulatory commission, the case was brought here and we noted probable jurisdiction. 359 U.S. 933, 79 S.Ct. 647, 3 L.Ed.2d 635. All of those who were defendants and intervenors in opposition to the complaint in the District Court, except the Nickel Plate, are appellees in this Court.
15
Minneapolis, supported by the States of Minnesota and South Dakota, contends, first, that the Commission improperly adopted at the outset of its report the standard of 'separate and independent management' of Western as the criterion governing the comparative merits of the rival plans, which was antithetic to its application, and thereby deprived it of 'fair comparative consideration,' and that the District Court erred in approving the Commission's action.
16
The record does not support that contention. Rather, it shows that the Commission's governing standard was the 'public interest,' although it ultimately did find that the public interest would be best served by Western's continued operation as a 'separate and independent carrier.' We believe that the recited findings show that the Commission carefully 'weighed' and considered 'each application' in its labors to determine which, if either, of them was 'consistent with the public interest.' Its subsidiary findings (a) that the Minneapolis plan 'unequivocally contemplates the disappearance of the Western as an independent and neutral connection for the other 15 carriers with which it presently works,' (b) that certain features of the Minneapolis plan 'would be extremely harmful to other carriers,' (c) that the Minneapolis plan contemplates the elimination of Western's office and the separation of its employees, and (d) that numerous witnesses insisted 'that the separate and independent operation of the Western under its present local management is a public necessity,' fully support its conclusional finding that the '(p)ublic interest demands that the present policies of Western in all respects be continued.' That finding, though antithetic to Minneapolis' application, did not deprive it of 'fair comparative consideration,' but, on the contrary, it seems to us, was made by the Commission after full and fair consideration, and the District Court did not err in so holding.
17
Appellants' principal contention appears to be that acquisition of control of Western by Santa Fe and Pennsylvania will create a combination in restraint of commerce in violation of § 1 of the Sherman Act10 and will lessen competition or tend to create a monoply in violation of § 7 of the Clayton Act,11 and that the Commission's approval of their application was an abuse of power.
18
On their face these contentions would seem to run in the teeth of the language and purpose of § 5(11) of the Interstate Commerce Act. That section, in substance, provides that 'The authority conferred by this section shall be exclusive and plenary, and any carrier or corporation participating in * * * any transaction approved by the Commission thereunder, shall have full power * * * to carry such transaction into effect and to own and operate any properties and exercise any control or franchises acquired through said transaction * * * and any carriers * * * participating in a transaction approved or authorized under the provisions of this section shall be and they are hereby relieved from the operation of the antitrust laws and all other restraints, limitations, and prohibitions of law * * * insofar as may be necessary to enable (it) to carry into effect the transaction so approved or provided for in accordance with the terms and conditions, if any, imposed by the Commission, and to hold, maintain, and operate any properties and exercise any control or franchises acquired through such transaction.' 24 Stat. 380, as amended, 54 Stat. 908, 49 U.S.C. § 5(11), 49 U.S.C.A. § 5(11).
19
Section 5(11) is both a more recent and a more specific expression of congressional policy than § 1 of the Sherman Act and § 7 of the Clayton Act, and in terms relieves the acquiring carrier, upon approval by the Commission of the acquisition, 'from the operation of the antitrust laws * * *.' Although § 5(11) does not authorize the Commission to 'ignore' the antitrust laws, McLean Trucking Co. v. United States, 321 U.S. 67, 80, 64 S.Ct. 370, 88 L.Ed. 544, there can be 'little doubt that the Commission is not to measure proposals for (acquisitions) by the standards of the antitrust laws.' 321 U.S. at page 85—86, 64 S.Ct. at page 379. The problem is one of accommodation of § 5(2) and the antitrust legislation. The Commission remains obligated to 'estimate the scope and appraise the effects of the curtailment of competition which will result from the proposed (acquisition) and consider them along with the advantages of improved service (and other matters in the public interest) to determine whether the (acquisition) will assist in effectuating the over-all transportation policy.' 321 U.S. at page 87, 64 S.Ct. at page 381.
20
Even though such acquisitions might otherwise violate the antitrust laws, Congress has authorized the Commission to approve them, if it finds they are in the public interest, 'because it recognized that in some circumstances they were appropriate for effectuation of the national transportation policy. It was informed that this policy would be furthered by 'encouraging the organization of stronger units' in the * * * industry. And in authorizing those (acquisitions) it did not import the general policies of the anti-trust laws as a measure of their permissibility. It in terms relieved participants in appropriae (acquisitions) from the requirements of those laws. § 5(11).' 321 U.S. at page 85, 64 S.Ct. at page 379. It must be presumed that, in enacting this legislation, Congress took account of the fact that railroads are subject to strict regulation and supervision. 'Against this background, no other inference is possible but that, as a factor in determining the property of (railroad acquisitions) the preservation of competition among carriers, although still a value, is significant chiefly as it aids in the attainment of the objective of the National transportation policy.' 321 U.S., at pages 85—86, 64 S.Ct. at page 380.
21
As respects railroad acquisitions, the Commission is not so bound by the antitrust laws that it must permit them to overbear what it finds to be in 'the public interest.' A contrary view would, in effect, permit the Commission to authorize only those acquisitions which would not offend those laws. 'As has been said, this would render meaningless the exemption relieving the participants in a properly approved (acquisition) of the requirements of those laws * * *.' 321 U.S. at page 86, 64 S.Ct. at page 380. Resolution of the conflicting considerations 'is a complex task which requires extensive facilities, expert judgment and considerable knowledge of the transportation industry. Congress left that task to the Commission 'to the end that the wisdom and experience of that Commission may be used not only in connection with this form of transportation, but in its coordination of all other forms.' 79 Cong.Rec. 12207. 'The wisdom and experience of that commission,' not of the courts, must determine whether the proposed (acquisition) is 'consistent with the public interest.' Cf. Interstate Commerce Commission v. Illinois Central R. Co., 215 U.S. 452, 30 S.Ct. 155, 54 L.Ed. 280; Pennsylvania Co. v. United States, 236 U.S. 351, 35 S.Ct. 370, 59 L.Ed. 616; United States v. Chicago Heights Trucking Co., 310 U.S. 344, 60 S.Ct. 931, 84 L.Ed. 1243; Purcell v. United States, 315 U.S. 381, 62 S.Ct. 709, 86 L.Ed. 910.' 321 U.S. at pages 87—88, 64 S.Ct. at page 381.
22
Here, the Commission gave extensive consideration to the anti-competitive contentions advanced by appellants, devoting more than five pages of its report to that matter. It found that '(a)ll the carriers endeavoring to participate in its control are in competition with Western'; that the 'important thing is not whether there is possibility of competition, but whether there is probability of existing or potential competition being diminished or strangled by the Western under the control of the Santa Fe and the Pennsylvania.' After an extended analysis of the complex facts and conflicting evidence, the Commission found that control of Western by the Santa Fe and Pennsylvania would not result in any significant lessening of competition. It pointed to the fact that although the Santa Fe's 'long haul' is to Chicago and the Pennsylvania's 'next to longest haul' is also to Chicago (its longest haul being to St. Louis) the Santa Fe has agreed, and is bound, 'to place Lomax on a parity with Chicago from a solicitation standpoint, and * * * the Pennsylvania will recognize Effner as one of its principal interchanges along with Chicago and St. Louis'; that 'there may be some diversion of traffic, but such diversion would not jeopardize the maintenance of adequate transportation service by the objecting intervening carriers.'
23
The Commission also pointed to the fact that Western had been in a prolonged receivership until 1927 when George P. McNear acquired its stock at a receiver's sale, Toledo, P. & W.R. Co. Acquisition, 124 I.C.C. 181. It further found that Western's modern existence began at that time and, under the guidance of McNear, was built into a fine railroad; that since McNear's death, in 1947, the present management has continued, with much success, the policies he established. Those policies, the Commission found, were, and are, 'to maintain strict neutrality between all connections, and to participate in any haul of traffic no matter how slight (as a bridge) carrier through Peoria as an alternative route, bypassing the congested terminals of Chicago and St. Louis,' and that those policies are to be continued under the Santa Fe-Pennsylvania plan.
24
We think it is clear from this summary of its analysis and findings that the Commission fully estimated the scope and appraised the effects of any curtailment of competition which might result from the acquisition of Western by the Santa Fe and Pennsylvania, and, after having done so, concluded that their acquisition and plan of operation of Western lessening of competition. Congress has ilessening of competition. Congress has left the task of making that determination to the wisdom and experience of the Commission. The determination it has made rests upon adequate findings which are, in turn, supported by substantial evidence and is well within the limits of its discretion under the Act.
25
Appellants argue that the Pennsylvania, in actuality, contracted to purchase 50% of the Western stock from Wilmington Trust Company, a co-trustee of the McNear trust, and that, since four persons were directors of both companies, that proposed stock purchase violates § 10 of the Clayton Act; that the Commission was without power to approve it; that, in any event, its action in 'condoning' it was an abuse of power; and that the District Court, for those reasons also, erred in upholding the Commission's order.
26
The Commission found that the Santa Fe in entering into the contract of May 26, 1955, with the trustees of the McNear trust was 'acting on behalf of that carrier alone.' But even if we assume, for present purposes, that it was acting as well for the Pennsylvania, the result must be the same. Section 10 of the Clayton Act prohibits a common carrier engaged in commerce from having 'any dealings in securities' of more than $50,000, in the aggregate, in any one year, 'with another corporation, * * * when the said common carrier shall have upon its board of directors * * * any person who is at the same time a director * * * (of) such other corporation * * * except such purchases (as) shall be made * * * by competitive bidding under regulations to be prescribed by (the) Commission.' 38 Stat. 734, 15 U.S.C. § 20, 15 U.S.C.A. § 20.
27
Section 10 of the Clayton Act is, of course, an antitrust law,12 and much of what we have just said relative to the problem of accommodation of § 5(2) of the Interstate Commerce Act and the antitrust laws is equally applicable to this contention. The evident purpose of § 10 of the Clayton Act was to prohibit a corporation from abusing a carrier by palming off upon it securities, supplies and other articles without competitive bidding and at excessive prices through overreaching by, or other misfeasance of, common directors, to the financial injury of the carrier and the consequent impairment of its ability to serve the public interest.13 But, even if this purchase of securities might, under other circumstances, violate § 10 of the Clayton Act, Congress, by § 5(11) of the Interstate Commerce Act, has authorized the Commission to approve it if it finds that so doing is in the public interest. And Congress has expressly said that, upon such approval, the carrier shall be relieved 'from the operation of the antitrust laws * * *.' A contrary view would, in effect, permit the Commission to authorize only those tock purchases which would not, in the absence of § 5(11), offend the antitrust laws. 'As has been said, this would render meaningless the exemption relieving the participants in a properly approval (acquisition) of the requirements of those laws * * *.' McLean Trucking Co. v. United States, supra, 321 U.S. at page 86, 64 S.Ct. at page 380.
28
Here, the Commission fully considered the contracts under which the Pennsylvania proposes to acquire a 50% interest in the Western stock and all other factors bearing on that matter and, after doing so, approved them. That action by the Commission did not exceed the statutory limits within which Congress has confined its discretion.
29
Minneapolis contends that § 5(11) operates only in futuro and confers 'no authority to purge the taint of a transaction illegal at the time it was brought to the Commission.' Whether there is merit in that contention, as a legal abstraction, we need not decide, for here the existing contractual arrangements through which Pennsylvania asks authority to acquire 50% of the Western stock look entirely to the future. Neither the stock sale and purchase contract between the trustees and the Santa Fe nor the one between the Santa Fe and the Pennsylvania Company is a consummated transaction, but each is expressly subject to, and will become effective only upon, approval by the Commission. Apart from criminal prosecutions, with which we are not here concerned, it seems plain that approval of an acquisition by the Commission operates under § 5(11), as that section says, to relieve the acquiring carrier 'from the operation of the antitrust laws * * *.'
30
Appellants next contend that the Commission violated § 8(b) of the Administrative Procedure Act by failing to make findings which, they think, were compelled by the evidence.
31
There can be no doubt that the Administrative Procedure Act applies to proceedings before the Commission, Riss & Co. v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345, and see Chicago & Eastern Illinois R. Co. v. United States, 344 U.S. 917, 73 S.Ct. 346, 97 L.Ed. 707.
The last sentence of § 8(b) provides:
32
'All (administrative) decisions * * * shall become part of the record and include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record; and (2) the appropriate rule, order, sanction, relief, or denial thereof.'14
33
Upon the basis of that language, appellants argue that the Commission should have found that the price which the Santa Fe agreed to pay for the Western stock of $135 per share was excessive. Though the Commission made no express finding upon that matter it did discuss it, pointing out that the certified value of Western's properties for ratemaking purposes was more than $13,500,000; that it has no outstanding preferred stock and is relatively free of debt; that it has a fine earning record; that the transaction was at arm's length; that Minneapolis had offered $133 per share for the stock within a few days of the time when the Santa Fe contracted for its purchase at $135 per share; and that the Minneapolis sought authority in this proceeding to acquire the stock at the same price. The Commission concluded that if $135 per share was a fair price for the one it was also for the other.
34
Upon the same basis, appellants also argue that the Commission should have found that the Minneapolis application was in the public interest in that its acquisition of Western would greatly strengthen both Minneapolis and Western by eliminating many duplicating facilities and by reducing operating expenses by more than $1,770,000 annually. The Commission did not make a specific finding upon that matter, but it did give consideration to it and found that most of that saving—more than $1,300,000 annually—would be at the expense of Western's employees—a matter which, because of the express command of clause 4 of § 5(2)(c) of the Interstate Commerce Act (see note 1), it evidently thought was not consistent with the public interest. Appellants further argue that the Commission should have found that the Minneapolis plan afforded adequate protection to Western's employees by providing for their absorption into the Minneapolis as attrition among its own employees permitted. Again, although the Commission made no specific finding upon that contention it did consider and discuss it, and we think the law required no more.
35
Appellants challenge the Commission's failure to make a number of other subsidiary findings, all of which have been considered, but we find that they relate to contentions that are so collateral or immaterial that the law did not require specific findings upon them. By the express terms of § 8(b), the Commission is not required to make subordinate findings on every collateral contention advanced, but only upon those issues of fact, law, or discretion which are 'material.' From a thorough examination of the record, we are persuaded that the Commission has made adequate subsidiary findings upon all material issues and has made the ultimate findings required by § 5(2), that they support the Commission's order, and are, in turn, supported by substantial evidence.
36
Finally, appellants contend that the District Court, because of inadequate subsidiary findings by the Commission, was unable to, or at least did not, afford them a proper judicial review, and merely 'rubber stamped' the Commission's order. Whether or not we approve all of the reasons and legal conclusions of the District Court, it is clear that it fairly considered and decided all of the issues raised by appellants, accorded to them a full and fair judicial review, and reached a right result. Accordingly the judgment is affirmed.
37
Affirmed.
38
Mr. Justice DOUGLAS dissents.
1
Section 5(2) of the Interstate Commerce Act (24 Stat. 380, as amended, 54 Stat. 905, 49 U.S.C. § 5(2), 49 U.S.C.A. § 5(2)) provides, in pertinent part, that:
'(a) It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b) of this paragraph—
'(i) for * * * two or more carriers jointly, to acquire control of another through ownership of its stock or otherwise * * *.
'(b) Whenever a transaction is proposed under subdivision (a) of this paragraph, the carrier * * * seeking authority therefor shall present an application to the Commission, and thereupon the Commission shall notify (designated parties), and shall afford reasonable opportunity for interested parties to be heard. If the Commission shall consider it necessary in order to determine whether the findings specified below may properly be made, it shall set said application for public hearing; and a public hearing shall be held in all cases where carriers by railroad are involved unless the Commission determines that a public hearing is not necessary in the public interest. If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed transaction is within the scope of subdivision (a) of this paragraph and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable * * *.
'(c) In passing upon any proposed transaction under the provisions of this paragraph, the Commission shall give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees anected.
'(d) The Commission shall have authority in the case of a proposed transaction under this paragraph involving a railroad or railroads, we a prerequisite to its approval of the proposed transaction, to require, upon equitable terms, the inclusion of another railroad or other railroads in the territory involved, upon petition by such railroad or railroads requesting such inclusion, and upon a finding that such inclusion is consistent with the public interest.
'(f) As a condition of its approval, under this paragraph, of any transaction involving a carrier or carriers by railroad subject to the provisions of this chapter, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected * * *.'
2
The term 'bridge carrier' appears to mean a short-line carrier which transports through traffic from one long-line carrier to another.
3
During the negotiations, Minneapolis first offered $69.50, and later $80, per share for the stock. On April 15, 1955, the Santa Fe and Pennsylvania each obtained letter commitments from the trustees for the sale to each of them of 26% of the Western stock at a price of $100 per share. (Near the same time the Rock Island made a like offer to the trustees for 26% of the Western stock, but that offer was not accepted.) But a dispute arose—and apparently still exists between the trustees and Pennsylvania—with respect to the validity of those commitments. Thereupon, Minneapolis offered the trustees $133 per share for the Western stock, but that offer was not accepted, and on May 26, 1955, the Santa Fe, acting, as the Commission found, 'on behalf of that carrier alone,' agreed with the trustees for the sale by the latter and purchase by the former of all the Western stock held by the trustees at a price of $135 per share, and those parties on that date entered into a contract, accordingly, subject to approval of the Commission.
4
The contract of June 28, 1955, between the Santa Fe and the Pennsylvania Company provided that it was without prejudice to any claims, causes of action or rights which Pennsylvania may have against the trustees of the McNear estate with respect to the letter commitment of April 15, 1955, for the sale by the trustees to Pennsylvania of 26% of the Western stock; and that, in the event Pennsylvania should acquire from the trustees, under that letter commitment, all or any part of such shares, the obligation of the Santa Fe under the contract to sell Western shares to the Pennsylvania Company was to be reduced accordingly. It appears that litigation was then, and is yet, pending by Pennsylvania against the trustees for the enforcement of the letter commitment of April 15, 1955.
The contract also contained a covenant which, in essence, provided that (1) Western 'will continue to be operated as a separate and independent carrier with responsible management located alone its lines in order to preserve to shippers and communities the present direct access to its officials,' (2) that Western's properties will be maintained and improved, (3) that Western 'will continue to maintain its own solicitation forces and will be entirely free to solicit traffic in such manner as best to serve the interests of' Western, (4) that all 'existing routes and channels of trade via (Western) will be maintained and kept open without discrimination between connecting lines of railroad,' and (5) that the Board of Directors of Western shall consist of 11 members, of whom one shall be the president of the company, two shall be officers of the Santa Fe, two shall be officers of the Pennsylvania Company, or Pennsylvania, or both, and the remaining six shall be prominent citizens not connected with either of the parties but selected by them through mutual agreement.
5
See note 1.
6
The New York, Chicago & St. Louis Railroad Company ('Nickel Plate') and the Chicago, Rock Island & Pacific Railroad Company ('Rock Island') sought authority, under § 5(2)(d) of the Act (see note 1), to be included in the acquisition of Western's stock on an equal basis with the successful applicant or applicants.
7
The Chicago, Burlington & Quincy Railroad Company ('Burlington') and the Wabash Railroad Company ('Wabash') did not object to approval of the Santa Fe-Pennsylvania application, provided the order required continuation of present routes and channels of trade via existing junctions and gateways and of all existing traffic and operating relations and arrangements, but they asked, in the event any railroad other than the Santa Fe and Pennsylvania be authorized to acquire an interest in Western's stock, that they, too, be authorized to participate therein to the same extent as any such other railroad.
The Illinois Central Railroad Company ('Illinois Central'), the Gulf, Mobile & Ohio Railroad Company ('Gulf') and the Chicago & North Western Railway Company ('North Western') asked that, if either application be approved, the order be conditioned to require the maintenance of all routes and channels of trade via existing gateways. The Monon Railroad Company asked that if the Santa Fe-Pennsylvania application be approved, the order contain a requirement that Pennsylvania shall grant to it certain trackage rights, and, if not done, that the Santa Fe-Pennsylvania application be denied.
8
See notes 6 and 7.
9
49 U.S.C. note preceding section 1, 49 Stat. 543, 49 U.S.C.A. note preceding section 1.
10
15 U.S.C. § 1, 26 Stat. 209, 15 U.S.C.A. § 1.
11
15 U.S.C. § 18, 38 Stat. 731, 15 U.S.C.A. § 18.
12
It is clear that § 10 of the Clayton Act is included in the 'antitrust laws' referred to in § 5(11) of the Interstate Commerce Act. Section 1 of the Clayton Act, 15 U.S.C. (1952 ed.) § 12, 15 U.S.C.A. § 12, provides that "Anti-trust laws,' as used in sections 12, 13, 14—21, and 22—27 of this title, includes sections 1—27 of this title.' Moreover, § 5(11) avoids any ambiguity by including 'all other restraints, limitations, and prohibitions of law, Federal, State, or municipal.'
13
The legislative history of § 10 of the Clayton Act, though meager, supports the view stated in the text. In fact, the language of the several drafts of § 10, together with the types of abuses cited in support of its enactment, suggests strongly that the words 'dealings in securities' were intended to cover only a carrier's dealings with related persons in its own securities. See H.R.Rep.No.627, 63d Cong., 2d Sess., p. 3; S.Rep.No.698, 63d Cong., 2d Sess., pp. 47—48; S.Doc.No.585, 63d Cong., 2d Sess., pp. 8—9: 51 Cong.Rec. 15943.
14
60 Stat. 242, 5 U.S.C. § 1007(b), 5 U.S.C.A. § 1007(b).
| 78
|
361 U.S. 147
80 S.Ct. 215
4 L.Ed.2d 205
Eleazar SMITH, Appellant,v.PEOPLE OF THE STATE OF CALIFORNIA.
No. 9.
Argued Oct. 20, 1959.
Decided Dec. 14, 1959.
Rehearing Denied Jan. 25, 1960.
Motion to Vacate Denied June 13, 1960.
See 361 U.S. 950, 80 S.Ct. 399.
Stanley Fleishman, Hollywood, Cal., and Sam Rosenwein, Washington, D.C., for appellant.
Roger Arnebergh, Los Angeles, Cal., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Appellant, the proprietor of a bookstore, was convicted in a California Municipal Court under a Los Angeles City ordinance which makes it unlawful 'for any person to have in his possession any obscene or indecent writing, (or) book * * * in any place of business where * * * books * * * are sold or kept for sale.'1 The offense was defined by the Municipal Court, and by the Appellate Department of the Superior Court,2 which affirmed the Municipal Court judgment imposing a jail sentence on appellant, as consisting solely of the possession, in the appellant's bookstore, of a certain book found upon judicial investigation to be obscene. The definition included no element of scienter—knowledge by appellant of the contents of the book—and thus the ordinance was construed as imposing a 'strict' or 'absolute' criminal liability.3 The appellant made timely objection below that if the ordinance were so construed it would be in conflict with the Constitution of the United States. This contention, together with other contentions based on the Constitution,4 was rejected, and the case comes here on appeal. 28 U.S.C. s 1257(2), 28 U.S.C.A. § 1257(2); 358 U.S. 926, 79 S.Ct. 317, 3 L.Ed.2d 299.
2
Almost 30 years ago, Chief Justice Hughes declared for this Court: 'It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property * * *.' Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625, 628, 75 L.Ed. 1357. It is too familiar for citation that such has been the doctrine of this Court, in respect of these freedoms, ever since. And it also requires no elaboration that the free publication and dissemination of books and other forms of the printed word furnish very familiar applications of these constitutionally protected freedoms. It is of course no matter that the dissemination takes place under commercial auspices. See Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660. Certainly a retail bookseller plays a most significant role in the process of the distribution of books.
3
California here imposed a strict or absolute criminal responsibility on appellant not to have obscene books in his shop. 'the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.' Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137.5 Still, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element of scienter—though even where no freedom-of-expression question is involved, there is precedent in this Court that this power is not without limitations. See Lambert v. People of State of California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228. But the question here is as to the validity of this ordinance's elimination of the scienter requirement—an elimination which may tend to work a substantial restriction on the freedom of speech and of the press. Our decisions furnish examples of legal devices and doctrines in most applications consistent with the Constitution, which cannot be applied in settings where they have the collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to exercise it. The States generally may regulate the allocation of the burden of proof in their courts, and it is a common procedural device to impose on a taxpayer the burden of proving his entitlement to exemptions from taxation, but where we conceived that this device was being applied in a manner tending to cause even a self-imposed restriction of free expression, we struck down its application. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460. See Near v. State of Minnesota ex rel. Olson, supra, 283 U.S. at pages 712—713, 51 S.Ct. at pages 629—630. It has been stated here that the usual doctrines as to the separability of constitutional and unconstitutional applications of statutes may not apply where their effect is to leave standing a statute patently capable of many unconstitutional applications, threatening those who validly exercise their rights of free expression with the expense and inconvenience of criminal prosecution. Thornhill v. State of Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741, 742, 84 L.Ed. 1093. Cf. Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302.6 And this Court has intimated that stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. Winters v. People of State of New York, 333 U.S. 507, 509—510, 517—518, 68 S.Ct. 665, 667, 671, 92 L.Ed. 840. Very much to the point here, where the question is the elimination of the mental element in an offense, is this Court's holding in Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. There an oath as to past freedom from membership in subversive organizations, exacted by a State as a qualification for public employment, was held to violate the Constitution in that it made no distinction between members who had, and those who had not, known of the organization's character. The Court said of the elimination of scienter in this context: 'To thus inhibit individual freedom of movement is to stifle the flow of democratic expression and controversy at one of its chief suorces.' Id., 344 U.S. at page 191, 73 S.Ct. at page 219.
4
These principles guide us to our decision here. We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.7 The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an obscene book. But our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold. The appellee and the court below analogize this strict-liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example. We find the analogy instructive in our examination of the question before us. The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors—in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used. Cf. United States v. Balint, 258 U.S. 250, 252 253, 254, 42 S.Ct. 301, 302, 303, 66 L.Ed. 604. His ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of good the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose,8 he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: 'Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.'9 The King v. Ewart, 25 N.Z.L.R. 709, 729 (C.A.). And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.
5
It is argued that unless the scienter requirement is dispensed with, regulation of the distribution of obscene material will be ineffective, as booksellers will falsely disclaim knowledge of their books' contents or falsely deny reason to suspect their obscenity. We might observe that it has been some time now since the law viewed itself as impotent to explore the actual state of a man's mind. See Pound, The Role of the Will in Law, 68 Harv.L.Rev. 1. Cf. American Communications Ass'n, C.I.O., v. Douds, 339 U.S. 382, 411, 70 S.Ct. 674, 690, 94 L.Ed. 925. Eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained, despite his denial.
6
We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene, but we consider today only one which goes to the extent of eliminating all mental elements from the crime.
7
We have said: 'The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.' Roth v. United States, supra, 354 U.S. at page 488, 77 S.Ct. at page 1311.10 This ordinance opens that door too far. The existence of the State's power to prevent the distribution of obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise of that power. Cf. Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329. It is plain to us that the ordinance in question, though aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.
8
Reversed.
9
Mr. Justice BLACK, concurring.
10
The appellant was sentenced to prison for possessing in his bookstore an 'obscene' book in violation of a Los Angeles city ordinance.1 I concur in the judgment holding that ordinance unconstitutional, but not for the reasons given in the Court's opinion.
11
The Court invalidates the ordinance solely because it penalizes a bookseller for mere possession of an 'obscene' book, even though he is unaware of its obscenity. The grounds on which the Court draws a constitutional distinction between a law that punishes possession of a book with knowledge of its 'obscenity' and a law that punishes without such knowledge are not persuasive to me. Those grounds are not conviction of a bookseller for possession of an 'obscene' book when he is unaware of its obscenity 'will tend to restrict the books he sells to those he has inspected,' and therefore 'may tend to work a substantial restriction on freedom of speech.' The fact is, of course, that prison sentences for possession of 'obscene' books will seriously burden freedom of the press whether punishment is imposed with or without knowledge of the obscenity. The Court's opinion correctly points out how little extra burden will be imposed on prosecutors by requiring proof that a bookseller was aware of a book's contents when he possessed it. And if the Constitution's requirement of knowledge is so easily met, the result of this case is that one particular bookseller gains his freedom, but the way is left open for state censorship and punishment of all other booksellers by merely adding a few new words to old censorship laws. Our constitutional safeguards for speech and press therefore gain little. Their victory, if any, is Pyrrhic one. Cf. Beauharnais v. People of State of Illinois, 343 U.S. 250, 267, at page 275, 72 S.Ct. 725, 736, at page 739, 96 L.Ed. 919 (dissenting opinion).
12
That it is apparently intended to leave the way open for both federal and state governments to abridge speech and press (to the extent this Court approves) is also indicated by the following statements in the Court's opinion: "The door barring federal and state intrusion into this area (freedom of speech and press) cannot be left ajar; it must be kept hightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.' * * * This ordinance opens that door too far.' This statement raises a number of questions for me. What are the 'more important' interests for the protection of which constitutional freedom of speech and press must be given second place? What is the standard by which one can determine when abridgment of speech and press goes 'too far' and when it is slight enough to be constitutionally allowable? Is this momentous decision to be left to a majority of this Court on a case-by-case basis? What express provision or provisions of the Constitution put freedom of speech and press in this precarious position of subordination and insecurity?
13
Certainly the First Amendment's language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that 'Congress shall make no law * * * abridging the freedom of speech, or of the press.' I read 'no law * * * abridging' to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly 'beyond the reach' of federal power to abridge.2 No other provision of the Constitution purports to dilute the scope of these unequivocal commands of the First Amendment. Consequently, I do not believe that any federal agencies, including Congress and this Court, have power or authority to subordinate speech and press to what they think are 'more important interests.' The contrary notion is, in my judgment, court-made not Constitution-made.
14
State intrusion or abridgment of freedom of speech and press raises a different question, since the First Amendment by its terms refers only to laws passed by Congress. But I adhere to our prior decisions holding that the Fourteenth Amendment made the First applicable to the State. See cases collected in the concurring opinion in Speiser v. Randall, 357 U.S. 513, 530, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460. It follows that I am for reversing this case because I believe that the Los Angeles ordinance sets up a censorship in violation of the First and Fourteenth Amendments.
15
If, as it seems, we are on the way to national censorship, I think it timely to suggest again that there are grave doubts in my mind as to the desirability or constitutionality of this Court's becoming a Supreme Board of Censors—reading books and viewing television performances to determine whether, if permitted, they might adversely affect the morals of the people throughout the many diversified local communities in this vast country.3 It is true that the ordinance here is on its face only applicable to 'obscene or indecent writing.' It is also true that this particular kind of censorship is considered by many to be 'the obnoxious thing in its mildest and least repulsive form * * *.' But 'illegitimate and unconstitutional practices get their first footing in that way * * *. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746. While it is 'obscenity and indecency' before us today, the experience of mankind—both ancient and modern—shows that this type of elastic phrase can, and most likely will, be synonymous with the political and maybe with the religious unorthodoxy of tomorrow.
16
Censorship is the deadly enemy of freedom and progress. The plain language of the Constitution forbids it. I protest against the Judiciary giving it a foothold here.
17
Mr. Justice FRANKFURTER, concurring.
18
The appellant was convicted of violating the city ordinance of Los Angeles prohibiting possession of obscene books in a bookshop. His conviction was affirmed by the highest court of California to which he could appeal and it is the judgment of that court that we are asked to reverse. Appellant claims three grounds of invalidity under the Due Process Clause of the Fourteenth Amendment. He urges the invalidity of the ordinance as an abridgment of the freedom of speech which the guarantee of 'liberty' of the Fourteenth Amendment safeguards against state action, and this for the reason that California law holds a bookseller criminally liable for possessing an obscene book, wholly apart from any scienter on his part regarding the book's obscenity. The second constitutional infirmity urged by appellant is the exclusion of appropriately offered testimony through duly qualified witnesses regarding the prevailing literary standards and the literary and moral criteria by which books relevantly comparable to the book in controversy are deemed not obscene. This exclusion deprived the appellant, such is the claim, of important relevant testimony bearing on the issue of obscenity and therefore restricted him in making his defense. The appellant's ultimate contention is that the questioned book is not obscene and that a bookseller's possession of it could not be forbidden.
19
The Court does not reach, and neither do I, the issue of obscenity. The Court disposes of the case exclusively by sustaining the appellant's claim that the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment precludes a State from making the dissemination of obscene books an offense merely because a book in a bookshop is found to be obscene without some proof of the bookseller's knowledge touching the obscenity of its contents.
20
The Court accepts the settled principle of constitutional law that traffic in obscene literature may be outlawed as a crime. But it holds that one cannot be made amenable to such criminal outlawry unless he is chargeable with knowledge of the obscenity. Obviously the Court is not holding that a bookseller must familiarize himself with the contents of every book in his shop. No less obviously, the Court does not hold that a bookseller who insulates himself against knowledge about an offending book is thereby free to maintain an emporium for smut. How much or how little awareness that a book may be found to be obscene suffices to establish scienter, or what kind of evidence may satisfy the how much or the how little, the Court leaves for another day.
21
iI am no friend of deciding a case beyond what the immediate controversy requires, particularly when the limits of constitutional power are at stake. On the other hand, a case before this Court is not just a case. Inevitably its disposition carries implications and gives directions beyond its particular facts. Were the Court holding that this kind of prosecution for obscenity requires proof of the guilty mind associated with the concept of crimes deemed infamous, that would be that and no further elucidation would be needed. But if the requirement of scienter in obscenity cases plays a role different from the normal role of mens rea in the definition of crime, a different problem confronts the Court. If, as I assume, the requirement of scienter in an obscenity prosecution like the one before us does not mean that the bookseller must have read the book or must substantially know its contents on the one hand, nor on the other that he can exculpate himself by studious avoidance of knowledge about its contents, then, I submit, invalidating an obscenity statute because a State dispenses altogether with the requirement of scienter does require some indication of the scope and quality of scienter that is required. It ought at least to be made clear, and not left for future litigation, that the Court's decision in its practical effect is not intended to nullify the conceded power of the State to prohibit booksellers from trafficking in obscene literature.
22
Of course there is an important difference in the scope of the power of a State to regulate what feeds the belly and what feeds the brain. The doctrine of United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604, has its appropriate limits. The rule that scienter is not required in prosecutions for so-called public welfare offenses is a limitation on the general principle that awareness of what one is doing is a prerequisite for the infliction of punishment. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. The balance that is struck between this vital principle and the overriding public menace inherent in the trafficking in noxious food and drugs cannot be carried over in balancing the vital role of free speech as against society's interest in dealing with pornography. On the other hand, the constitutional protection of non-obscene speech cannot absorb the constitutional power of the States to deal with obscenity. It would certainly wrong them to attribute to Jefferson or Madison a doctrinaire absolutism that would bar legal restriction against obscenity as a denial of free speech.1 We have not yet been told that all laws against defamation and against inciting crime by speech, see Fox v. State of Washington, 1915, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573, are unconstitutional as impermissible curbs upon unrestrictable utterance. We know this was not Jefferson's view, any more than it was the view of Holmes and Brandeis, JJ., the originating architects of our prevailing constitutional law protective of freedom of speech.
23
Accordingly, the proof of scienter that is required to make prosecutions for obscenity constitutional cannot be of a nature to nullify for all practical purposes the power of the State to deal with obscenity. Out of regard for the State's interest, the Court suggests an unguiding, vague standard for establishing 'awareness' by the bookseller of the contents of a challenged book in contradiction of his disclaimer of knowledge of its contents. A bookseller may, of course, be well aware of the nature of a book and its appeal without having opened its cover, or, in any true sense, having knowledge of the book. As a practical matter therefore the exercise of the constitutional right of a State to regulate obscenity will carry with it some hazard to the dissemination by a bookseller of non-obscene literature. Such difficulties or hazards are inherent in many domains of the law for the simple reason that law cannot avail itself of factors ascertained quantitatively or even wholly impersonally.
24
The uncertainties pertaining to the scope of scienter requisite for an obscenity prosecution and the speculative proof that the issue is likely to entail, are considerations that reinforce the right of one charged with obscenity—a right implicit in the very nature of the legal concept of obscenity—to enlighten the judgment of the tribunal, be it the jury or as in this case the judge, regarding the prevailing literary and moral community standards and to do so through qualified experts. It is immaterial whether the basis of the exclusion of such testimony is irrelevance, or the incompetence of experts to testify to such matters. The two reasons coalesce, for community standards or the psychological or physiological consequences of questioned literature can as a matter of fact hardly be established except through experts. Therefore, to exclude such expert testimony is in effect to exclude as irrelevant evidence that goes to the very essence of the defense and therefore to the constitutional safeguards of due process. The determination of obscenity no doubt rests with judge or jury. Of course the testimony of experts would not displace judge or jury in determining the ultimate question whether the particular book is obscene, any more than the testimony of experts relating to the state of the art in patent suits determines the patentability of a controverted device.
25
There is no external measuring rod for obscenity. Neither, on the other hand, is its ascertainment a merely subjective reflection of the taste or moral outlook of individual jurors or individual judges. Since the law through its functionaries is 'applying contemporary community standards' in determining what constitutes obscenity, Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, it surely must be deemed rational, and therefore relevant to the issue of obscenity, to allow light to be shed on what those 'contemporary community standards' are. Their interpretation ought not to depend solely on the necessarily limited, hit-or-miss, subjective view of what they are believed to be by the individual juror or judge. It bears repetition that the determination of obscenity is for juror or judge not on the basis of his personal upbringing or restricted reflection or particular experience of life, but on the basis of 'contemporary community standards.' Can it be doubted that there is a great difference in what is to be deemed obscene in 1959 compared with what was deemed obscene in 1859? The difference derives from a shift in community feeling regarding what is to be deemed prurient or not prurient by reason of the effects attributable to this or that particular writing. Changes in the intellectual and moral climate of society, in part doubtless due to the views and findings of specialists, afford shifting foundations for the attribution. What may well have been consonant 'with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time.' United States v. Kennerley, D.C., 209 F. 119, 120. This was the view of Judge Learned Hand decades ago reflecting an atmosphere of propriety much closer to mid-Victorian days than is ours. Unless we disbelieve that the literary, psychological or moral standards of a community can be made fruitful and illuminating subjects of inquiry by those who give their life to such inquiries, it was violative of 'due process' to exclude the constitutionally relevant evidence proffered in this case. The importance of this type of evidence in prosecutions for obscenity has been impressively attested by the recent debates in the House of Commons dealing with the insertion of such a provision in the enactment of the Obscene Publications Act, 1959, 7 & 8 Eliz. 2, Ch. 662 (see 597 Parliamentary Debates, H.Comm., No. 36 (December 16, 1958) cols. 1009—1010, 1042—1043; 604 Parliamentary Debates, H.Comm., No. 100 (April 24, 1959), col. 803), as well as by the most considered thinking on this subject in the proposed Model Penal Code of the American Law Institute. See A.L.I. Model Penal Code, Tentative Draft No. 6 (1957), § 207.103 For the reasons I have indicated, I would make the right to introduce such evidence a requirement of due process in obscenity prosecutions.
26
Mr. Justice DOUGLAS, concurring.
27
I need not repeat here all I said in my dissent in Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498, to underline my conviction that neither the author nor the distributor of this book can be punished under our Bill of Rights for publishing or distributing it. The notion that obscene publications or utterances were not included in free speech developed in this country much later than the adoption of the First Amendment, as the judicial and legislative developments in this country show. Our leading authorities on the subject have summarized the matter as follows:
28
'In the United States before the Civil War there were few reported decisions involving obscene literature. This of course is no indication that such literature was not in circulation at that time; the persistence of pornography is entirely too strong to warrant such an inference. Nor is it an indication that the people of the time were totally indifferent to the proprieties of the literature they read. In 1851 Nathaniel Hawthorne's The Scarlet Letter was bitterly attacked as an immoral book that degraded literature and encouraged social licentiousness. The lack of cases merely means that the problem of obscene literature was not thought to be of sufficient importance to justify arousing the forces of the state to censorship.' Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 324—325.
29
Neither we nor legislatures have power, as I see it, to weigh the values of speech or utterance against silence. The only grounds for suppressing this book are very narrow. I have read it; and while it is repulsive to me, its publication or distribution can be constitutionally punished only on a showing not attempted here. My view was stated in the Roth case, 354 U.S., at page 514, 77 S.Ct., at page 1324:
30
'Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688, 93 L.Ed. 834; National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469, 477—478, 62 S.Ct. 344, 348, 86 L.Ed. 348. As a people, we cannot afford to relax that standard. For the test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that category is endless.'
31
Yet my view is in the minority; and rather fluid tests of obscenity prevail which require judges to read condemned literature and pass judgment on it. This role of censor in which we find ourselves is not an edifying one. But since by the prevailing school of thought we must perform it, I see no harm, and perhaps some good, in the rule fashioned by the Court which requires a showing of scienter. For it recognizes implicitly that these First Amendment rights, by reason of the strict command in that Amendment—a command that carries over to the States by reason of the Due Process Clause of the Fourteenth Amendment—are preferred rights. What the Court does today may possibly provide some small degree of safeguard to booksellers by making those who patrol bookstalls proceed less high handedly than has been their custom.*
32
Mr. Justice HARLAN, concurring in part and dissenting in part.
33
The striking down of local legislation is always serious business for this Court. In my opinion in the Roth case, 354 U.S. at pages 503—508, 77 S.Ct. 1304, 1318—1321, 1 L.Ed.2d 1498, I expressed the view that state power in the obscenity field has a wider scope than federal power. The question whether scienter is a constitutionally required element in a criminal obscenity statute is intimately related to the constitutional scope of the power to bar material as obscene, for the impact of such a requirement on effective prosecution may be one thing where the scope of the power to proscribe is broad and quite another where the scope is narrow. Proof of scienter may entail no great burden in the case of obviously obscene material; it may, however, become very difficult where the character of the material is more debatable. In my view then, the scienter question involves considerations of a different order depending on whether a state or a federal statute is involved. We have here a state ordinance, and on the meagre date before us I would not reach the question whether the absence of a scienter element renders the ordinance unconstitutional. I must say, however, that the generalties in the Court's opinion striking down the ordinance leave me unconvinced.
34
From the point of view of the free dissemination of constitutionally protected ideas, the Court invalidates the ordinance on the ground that its effect may be to induce booksellers to restrict their offerings of nonobscene literary merchandise through fear of prosecution for unwittingly having on their shelves an obscene publication. From the point of view of the State's interest in protecting its citizens against the dissemination of obscene material, the Court in effect says that proving the state of a man's mind is little more difficult than proving the state of his digestion, but also intimates that a relaxed standard of mens rea would satisfy constitutional requirements. This is for me too rough a balancing of the competing interests at stake. Such a balancing is unavoidably required in this kind of constitutional adjudication, notwithstanding that it arises in the domain of liberty of speech and press. A more critical appraisal of both sides of the constitutional balance, not possible on the meagre material before us, seems to me required before the ordinance can be struck down on this ground. For, as the concurring opinions of my Brothers BLACK and FRANKFURTER show, the conclusion that this ordinance, but not one embodying some element of scienter, is likely to restrict the dissemination of legitimate literature seems more dialectical than real.
35
I am also not persuaded that the ordinance in question was unconstitutionally applied in this instance merely because of the state court's refusal to admit expert testimony. I agree with my Brother FRANKFURTER that the trier of an obscenity case must take into account 'contemporary community standards,' Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498. This means that, regardless of the elements of the offense under state law, the Fourteenth Amendment does not permit a conviction such as was obtained here1 unless the work complained of is found substantially to exceed the limits of candor set by contemporary community standards.2 The community cannot, where liberty of speech and press are at issue, condemn that which it generally tolerates. This being so, it follows that due process—'using that term in its primary sense of an opportunity to be heard and to defend (a) substantive right,' Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 678, 50 S.Ct. 451, 453, 74 L.Ed. 1107 requires a State to allow a litigant in some manner to introduce proof on this score. While a State is not debarred from regarding the trier of fact as the embodiment of community standards, competent to judge a challenged work against those standards,3 it is not privileged to rebuff all efforts to enlighten or persuade the trier.
36
However, I would not hold that any particular kind of evidence must be admitted, specifically, that the Constitution requires that oral opinion testimony by experts be heard. There are other ways in which proof can be made, as this very case demonstrates. Appellant attempted to compare the contents of the work with that of other allegedly similar publications which were openly published, sold and purchased, and which received wide general acceptance. Where there is a variety of means, even though it may be considered that expert testimony is the most convenient and practicable method of proof, I think it is going too far to say that such a method is constitutionally compelled, and that a State may not conclude, for reasons responsive to its traditional doctrines of evidence law, that the issue of community standards may not be the subject of expert testimony. I know of no case where this Court, on constitutional grounds, has required a State to sanction a particular mode of proof.
37
In my opinion this conviction is fatally defective in that the trial judge, as I read the record, turned aside every attempt by appellant to introduce evidence bearing on community standards. The exclusionary rulings were not limited to offered expert testimony. This had the effect of depriving appellant of the opportunity to offer any proof on a constitutionally relevant issue. On this ground I would reverse the judgment below, and remand the case for a new trial.
1
The ordinance is § 41.01.1 of the Municipal Code of the City of Los Angeles. It provides:
'Indecent Writings, Etc.—Possession Prohibited:
'It shall be unlawful for any person to have in his possession any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, figure, motion picture film, phonograph recording, wire recording or transcription of any kind in any of the following places:
'1. In any school, school-grounds, public park or playground or in any public place, grounds, street or way within 300 yards of any school, park or playground;
'2. In any place of business where ice-cream, soft drinks, candy, food, school supplies, magazines, books, pamphlets, papers, pictures or postcards are sold or kept for sale;
'3. In any toilet or restroom open or the public;
'4. In any poolroom or billiard parlor, or in any place where alcoholic liquor is sold or offered for sale to the public;
'5. In any place where phonograph records, photographs, motion pictures, or transcriptions of any kind are made, used, maintained, sold or exhibited.'
2
In this sort of proceeding, 'the highest court of a State in which a decision could be had.' 28 U.S.C. § 1257, 28 U.S.C.A. § 1257. Cal.Const. art. VI, §§ 4, 4b, 5. See Edwards v. People of State of California, 314 U.S. 160, 171, 62 S.Ct. 164, 165, 86 L.Ed. 119.
3
See Hall, General Principles of Criminal Law, p. 280. The Appellate Department's opinion is at 161 Cal.App.2d Supp. 860, 327 P.2d 636. The ordinance's elimination of scienter was, in fact, a reason assigned by that court for upholding it as permissible supplementary municipal legislation against the contention that the field was occupied by California Penal Code, § 311, a state-wide obscenity statute which requires scienter.
4
These other contentions, which are made again here, are that evidence of a nature constitutionally required to be allowed to be given for the defense as to the obscene character of a book was not permitted to be introduced; that a constitutionally impermissible standard of obscenity was applied by the trier of the facts; and that the book was not in fact obscene. In the light of our determination as to the constitutional permissibility of a strict liability law under the circumstances presented by this case, we need not pass on these questions. For the purposes of discussion, we shall assume without deciding that the book was correctly adjudged below to be obscene.
5
See also Williams, Criminal Law—The General Part, p. 238 et seq.
6
See Note, 61 Harv.L.Rev. 1208.
7
In the Roth opinion there was also decided Alberts v. California, which dealt with the power of the States in this area.
8
The effectiveness of absolute criminal liability laws in promoting caution has been subjected to criticism. See Hall, General Principles of Criminal Law, pp. 300—301. See generally Williams, Criminal Law—The General Part, pp. 267—274; Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55; Mueller, On Common Law Mens Rea, 42 Minn.L.Rev. 1043; Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288.
9
Common-law prosecutions for the dissemination of obscene matter strictly adhered to the requirement of scienter. See the discussion in Attorney-General v. Simpson, 93 Irish L.T. 33, 37—38 (Dist.Ct.). Cf. Obscene Publications Act, 1959, 7 & 8 Eliz. 2, c. 66, § 2(5); American Law Institute Model Penal Code § 207.10(7) (Tentative Draft No. 6, May 1957), and Comments, pp. 49—51.
The general California obscenity statute, Penal Code, § 311, requires scienter, see note 3, and was of course sustained by us in Roth v. United States, supra. See Note. 7.
10
We emphasized in Roth, 354 U.S. at page 484, 77 S.Ct. at page 1308, that there is a 'limited area' where such other interests prevail, and we listed representative decisions in note 14 at that page.
1
As shown by Note 1 of the Court's opinion, the ordinance makes it unlawful to possess at places defined any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, figure, motion picture film, phonograph recording, wire recording or transcription of any kind.
2
Another concurring opinion has said that it would wrong James Madison and Thomas Jefferson to attribute to them the view that the First Amendment places speech wholly beyond the reach of the Federal Government. Of course, both men made many statements on the subject of freedom of speech and press during their long lives and no one can define their precise views with complete certainty. However, several statements by both Madison and Jefferson indicate that they may have held the view that the concurring opinion terms 'doctrinaire absolutism.'
James Madison, in exploring the sweep of the First Amendment's limitation on the Federal Government when he offered the Bill of Rights to Congress in 1789, is reported as having said, 'the right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government * * *.' (Emphasis supplied.) 1 Annals of Cong. 738. For reports of other discussions by Mr. Madison see pp. 424—449, 660, 704—756. Eleven years later he wrote: 'without tracing farther the evidence on this subject,
it would seem scarcely possible to doubt that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood, and that the amendment was intended as a positive and absolute reservation of it.' 6 Madison, Writings (Hunt ed. 1906), 341, 391, and see generally, 385—393, 399.
Thomas Jefferson's views of the breadth of the First Amendment's prohibition against abridgment of speech and press by the Federal Government are illustrated by the following statement he made in 1798: '(The First Amendment) thereby guard(s) in the same sentence, and under the same words, the freedom of religion, of speech, and of the press; insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.' 8 Jefferson, Writings (Ford ed. 1904), 464—465. For another early discussion of the scope of the First Amendment as a complete bar to all federal abridgment of speech and press see St. George Tucker's comments on the adequacy of state forums and state laws to grant all the protection needed against defamation and libel. 1 Blackstone, Commentaries (Tucker ed. 1803) 299.
Of course, neither Jefferson nor Madison faced the problem before the Court in this case, because it was not until the Fourteenth Amendment was passed that any of the prohibitions of the First Amendment were held applicable to the States. At the time Jefferson and Madison lived, before the Fourteenth Amendment was passed, the First Amendment did not prohibit the States from abridging free speech by the enactment of defamation or libel laws. Cf. Barron, for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 32 U.S. 243, 8 L.Ed. 672. But the meaning of the First Amendment, as it was understood by two such renowned constitutional architects as Jefferson and Madison, is important in this case because of our prior cases holding that the Fourteenth Amendment applies the First, with all the force it brings to bear against the Federal Government, against the States. See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628, and other cases collected in Speiser v. Randall, 357 U.S. 513, 530, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460 (concurring opinion). But see Beauharnais v. People of State of Illinois, 343 U.S. 250, 288, 72 S.Ct. 725, at page 746, 96 L.Ed. 919 (Court and dissenting opinions).
3
Kingsley International Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 690—691, 79 S.Ct. 1362, 1366, 3 L.Ed.2d 1512 (concurring opinion). The views of a concurring opinion here, if accepted, would make this Court a still more inappropriate 'Board of Censors' for the whole country. That opinion, conceding that 'there is no external measuring rod of obscenity,' argues that the Constitution requires the issue of obscenity to be determined on the basis of 'contemporary community standards'—'the literary, psychological or moral standards of a community.' If, as argued in the concurring opinion, it violates the Federal Constitution for a local court to reject the evidence of 'experts' on contemporary community standards of the vague word 'obscenity,' it seems odd to say that this Court should have the final word on what those community standards are or should be. I do not believe the words 'liberty' and 'due process' in the Fourteenth Amendment give this Court that much power.
1
The publication of obscene printed matter was clearly established as a common-law offense in England in 1927 by the case of Rex v. Curl, 2 Str. 788, which overruled Reg. v. Read, (1708) 11 Mod. 142, where it had been held that such offenses were exclusively within the jurisdiction of the ecclesiastical courts. See also Rex v. Wilkes, (1770), 4 Burr. 2527. The common-law liability was carried across the Atlantic before the United States was established and appears early in the States. In 1786, in New York, a copyright act specifically stated that 'nothing in this Act shall * * * authorise any Person or Persons to * * * publish any Book * * * that may be profane, treasonable, defamatory, or injurious to Government, Morals or Religion.' An Act to Promote Literature, Act of April 29, 1786, c. LIV, § IV, 1 Laws of New York (Jones and Varick) (1777—1789) 321. In Pennsylvania, in 1815, a prosecution was founded on common-law liability. Commonwealth v. Sharpless, 2 Serg. & R. 91. And in Maryland, when a statute regulating obscene publications was enacted in 1853, it was recited that 'although in the judgment of the Legislature, such advertisements and publications are contra bonos mores, and punishable by the common law, it is desirable that the common law in this regard be re-enacted and enforced; * * *' Act of May 16, 1853, Md.Laws 1853, c. 183.
Moreover, as early as the eleventh year of the reign of Queen Anne (1711—1712), well before the jurisdiction at common law emerged in England, Massachusetts enacted a statute which provided 'that whosoever shall be convicted of composing, writing, printing or publishing, of any filthy obscene or prophane Song, Pamphlet * * * shall be punished * * *.' Acts of 1711—1712, c. I, Charter of the Province of the Massachusetts-Bay, p. 172 (1759). It is unclear whether the well-known prosecution in Massachusetts in 1821, Commonwealth v. Holmes, 17 Mass. 336, was founded on this statute or on common-law liability, although in 1945 the Supreme Judicial Court indicated that it regarded this early statute as having been in effect until a seccessor enactment of 1835, Revised Statutes of the Commonwealth of Massachusetts, c. 130, § 10 (1836). Commonwealth v. Isenstadt, 318 Mass. 543, 547, 62 N.E.2d 840, note 1. See also Grant and Angoff, Massachusetts and Censorship, III, 10 B.U.L.Rev. 147 (1930). Thereafter the offense was made statutory in other States. See, e.g., Act of March 14, 1848, c. VIII, § 7, (1847—1848) Va.Laws 111; Act of May 16, 1853, c. 183 (1853) Laws of Maryland 212; Act of April 28, 1868, c. 430, 7 N.Y.Stat. at Large (1867—1870) 309.
2
Section 4 of this Act provides:
'(1) A person shall not be convicted of an offense against * * * this Act * * * if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.
'(2) It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings under this Act either to establish or to negative the said ground.'
3
Subsection (2) of this draft section provides in part:
'* * * In any prosecution for an offense under this section evidence shall be admissible to show:
'(a) the character of the audience for which the material was designed or to which it was directed;
'(b) what the predominant appeal of the material would be for ordinary adults or a special audience, and what effect, if any, it would probably have no behavior of such people;
'(c) artistic, literary, scientific, educational or other merits of the material;
'(d) the degree of public acceptance of the material in this country;
'(e) appeal to prurient interest, or absence thereof, in advertising or other promotion of the material;
'Expert testimony and testimony of the author, creator or publisher relating to factors entering into the determination of the issue of obscenity shall be admissible.'
*
See Chafee, Free Speech in the United States (1941), pp. 536—540; Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 302—316; Daniels, The Censorship of Books (1954), p. 76 et seq.; Blanshard, The Right of Read (1955), p. 180 et seq.; Fellman, The Censorship of Books (1957). And see New American Library of World Literature v. Allen, D.C., 114 F.Supp. 823.
1
We are concerned in this instance with an objection to what a book portrays, not to what it teaches. Cf. Kingsley International Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 79 S.Ct., 1362, 3 L.Ed.2d 1512.
2
The most notable expression of this limitation is that of Judge Learned Hand, in United States v. Kennerley, D.C., 209 F. 119, 121: 'If there be no abstract definition, * * * should not the word 'obscene' be allowed to indicate the present critical point in the compromise between candor and shame at which the community may have arrived here and now?' See also the exposition of this view in American Law Institute, Model Penal Code (Tentative Draft No. 6), at p. 30. It may be that the Roth case embodies this restriction, see 354 U.S. at page 487, note 20, 77 S.Ct. at page 1310, but see id., 354 U.S. at pages 499—500, 77 S.Ct. at pages 1316—1317 (separate opinion).
3
Such a view does not of course mean that the issue is to be tried according to the personal standards of the judge or jury.
| 23
|
361 U.S. 129
80 S.Ct. 247
4 L.Ed.2d 191
Christian F. BRAEN, Petitioner,v.PFEIFER OIL TRANSPORTATION CO., Inc.
No. 32.
Argued Nov. 16, 1959.
Decided Dec. 14, 1959.
Mr. Benjamin H. Siff, New York City, for petitioner.
Mr. Edmund F. Lamb, New York City, for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner brought this suit under the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688, and recovered judgment after a jury trial. He was employed as mate on respondent's barge. On the day prior to the injury the barge came to respondent's repair yard to have a cargo pump fixed. At this repair yard respondent maintained a covered lighter, known as the Winisook, which was used as a work barge. Its inshore side was connected with the dock by a plank runway. Between the Winisook and the dock was a raft used for chipping, painting, and welding on such barges as might need that service. The barge on which petitioner worked was not at this time being serviced by the raft. But the raft had been used in repair work on the barge at other times and now needed new decking.
2
The barge was moored to adjoin the open water side of the Winisook, the crew of the barge using a catwalk around the sides of the Winisook whenever they left or boarded the barge. The morning after the barge was moored, petitioner's supervisor ordered him to lay some decking on the raft, as petitioner had experience as a carpenter. Petitioner accordingly prepared to go to work on this new job assignment. As he was standing on the catwalk, preparatory to starting his work, releasing a line on the raft to permit him to maneuver it into place so he could board it, the catwalk gave way, causing the injury. The Court of Appeals reversed the judgment for petitioner. 263 F.2d 147. We granted the petition for certiorari because that decision seemed to be out of line with the authorities. 359 U.S. 952, 79 S.Ct. 740, 3 L.Ed.2d 760.
3
In O'Donnell v. Great Lakes Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596, a seaman was allowed to recover under the Jones Act even though he was injured on shore. The seaman was a deckhand. The ship was discharging her cargo through a conduit that was connected at its outer end to a land pipe by means of a gasket. The seaman in question was ordered by the master to go ashore to assist in repairing the gasket. While so engaged, he was injured by reason of the negligence of a fellow employee. We held that the words 'in the course of his employment' as used in the Jones Act were not restricted to injuries occurring on navigable waters, that they were broadly used by Congress in support of 'all the constitutional power it possessed,' id., 318 U.S. at page 39, 63 S.Ct. at page 490, and that it was constitutionally permissible for Congress to supplement the remedy of maintenance and cure by extending a right of recovery in trial by jury to a seaman injured 'while in the service of his vessel by negligence.' Id., 318 U.S. at page 43, 63 S.Ct. at page 492.
4
The test, as the O'Donnell case holds, is not whether the injury occurred on navigable waters, for that had been applied by the lower court, id., 318 U.S. at page 38, 63 S.Ct. at page 490, which we reversed. Rather it is whether the seaman was injured by negligence while 'in the course of his employment.'
5
The injured party must of course have 'status as a member of the vessel' for it is seamen, not others who may work on the vessel (Swanson v. Marra Bros., 328 U.S. 1, 4, 66 S.Ct. 869, 871, 90 L.Ed. 1045), to whom Congress extended the protection of the Jones Act. Nice questions often arise concerning the status of particular workmen and whether their duties give them the status of 'seamen' as that word is used in the Act. Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205. And see Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775, reversing 5 Cir., 222 F.2d 382; Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404; Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754. The court below apparently thought that at the moment petitioner was injured he was not a 'seaman'; and that conclusion apparently turned on its view that to be such he had to be engaged at the time of the injury in work which was in furtherance of the navigation of the vessel. The court, indeed, held it error not to have given instructions to that effect.
6
At times the work done by an employee will be crucial in determining what his status is for purposes of recovery. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 260, 60 S.Ct. 544, 549, 84 L.Ed. 732; Swanson v. Marra Bros., supra; Desper v. Starved Rock Ferry Co., supra; Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367; Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737; Butler v. Whiteman, supra. Those cases, however, are not relevant to our present problem since the question whether petitioner's duties on the raft assignment were of the type to bring one not otherwise a member of a ship's crew within the scope of the Act is not presented in this case. Here we start with an employee who had the status of mate. The issue is whether petitioner, a mate and therefore a 'seaman,' was injured 'in the course of his employment.' We conclude that he was.
7
The fact that the injury did not occur on the vessel is not controlling, as Senko v. LaCrosse Dredging Corp., supra, 352 U.S. 373, 77 S.Ct. 417, holds. A 'seaman' may often be sent off ship to perform duties of his employment. O'Donnell v. Great Lakes Co., supra. In Marceau v. Great Lakes Transit Corp., 2 Cir., 146 F.2d 416, a ship's cook was allowed to recover under the Jones Act when, pursuant to duty, he was returning to the ship and was injured on the dock while approaching a ladder used as ingress to the vessel.
8
We held that a seaman who was injured on the dock while departing from the ship on shore leave was in the service of the vessel and was entitled to recover for maintenance and cure in Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107. It was there recognized that a seaman is as much in the service of his ship when boarding it on first reporting for duty, quitting it on being discharged, or going to and from the ship while on shore leave, as he is while on board at high sea. Id., 318 U.S. at pages 736—737, 63 S.Ct. at pages 936—937. We also held that a seaman injured in a dance hall while on shore leave was in the service of his ship in Warren v. United States, 340 U.S. 523, 529, 71 S.Ct. 432, 436, 95 L.Ed. 503. These two cases were not brought under the Jones Act but involved maintenance and cure. Yet they make clear that the scope of a seaman's employment or the activities which are related to the furtherance of the vessel are not measured by the standards applied to land-based employment relationships. They also supply relevant guides to the meaning of the term 'course of employment' under the Act since it is the equivalent of the 'service of the ship' formula used in maintenance and cure cases. See Gilmore and Black, The Law of Admiralty, p. 284. And see O'Donnell v. Great Lakes Co., supra, 318 U.S. at page 43, 63 S.Ct. at page 492; Marceau v. Great Lakes Transit Corp., supra.
9
Petitioner in the present case was ordered by a superior to perform some carpentry work on a raft which lay between the lighter and the dock. Petitioner was injured, as we have said, while on the catwalk attempting to move the raft into position for boarding. The raft was used to facilitate chipping, painting and welding on respondent's vessels. Cf. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321. New decking was to be installed on the raft. The fact that the raft was not presently being used to repair respondent's barge is in our view immaterial. Petitioner was acting 'in the course of his employment' at the time of the injury, for at that moment he was doing the work of his employer pursuant to his employer's orders. No more is required by the Jones Act, as the O'Donnell case indicates, petitioner being a seaman who was injured as a consequence of the negligence of his employer.
10
The judgment of the Court of Appeals is reversed and the judgment of the District Court is reinstated.
11
So ordered.
12
Judgment of Court of Appeals reversed and judgment of District Court reinstated.
13
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, concurring in part and dissenting in part.
14
To assert a right of action under the Jones Act, a plaintiff must not only be a seaman, that is, a 'member of a crew of any vessel,' but must have been injured 'in the course of his employment.' 46 U.S.C. § 688, 46 U.S.C.A. § 688; 33 U.S.C. § 903(a)(1), 33 U.S.C.A. § 903(a)(1). Petitioner was concededly a member of the crew of a vessel at the time the events in question took place. The controverted issue is whether a jury could have found that he was injured 'in the course of his employment.' I cannot agree that the nature of a seaman's duties at the time of injury is irrelevant to this latter issue.
15
Until today it has not been intimated in any opinion of the Court that I know of that a seaman may recover under the Jones Act for injuries arising out of activities unrelated to the maintenance or operation of his vessel, and not incidental to its affairs. In other words, the status of being a seaman does not alone bring the Jones Act into play. The character of the activities giving rise to the injury complained of is also an indispensable element to the existence of a federal right to relief under this statute. In the O'Donnell case, 318 U.S. 36, at pages 42—43, 63 S.Ct. 488, at page 492, 87 L.Ed. 596, cited by the Court, it was stated: 'The right of recovery in the Jones Act is given to the seaman as such, and * * * depends * * * on the nature of the service and its relationship to the operation of the vessel plying in navigable waters.' There a crew member was ordered to go ashore momentarily to assist in the repair of a fixture being used in unloading the ship. That the work was being done on the dock was held immaterial to Jones Act liability. But that work was plainly in aid of the operations of the vessel on which O'Donnell was employed. See Swanson v. Marra Bros., 328 U.S. 1, 4, 66 S.Ct. 869, 871, 90 L.Ed. 1045.1 It is a far different matter to say, as the Court seems to say here, that a crew member may recover under the Jones Act for injuries arising out of activities not directly related to the affairs of the vessel, as in O'Donnell, and not incidental to his shipboard work, see Thompson v. Eargle, 4 Cir., 182 F.2d 717; Marceau v. Great Lakes Transit Corp., 2 Cir., 146 F.2d 416. 'In the service of the ship' is something quite different than 'in the service of the shipowner.'2 In this case the seaman's employer also had a nonseaman-employing business, the repair yard, for which non-seaman activities were needed.
16
The Jones Act extended to maritime workers the negligence remedy provided for interstate railroad workers by the Federal Employers' Liability Act, 45 U.S.C. § 51, 45 U.S.C.A. § 51. Under the FELA, and the uniform course of our decisions under it, see, e.g., Southern Pacific Co. v. Gileo, 351 U.S. 493, 76 S.Ct. 952, 100 L.Ed. 1357; Reed v. Pennsylvania R. Co., 351 U.S. 502, 76 S.Ct. 958, 100 L.Ed. 1366, the remedy given by that Act applies only 'to any person suffering injury while he is employed by such (interstate) carrier in such commerce.' Under the Jones Act the remedy is given to '(a)ny seaman who shall suffer personal injury in the course of his employment.' I think this means that a seaman's injury must have arisen out of his work as a seaman, just as a railroad worker's injury must have arisen out of his employment in interstate commerce. Otherwise it is difficult to see what purpose the 'in the course of his employment' requirement of the Jones Act serves. Both the FELA and the Jones Act give a federal cause of action in negligence only in respect of particular kinds of injuries—under the FELA, those suffered in interstate commerce, under the Jones Act, those suffered in work as a seaman.
17
Thus, I think the issue of liability in this case turns on whether petitioner, when he fell from the faulty catwalk, was already engaged in the performance of his raft assignment, or whether he was simply en route to that assignment. If the former, there would, in my opinion, be no liability, for the record contains no basis for an inference that petitioner's assignment was related to the business of the vessel and, lacking such relationship, petitioner's injury cannot be deemed to have occurred 'in the course of his employment.' In that event any remedy would be that afforded by local law. Cf. Swanson v. Marra Bros., supra, 328 U.S. at page 7, 66 S.Ct. at page 872; 2 Larson, Law of Workmen's Compensation, § 90.22.3 If, however, petitioner was injured en route to his raft assignment, the Jones Act would apply, for 'the course of his employment,' I think, continued until he commenced that assignment. Considering that the evidence presents a jury issue on this score, I concur in the reversal of the judgment of the Court of Appeals dismissing the complaint.
18
However, I dissent from the reinstatement of the judgment of the District Court. The relevant portion of the charge, to which respondent excepted, was vague and lacking in guidance as to the nature of the factual issue presented in this respect.4 Moreover, in making liability turn on the question whether crew members normally performed work of this nature, the charge was in error.5 Such a factor might well be relevant in a case where there was doubt as to the ultimate issue whether an injury was suffered in the course of work6 in some way related to the vessel in which the plaintiff seaman served. However, here it was not disputed that the petitioner's assignment to work on the raft was at the time wholly unrelated to any of the affairs of his vessel.
1
In referring to the O'Donnell case, it was stated in Swanson (328 U.S. at page 4, 66 S.Ct. at page 870): 'We there held the shipowner liable, under the Jones Act, for injuries caused to a seaman by a fellow servant while the former was on shore engaged in repairing a conduit which was a part of the vessel and used for discharging its cargo. But in that case we sustained the recovery because the injured person was a seaman and an employee of the vessel, engaged in the course of his employment as such.' (Emphasis supplied.)
2
The maintenance and cure decisions relied on by the Court are all, like the Marceau case, instances of injuries incurred during leave-time activities, and are inapposite here. Whether, on the facts in the case before us, the petitioner would be found to have been working 'in the service of his ship' for purposes of the doctrine of maintenance and cure, we need not decide, for the Court advances no reason for assimilating the issue of Jones Act coverage to that of the availability of maintenance and cure.
3
I think the Court of Appeals was mistaken in considering that the Longshoremen's and Harbor Workers' Compensation Act would apply, for that Act, 33 U.S.C. §§ 902(3), 903(a)(1), 33 U.S.C.A. §§ 902(3), 903(a)(1) excludes from its coverage a 'member of a crew of any vessel,' which this petitioner admittedly was.
4
The charge, in pertinent part, read as follows:
'While it seemed at the outset to be some question as to whether or not he was a member of the crew, it does not seem to be seriously disputed that at the time of the accident he was a member of the crew.
'Whether or not at the time of the accident he was engaged in functions which are normally performed by a member of the crew, and as he stated, some functions he gave in detail, that he did perform various functions prior to the date of the accident, are for you to determine.'
Subsequently the court amended the charge in this language:
'I did state that it is not seriously disputed that the plaintiff was not a member of the crew. Apparently according to the defendant's statement, he says that is a serious issue.
'So I will leave that as an issue.'
5
The two lower courts seem to have failed to come sharply to grips with the distinction between the two separate requirements of the Jones Act, namely, that the plaintiff have the status of a 'seaman,' and that his injury must have been suffered 'in the course of his employment' as such. Most of the Jones Act cases decided by this Court have involved only the 'seaman' issue. See, e.g., Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404; Grimes v. Raymond Concrete Pile Co., 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737; Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754. Such decisions are only remotely apposite here where the petitioner's status as a seaman is not disputed. It only confuses things to equate the issue of being a 'seaman' with the issue of whether the injuries suffered were 'in the course of his employment.'
6
Shore leave cases such as Marceau, supra, present a different problem.
| 78
|
361 U.S. 199
80 S.Ct. 274
4 L.Ed.2d 242
Jesse BLACKBURN, Petitioner,v.STATE OF ALABAMA.
No. 50.
Argued Dec. 10, 1959.
Decided Jan. 11, 1960.
Mr. Truman Hobbs, Montgomery, Ala., for petitioner.
Mr. Paul T. Gish, Jr., Montgomery, Ala., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
Jesse Blackburn was tried in the Circuit Court of Colbert County, Alabama, on a charge of robbery, found guilty, and sentenced to 20 years' imprisonment. By far the most damaging piece of evidence against him was his confession, which he persistently maintained had not been made voluntarily.1 The record seemed to provide substantial support for this contention, and we granted certiorari because of a grave doubt whether the judgment could stand if measured against the mandate of the Fourteenth Amendment to the Constitution of the United States. 359 U.S. 1010, 79 S.Ct. 1147, 3 L.Ed.2d 1035. Plenary hearing has hardened this doubt into firm conviction: Jesse Blackburn has been deprived of his liberty without due process of law.
2
The crime with which Blackburn was charged was the robbery of a mobile store on April 19, 1948. By that date Blackburn, a 24-year-old Negro, had suffered a lengthy siege of mental illness. He had served in the armed forces during World War II, but had been discharged in 1944 as permanently disabled by a psychosis. He was thereupon placed in an institution and given medical treatment over extended periods until February 14, 1948, when he was released from a Veterans Administration hospital for a ten-day leave in the care of his sister. He failed to return to the hospital and consequently was discharged on May 24, 1948. The robbery of which he stands convicted occurred during this period of unauthorized absence from a mental ward. Blackburn's medical records further disclose that from 1946 he was classified by the Veterans Administration as 100 percent 'incompetent' and that at the time of his discharge from the hospital both his diagnosis of 'schizophrenic reaction, paranoid type' and his characterization as 'incompetent' remained unchanged.
3
This does not by any means end the record of Blackburn's history of mental illness. He was arrested shortly following the robbery, and some time after his confession on May 8, 1948, the Sheriff reported to the circuit judge that Blackburn had exhibited symptoms of insanity. The judge thereupon had Blackburn examined by three physicians, and after receiving their report he concluded that there was 'reasonable ground to believe that the defendant was insane either at the time of the commission of (the) offense or at the present time.' In accordance with the procedure prescribed by Alabama law,2 the judge then directed the Superintendent of the Alabama State Hospitals to convene a lunacy commission. When the commission unanimously declared Blackburn insane, the judge committed him to the Alabama State Hospital for the mentally ill until he should be 'restored to his right mind.'3 Blackburn escaped from the hospital once, only to be apprehended on another charge, declared insane by a second Alabama circuit judge, and sent back to the hospital. Before his return he was examined by another set of doctors who diagnosed his mental condition as 'Schizophrenic reaction, paranoid type' and declared that he was 'Insane, incompetent, and should be placed in (an) insane hospital.' Except for this brief interlude, Blackburn remained in the hospital for over four years, from July 1948 to October 1952, at which time he was declared mentally competent to stand trial.
4
At his trial, Blackburn entered pleas of not guilty and not guilty by reason of insanity. He testified that he could remember nothing about the alleged crime, the circumstances surrounding it, his arrest, his confession, his commitment to the State Hospital, or the early period of his treatment there. He denied the truth of the confession, but admitted that the signature on it appeared to be his. According to a 1944 Army medical report, one aspect of Blackburn's illness was recurrent 'complete amnesia concerning his behaviour.'
5
When the prosecutor proposed to introduce Blackburn's confession into evidence, his attorney objected, and the judge held a hearing to determine its admissibility. Blackburn's counsel submitted to the judge the depositions of two of the three doctors who had served on the lunacy commission and who had observed Blackburn during his period of treatment at the State Hospital. These depositions incorporated copies of three significant documents. The first was the court order directing examination of Blackburn by a lunacy commission. This order mentioned Blackburn's previous treatment in a mental ward and two of his prior commitments to mental institutions. The second paper was the lunacy commission's report, in which three state-employed doctors had expressed their opinion that Blackburn was insane both at the time of his admission to the hospital on July 29, 1948, and at the time of the robbery on April 19, 1948. Finally, the depositions set forth the order which permanently committed Blackburn to the State Hospital. In addition to attesting to the accuracy of these doctuments, the deponents set forth in detail their opinion of Blackburn's mental condition. Dr. Harry S. Rowe, the Assistant Superintendent of the Hospital who had worked since 1923 exclusively with psychopathic patients, stated that as a member of the lunacy commission he had participated in its investigation and in the submission of its report. Dr. Rowe also said that he had interviewed Blackburn on many occasions since his commitment and that he not only still thought Blackburn had been insane on the date of the crime but also believed he 'most probably (had been) insane and incompetent' on May 8, 1948, when he had confessed. These opinions of Dr. Rowe were seconded by Dr. J. S. Tarwater, a psychiatrist who was Superintendent of the Alabama State Hospitals.
6
To counter this evidence, the prosecutor introduced the deposition of the third member of the lunacy commission, Dr. A. M. Richards, a general practitioner who had spent the previous twelve years treating mental patients and who was a staff member of the State Hospital. The doctor's answers to petitioner's interrogatories were in harmony with the depositions of Drs. Tarwater and Rowe: Dr. Richards acknowledged that he had served on the lunacy commission, that he had signed the report, and that he had concurred in the finding that Blackburn had been insane on the date of the crime. He disclaimed having any other information of value, and noted in response to a cross-interrogatory that Blackburn had been 'up on the criminal ward and he was such a nuisance until I didn't see him often.' In his answers to other cross-interrogatories, however, Dr. Richards executed an astonishing about-face by opining that Blackburn had been 'normal' since he first saw him, that his mental condition was 'normal' on the date of the crime and 'good' on the date of the confession, and that he had never seen Blackburn suffer 'psychotic episodes.' Even this portion of the deposition is not without incongruity, however, for Dr. Richards' response to one cross-interrogatory was that he did not believe Blackburn had experienced lucid intervals.
7
Evidence concerning the circumstances surrounding the making of the confession was supplied by the Chief Deputy Sheriff. He testified that the interrogation had consumed 'something like, maybe five or six hours' on May 8, 1948, and that no one had threatened Blackburn in any way. The Chief Deputy composed the statement in narrative form on the basis of Blackburn's answers to the various questions asked by the officers, and Blackburn signed the confession two days later. When asked about Blackburn's behavior, the witness responded that Blackburn had 'answered like any normal person I have examined.' After the judge ruled that the confession would be admitted, but before it was actually admitted, the Chief Deputy described in somewhat greater detail—this time to the jury—the manner in which the confession had been obtained. It developed that the examination had begun at approximately one o'clock in the afternoon and had continued until ten or eleven o'clock that evening, with about an hour's break for dinner. Thus it was established that the questioning went on for eight or nine hours rather than five or six. Apparently most of the interrogation took place in closely confined quarters—a room about four by six or six by eight feet—in which as many as three officers had at times been present with Blackburn. The Chief Deputy conceded that Blackburn said he had been a patient in a mental institution, but claimed that Blackburn also stated he had been released, and avowed that Blackburn 'talked sensible and give (sic) sensible answers,' was clear-eyed, and did not appear nervous.
8
Blackburn's counsel again objected to admission of the statement, but the objection was overruled and the confession was submitted to the jury. After the Alabama Court of Appeals affirmed the judgment and held that the Fourteenth Amendment did not require exclusion of the confession, Blackburn petitioned this Court for certiorari.4 Thus was the constitutional issue raised, decided, and presented to this Court for review.
9
After according all of the deference to the trial judge's decision which is compatible with our duty to determine constitutional questions,5 we are unable to escape the conclusion that Blackburn's confession can fairly be characterized only as involuntary. Consequently the conviction must be set aside, since this Court, in a line of decisions beginning in 1936 with Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, and including cases by now too well known and too numerous to bear citation, has established the principle that the Fourteenth Amendment is grievously breached when an involuntary confession is obtained by state officers and introduced into evidence in a criminal prosecution which culminates in a conviction.
10
Since Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716, this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstration were needed, that the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of 'persuasion.'6 A prolonged interrogation of an accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror. Thus the range of inquiry in this type of case must be broad, and this Court has insisted that the judgment in each instance be based upon consideration of 'the totality of the circumstances.' Fikes v. State of Alabama, 352 U.S. 191, 197, 77 S.Ct. 281, 284, 1 L.Ed.2d 246.
11
It is also established that the Fourteenth Amendment forbids 'fundamental unfairness in the use of evidence whether true or false.' Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. Consequently, we have rejected the argument that introduction of an involuntary confession is immaterial where other evidence establishes guilt or corroborates the confession. E.g., Spano v. People of State of New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265; Payne v. State of Arkansas, 356 U.S. 560, 567—568, 78 S.Ct. 844, 849, 850, 2 L.Ed.2d 975; Watts v. State of Indiana, 338 U.S. 49, 50, note 2, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801; Haley v. State of Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224. As important as it is that persons who have committed crimes be convicted, there are considerations which transcend the question of guilt or innocence. Thus, in cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will. This insistence upon putting the government to the task of proving guilt by means other than inquisition was engendered by historical abuses which are quite familiar. See Chambers v. State of Florida, supra, 309 U.S. at pages 235—238, 60 S.Ct. at pages 477, 478, 84 L.Ed. 716; Watts v. State of Indiana, supra, 338 U.S. at pages 54—55, 69 S.Ct. at page 1350, 93 L.Ed. 1801.
12
But neither the likelihood that the confession is untrue nor the preservation of the individual's freedom of will is the sole interest at stake. As we said just last term, 'The abhorrence of society to the use of involuntary confessions * * * also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.' Spano v. People of State of New York, supra, 360 U.S. at pages 320—321, 79 S.Ct. at pages 1205, 1206, 3 L.Ed. 1265. Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case.
13
In the case at bar, the evidence indisputably establishes the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed. Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion. And when the other pertinent circumstances are considered—the eight-to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn's friends, relatives, or legal counsel; the composition of the confession by the Deputy Sheriff rather than by Blackburn—the chances of the confession's having been the product of a rational intellect and a free will become even more remote and the denial of due process even more egregious.
14
It is, of course, quite true that we are dealing here with probabilities. It is possible, for example, that Blackburn confessed during a period of complete mental competence. Moreover, these probabilities are gauged in this instance primarily by the opinion evidence of medical experts. But this case is novel only in the sense that the evidence of insanity here is compelling, for this Court has in the past reversed convictions where psychiatric evidence revealed that the person who had confessed was 'of low mentality, if not mentally ill,' Fikes v. State of Alabama, supra, at page 196, 77 S.Ct. at page 284, 1 L.Ed.2d 246, or had a 'history of emotional instability,' Spano v. People of State of New York, supra, 360 U.S. at page 322, 79 S.Ct. at page 1206, 3 L.Ed.2d 1265. And although facts such as youth and lack of education are more easily ascertained than the imbalance of a human mind,7 we cannot say that this has any appreciable bearing upon the difficulty of the ultimate judgment as to the effect these various circumstances have upon independence of will, a judgment which must by its nature always be one of probabilities.
15
Of course, this case is no different from other involuntary confession cases in another respect—where there is a genuine conflict of evidence great reliance must be placed upon the finder of fact. It is this proposition upon which respondent's principal argument rests, for the trial judge's decision is said to be inviolable because of an alleged conflict between the depositions of Dr. Richards on the one hand and Drs. Tarwater and Rowe on the other. We need not in this case consider the relevance of the fact that the trial judge, like ourselves, had no opportunity to witness the demeanor of these doctors. It is sufficient to observe that the deposition of Dr. Richards is in such hopeless internal conflict that it raises no genuine issue of fact. It would be unreasonable in the extreme to base a determination upon those portions in which the doctor proclaimed Blackburn normal while ignoring those portions in which he judged Blackburn insane. Nor have we overlooked the testimony of the Chief Deputy that Blackburn 'talked sensible,' was clear-eyed, and did not appear nervous. But without any evidence in the record indicating that these observed facts bore any relation to Blackburn's disease or were symptoms of a remission of his illness, we are quite unable to conclude that such an inference can be drawn.8 The Fourteenth Amendment would be an illusory safeguard indeed if testimony of this nature were held to raise a 'conflict' which would preclude appellate review of a case where the evidence of insanity is as compelling as it is here.
16
We take note also of respondent's argument that our decision must be predicated solely upon the evidence introduced by defendant before admission of the confession. As we have indicated, this evidence consisted of the depositions, the copies of the documents incorporated therein, and the testimony of the Chief Deputy. The other relevant evidence, which included the detailed medical record of Blackburn's mental illness prior to his arrest, was introduced at a later stage of the trial. It is quite true that Blackburn's counsel, so far as the record shows, made no request that the judge reconsider his ruling on the basis of this additional data. The Alabama Court of Appeals decided that under these circumstances this further documentation of Blackburn's insanity was not, under state law, material to the Fourteenth Amendment question.
17
Even if respondent's argument were meritorious our decision would be the same, since the evidence introduced prior to admission of the confession was ample to establish its involuntariness. But we reject the notion that the scope of our review can be thus restricted. Where the involuntariness of a confession is conclusively demonstrated at any stage of a trial, the defendant is deprived of due process by entry of judgment of conviction without exclusion of the confession. An argument similar to respondent's was disposed of in Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, in the following words:
18
'That contention rests upon the failure of counsel for the accused, who had objected to the admissibility of the confessions, to move for their exclusion after they had been introduced and the fact of coercion had been proved. It is a contention which proceeds upon a misconception of the nature of petitioners' complaint. That complaint is not of the commission of mere error, but of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. * * * We are not concerned with a mere question of state practice, or whether counsel assigned to petitioners were competent or mistakenly assumed that their first objections were sufficient. * * *
19
'In the instant case, the trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction and sentence were void for want of the essential elements of due process * * *.' Id., 297 U.S. at pages 286—287, 56 S.Ct. at pages 465.
20
Just as in Brown, the evidence here clearly establishes that the confession most probably was not the product of any meaningful act of volition. Therefore, the use of this evidence to convict Blackburn transgressed the imperatives of fundamental justice which find their expression in the Due Process Clause of the Fourteenth Amendment, and the judgment must be reversed.
21
Reversed.
22
Mr. Justice CLARK concurs in the result.
1
The only other adverse evidence of any significance tended to prove that Blackburn and two others had traveled to Alabama from Illinois around the date of the robbery; that they were driving a maroom Buick; and that the crime was committed by persons who drove a maroon Buick with an Illinois license plate.
2
Ala.Code, 1940, Tit. 15, § 425.
3
We later set forth in detail the opinions of the members of this lunacy commission, Drs. Tarwater, Rowe, and Richards. As will appears, the evidence they supplied is of critical importance in this case.
4
The Alabama Court of Appeals wrote two opinions in this case. After the first, 38 Ala.App. 143, 88 So.2d 199, and after the Alabama Supreme Court had denied certiorari, 264 Ala. 694, 88 So.2d 205, we granted certiorari, 352 U.S. 924, 77 S.Ct. 220, 1 L.Ed.2d 160, and later vacated the judgment and remanded the case to the Court of Appeals because we were uncertain whether that court had passed upon the federal question. 354 U.S. 393, 77 S.Ct. 1098, 1 L.Ed.2d 1423. The Court of Appeals reaffirmed the judgment of conviction, 40 Ala.App. 116, 109 So.2d 736, and the Alabama Supreme Court again denied certiorari, 268 Ala. 699, 109 So.2d 738. The case was then ripe for our review, and we granted certiorari once more. 359 U.S. 1010, 79 S.Ct. 1147, 3 L.Ed. 1035.
5
It is well established, of course, that although this Court will accord respect to the conclusions of the state courts in cases of this nature, we cannot escape the responsibility of scrutinizing the record ourselves. E.g., Spano v. People of State of New York, 360 U.S. 315, 316, 79 S.Ct. 1202, 1203, 3 L.Ed.2d 1265; Pierre v. State of Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538, 83 L.Ed. 757; Chambers v. State of Florida, 309 U.S. 227, 228—229, 60 S.Ct. 472, 473, 84 L.Ed. 716.
6
E.g., Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed. 1265; Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Turner v. Com. of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192.
7
Lack of education is a factor frequently present in this type of case; and in Haley v. State of Ohio, supra, the fact that the accused was a 15-year-old youth weighed heavily in the Court's' judgment.
8
It is interesting to note that Blackburn's medical records disclose that in 1944 he was given a diagnosis of 'Psychosis, manic depressive, manic phase,' and yet was said to answer questions 'relevantly and coherently.' Dr. Rowe stated that it was clear Blackburn 'was suffering from schizophrenia of the paranoic type. They * * * entertain delusions * * *.'
| 01
|
361 U.S. 220
80 S.Ct. 282
4 L.Ed.2d 259
UNITED STATES, Petitioner,v.Troyit ROBINSON et al.
No. 16.
Argued Dec. 8, 1959.
Decided Jan. 11, 1960.
Miss Beatrice Rosenberg, Washington, D.C., for petitioner.
Mr. I. William Stempil, Washington, D.C., for respondents.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Respondents were indicted for murder in the District Court for the District of Columbia, and upon a trial were found guilty by a jury of the lesser included offense of manslaughter. After their motions for a new trial were considered and denied, the court entered judgment of conviction on May 7, 1958. Twenty-one days thereafter, on May 28, respondents separately filed in the District Court their notices of appeal. On the same day they each asked, and were granted by the District Court, leave to prosecute their appeals in forma pauperis. On June 30, the Government moved the Court of Appeals to dismiss respondents' appeals for want of jurisdiction, because their notices of appeal were not filed within 10 days after entry of the judgment. In opposition to the motion, affidavits of respondent Travit Robinson, and of counsel for both respondents, were filed in the Court of Appeals. They tended to show that the late filing of the notices of appeal was due to a misunderstanding as to whether the notices were to be filed by respondents themselves or by their counsel.1
2
The Court of Appeals, one judge dissenting, held that the notices of appeal, although filed 11 days after expiration of the time prescribed in Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.,2 were sufficient to confer jurisdiction of the appeals if the District Court actually had found, under Rule 45(b), that the failure to file the notices of appeal within 10 days after entry of the judgment 'was the result of excusable neglect.' Being unable to determine from the record whether the District Court had so found, the Court of Appeals, on October 2, remanded to the District Court 'for supplementation of the record' on that score, meanwhile holding in abeyance the Government's motion to dismiss. On October 8, the District Court 'ordered that the record reflect that the appeals were allowed and failure to act was due to excusable englect under Rule 45(b) of the Federal Rules of Criminal Procedure.' On November 5, the Court of Appeals en banc, two judges dissenting, denied the Government's petition for rehearing, 104 U.S.App.D.C. 200, 260 F.2d 718. Because of the importance of the question to the proper and uniform administration of the Federal Rules of Criminal Procedure, we granted certiorari. 358 U.S. 940, 79 S.Ct. 347, 3 L.Ed.2d 348.
3
The single question presented is whether the filing of a notice of appeal in a criminal case after expiration of the time prescribed in Rule 37(a)(2) confers jurisdiction of the appeal upon the Court of Appeals if the District Court, proceeding under Rule 45(b), has found that the late filing of the notice of appeal was the result of excusable neglect.
4
There being no dispute about the fact that the notices of appeal were not filed within the 10-day period prescribed by Rule 37(a)(2),3 the answer to the question presented depends upon the proper interpretation of Rule 45(b). It provides:
5
'Enlargement. When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect; but the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as otherwise provided in those rules, or the period for taking an appeal.'
6
In interpreting that Rule, the Court of Appeals took the view that, although (104 U.S.App.D.C. 200, 260 F.2d 419) 'the District Court has no authority to grant a greater period than ten days for taking an appeal, it may, however, if satisfied that the failure to note an appeal within ten days is excusable, permit late filing.' It thought that there was 'ample justification in reason for different treatment of pre-expiration and post-expiration applications'; that if a defendant 'can make a timely application for an extension of time, he can readily and with less effort file the notice of appeal itself.' But if, 'for some cause amounting legally to 'excusable neglect' the party fails to take any action during the prescribed time, the rule seems plainly to allow the District Court discretion to permit him to file a late notice of appeal.' It thought that so doing would not be to 'enlarge' the period for taking an appeal, but rather would be only to 'permit the act to be done' after expiration of the specified period. This conclusion has, at least, enough surface plausibility to require a detailed examination of the language, judicial interpretations, and history of Rule 45(b) and the related Federal Rules of Criminal Procedure.
7
On its face, Rule 45(b) appears to be quite plain and clear. It specifically says that 'the court may not enlarge * * * the period for taking an appeal.' We think that to recognize a late notice of appeal is actually to 'enlarge' the period for taking an appeal. Giving the words of 45(b) their plain meaning, it would seem that the conclusion of the Court of Appeals is in direct conflict with that Rule. No authority was cited by the Court of Appeals in support of its conclusion, nor is any supporting authority cited by respondents here. The Government insists, it appears correctly, that there is no case that supports the Court of Appeals' conclusion. Every other decision to which we have been cited, and that we have found, holds that the filing of a notice of appeal within the 10-day period prescribed by Rule 37(a)(2) is mandatory and jurisdictional.4
8
It is quite significant that Rule 45(b) not only prohibits the court from enlarging the period for taking an appeal, but, by the same language in the same sentence, also prohibits enlargement of the period for taking any action under Rules 33, 34 and 35, except as provided in those Rules. That language is: '* * * but the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as otherwise provided in those rules, or the period for taking an appeal.' If, as the Court of Appeals has held, the delayed filing of a notice of appeal—found to have resulted from 'excusable neglect'—is sufficient to confer jurisdiction of the appeal, it would consistently follow that a District Court may, upon a like finding, permit delayed filing of a motion for new trial under Rule 33,5 of a motion in arrest of judgment under Rule 34,6 and the reduction of sentence under Rule 35,7 at any time months or even years—after expiration of the periods specifically prescribed in those Rules.
9
This is not only contrary to the language of those Rules, but also contrary to the decisions of this Court. In United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610, it was held that the power of the District Court sua sponte to grant a new trial under Rule 33 is limited to the time fixed in that Rule. There, quite like here, it was argued 'that because the literal language of the Rule places the five-day limit only on the making of the motion (for a new trial), it does not limit the power of the court later to grant (a new trial) * * *.' 331 U.S., at page 473, 67 S.Ct. at page 1332. This Court rejected the contention that such power 'lingers on indefinitely,' and pointed out that the Rules, in abolishing the limitation based on the Court Term, did not substitute indefiniteness, but prescribed precise times within which the power of the courts must be confined. 331 U.S. at page 474, 67 S.Ct. at page 1333. See also Marion v. United States, 9 Cir., 171 F.2d 185; Drown v. United States, 9 Cir., 198 F.2d 999. The same rule must apply with respect to the time within which a motion in arrest of judgment may be filed under Rule 34. Similarly, it has been held that a District Court may not reduce a sentence under Rule 35 after expiration of the 60-day period prescribed by that Rule regardless of excuse. United States ex rel. Quinn v. Hunter, 7 Cir., 162 F.2d 644. Cf. Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62.
10
The right of appeal in criminal cases in federal courts is of relatively recent origin. Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442. By the Act of February 24, 1933, 47 Stat. 904 (now 18 U.S.C. § 3772) 18 U.S.C.A. § 3772, Congress first gave this Court authority to promulgate rules regulating the time and manner for taking appeals in criminal cases. One of the principal purposes was to eliminate delays in such appeals. H.R.Rep. No. 2047, 72d Cong., 2d Sess., to accompany S. 4020. The first Criminal Appeals Rules promulgated under that Act were the 13 Rules effective September 1, 1934. 292 U.S. 661 670. Rule III provided a 5-day time limit for the taking of an appeal from a judgment of conviction. It was uniformly held that Rule III was mandatory and jurisdictional, and appeals not taken within that time appear always to have been dismissed regardless of excuse.8
11
From this review, it would seem that there is nothing in the language of Rule 45(b), or in the judicial interpretations of that Rule or its predecessor, which supports the conclusion of the Court of Appeals. We turn, then, to the history of Rule 45(b) to see whether any support for the court's conclusion can be found in that source.
12
Under the Act of June 29, 1940, 54 Stat. 688, as amended (now 18 U.S.C. § 3771, 18 U.S.C.A. § 3771), this Court was authorized to prescribe Rules of Criminal Procedure to and including verdict, which would become effective upon passive acceptance by Congress. Under that Act and the previous authority (the Act of February 24, 1933, 47 Stat. 904—now 18 U.S.C. § 3772, 18 U.S.C.A. § 3772), and with the aid of an advisory committee, this Court promulgated the Federal Rules of Criminal Procedure. Rules 32 through 39 were made effective by order of the Court, 327 U.S. 825, and the remaining Rules became effective by acceptance of Congress. What are now Rules 37(a)(2) and 45(b) underwent a number of draft changes before adoption. The first preliminary draft of Rule 37(a)(2) changed from 5 days to 10 days the time limit for the taking of an appeal, but of more significance is the fact that the preliminary draft of that Rule stated, in effect, that when a court imposes sentence upon a defendant, represented by appointed counsel or not represented by any counsel, the court shall ask the defendant whether he wishes to appeal and, if he answers in the affirmative, 'the court shall direct the clerk forthwith to prepare, file, and serve on behalf of the defendant a notice of appeal or shall extend the time specified by rule for the filing of a notice of appeal.'9 (Emphasis added.) In conformity with that draft proposal, the preliminary draft of what is now Rule 45(b)10 stated: '* * * but it may not enlarge * * * the period for taking an appeal except as provided in Rule 37(a)(2).' The limited provision for an extension of the time within which to appeal that was contained in the First Preliminary Draft of those Rules was eliminated by the Second Preliminary Draft11 and never reappeared. This seems almost conclusively to show a deliberate intention to eliminate any power of the courts to extend the time for the taking of an appeal.
13
But there is more. The prototype for Rule 45(b) was Rule 6 of the Federal Rules of Civil Procedure, 28 U.S.C.A.12 When the original Criminal Rules were being prepared, the limiting clause of Rule 6(b) of the Federal Rules of Civil Procedure stated: '* * * but it may not enlarge the period for taking any action under Rule 59, except as stated in subdivision (c) thereof, or the period for taking an appeal as provided by law.' It had consistently been held that Civil Rule 6(b) was mandatory and jurisdictional and could not be extended regardless of excuse.13 It must be presumed that the Advisory Committee and the Justices of this Court were aware of the limiting language of Civil Rule 6(b) and of the judicial construction it had received when they prepared and adopted the Federal Rules of Criminal Procedure. No support for the conclusion of the Court of Appeals can be found in this history of Rule 45(b).
14
Rule 45(b) says in plain words that '* * * the court may not enlarge * * * the period for taking an appeal.' The courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional. The history of Rule 45(b) shows that consideration was given to the matter of vesting a limited discretion in the courts to grant an extension of time for the taking of an appeal, but, upon further consideration, the idea was deliberately abandoned. It follows that the plain words, the judicial interpretations, and the history, of Rule 45(b) not only fail to support, but actually oppose, the conclusion of the Court of Appeals, and therefore its judgment cannot stand.
15
That powerful policy arguments may be made both for and against greater flexibility with respect to the time for the taking of an appeal is indeed evident. But that policy question, involving, as it does, many weighty and conflicting considerations, must be resolved through the rule-making process and not by judicial decision. United States v. Isthmian S.S. Co., 359 U.S. 314, 79 S.Ct. 857, 3 L.Ed.2d 845. If, by that process, the courts are ever given power to extend the time for the filing of a notice of appeal upon a finding of excusable neglect, it seems reasonable to think that some definite limitation upon the time within which they might do so would be prescribed; for otherwise, as under the decision of the court below, many appeals might—almost surely would—be indefinitely delayed. Certainly that possibility would unnecessarily14 produce intolerable uncertainty and confusion. Whatever may be the proper resolution of the policy question involved, it was beyond the power of the Court of Appeals to resolve it.
16
Reversed.
17
Mr. Justice BLACK and Mr. Justice DOUGLAS dissent, as they share the view of Judge Bazelon, 104 U.S.App.D.C. 200, 201, 260 F.2d 718, 719, that an extension of time, granted after the 10-day period for an appeal has passed, is not an 'enlargement' of the time in the narrow sense in which Rule 45(b) uses the word.
1
Travit Robinson's affidavit was, in essence, as follows: On 'the day of sentencing, I advised my attorney that I was going to appeal the case. * * * I had told him that from (what) other inmates at the District Jail (had told me) I knew I could appeal the judgment but (I) did not file the necessary appeal paper, thinking that my attorney would do it, while I now (understand) he thought I would do it. * * * We misunderstood each other and I now find that I gave him the wrong impression as to what I wanted done and that he misunderstood what I was going to do or wanted to do.'
The affidavit of respondents' counsel substantially conformed to Travit Robinson's affidavit and further recited: 'I was under the impression that he was going to (file the notice of appeal) without me, (and also) I neglected to differentiate the rules as to appealing this type of a case (from the Rules applying to the appeal) of a civil case.'
2
All references to Rules are to the Federal Rules of Criminal Procedure unless otherwise stated.
3
Rule 37(a)(2) of Fed.Rules Crim.Proc. provides:
'Time for Taking Appeal. An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion. When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant. * * *'
4
See, e.g., Martin v. United States, 10 Cir., 263 F.2d 516; Bryant v. United States, 6 Cir., 261 F.2d 229; United States v. Isabella, 2 Cir., 251 F.id 223; Banks v. United States, 9 Cir., 240 F.2d 302; Wagner v. United States, 4 Cir., 220 F.2d 513; Kirksey v. United States, 94 U.S.App.D.C. 393, 219 F.2d 499; Brant v. United States, 5 Cir., 210 F.2d 470; McIntosh v. United States, 5 Cir., 204 F.2d 545; Marion v. United States, 9 Cir., 171 F.2d 185; Swihart v. United States, 10 Cir., 169 F.2d 808; United States v. Froehlich, 2 Cir., 166 F.2d 84.
It is thus made to appear that the court below has itself recognized and enforced this Rule in Kirksey v. United States, supra, as it did also in Richards v. United States, 89 U.S.App.D.C. 354, at 356, 192 F.2d 602, note 2, at 604, 30 A.L.R.2d 880.
5
Rule 33 of Fed.Rules Crim.Proc., in pertinent part, provides:
'* * * A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 5 days after verdict or finding of guilty or within such further time as the court may fix during the 5-day period.' (Emphasis added.)
6
Rule 34 of Fed.Rules Crim.Proc. provides:
'The court shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 5 days after determination of guilt or within such further time as the court may fix during the 5-day period.' (Emphasis added.)
7
Rule 35 of Fed.Rules Crim.Proc. provides:
'The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari.'
8
See, e.g., Nix v. United States, 5 Cir., 131 F.2d 857; United States v. Infusino, 7 Cir., 131 F.2d 617; Miller v. United States, 5 Cir., 104 F.2d 343; United States v. Tousey, 7 Cir., 101 F.2d 892; O'Gwin v. United States, 9 Cir., 90 F.2d 494; Burr v. United States, 7 Cir., 86 F.2d 502; Fewox v. United States, 8 Cir., 77 F.2d 699. And compare United States ex rel. Coy v. United States, 316 U.S. 342, 62 S.Ct. 1137, 86 L.Ed. 1517, and United States v. Hark, 320 U.S. 531, 533, 64 S.Ct. 359, 360, 88 L.Ed. 290.
9
Federal Rules of Criminal Procedure, Preliminary Draft, with Notes and Forms, Prepared by the Advisory Committee on Rules of Criminal Procedure, United States Government Printing Office, 1943, Appeal Rule then No. 35(a)(2), p. 152.
10
What became Rule 45(b) was then treated as Rule 41(b). Id., at p. 179. The note to this proposed Rule stated that it '* * * is an adaptation for all criminal proceedings of Fed.Rules Civ.Proc., Rule 6 (Time).' Id., at p. 180.
11
Federal Rules of Criminal Procedure, Second Preliminary Draft, with Notes and Forms, Prepared by the Advisory Committee on Rules of Criminal Procedure, United States Government Printing Office, February 1944, Appeal Rule then No. 39(a)(2), p. 135.
12
The Notes of Advisory Committee on Rules of Criminal Procedure (Rule 45), state, 'The rule is in substance the same as Rule 6 of the Federal Rules of Civil Procedure. * * *'
13
United Drug Co. v. Helvering, 2 Cir., 108 F.2d 637; Alexander v. Special School District of Booneville, 8 Cir., 132 F.2d 355; Tinkoff v. West Publishing Co., 7 Cir., 138 F.2d 607; Lamb v. Shasta Oil Co., 5 Cir., 149 F.2d 729; Federal Deposit Insurance Corporation v. Congregation Poile Tzedeck, 2 Cir., 159 F.2d 163.
14
The allowance of an appeal months or years after expiration of the prescribed time seems unnecessary for the accomplishment of substantial justice, for there are a number of collateral remedies available to redress denial of basic rights. Examples are: The power of a District Court under Rule 35 to correct an illegal sentence at any time, and to reduce a sentence within 60 days after the judgment of conviction becomes final; the power of a District Court to entertain a collateral attack upon a judgment of conviction and to vacate, set aside or correct the sentence under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255; and proceedings by way of writ of error coram nobis.
| 01
|
361 U.S. 212
80 S.Ct. 270
4 L.Ed.2d 252
Nicholas A. STIRONE, Petitioner,v.UNITED STATES.
No. 35.
Argued Nov. 9, 10, 1959.
Decided Jan. 11, 1960.
Mr. Michael von Moschzisker, Philadelphia, Pa., for petitioner.
Mr. Wayne G. Barnett, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioner Nicholas Stirone was indicted and convicted in a federal court for unlawfully interfering with interstate commerce in violation of the Hobbs Act.1 The crucial question here is whether he was convicted of an offense not charged in the indictment.
2
So far as relevant to this question the indictment charged the following:
3
From 1951 until 1953, a man by the name of William G. Rider had a contract to supply ready-mixed concrete from his plant in Pennsylvania to be used for the erection of a steel-processing plant at Allenport, Pennsylvania. For the purpose of performing this contract Rider
4
'caused supplies and materials (sand) to move in interstate commerce between various points in the United States and the site of his plant for the manufacture or mixing of ready mixed concrete, and more particularly, from outside the State of Pennsylvania into the State of Pennsylvania.'
5
The indictment went on to charge that Stirone, using his influential union position,
6
'did * * * unlawfully obstruct, delay (and) affect interstate commerce between the several states of the United States and the movement of the aforesaid materials and supplies in such commerce, by extortion * * * of $31,274.13 * * * induced by fear and by the wrongful use of threats of labor disputes and threats of the loss of, and obstruction and prevention of, performance of his contract to supply ready mixed concrete.'
7
The district judge, over petitioner's objection as to its materiality and relevancy, permitted the Government to offer evidence of an effect on interstate commerce not only in sand brought into Pennsylvania from other States but also in interference with steel shipments from the steel plant in Pennsylvania into Michigan and Kentucky. Again over petitioner's objection the trial judge charged the jury that so far as the interstate commerce aspect of the case was concerned, Stirone's guilt could be rested either on a finding that (1) sand used to make the concrete 'had been shipped from another state into Pennsylvania' or (2) 'Mr. Rider's concrete was used for constructing a mill which would manufacture articles of steel to be shipped in interstate commerce * * *' from Pennsylvania into other States. On motion of petitioner for arrest of judgment, acquittal or new trial, the District Court held that 'A sufficient foundation for introduction of both kinds of proof was laid in the indictment.' 168 F.Supp. 490, 495. The Court of Appeals affirmed, all the judges agreeing that interference with the sand movements into Pennsylvania was barred by the Hobbs Act. 3 Cir., 262 F.2d 571. Judge Hastie and Chief Judge Biggs disagreed with the court's holding that Stirone could be tried and convicted for interference with the possible future shipments of steel from Pennsylvania to Michigan and Kentucky. 262 F.2d 578, 580. They were of opinion that no interference with interstate steel shipments was charged in the indictment and that in any event it is an unreasonable extension of the Act to make a federal offense out of extortion from a man merely because he is supplying concrete to build a mill which after construction will produce steel, a part of which may, if processed, move in interstate commerce.
8
We agree with the Court of Appeals that Rider's dependence on shipments of sand from outside Pennsylvania to carry on his ready-mixed concrete business entitled him to the Hobbs Act's protection against interruption or stoppage of his commerce in sand by extortion of the kind that the jury found the petitioner had committed here. That Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence. The Act outlaws such interference 'in any way or degree.' 18 U.S.C. § 1951(a), 18 U.S.C.A. § 1951(a). Had Rider's business been hindred or destroyed, interstate movements of sand to him would have slackened or stopped. The trial jury was entitled to find that commerce was saved from such a blockage by Rider's compliance with Stirone's coercive and illegal demands. It was to free commerce from such destructive burdens that the Hobbs Act was passed. United States v. Green, 350 U.S. 415, 420, 76 S.Ct. 522, 525, 100 L.Ed. 494.
9
Whether prospective steel shipments from the new steel mills would be enough, alone, to bring this transaction under the Act is a more difficult question. We need not decide this, however, since we agree with the dissenting judges in the Court of Appeals that it was error to submit that question to the jury and that the error cannot be dismissed as merely an insignificant variance between allegation and proof and thus harmless error as in Berger v. United States, 295 U.S.78, 55 S.Ct. 629, 79 L.Ed. 1314. The crime charged here is a felony and the Fifth Amendment requires that prosecution be begun by indictment.
10
Ever since Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, was decided in 1887, it has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself. In that case, the court ordered that some specific and relevant allegations the grand jury had charged be stricken from the indictment so that Bain might be convicted without proof of those particular allegations.2 In holding that this could not be done, Mr. Justice Miller, speaking for the Court, said:
11
'If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed.' 121 U.S. 1, 10, 7 S.Ct. 781, 786.
12
The Court went on to hold in Bain: 'that after the indictment was changed it was no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney * * *.' 121 U.S. 1, 13, 7 S.Ct. 781, 787.
13
The Bain case, which has never been disapproved, stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him. See also United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 425, 74 L.Ed. 1076; Cf. Clyatt v. United States, 197 U.S. 207, 219, 220, 25 S.Ct. 429, 431, 432, 49 L.Ed. 726. Yet the court did permit that in this case. The indictment here cannot fairly be read as charging interference with movements of steel from Pennsylvania to other States nor does the Court of Appeals appear to have so read it. The grand jury which found this indictment was satisfied to charge that Stirone's conduct interfered with interstate importation of sand. But neither this nor any other court can know that the grand jury would have been willing to charge that Stirone's conduct would interfere with interstate exportation of steel from a mill later to be built with Rider's concrete. And it cannot be said with certainty that with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned. Although the trial court did not permit a formal amendment of the indictment, the effect of what it did was the same. And the addition charging interference with steel exports here is neither trivial, useless, nor innocuous. Compare Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 534, 71 L.Ed. 793; Goto v. Lane, 265 U.S. 393, 402, 44 S.Ct. 525, 527, 68 L.Ed. 1070. While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error. Compare Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.3 Thus the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with interstate commerce which the grand jury did not charge.
14
Here, as the trial court charged the jury, there are two essential elements of a Hobbs Act crime: interference with commerce, and extortion. Both elements have to be charged. Neither is surplusage and neither can be treated as surplusage. The charge that interstate commerce is affected is critical since the Federal Government's jurisdiction of this crime rests only on that interference. It follows that when only one particular kind of commerce is charged to have been burdened a conviction must rest on that charge and not another, even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing that commerce of one kind or another had been burdened. The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment. Here, as in the Bain case, we cannot know whether the grand jury would have included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with. Yet because of the court's admission of evidence and under its charge this might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This was fatal error. Cf. Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644; De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278.
15
Reversed.
1
62 Stat. 793, 18 U.S.C. § 1951, 18 U.S.C.A. § 1951.
'(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
'(b) As used in this section—
'(2) The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.'
2
Bain was indicted for making a false statement 'with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs of said association * * *.' After sustaining demurrers of Bain to the indictment, the trial court went on to say that 'thereupon, on motion of the United States, by counsel, the court orders that the indictment be amended by striking out the words 'the Comptroller of the Currency and' therein contained.' By this amendment it was intended to permit conviction of Bain without proof that he had deceived the Comptroller as the grand jury had charged.
3
'Yet the institution (the grand jury) was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity. No person shall be required, according to the fundamental law of the country, except in the cases mentioned, to answer for any of the higher crimes unless this body, consisting of not less than sixteen nor more than twenty-three good and lawful men, selected from the body of the district, shall declare, upon careful deliberation, under the solemnity of an oath, that there is good reason for his accusation and trial.' Ex parte Bain, 121 U.S. 1, 11, 7 S.Ct. 781, 786, 30 L.Ed. 849. See also Costello v. United States, 350 U.S. 359, 362, 363, note 6, 76 S.Ct. 406, 408, 100 L.Ed. 397.
| 01
|
361 U.S. 231
80 S.Ct. 365
4 L.Ed.2d 267
MITCHELL, Secretary of Labor,v.OREGON FROZEN FOODS CO. et al.
No. 33.
Supreme Court of the United States
January 11, 1960
Miss Bessie Margolin, Washington, D. C., for petitioner.
Mr. Martin P. Gallagher, Ontario, Or., for respondents.
On writ of certiorari to the United States Court of Appeals for the ninth circuit.
PER CURIAM.
1
In view of ambiguities in the record as to the issues sought to be tendered, made apparent in oral argument and the memoranda of counsel subsequently filed at the Court's request, the writ of certiorari is dismissed as improvidently granted.
2
Mr. Justice BLACK took no part in the consideration or decision of this case.
| 89
|
361 U.S. 314
80 S.Ct. 341
4 L.Ed.2d 305
Henry L. HESS, Jr., Administrator of the Estate of George William Graham, Deceased, Petitioner,v.UNITED STATES of America.
No. 5.
Argued Oct. 15, 1959.
Decided Jan. 18, 1960.
Mr. Cleveland C. Cory, Portland, Or., for petitioner.
Mr. Alan S. Rosenthal, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
This action was brought against the United States under the Federal Tort Claims Act1 to recover for the death of petitioner's decedent, George W. Graham. Graham was drowned in the Columbia River while in the course of his employment as a carpenter foreman for Larson Construction Company, an independent contractor which had undertaken to perform repairs at Bonneville Dam. That structure is owned and operated by the United States.
2
As a preliminary to the job it had contracted to accomplish, Larson decided to send a working party by boat to the foot of the spillway dam to take soundings. Larson told the government inspector of the plan and asked that the operating personnel of the dam be requested to close two additional spillway gates near the point where the soundings were to be taken. This request was complied with. Larson then dispatched a group of employees to the area in a tug-and-barge unit. Graham was a member of this working party. Approaching the dam, the tug and barge veered and struck a pier, staving a hole in the barge. The unit then was carried northwardly in the river towards that part of the dam where the spillway gates were open. There it capsized in the turbulent water. Grapham and all but one of his fellow employees were killed. Their deaths occurred on navigable waters within the territorial limits of the State of Oregon.
3
The theory of the petitioner's complaint was that Graham's death had been proximately caused by the failure of operating personnel of the dam to close a sufficient number of spillway gates near the area where the soundings were to be taken. Liability was asserted under the general wrongful death statute of Oregon,2 as well as under another statute of that State, the Employers' Liability Law,3 which also creates a right to recover for death under certain circumstances.
4
The wrongful death statute permits recovery for death 'caused by the wrongful act or omission of another,' limits liability to $20,000, and makes the decedent's contributory negligence an absolute bar to recovery.4 In the limited area where the Employers' Liability Law applies, the road to recovery in a death action is considerably easier. Under that statute a defendant is liable for failure to 'use every device, care and precaution which it is practicable to use for the protection and safety of life and limb * * *.'5 There is no monetary limitation of liability, and the decedent's contributory negligence goes only to mitigate damages.6
5
After trial without a jury, the District Court entered judgment for the United States. Since Graham's death had occurred on navigable waters, the court ruled that the case was one for decision under maritime law, which is this case would apply the general wrongful death act of Oregon. Upon the basis of detailed findings of fact the court concluded that there was no liability under that statute because Graham's death was 'not caused by the negligence of the United States or its employees.' As to the Employers' Liability Law, it was the court's view that 'this Act is not applicable for the reason that the Government was not responsible for the work there being performed, and for the further reason that the high standard of care required under the Act, if applied to these cases, would be unconstitutional.' 1958 A.M.C. 660.
6
The Court of Appeals affirmed, holding that the trial court had not erred in finding that negligence had not been proved, and agreeing that the Employers' Liability Law 'could not be constitutionally applied to this case.' The appellate court expressly refrained from deciding 'whether the trial court was also correct in ruling that, if that act were applied, the United States would not be liable thereunder because it was not responsible for the work being performed by the decedent.' 9 Cir., 259 F.2d 285, 292. Certiorari was granted to consider a seemingly important question of federal law. 359 U.S. 923, 79 S.Ct. 604, 3 L.Ed.2d 627.
7
At this case reaches us, the petitioner no longer challenges the finding that the United States was not guilty of such negligence as would make it liable under the wrongful death statute of Oregon. His sole claim here is that he was erroneously deprived of the opportunity to invoke the Employers' Liability Law.
8
The Federal Tort Claims Act grants the District Courts jurisdiction of civil actions against the United States 'for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b).
9
Graham's death and the wrongful act or omission which allegedly caused it occurred within the State of Oregon, and liability must therefore be determined in accordance with the law of that place. Since death occurred on navigable waters, the controversy is, as the trial court correctly held, within the reach of admiralty jurisdiction, The Plymouth, 3 Wall. 20, 18 L.Ed. 125; Kermarec v. Compagnie Generale, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550. Oregon would be required, therefore, to look to maritime law in deciding it. Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501; 62 L.Ed. 1171; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927.7
10
Although admiralty law itself confers no right of action for wrongful death, The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, yet '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. 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; Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319; The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 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, 3 L.Ed.2d 541. In such a case the maritime law enforces the state statute 'as it would one originating in any foreign jurisdiction.' Levinson v. Deupree, 345 U.S. 648, 652, 73 S.Ct. 914, 916.
11
This means that in an action for wrongful death in state territorial waters the conduct said to give rise to liability is to be measured not under admiralty's standards of duty, but under the substantive standards of the state law. United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 615, 79 S.Ct. 517, 518. See also Curtis v. A. Garcia y Cia., 3 Cir., 241 F.2d 30; The H.S., Inc., No. 72, 3 Cir., 130 F.2d 341; Klingseisen v. Costanzo Transp. Co., 3 Cir., 101 F.2d 902; Graham v. A. Lusi, Ltd., 5 Cir., 206 F.2d 223; Truelson v. Whitney & Bodden Shipping Co., 5 Cir., 10 F.2d 412; Quinette v. Bisso, 5 Cir., 136 F. 825, 5 L.R.A.,N.S.., 303; Lee v. Pure Oil Co., 6 Cir., 218 F.2d 711; Feige v. Hurley, 6 Cir., 89 F.2d 575; Holley v. The Manfred Stansfield, 4 Cir., 269 F.2d 317.8 '(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.
12
Accepting this principle, we find no constitutional impediment to the application, by the maritime law, of Oregon's Employers' Liability Law to a death action in which the statute would otherwise by its terms apply. We are concerned with constitutional adjudication, not with reaching particular results in given cases. What was said last Term in deciding The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, is controlling here:
13
'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.' 358 U.S. at page 593, 79 S.Ct. at page 507.
14
'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.' 358 U.S. at page 594, 79 S.Ct. at page 507.
15
We have open the question whether a state wrongful death act might contain provisions so offensive to traditional principles of maritime law that the admiralty would decline to enforce them. The Oregon statute here in issue presents no such problem. Indeed, as the petitioner points out, the Employers' Liability Law contains many provisions more in consonance with traditional principles of admiralty than the State's general wrongful death statute. We hold, therefore, that the right of action for wrongful death created by the Oregon Employers' Liability Law may be invoked to recover for a maritime death in that State without constitutional inhibition.
16
Whether the statute by its terms, and as construed by the Oregon Supreme Court, would extend to the present case, and whether, if the statute is applicable, the United States violated the standard of care which it prescribes, are questions which we do not undertake to decide, and upon which we intimate no view. The District Court made an alternative ruling that the statute was inapplicable as a matter of state law. The Court of Appeals did not reach the question. Although this issue has been argued here, we leave its disposition to a court more at home with the law of Oregon.9
17
The judgment is set aside and the case remanded to the United States Court of Appeals for the Ninth Circuit.
18
So ordered.
19
The CHIEF JUSTICE, Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice BRENNAN join the opinion of the Court, but solely under compulsion of the Court's ruling in The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524. They believe that as long as the view of the law represented by that ruling prevails in the Court, it should be applied evenhandedly, despite the contrary views of some of those originally joining it that state law is the measure of recovery when it helps the defendant, as in Tungus, and is not the measure of recovery when it militates against the defendant as it does here. However, they note their continued disagreement with the ruling in The Tungus, and reserve their position as to whether it should be overruled, particularly in the light of the controversy application of it has engendered among its original subscribers. See the various separate opinions in this case and in Goett v. Union Carbide Corp., 361 U.S. 340, 80 S.Ct. 357, 359 et seq.
20
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins, dissenting.
21
Since The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264, it has been settled law that an action in personam for wrongful death occurring on navigable waters, not available under maritime law, The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, may be brought under a state wrongful death statute. In The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, decided last Term, we held that such an action could be maintained only in accordance with the limitations placed upon it by state law. This case presents the further question, not involved in The Tungus, namely, whether such an action lies when the conduct said to give rise to liability is measured under state law by greater substantive standards of duty than those which would have governed the same conduct under maritime law had death not occurred.1
22
The Court, if I read its opinion aright, holds that when a victim of a maritime tort dies as a result of such conduct the law of the State whose wrongful death statute is invoked wholly governs liability.2 At the same time the Court leaves open the question whether a state wrongful death act might contain 'provisions so offensive to traditional principles of maritime law that the admiralty would decline to enforce them,' finding that this Oregon statute 'presents no such problem.'
23
I cannot agree with the view that wrongful death actions growing out of maritime torts are so pervasively controlled by state law, or with the conclusion that this state statute in its substantive provisions is, in any event, not offensive to maritime law. Nor can I subscribe to the intimation that the question which the Court reserves is seriously open to debate. Because of the importance of the issue, a fuller statement of my views is justified than might be appropriate in a case of lesser general concern.
I.
24
It is surely beyond dispute that the Oregon Employers' Liability Law, Ore.Rev.Stat. § 654.305, imposes a stricter standard of duty than that imposed by maritime law. Under maritime law the basis of liability in cases like this is the failure to use reasonable care in light of the attendant circumstances, that is, negligence. See Kermarec v. Compagnie Generale, 358 U.S. 625, 630, 632, 79 S.Ct. 406, 409, 410, 3 L.Ed.2d 550. The state statute, on the other hand, imposes the duty to use—
25
'every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the * * * device, and without regard to the additional cost of suitable material or safety appliance (sic) and devices.' Ore.Rev.Stat. § 654.305.
26
Oregon itself has recognized that this statute imposes a 'much higher degree of care,' Hoffman v. Broadway Hazelwood, 139 Or. 519, 524, 10 P.2d 349, 351, 11 P.2d 814; 83 A.L.R. 1008, than that generally required of defendants in accident cases. See Camenzind v. Freeland Furniture Co., 89 Or. 158, 172—173, 174 P. 139, 144. So much indeed I do not understand the Court to deny.
II.
27
Had this accident resulted in injuries short of death, it is clear that the United States could not have been held liable except in accordance with the standards of duty imposed by maritime law. This follows from the general constitutional doctrine of federal supremacy in maritime affairs, and more particularly from the rule first unmistakably announced in Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171, which rejected the notion that the 'saving clause' of § 9 of the Judiciary Act of 1789, 1 Stat. 77, permitted the application in maritime tort cases of state substantive rules in derogation of maritime law.3 That case was a maritime tort action brought in a state court by a seaman, seeking compensatory damages for injuries claimed to have been caused by the negligence of his employer. Historically, maritime law recognized no such cause of action. The duty of a shipowner to an injured crewman was only to provide for his maintenance and cure, and that irrespective of negligence; full indemnity was owing only for breach of the warranty of seaworthiness.4 The Court held, first, that § 20 of the Merchant Marine Act of 1915, 38 Stat. 1185,5 notwithstanding, such was still the rule. This being so, a state court was not free to apply any other rule to a maritime tort:
28
'Plainly, we think, under the saving clause a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law; but we find nothing therein which reveals an intention to give the complaining party an election to determine whether the defendant's liability shall be measured by common-law standards rather than those of the maritime law. Under the circumstances here presented, without regard to the court where he might ask relief, petitioner's rights were those recognized by the law of the sea.' Id., 247 U.S. at page 384, 38 S.Ct. at page 504.
29
This rule was soon reiterated in two subsequent cases. The first was Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927, which, like Chelentis, was a state court action by a crew member against the shipowner. Injury was allegedly caused by mislabeling of a can of gasoline and by the negligent failure to stock a life preserver on board. A judgment for plaintiff was affirmed, but on the ground that the vessel was unseaworthy in the respects named; the existence of a cause of action for negligence was denied. 'The general rules of the maritime law apply whether the proceeding be instituted in an admiralty or common-law court.' Id., 259 U.S. at page 259, 42 S.Ct. at page 477. The second case was Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372, where the action, again in a state court for negligence, was by an employee of an independent contractor against his employer for a shipboard injury. Such a right of action existed in admiralty, Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208, and the question was as to the scope of the defendant's duty. Here too the same principle of federal supremacy was upheld. An instruction permitting the jury to consider the requirements of a state safety statute on the issue of negligence was held erroneous. 'The rights and liabilities of the parties arose out of and depended upon the general maritime law and could not be enlarged or impaired by the state statute.' 266 U.S. at page 457, 45 S.Ct. at page 158.
30
Largely owing to the passage of the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688,6 which bound nonadmiralty as well as admiralty courts,7 the issue was not again raised in litigation here for several decades. Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239, however, demonstrates the pervasive scope given to the same principle of federal supremacy in the application of that Act. There a State was denied power, by characterizing the matter as 'procedural,' to apply its own rules to the question of burden of proof of fraud in the obtaining of a release from an injured seaman. Rather the state court was required to apply the rule adopted by federal maritime law. The case thus manifests the continued vitality of the supremacy principle in this area. 317 U.S. at page 244, note 10, 63 S.Ct. at page 250.
31
It remained for Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, unmistakably to demonstrate that the principle embodied in the Chelentis, Sandanger, and Robins Dry Dock decisions had not withered with time. There a shore-based carpenter, employed by an independent contractor, sought a recovery against a shipowner based on negligence8 and unseaworthiness. The Court held that under federal law a right of action was available on both grounds, and that under the maritime rule the effect of plaintiff's contributory negligence was to diminish, but not wholly defeat, his recovery. This being so, a State was debarred from applying another rule.
32
Finally, when, only last Term, the Court came to consider, in Kermarec v. Compagnie Generale, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550, the scope of a shipowner's duty of care toward a social guest of a crew member, it had no hesitation about the proposition that federal law must govern an action within the jurisdiction of admiralty.
33
'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. * * * 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 (205—211).' Id., 358 U.S. at page 628, 79 S.Ct. at page 408.
34
I think it is clear, then, that the supremacy principle established by this line of cases may not be shrugged off as a discredited relic of an earlier day.9 Indeed, the Court's total disregard of that principle in the present case is not grounded on the view that it is no longer generally viable. Rather, the Court appears to consider it inapplicable in an action for wrongful death. For reasons now to be discussed I think this is a mistaken view.
III.
35
What I shall address myself to at this point is the reason why maritime law permits resort to state wrongful death statutes.10 For it is only through an understanding of that reason that light can be shed on the pivotal issue in this case.
36
Unfortunately such rationalization as has been made of the problem in the wrongful death cases in this Court does not carry us very far. Mr. Justice Holmes in The Hamilton was content to say no more than that permitting state death statutes to be used would not produce 'any lamentable lack of uniformity' in the maritime law. 207 U.S. at page 406, 28 S.Ct. at page 135, 52 L.Ed. 264. Mr. Justice McReynolds in Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, simply observed that the use of such statutes was 'the logical result of prior decisions,' that '(t)he subject is maritime and local in character,' and that the innovation 'will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations.' Id., 257 U.S. at page 242, 42 S.Ct. at page 90.11
37
Other rationalizations of the subject leave much to be desired. It has been said that the application of state wrongful death statutes is permitted to 'fill a void' in maritime law. See, e.g., 41 Va.L.Rev. 251, 252; 34 B.U.L.Rev. 365, 366; cf. The Tungus, supra, 358 U.S. at page 592, 79 S.Ct. at page 506, 3 L.Ed.2d 524. But there is a 'void' only in the sense that there is an absence of a right of action in such cases; admiralty does not lack a rule on the subject. It has also been suggested that the Court permits the application of state death acts because it regards such statutes as wiser in this respect than maritime law, although it deems itself unable to alter the disfavored federal rule. See, e.g., Note, 73 Harv.L.Rev. 84, 148, 149. But if the rule of The Harrisburg is so firmly established that legislation is the only available means of reform, cf. The Tungus, supra, 358 U.S. at pages 590, 599, 79 S.Ct. at pages 505, 509, it is scarcely legitimate to turn, for that very reason, to state law.
38
I think the fault with such explanations lies in the emphasis given to admiralty's endeavor to find in state law a supplement to its own shortcomings, something which federal power has always been fully competent to remedy internally on its own account. Instead, the proper point of departure is, I believe, to recognize that in permitting use of wrongful death statutes admiralty is endeavoring to accommodate itself to state policies represented by such statutes. That indeed appears to have been the approach of Congress in enacting the Death on the High Seas Act, for as was said in The Tungus the legislative history of that 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" and '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.' 358 U.S. at page 593, 79 S.Ct. at page 507. At the same time there was no suggestion that Congress contemplated that the supremacy of admiralty law should be yielded to the States in maritime death cases. Cf. id., 358 U.S. at pages 607—608, 79 S.Ct. at page 514, separate opinion.
39
It only confuses things to say, as has sometimes been loosely remarked, that in maritime wrongful death cases admiralty absorbs state law, or that the States have embraced maritime law. State and maritime systems of law stand separately, even though the two may not always be mutually exclusive, and when a conflict arises the latter yields to the former only in face of a superior state interest. This, I think, is what Mr. Justice McReynolds had in mind when he stated in Garcia that a wrongful death statute is a subject both 'maritime and local in character.' The true inquiry thus becomes one involving the nature of the state interest in a wrongful death statute, the extent to which such interest intrudes upon federal concerns, and the basis of the reasoning that led Mr. Justice Holmes to state summarily in The Hamilton that resort to such statutes would not result in 'any lamentable lack of uniformity' in maritime law.
40
What no lesser authority in admiralty matters than Judge Addison Brown said many years ago in The City of Norwalk, D.C., 55 F. 98,12 is highly illuminating. He gave these reasons for permitting a state death statute to apply to a maritime tort:
41
'(1) It is a general law of personal rights, not specially directed to commerce or navigation, but applying alike on sea or shore; (2) it is within the police power; for it is 'a statute intended to protect life,' (Huntington v. Attrill, 146 U.S. 657, 675, 13 S.Ct. 224, (230, 36 L.Ed. 1123)) through one of the most effectual of all sanctions, viz. by imposing on the offender a liability to pay a pecuniary indemnity; while in the interest of the public, it also tends to avert the dependency or pauperism of the survivors by shifting the burden of their support, in part at least, from the community to the authors of the wrong; (3) it is local in its scope and interferes in no way with any needful uniformity in the general law of the seas, or with international or interstate interests.' Id., 55 F. at page 108.
42
Where tortious conduct causes death, the decision of a State to provide a right of action in favor of the victim's estate or beneficiaries represents a response to considerations peculiarly within traditional state competence: providing for the victim's family, and preventing pauperism by shifting what would otherwise be a public responsibility to those who committed the wrong. These are matters intimately concerned with the State's interest in regulating familial relationships. Moreover, where the injury is wrongful under maritime law, this is the predominant, if indeed not the sole, purpose of the statute. In such instances the State is not legislating in order to affect the defendant's conduct, since by hypothesis a federally imposed duty already exists. For merely because no federal action lies for wrongful death, one can hardly say that there is no duty not to kill through negligence, but there is a duty not to injure. The tortious conduct is the same in either case, and wrongful under federal law. The state statute therefore makes no meaningful inroads on federal interests. To quote further from Judge Brown:
43
'The state statute does not create the cause of action. It does, indeed, create a new right, and liability; but it does not create a single one of the elements that make up the fundamental cause of action, that is, the essential grounds of the demand. All these elements exist independently of the statute, and are not in the least affected by it. It no more creates the wrong, or the damage, than it creates the negligence or the death; nor does it, as in the pilotage and double wharfage cases, add anything to the damages sustained. It authorizes no recovery except for 'the pecuniary damages' already existing. It is apparent, therefore, that, as suggested by Mr. Justice Clifford in Steamboat Co. v. Chase, 16 Wall. 532 (21 L.Ed. 369), the statute does no more than 'take the case out of the operation of the common-law maxim that an action for death dies with the person." 55 F. at page 109.
44
'Before the statute, the case was damnum absque injuria; by the statute, it became at once a tort in the full legal sense, and a marine tort by reason of its place, its nature, and its circumstances * * *.' Id., 55 F. at page 110.
45
Thus, where the duty imposed by a state death act is no greater than that already existing under federal law, the application of the statute is solely, or nearly so, a reaction to strong, localized state interests, and there is no real encroachment on federal interests.13
46
Far different is the case when a State purports, as here, to impose a duty which under federal law a person does not bear. Then it can hardly be said that the State is not seeking to regulate conduct within federal maritime jurisdiction. The very purpose of a statute like the one here invoked is to induce those to whom it applies to take the precautions required by it. In such a case, the mere fact that it is a death act which imposes the duty cannot be thought to render the import of the matter of 'local' concern only. The state interests given expression no longer are predominantly those peculiarly within state concern. By the same token the intrusion into federally regulated interests is no longer minimal.
47
I can find no justification, consistent with the course of adjudication in this Court, for upholding state power here, without so much as even suggesting the need for an inquiry as to the extent of federal interest in the activity in question.14
IV.
48
Nothing in the wrongful death cases on which the Court relies calls for today's holding. None of them involved, as here, the assertion of any local rules of substantive law going beyond those applicable under federal standards.15 The essential failing in the Court's use of these cases is its view that, because rights asserted under a state death statute are manifestly rights created by the State, no federal element is involved in their assertion. The truth is, however, that, where the tort is maritime and the action is brought under the 'saving clause,' state-created rights may be asserted only by federal permission. That is the premise on which The Hamilton, and its offspring, proceeded. When such a right is asserted, the plaintiff must, however, show more than that a State can give him a right to recover; he must also show that it has done so. Thus, if a State has chosen not to provide a right of action to one who does not sue within a stated period, The Harrisburg, supra; Western Fuel Co. v. Garcia, supra; Levinson v. Deupree, 345 U.S. 648, 651—652, 73 S.Ct. 914, 916; to one who does not have a stated relationship to the decedent, id., 345 U.S. at page 651, 73 S.Ct. at page 916, to one whose decedent's negligence contributed to the fatal injury, United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 615, 79 S.Ct. 517, 518, or to one whose right of action is based on breach of the uniquely maritime duty to provide a seaworthy ship, The Tungus v. Skovgaard, supra, there can be no right of recovery, for neither federal nor state law affords it.16 For this reason, when asking whether a plaintiff has made out a cause of action under a state death act, the Court approaches the statute 'as it would one originating in any foreign jurisdiction,' Levinson v. Deupree, supra, 345 U.S. at page 652, 73 S.Ct. at page 916, in an 'endeavor to determine the issues in accordance with the substantive law of the State,' Garrett v. Moore-McCormack Co., 317 U.S. at page 245, 63 S.Ct. at page 251. This, because the State having created the right, one must look to state law to 'determine the circumstances under which that right exists.' The Tungus, supra, 358 U.S. at page 594, 79 S.Ct. at page 507, 3 L.Ed.2d 524.
49
But none of these cases is apposite when the question is not whether a federally permitted state right of action has in fact been conferred by the State, but whether federal maritime law permits the State to create an asserted right of action. It is surely fallacious to reason that, because the principle of the supremacy of federal maritime law has been held not to bar a right of action for death caused by a defendant's failure to take reasonable precautions to avoid exposing those to whom the duty is owed to an undue risk of harm, it follows that such principle does not bar a right of action for death caused by failure to 'use every device, care and precaution which it is practicable to use,' Ore.Rev.Stat. § 654.305. When the Court, in The Hamilton and its successors, held that the federal supremacy principle did not prevent a State from giving any right of action for wrongful death caused by a maritime tort, it did not thereby eschew forever all federal limits on the content of substantive obligations appearing in statutes bearing the label 'wrongful death act.'
50
It may be that the Court does not intend to go so far. It asserts, albeit almost as an afterthought, that some state doctrines might be constitutionally inapplicable to maritime torts, notwithstanding that they are embodied in a death statute.17 It then summarily finds the possible reservation inapplicable in this instance on the ground that other provisions of the Oregon Employers' Liability Law, not here involved, resemble some admiralty doctrines, with which also we are not now concerned, more than do comparable provisions in the State's general wrongful death statute, which presumably can be constitutionally applied to a maritime tort. With all deference, I must say that the total irrelevance of that fact seems plain. We are not reviewing the general constitutionally of the Employers' Liability Law; we are concerned only with the constitutionality of the standard-of-care provisions of that law, as applied to an employee of an independent contractor injured on navigable waters and seeking to impose liability upon the owner and operator of a dam. The Court does not find that the federal interest in regulating the conduct of the dam owner is so minimal whether by reason of the fixed situs of the dam or on some other ground—that the federal supremacy principle may reasonably be found inapplicable. Neither does the Court assert, for it could scarcely do so, that the standard of care required by this statute is not significantly greater than that imposed by federal law. Thus, if the principle of the supremacy of maritime law calls for anything more than an empty nod, it calls for a result contrary to that reached today.
51
It is suggested that a contrary decision will lack 'evenhandedness,' apparently for the reason that, since those invoking state death statutes must sometimes bear the burden of comparatively unfavorable provisions, it is only fair that, when more favorable provisions obtain, they be able to enjoy the benefits of such rules. But, as the Court points out, 'we are concerned with constitutional adjudication, not with reaching particular results in given cases.' Such unevenhandedness as there may be in this area is the consequence of the rule of The Harrisburg, to which this Court has steadfastly adhered for nearly 75 years,18 and which Congress, when it enacted the Death on the High Seas Act, saw fit to change only in a limited way. See The Tungus, supra, 358 U.S. at pages 592—593, 79 S.Ct. at pages 506 507. When federal law permits the application of state death acts, those on whom the state statute confers a right of action may escape the harsh consequences of that rule. Those whom the state law has declined to benefit are left as they were. Certainly we should not, in the name of 'evenhandedness,' permit a State to exceed constitutional limitations merely because in some instances it may have chosen not to do all it might under the Constitution.19
52
I would affirm.
53
Memorandum of Mr. Justice WHITTAKER.
54
Except for its implication, or conclusion if it may be intended to be such, that maritime torts committed on the navigable waters of a State which result in death are governed by the general substantive tort law of the State—not by the general federal maritime law as remedially supplemented only by the State's Wrongful Death Act—which conflicts with my views as expressed in my dissent in Goett v. Union Carbide Corp., 361 U.S. 340, 345, 80 S.Ct. 357, 360, I join my Brother HARLAN'S dissent.
1
28 U.S.C. §§ 1346(b), 2674, 28 U.S.C.A. §§ 1346(b), 2674.
2
Ore.Rev.Stat. 30.020.
3
Ore.Rev.Stat. 654.305 et seq.
4
'Action by personal representative for wrongful death. When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the decedent, for the benefit of the surviving spouse and dependents and in case there is no surviving spouse or dependents, then for the benefit of the estate of the decedent, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had he lived, against the wrongdoer for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed $20,000, which may include a recovery for all reasonable expenses paid or incurred for funeral, burial, doctor, hospital or nursing services for the deceased.' Ore.Rev.Stat. 30.020.
5
'Protection and safety of persons in hazardous employment generally. Generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employes or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance (sic) and devices.' Ore.Rev.Stat. 654.305.
6
'Who may prosecute damage action for death; damages unlimited. If there is any loss of life by reason of violations of ORS 654.305 to 654.335 by any owner, contractor or subcontractor or any person liable under ORS 654.305 to 654.335, the surviving spouse and children and adopted children of the person so killed and, if none, then his or her lineal heirs and, if none, then the mother or father, as the case may be, shall have a right of action without any limit as to the amount of damages which may be awarded. If none of the persons entitled to maintain such action reside within the state, the executor or administrator of the deceased person may maintain such action for their respective benefits and in the order above named.' Ore.Rev.Stat. 654.325.
'Contributory negligence. The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of the damage.' Ore.Rev.Stat. 654.335.
7
The petitioner argues that 'the place where the act or omission occurred' was on the dam itself, an extension of the land, and that, therefore, this case should be decided in accordance with the law that Oregon would apply to torts occurring on land. It is clear, however, that the term 'place' in the Federal Tort Claims Act means the political entity, in this case Oregon, whose laws shall govern the action against the United States 'in the same manner and to the same extent as a private individual under like circumstances.' 28 U.S.C. § 2674, 28 U.S.C.A. § 2674. There can be no question but that Oregon would be required to apply maritime law if this were an action between private parties, since a tort action for injury or death occurring upon navigable waters is within the exclusive reach of maritime law. The Plymouth, 3 Wall. 20, 35, 36, 18 L.Ed. 125. See Magruder and Grout, Wrongful Death Within The Admiralty Jurisdiction, 35 Yale L.J. 395, 404. This case does not involve the question that would be presented if wrongful conduct occurring within the territory of one political entity caused injury or death within a different political entity. Cf. Eastern Air Lines v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62.
8
We are not here concerned with those rights conferred by the Death on the High Seas Act, 41 Stat. 537 et seq., 46 U.S.C. § 761 et seq., 46 U.S.C.A. § 761 et seq.; the Jones Act, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688; or 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.
9
In contending that the statute is applicable, the petitioner refers us to the following Oregon decisions, among others: Byers v. Hardy, Or., 337 P.2d 806; Drefs v. Holman Transfer Co., 130 Or. 452, 280 P. 505; Rorvik v. North Pacific Lumber Co., 99 Or. 58, 190 P. 331; 195 P. 163; C. D. Johnson Lumber Corp. v. Hutchens, 9 Cir., 194 F.2d 574; Coomer v. Supple Investment Co., 128 Or. 224, 274 P. 302; Myers v. Staub, 201 Or. 663, 272 P.2d 203; Tamm v. Sauset, 67 Or. 292, 135 P. 868, L.R.A.1917D, 988; Warner v. Synnes, 114 Or. 451, 230 P. 362; 235 P. 305, 44 A.L.R. 904; Walters v. Dock Commission, 126 Or. 487, 245 P. 1117; 266 P. 634; 270 P. 778. The United States, in asserting that the statute is inapplicable, cites many of the same Oregon authorities.
1
The Court in The Tungus was concerned only with possible limitations imposed by New Jersey law on the assertion of causes of action for unseaworthiness and negligence, both of which the Court, accepting the views of the Court of Appeals, considered were embraced by the state wrongful death statute. The case did not present the question whether such a statute might confer enlarged substantive rights not afforded by maritime law.
2
I agree with the Court that the provision of the Federal Tort Claims Act rendering the United States liable in accordance with the 'law of the place where the act or omission occurred,' 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b), manifests no intention to convert a maritime tort into a land tort, and that this case must be treated as one falling within maritime jurisdiction. See 361 U.S. 318, 80 S.Ct. 345, and note 7.
3
While discussions of the current maritime supremacy doctrine usually commence with Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, the Chelentis case seems a more appropriate point of beginning in this instance. Jensen was of course a workmen's compensation case, and might be thought to have rested on the view that the 'common-law remedy' preserved by the 'saving clause' did not embrace the compensation remedy, 'of a character wholly unknown to the common law.' 244 U.S. at page 218, 37 S.Ct. at page 530. It remained for later cases to establish that Jensen reflected a broader principle.
It should be added that, while the results in Jensen and some of its progeny have been widely criticized, there is general recognition of the validity of its premise. As Gilmore and Black put it, The Law of Admiralty, § 1—17: 'If there is any sense at all in making maritime law a federal subject, then there must be some limit set to the power of the states to interfere in the field of its working.' See also Stevens, Erie R. Co. v. Thompkins, 304 U.S. 64, 51 S.Ct. 817, 82 L.Ed. 1188, and the Uniform General Maritime Law, 64 Harv.L.Rev. 246.
4
The classic formulation is that found in The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760.
5
Providing that 'seamen having command shall not be held to be fellow-servants with those under their authority.'
6
See the account in Gilmore and Black, op. cit., supra, 376 377.
7
See Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; Beadle v. Spencer, 298 U.S. 124, 56 S.Ct. 712, 80 L.Ed. 1082; The Arizona v. Anelich, 298 U.S. 110, 56 S.Ct. 707, 80 L.Ed. 1075.
8
The cause of action for negligence did not of course rest on the Jones Act, since Hawn was not a seaman, but on the traditional admiralty doctrine imposing on a shipowner a duty to use reasonable care to avoid injuring an invitee. See, e.g., The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586.
9
Nothing in Caldarola v. Eckert, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968, may properly be taken as impinging upon the continued vitality of the supremacy principle as enunciated in the Chelentis case and its successors. Cf. Stevens, Erie R. Co., v. Tompkins, 304 U.S. 64, 51 S.Ct. 817, 82 L.Ed. 1188, and the Uniform General Maritime Law, 64 Harv.L.Rev. 246, 263. Nor has this doctrine otherwise become diluted as seems to be suggested by Hart and Wechsler, The Federal Courts and the Federal System, 482 483. Any doubts which might have existed on this score were 'effectively laid to rest by Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 410—411, 74 S.Ct. 202, 204, (205—211).' Kermarec v. Compagnie Generale, supra, 358 U.S. at page 628, 79 S.Ct. at page 409.
10
Prior to the decision in The Harrisburg, supra, the Court had rejected claims that maritime tort actions in state courts based upon a local death statute were not within the 'saving clause,' Steamboat Co. v. Chase, 16 Wall. 522, 21 L.Ed. 369, or were offensive to the Commerce Clause, Sherlock v. Alling, 93 U.S. 99, 102—103, 23 L.Ed. 819, 820. Subsequently, in The Hamilton, supra, it was, with little difficulty, held that a plaintiff could assert in admiralty a right of action grounded on a state wrongful death act. See also La Bourgogne, 210 U.S. 95, 138, 28 S.Ct. 664, 679, 52 L.Ed. 973. Jensen recognized the doctrine of these cases, 244 U.S. at page 216, 37 S.Ct. at page 529, 61 L.Ed. 1086, and in Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, the post-Jensen Court expressly held that the rule of The Hamilton had not been displaced. See also Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756; Spencer Kellogg & Sons Co. v. Hicks, 285 U.S. 502, 512—513, 52 S.Ct. 450, 453, 76 L.Ed. 903.
The significance of such early cases as Chase and Alling in the history of the uniformity principle has now become largely academic, in view of the twentieth century developments.
11
This analysis leaves unexplained the sense in which wrongful death actions are local. That attribute obtains irrespective of the character of the decedent's activities, although the 'maritime but local' doctrine generally turned on the nuances of exactly that element. E.g., Grant Smith-Porter Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, see Robinson, Admiralty, 103; 2 Larson, Law of Workmen's Compensation, § 89.22. Put another way, an action for wrongful death is 'local' although, had the victim lived, his action for damages would, by reason of the nature of his activities, not have been 'local.' Thus, it is some characteristic of a wrongful death action itself which permits application of state law.
12
The decision was affirmed as to this ground sub nom. The Transfer No. 4, 2 Cir., 61 F. 364, 367—368, certificate dismissed on motion sub nom. McCullough v. New York, N.H. & H.R. Co., 163 U.S. 693, 16 S.Ct. 1203, 41 L.Ed. 312.
13
This reasoning has found reflection in maritime cases outside the realm of wrongful death actions. Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903, permitted the application to a maritime tort of a state statute providing for survival of an action against a deceased tortfeasor. Here, too, decedent had breached a federal duty for which, had he lived, he would have had to answer. The State's decision to protect plaintiffs from loss in this way reflected only local interests, and made no encroachment on maritime interests.
Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582, a contract action, involved the question of the validity, as applied to a maritime contract, of a state statute making agreements to arbitrate specifically enforceable. The decision proceeded from the premise that arbitration agreements were valid obligations under maritime law, and that the statute merely added the remedy of specific performance to the traditional remedy of damages. See, Id., 264 U.S. at pages 123—125, 44 S.Ct. at pages 276—277. While there the state interest in enforcing such agreements was not as peculiarly local as is true of wrongful death cases, the fact that admiralty
acknowledged the validity of arbitration clauses in contracts, and recognized a duty to live up to them, rendered the intrusion into federal interests so minimal as to justify the result.
14
It may be that the existence of an overriding federal interest is not to be inferred solely from the fact that the tort is maritime, in the sense that admiralty has jurisdiction over it. Cases may be put in which the connection with maritime activities is so remote or fortuitous that state law should readily be accepted by admiralty where it is otherwise applicable. The Court does not purport to treat this case on any such basis.
15
See, in this Court: The Harrisburg, supra ('negligence' under Massachusetts and Pennsylvania death statutes); The Hamilton, supra ('negligence' under Delaware wrongful death statute); West-
ern Fuel v. Garcia, supra ('negligence' under California wrongful death statute); La Bourgogne, 210 U.S. 95, 28 S.Ct. 664. 52 L.Ed. 973 ('fault' under French wrongful death law); Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319 ('negligence or wrongful act' under Kentucky wrongful death statute); The Tungus v. Skovgaard, supra ('wrongful act, neglect or default' under New Jersey wrongful death statute); United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (same New Jersey statute as in The Tungus).
See, in the lower federal courts: Curtis v. A. Garcia y Cia., 3 Cir., 241 F.2d 30 ('unlawful violence or negligence' under Pennsylvania wrongful death statute); The H.S., Inc., No. 72, 3 Cir., 130 F.2d 341 ('wrongful act, neglect or default' under New Jersey wrongful death statute); Klingseisen v. Costanzo Transp. Co., 3 Cir., 101 F.2d 902 (same Pennsylvania wrongful death statute as in the Curtis case); Graham v. A. Lusi, Ltd., 5 Cir., 206 F.2d 223 ('wrongful act, negligence, carelessness or default' under Florida wrongful death statute); Truelson v. Whitney & Bodden Shipping Co., 5 Cir., 10 F.2d 412 ('wrongful act, neglect, carelessness, unskilfulness (sic), or default' under Texas wrongful death statute); Quinette v. Bisso, 5 Cir., 136 F. 825, 5 L.R.A., N.S., 303 ('fault' under Louisiana wrongful death statute); Lee v. Pure Oil Co., 6 Cir., 218 F.2d 711 ('wrongful act, omission, or killing' under Tennessee wrongful death statute); Feige v. Hurley, 6 Cir., 89 F.2d 575 ('negligence or wrongful act' under Kentucky wrongful death statute); Holley v. The Manfred Stansfield, 4 Cir., 269 F.2d 317 ('wrongful act, neglect, or default' under Virginia wrongful death statute).
Thus, in not one of the foregoing cases, either here or in the lower courts, did the standard of liability under the respective state laws exceed the standard of liability in admiralty had the injury not resulted in death.
16
See also The H.S., Inc., No. 72, supra, where recovery rested on the appellate court's decision that the State whose wrongful death statute was sought to be made the basis of recovery imposed liability upon the defendant, in the circumstances there presented, for the tort of its employee. There was no suggestion that application of substantive federal maritime standards would have led to a different result.
The remaining lower court cases relied on by the Court, and referred to in note 15, supra, involved the same issues as those presented in the Halecki and Tungus cases.
17
In such a case, of course, not only would 'the admiralty * * * decline to enforce,' 80 S.Ct. 346, the challenged provision, but federal law would inhibit a common-law court, state or federal, from applying it to a maritime tort action.
18
See cases cited, note 15, supra.
19
It ought not to have been necessary to say explicitly that this opinion rests upon evenhanded application of a rule of constitutional law which permits the enforcement of state-afforded substantive rights under state wrongful death statutes only so long as such rights do not offend those established by the maritime law. Faithful adherence to that rule of course may lead to different results in different situations, depending upon the extent of the rights given by state law. In The Tungus, the rights accorded by state law were permitted to prevail because they were not offensive to those recognized by maritime law. Here the state-created right cannot prevail because it is flatly opposed to that existing under maritime law. In short, these opposite results are not attributable to any differences in the constitutional rule applicable in the two cases—a rule which remains the same in all wrongful death cases—but to differences in the character of the substantive rights afforded by the two wrongful death statutes involved.
| 78
|
361 U.S. 304
80 S.Ct. 326
4 L.Ed.2d 334
UNITED STATES, Petitioner,v.Sydelle PRICE.
No. 48.
Argued Dec. 9, 1959.
Decided Jan. 18, 1960.
Mr. Howard A. Heffron, Washington, D.C., for the petitioner.
Mr. W. Lee McLane, Jr., Phoenix, Ariz., for the respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The United States brought this action against the respondent taxpayer for the collection of a deficiency in taxes for the year 1946, and statutory interest thereon. The respondent defended on the ground that the action could not be maintained because the Commissioner of Internal Revenue had never issued to the taxpayer a notice of deficiency (commonly known as a '90-day letter') for the amount in question. This defense was based on § 272(a)(1) of the Internal Revenue Code of 1939, 53 Stat. 82, as amended, 26 U.S.C.A. § 272(a)(1), providing in pertinent part as follows:
2
'If in the case of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within ninety days after such notice is mailed * * * the taxpayer may file a petition with The Tax Court of the United States for a redetermination of the deficiency. No assessment of a deficiency in respect of the tax imposed by this chapter and no distraint or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such ninety-day period, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. * * *'
3
The Government relied on the admitted fact that respondent had executed a Treasury Department form waiving the restrictions on assessment and collection of the deficiency sued for,1 and on § 272(d) of the 1939 Code, 53 Stat. 83, said to authorize such a waiver, which provides:
4
'The taxpayer shall at any time have the right, by a signed notice in writing filed with the Commissioner, to waive the restrictions provided in subsection (a) of this section on the assessment and collection of the whole or any part of the deficiency.'
5
The District Court held that the waiver was not effective because a 90-day letter had not been issued, and that § 272(a) therefore barred the action. The Court of Appeals affirmed, 263 F.2d 382, and in view of contrary decisions in the First and Sixth Circuits,2 we granted certiorari. 359 U.S. 988, 79 S.Ct. 1120, 3 L.Ed.2d 977. For reasons hereafter stated we think the court below was in error.
6
We start with the language of § 272(d). By its terms, the right of waiver is to be available 'at any time,' and is applicable to 'the restrictions' contained in § 272(a). Those restrictions include the prohibitions on assessment and collection of a deficiency prior to the mailing of a 90-day letter, no less than the same prohibitions relating to the period following the issuance of such a letter during which a petition for a redetermination of a deficiency may be filed or is awaiting decision of the Tax Court.
7
Respondent seeks to support the view that these provisions should be read as applying only to the period following the issuance of the 90-day letter by noting that § 272(d) is limited to waivers of restrictions on the assessment and collection of 'the deficiency,' and asserting that 'the deficiency' does not come into existence, as it were, until a 90-day letter has been mailed. This reading of the statute is said to follow from the first sentence of § 272(a)(1):
8
'If in the case of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail.'
9
A deficiency, it is argued, is not 'determined' until the statutory notice has been issued. We cannot accept any such fine-spun refinements. The plain sense of this provision contemplates, first, a determination, and then the sending of a notice. No persuasive reason appears for artificially engrafting upon the statutory terms excessively formal conditions.3 Nor do we find any force in the argument that because a determination and assessment of additional deficiencies may follow upon one already made, 'the deficiency' referred to in § 272(d) must be taken as limited to one previously determined.
10
Section 272(d) does not on its face therefore support the view that a waiver of the restrictions on assessment and collection of a tax is effective only if filed after the issuance of a 90-day letter. We think a similar conclusion follows from an examination of the legislative history of the relevant statutory enactments.
11
In creating the Tax Court (originally known as the Board of Tax Appeals), Congress provided a forum in which taxpayers could obtain an 'independent review of the Commissioner of Internal Revenue's determination of additional income * * * taxes by the Board in advance of their paying the tax found by the Commissioner to be due.' Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 721, 49 S.Ct. 499, 501, 73 L.Ed. 918. Section 274(a) of the Revenue Act of 1924, 43 Stat. 297, and the Revenue Act of 1926, § 274(a), 44 Stat. 55 (the predecessors of § 272(a) of the 1939 Code), disabled the Commissioner from assessing or collecting any deficiency until a notice of such deficiency had been issued, and for 60 (later amended to 90) days thereafter, or, in the event that a taxpayer took an appeal to the Board of tax Appeals within such period, until that body had rendered a final decision. However, even though a taxpayer did not wish to contest the Commissioner's determination of a deficiency before the Board, interest on such deficiency continued to accrue from the original due date of the tax until the time for seeking Board review had run, such interest being thereafter collectible upon assessment of the tax. Revenue Act of 1924, § 274(f), 43 Stat. 297.
12
To meet this situation, the 1926 Revenue Act added, in § 274(d), 44 Stat. 56, the waiver provisions re-enacted as § 272(d) of the 1939 Code. At the same time, Congress provided, in § 274(j) (the predecessor of § 292 of the 1939 Code, 26 U.S.C.A. § 292), that the filing of a waiver as provided for by subsection (d) should stop the running of interest on the deficiency upon the expiration of 30 days from such filing or upon the assessment of such deficiency, whichever is the earlier.4 The relation between the two sections of the 1926 Act, and between the comparable sections of the 1939 Code as well, is clear: (1) a waiver is provided for in § 274(d) (1939 Code, § 272(d)) '(i)n order to permit the taxpayer to pay the tax and stop the running of interest,' S.Rep.No. 52, 69th Cong., 1st Sess., p. 27; (2) the Commissioner is thereupon permitted to assess and collect the tax free of the restrictions contained in § 274(a) (1939 Code, § 272(a)); and (3) the taxpayer is protected against the continued running of interest, due to delay in assessment, by the 30-day cutoff provided for by § 274(j) (1939 Code, § 292).
13
We can find in this history and the purpose it discloses no warrant for inferring that it was intended that a taxpayer should be without power to stop the running of interest against him until a formal notice of deficiency has been issued.5 Yet, as will appear, such is the necessary effect of respondent's position. Major reliance is placed on a passage in the Senate Committee Report on the 1926 Act:
14
'In order to permit the taxpayer to pay the tax and stop the running of interest, the committee recommends in section 274(d) of the bill that the taxpayer at any time be permitted to waive in writing the restrictions on the commissioner against assessing and collecting the tax, but without taking away the right of the taxpayer to take the case to the board.' S.Rep.No. 52, 69th Cong., 1st Sess., p. 27.
15
Respondent claims that the last clause of this passage should be taken as indicating that § 274(d), reenacted as § 272(d) of the 1939 Code, does not sanction waivers prior to the issuance of a 90-day letter, because it is that event which brought the Board's, and now brings the Tax Court's, jurisdiction to review deficiencies into play. To read the passage—the obscurity of which has previously been judicially noted6—so as to apply the clause in question to waivers executed before the issuance of a notice of deficiency would require a holding that, despite a waiver, the issuance by the Commissioner of a notice of deficiency remains a prerequisite to assessment and collection. But since, as the taxpayer acknowledges, it is inconceivable that a waiver would be effective to stop the running of interest, and at the same time be ineffective to permit the Government immediately to assess and collect the deficiency to which the waiver referred, the necessary result of respondent's reading of the Senate Committee Report would be to infer that a taxpayer was to be without power to stop the running of interest until a formal notice of deficiency had issued, often involving not inconsiderable periods of delay. Such an inference does not jibe either with the 'right' the statute gives a taxpayer to file a waiver 'at any time,' or with the purposes of the waiver provisions. Moreover, had Congress desired to require the issuance of a notice of deficiency prior to assessment and collection in all circumstances, it more likely would have accomplished that result directly, as it did in the instance of jeopardy assessments. See Revenue Act of 1926, § 279(b), 44 Stat. 59 (now § 6861(b) of the 1954 Code, 26 U.S.C.A. § 6861(b)).
16
Nor do we think that subsequent legislative developments change the view we have of the statute. Several years after the enactment of the 1926 statute, the Court of Appeals for the Ninth Circuit expressed views similar to those which formed the basis for the decision below. Mutual Lumber Co. v. Poe, 66 F.2d 904; McCarthy Co. v. Commissioner, 80 F.2d 618. In 1938, Congress considered various suggested revisions in the revenue statutes, and a House of Representatives Subcommittee recommended an express repudiation of those decisions. This recommendation was not adopted, and from the failure to act, respondent would have us infer an acceptance by Congress of the Ninth Circuit's position. Such non-action by Congress affords the most dubious foundation for drawing positive inferences. Moreover, the Subcommittee's discussion, which is set out in full in the margin,7 does not support the meaning sought to be derived from it. While certain isolated passages can be so read, taken as a whole what the Subcommittee said appears to us to espouse the position that the Commissioner's long-standing interpretation of the statute was correct, and that clarification was called for only because of the doubts caused by the Ninth Circuit's decisions, which this Court had declined to review. Mutual Lumber Co. v. Poe, 290 U.S. 706, 54 S.Ct. 373, 78 L.Ed. 606; McCarthy v. Commissioner, 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1381. Whether Congress thought the proposal unwise, as respondent argues, or unnecessary, we cannot tell; accordingly, no inference can properly be drawn from the failure of the Congress to act.
17
Finally, we are similarly unable to find support for respondent's position in the history of the 1954 Code. While the recodification settled (for taxable years covered by that Act) the question before us by expressly authorizing a waiver prior to the issuance of a 90-day letter,8 the reports contain no clear statement as to Congress' view of then existing law. What light there is, however, tends to favor the Government's contentions. The new statute amended another subsection of the section containing the waiver provision, and the reports refer to that amendment as the 'only material change from existing law.'9 Respondent argues that the change regarding waiver was probably thought not 'material.' Inferences from legislative history cannot rest on so slender a reed. Moreover, the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one. See United States v. United Mine Workers, 330 U.S. 258, 282, 67 S.Ct. 677, 690, 91 L.Ed. 884.
18
The legislative history, then, does not call for a result contrary to that indicated by the language of the Act. We hold that a waiver given pursuant to § 272(d) of the Internal Revenue Code of 1939 or its predecessor sections, although executed prior to the issuance of a notice of deficiency, is a fully effective instrument.
19
Reversed and remanded.
20
Mr. Justice DOUGLAS, whom Mr. Justice STEWART joins, dissenting.
21
Mutual Lumber Co. v. Poe, 9 Cir., 66 F.2d 904, decided in 1933, states in my view the correct rule—one that was early criticized and challenged, yet one that Congress did not undertake to change. I would therefore affirm this judgment.
1
The waiver was executed on United States Treasury Form 870, entitled 'Waiver of Restrictions on Assessment and Collection of Deficiency in Tax,' and read, in relevant part, as follows:
'Pursuant to the provisions of Section 272(d) of the Internal Revenue Code, and/or the corresponding provisions of prior internal revenue laws, the restrictions provided in Section 272(a) of the Internal Revenue Code, and/or the corresponding provisions of prior internal revenue laws, are hereby waived and consent is given to the assessment and collection of the following deficiency or deficiencies in tax:'
2
Associated Mutuals v. Delaney, 176 F.2d 179, 182—184, 11 A.L.R.2d 896; Moore v. Cleveland R. Co., 108 F.2d 656, 658—660. See also Roos v. United States, 31 F.Supp. 144, 90 Ct.Cl. 482.
3
See Moore v. Cleveland R. Co., supra, 108 F.2d at page 659, analyzing § 271(a) of the Code, 53 Stat. 82, defining a 'deficiency.'
4
Section 292 of the 1939 Code, 53 Stat. 88, which is in all respects material here identical with its 1926 counterpart, provided, in pertinent part:
'Interest upon the amount determined as a deficiency shall be assessed at the same time as the deficiency, shall be paid upon notice and demand from the collector, and shall be collected as a part of the tax, at the rate of 6 per centum per annum from the date prescribed for the payment of the tax * * * to the date the deficiency is assessed, or, in the case of a waiver under section 272(d), to the thirtieth day after the filing of such waiver or to the date the deficiency is assessed whichever is the earlier.'
5
See Moore v. Cleveland R. Co., supra, 108 F.2d at pages 659—660.
6
Associated Mutuals v. Delaney, supra, 176 F.2d at page 183. Even respondent's interpretation of the passage would not, however, give literal effect to its language, for a taxpayer would not 'at any time be permitted to waive' the restrictions on assessment and collection of a deficiency, but could do so only after the issuance of a notice of deficiency.
7
'In order to enable the Government to collect admitted deficiencies in an orderly and expeditious manner without the delay necessarily involved in the issuance of a formal notice of deficiency, and also to enable taxpayers to curtail the interest period on such deficiencies by permitting the Government to make an earlier assessment of the tax than otherwise would be possible, the Bureau of Internal Revenue has entered into cooperative agreements with taxpayers.
'It has been a practice of long standing in the Bureau to endeavor to secure the signed agreement of a taxpayer to additional taxes proposed by an internal-revenue agent as the result of a field investigation, and also to taxes proposed in letters from the Commissioner mailed as preliminaries to the issuance of the formal notice of deficiency authorized in section 272(a), Revenue Act of 1936, and corresponding provisions of prior acts. It has further been the practice to regard such a signed agreement as a valid waiver under section 272(d), Revenue Act of 1936, and corresponding provisions of prior acts, for the purpose of computing interest on the deficiencies agreed to in accordance with section 292, Revenue Act of 1936, and corresponding provisions of prior acts. That is, interest on a deficiency so agreed to would be computed to the date of assessment or to the thirtieth day after the filing of such agreement, whichever was the earlier. In the great majority of such cases the assessment is made within 30 days after the agreement is procured, thereby making collection of such deficiencies more nearly concurrent with their discovery than would be the case if formal notice were required to be given.
'As a result of two decisions of the Circuit Court of Appeals for the Ninth Circuit (Mutual Lumber Co. v. Poe, 66 F.2d (904), 906, certiorari denied Jan. 6, 1936 (290 U.S. 706, 54 S.Ct. 373, 78 L.Ed. 606); McCarthy Co. v. Commissioner, 80 F.2d 618, certiorari denied Apr. 6, 1936 (298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1381)), a valid waiver cannot be given by a taxpayer prior to the formal determination by the Commissioner, as evidence by a 60- or 90-day letter, that there is a deficiency in tax.
'Your subcommittee while feeling that the language of the statute is already sufficiently clear, feels compelled, in view of the action of the Supreme Court in denying certiorari, to recommend (Recommendation No. 47) that an amendment be inserted to insure the validity of waivers given before the mailing of the deficiency letter, such amendment to provide that the taxpayer shall have the right at any time after a deficiency is proposed in any manner that the Commissioner may direct, whether before or after the sending of the notice of deficiency as provided in subsection (a) of that section, to waive by a signed notice in writing, any and all restrictions or conditions, however imposed, on the immediate assessment and collection on the whole or any part of the deficiency so proposed.
'It is believed that the proposed amendment will furnish a clear and unquestionable statutory basis for a long-established and satisfactorily functioning departmental procedure. It will be conducive to the early settlement of controverted issues without necessity for litigation, while at the same time retaining for the taxpayer his present privilege of paying deficiencies under appeal and thereby terminating the running of deficiency interest.' Report of a Subcommittee of the House Committee on Ways and Means, on Proposed Revision of the Revenue Laws, 1938, 75th Cong., 3d Sess., pp. 53—54.
8
Section 6213(d) of the 1954 Code, 26 U.S.C.A. § 6213(d) reads as follows:
'The taxpayer shall at any time (whether or not a notice of deficiency has been issued) have the right, by a signed notice in writing filed with the Secretary or his delegate, to waive the restrictions provided in subsection (a) on the assessment and collection of the whole or any part of the deficiency.'
9
H.R.Rep. No. 1337, 83d Cong., 2d Sess., p. A405:
'Section 6213. Restrictions applicable to deficiencies; petition to Tax Court.
'The only material change from existing law is made in subsection (b)(3) of this section, which contains a new provision providing that any amount paid as a tax, or in respect of a tax, may be assessed upon the receipt of such payment notwithstanding the restrictions on assessment contained in subsection (a).' See also, to the same effect, S.Rep. No. 1622, 83d Cong., 2d Sess., p. 573.
| 1112
|
361 U.S. 288
80 S.Ct. 332
4 L.Ed.2d 323
MITCHELL, Secretary of Labor, Petitioner,v.ROBERT DE MARIO JEWELRY, INC., et al.
No. 39.
Argued Nov. 16, 1959.
Decided Jan. 18, 1960.
Miss Bessie Margolin, Washington, D.C., for the petitioner.
Mr. R. Lamar Moore, for the respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Section 15(a)(3) of the Fair Labor Standards Act of 1938, 52 Stat. 1068, 29 U.S.C. § 215(a)(3), 29 U.S.C.A. § 215(a)(3), makes it unlawful for an employer covered by that Act—
2
'to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act * * *.'
3
By § 17 of the Act, 52 Stat. 1069, as amended, 29 U.S.C. § 217, 29 U.S.C.A. § 217, the District Courts are given jurisdiction
4
'for cause shown, to restrain violations of section 15:1 Provided, That no court shall have jurisdiction, in any action brought by the Secretary of Labor to restrain such violations, to order the payment to employees of unpaid minimum wages or unpaid overtime compensation or an additional equal amount as liquidated damages in such action.'
5
The question for decision is whether, in an action brought by the Secretary of Labor to enjoin violations of § 15(a)(3), Section 17 empowers a District Court to order reimbursement for loss of wages caused by an unlawful discharge or other discrimination.
6
The facts, as found by the District Court,2 are not in dispute. Several of the employees of the respondent corporation had sought the aid of the Secretary of Labor, petitioner here, in seeking to recover wages allegedly unpaid in violation of §§ 6(a) and 7(a) of the Act. The Secretary instituted an action pursuant to § 16(c) of the statute, 63 Stat. 919, 29 U.S.C. § 216(c), 29 U.S.C.A. § 216(c), on behalf of the aggrieved employees, for the recovery of the unpaid compensation. After the commencement of such action, respondents commenced a course of discriminatory conduct against three of the complaining employees, culminating in their discharge. In a second action by the Secretary, pursuant to § 17, this discrimination was found by the District Court to have been caused by respondents' 'displeasure' over the actions of the employees in authorizing suit.
7
Finding the evidence of unlawful discrimination 'clear and convincing,' the District Court granted an injunction against further discrimination and ordered reinstatement of the three discharged employees, without loss of seniority. As to reimbursement for loss of wages, the court, expressly reserving the question whether it had jurisdiction to order such reimbursement, declined in the exercise of its discretion to do so. On appeal, the Court of Appeals did not reach the question of abuse of discretion, for it held that the District Court lacked jurisdiction to order reimbursement of lost wages resulting from an unlawful discharge. 5 Cir., 260 F.2d 929. The decision being in conflict with that of the Court of Appeals for the Second Circuit in Walling v. O'Grady, 146 F.2d 422, we granted certiorari. 359 U.S. 964, 79 S.Ct. 879, 3 L.Ed.2d 833.
8
We initially consider § 17 apart from the effect of its proviso, which was added in 1949. The court below took as the touchstone for decision the principle that to be upheld the jurisdiction here contested 'must be expressly conferred by an act of Congress or be necessarily implied from a congressional enactment.' 260 F.2d at page 933. In this the court was mistaken. The proper criterion is that laid down in Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332. This Court there dealt with an action brought by the Price Administrator under the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 925, to enjoin the collection of excessive rents and to require the landlord to reimburse its tenants for moneys paid as a result of past violations. We upheld the implied power to order reimbursement, in language of the greatest relevance here:
9
'Thus the Administrator invoked the jurisdiction of the District Court to enjoin acts and practices made illegal by the Act and to enforce compliance with the Act. Such a jurisdiction is an equitable one. Unless otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdiction. And since the public interest is involved in a proceeding of this nature, those equitable powers assume an even broader and more flexible character than when only a private controversy is at stake. * * * (T)he court may go beyond the matters immediately underlying its equitable jurisdiction * * * and give whatever other relief may be necessary under the circumstances. * * *
10
'Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. 'The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.' Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508. * * *' 328 U.S. at pages 397—398, 66 S.Ct. at page 1089.
11
The applicability of this principle is not to be denied, either because the Court there considered a wartime statute, or because, having set forth the governing inquiry, it went on to find in the language of the statute affirmative confirmation of the power to order reimbursement. Id., 328 U.S. at page 399, 66 S.Ct. at page 1089. When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in the light of statutory purposes. As this Court long ago recognized, 'there is inherent in the Courts of Equity a jurisdiction to * * * give effect to the policy of the legislature.' Clark v. Smith, 13 Pet. 195, 203, 10 L.Ed. 123. To the policy of the Fair Labor Standards Act we therefore now turn.
12
The central aim of the Act was to achieve, in those industries within its scope, certain minimum labor standards. See § 2 of the Act, 52 Stat. 1060, 29 U.S.C. § 202, 29 U.S.C.A. § 202. The provisions of the statute affect weekly wage dealings between vast numbers of business establishments and employees. For weighty practical and other reasons, Congress did not seek to secure compliance with prescribed standards through continuing detailed federal supervision or inspection of payrolls. Rather it chose to rely on information and complaints received from employees seeking to vindicate rights claimed to have been denied. Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances. This ends the prohibition of § 15(a)(3) against discharges and other discriminatory practices was designed to serve. For it needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions. Cf. Holden v. Hardy, 169 U.S. 366, 397, 18 S.Ct. 383, 390, 42 L.Ed. 780. By the proscription of retaliatory acts set forth in § 15(a)(3), and its enforcement in equity by the Secretary pursuant to § 17, Congress sought to foster a climate in which compliance with the substantive provisions of the Act would be enhanced.
13
In this context, the significance of reimbursement of lost wages becomes apparent. To an employee considering an attempt to secure his just wage deserts under the Act, the value of such an effort may pale when set against the prospect of discharge and the total loss of wages for the indeterminate period necessary to seek and obtain reinstatement. Resort to statutory remedies might thus often take on the character of a calculated risk, with restitution of partial deficiencies in wages due for past work perhaps obtainable only at the cost of irremediable entire loss of pay for an unpredictable period. Faced with such alternatives, employees understandably might decide that matters had best be left as they are. We cannot read the Act as presenting those it sought to protect with what is little more than a Hobson's choice.
14
Respondents argue that, in the absence of a contrary contractual provision, an employee cannot recover lost wages owing to a discriminatory discharge, and that the jurisdiction here invoked is therefore to be regarded as 'punitive,' outside the function of equity unless expressly authorized by the statute. We intimate no view as to the validity of the premise, for it in no way supports the conclusion. Whatever the rights of the parties may be under traditional notions of contract law, it is clear that under § 15(a)(3) such a discharge is not permissible. Even assuming, without deciding, that the Act did not contemplate the private vindication of rights it bestowed,3 the public remedy is not thereby rendered punitive, where the measure of reimbursement is compensatory only. Respondents cannot be heard to assert that wages are ordered to be paid for services which were not performed, for it was the employer's own unlawful conduct which deprived the employees of their opportunity to render services.
15
It is contended, however, that even though equitable jurisdiction to restore lost wages resulting from an unlawful discharge may originally have existed under § 17, such jurisdiction was withdrawn by the 1949 proviso which disabled courts in § 17 actions from awarding 'unpaid minimum wages or unpaid overtime compensation or an additional equal amount as liquidated damages * * *.' 80 S.Ct. at page 334. When considered against its background we think the proviso has no such effect.
16
Shortly before the enactment of this proviso the Court of Appeals for the Second Circuit had decided in McComb v. Frank Scerbo & Sons, 177 F.2d 137, that in a § 17 suit brought by the Secretary to enjoin violations of the minimum wage and overtime provisions of the Act, the court had power to order reimbursement of unpaid overtime wages. The effect of this decision was to enable the Secretary in such a suit to recover on behalf of employees that which would otherwise have been recoverable only in an action brought by the employees themselves under § 16(b) of the statute, 52 Stat. 1069, 29 U.S.C. § 216(b), 29 U.S.C.A. § 216(b). The § 17 proviso was aimed at doing away with this result. Even so, Congress did not see fit to undo the effects of Scerbo entirely, for at the time it enacted the § 17 proviso it also added to the Act § 16(c), whereby the Secretary was empowered to bring a representative action on behalf of employees to recover unpaid wages in cases other than those involving 'an issue of law which has not been settled finally by the courts.' 63 Stat. 919, 29 U.S.C. § 216(c), 29 U.S.C.A. § 216(c).4 Thus, presumably Congress felt that the Secretary should not lend his weight to, nor be burdened with, actions for unpaid wages except in the clearest cases.
17
We find no indication in the language of the § 17 proviso, or in the legislative history, that Congress intended the proviso to have a wider effect, that is, that it was intended to apply to reimbursement of lost wages incident to a wrongful discharge, as distinguished from the recoupment of underpayments of the statutorily prescribed rates for those while still employed. The proviso speaks entirely in terms of unpaid minimum wages and overtime. In effectuating the policies of the Act the proper reach of equity power in suits by the Secretary under the wage provisions of the statute, and that in suits under the discharge provisions, are attended by quite different considerations, which, in passing the 1949 amendments, Congress evidently had in mind. We are not persuaded by respondents' argument that because the Second Circuit in Scerbo partially relied on its earlier decision in Walling v. O'Grady, supra, and because the House Conference Report on the 1949 amendments stated that the § 17 proviso 'will have the effect of reversing such decisions as McComb v. Scerbo * * * in which the court included a restitution order in an injunction decree granted under section 17,' H.R.Conf.Rep. No. 1453, 81st Cong., 1st Sess., p. 32, the proviso must be taken as having been intended to overrule the O'Grady case as well. O'Grady was a discriminatory discharge case, not a wage case as was Scerbo. And before the 1949 amendments expressions of other lower courts had indicated a point of view similar to that espoused in Scerbo. See Fleming v. Alderman, D.C., 51 F.Supp. 800; Walling v. Miller, 8 Cir., 138 F.2d 629; Fleming v. Warshawsky & Co., 7 Cir., 123 F.2d 622.
18
Rather than expressing a general repudiation of equitable jurisdiction to order reimbursement to effectuate the policies of the Act, we think that the 1949 amendments evidence a purpose to make only limited modifications in the nature and extent of the Secretary's power to obtain reimbursement of unpaid compensation.5 This being so, there is no warrant for construing the § 17 proviso as reaching beyond suits to enjoin violations of the minimum wage and overtime provisions of the statute, so as wholly to eradicate any jurisdiction to restore wage losses to employees discharged in violation of § 15(a)(3). To the contrary, in view of the related character of the issues presented in O'Grady and Scerbo, the modification in the area treated by the latter case bespeaks an intention to leave the O'Grady decision intact. The 1949 amendments, then, only serve to confirm the result we reach independently of them.
19
We hold that, in an action by the Secretary to restrain violations of § 15(a) (3), a District Court has jurisdiction to order an employer to reimburse employees, unlawfully discharged or otherwise discriminated against, for wages lost because of that discharge or discrimination. The Court of Appeals did not reach the question whether the District Court abused its discretion in declining to order reimbursement. While, because of what we have found to be the statutory purposes there is doubtless little room for the exercise of discretion not to order reimbursement, since we do not have the entire record before us we shall remand the case to the Court of Appeals for consideration of that issue.
20
Reversed and remanded.
21
Mr. Justice DOUGLAS, while joining in this opinion, agrees with Mr. Justice WHITTAKER that other remedies are available and that any remedy obtained in this equity action is complementary to them.
22
Mr. Justice WHITTAKER, with whom Mr. Justice BLACK and Mr. Justice CLARK join, dissenting.
23
I cannot agree with the Court's opinion. My disagreement rests on the belief that Congress has expressly withheld jurisdiction from District Courts to make awards against employers in favor of employees for 'wages' lost as a result of unlawful discharges, in injunction actions, such as this, brought by the Secretary of Labor under § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. § 217, 29 U.S.C.A. § 217.
24
Several employees of the corporate respondent, believing that they had not been paid the minimum wages and overtime compensation prescribed by §§ 6(a) and 7(a) of the Act, 29 U.S.C. §§ 206(a), 207(a), 29 U.S.C.A. §§ 206(a), 207(a), requested the Secretary of Labor, in writing, to institute an action against the corporate respondent under § 16(c) of the Act, 29 U.S.C. § 216(c), 29 U.S.C.A. § 216(c), to recover the amount of their claims. The Secretary did so on November 16, 1956. Soon afterward, three of these employees were discharged. On May 17, 1957, the Secretary brought another suit against respondents in the same District Court—this time under § 17 of the Act, 29 U.S.C. § 217, 29 U.S.C.A. § 217—complaining that respondents had discharged the three employees in violation of § 15(a)(3) of the Act, 29 U.S.C. § 215(a) (3), 29 U.S.C.A. § 215(a)(3), and praying for an order enjoining respondents from violating the provisions of that section, reinstating the three employees, and awarding reparations to them for wages lost because of their wrongful discharge. The District Court found that the employees had been discharged, in violation of § 15(a)(3), for instigating the first action, issued an injunction against respondents from violating that section, and ordered respondents to offer reinstatement to those employees. But the district judge doubted that he had jurisdiction under § 17 to award reparations to the employees for their lost wages, and held that, even if he did have jurisdiction to do so, such an award of reparations should be denied as a matter of discretion. On the Secretary's appeal, the Court of Appeals affirmed, 5 Cir., 260 F.2d 929, holding that the District Court had no jurisdiction, in an injunction action brought by the Secretary under § 17, to award reparations for wages lost by the employees because of their wrongful discharge. We granted certiorari, 359 U.S. 964, 79 S.Ct. 879, 3 L.Ed.2d 833.
25
The question before us, then, is whether a District Court has jurisdiction in an injunction action brought by the Secretary of Labor under § 17 of the Act to make an award of reparations against an employer in favor of an employee, found to have been wrongfully discharged and entitled to reinstatement, for the 'wages' that he lost by being wrongfully excluded from his job.
26
The Court, heavily relying upon the long reach of unrestricted general equity powers, particularly as elucidated in Porter v. Warner Holding Co., 328 U.S. 395, 397—398, 66 S.Ct. 1086, 1088—1089, 90 L.Ed. 1332,1 holds that a District Court does have such jurisdiction and power.
27
It is not to be doubted that an equity court, proceeding under unrestricted general equity powers, may decree all the relief, including incidental legal relief, necessary to do complete justice between the parties. Here, however, the District Court was proceeding, not under unrestricted general equity powers, but under a statute—s 17 of the Act—the proviso of which expressly denies to all courts jurisdiction and power, in an action brought by the Secretary for an injunction under that section, 'to order the payment to employees of unpaid minimum wages or unpaid overtime compensation or an additional equal amount as liquidated damages in such action.'
28
The Court does not dispute the fact that Congress by the proviso in § 17 deprived the courts of jurisdiction to 'order the payment to employees of unpaid minimum wages or unpaid overtime compensation * * *.' in an injunction action brought by the Secretary under that section, in a case where the wages have been earned by services rendered, but the Court seems to think that an award of reparations to an employee for wages lost because of a wrongful discharge is not one 'order(ing) the payment to employees of unpaid minimum wages or unpaid overtime compensation * * *.' and that, therefore, the court is not deprived by the proviso in § 17 of jurisdiction to make such an award in such a case. Here, I think, lies the fallacy. The only possible basis or theory under which a wrongfully discharged employee might recover his lost wages is that the attempted discharge, being unlawful, never became effective, and since he was unlawfully excluded from his job his wages continued to accrue. It would seem necessarily to follow that an award for those lost 'wages' would be as much one for 'unpaid minimum wages or unpaid overtime compensation' as would an award for 'wages' for services actually performed. If it may be thought that an award for loss wages should properly be called one for 'damages,' the result would be the same, for the sole measure of such 'damages' would be the lost wages. Hence, it seems inescapable that however viewed an award for wages lost because of an unlawful discharge is one for, or that at least embraces, unpaid minimum wages or unpaid overtime compensation or both.
29
Before Congress added subdivision (c) to § 16 and the proviso to § 17 in 1949, the Second Circuit had held in Walling v. O'Grady, 146 F.2d 422, that a District Court, acting under its unrestricted general equity powers, had jurisdiction, in a suit brought by the Secretary under § 17 of the Act as it then stood, to order not only an injunction against violation of the provisions of § 15(a)(3) of the Act, and reinstatement of employees wrongfully discharged, but also an award of reparations for wages lost by employees because of their wrongful discharge. Thereafter, following, as it said, the principles it announced in the O'Grady case, the Second Circuit held in McComb v. Frank Scerbo & Sons, 177 F.2d 137, that a District Court, proceeding under its unrestricted general equity powers, had jurisdiction, in an injunction action brought by the Secretary under § 17 as it then stood, to award reparations to employees for unpaid minimum wages and overtime compensation to which their past services entitled them.
30
Evidently dissatisfied with those decisions, Congress passed the Act of Oct. 26, 1949, 63 Stat. 919, by which it added subsection (c) to § 16 and the proviso to § 17 of the Act. By subsection (c)2 of § 16, Congress provided, in effect, that when an employee files a written request with the Secretary claiming unpaid minimum wages or unpaid overtime compensation under § 6 or § 7 of the Act, 'the Secretary of Labor may bring an action in any court of competent jurisdiction to recover the amount of such claim * * *.' In such an action the Secretary, of course, sues as a trustee or use plaintiff for the benefit of the employee, and the action is one at law triable by a jury under the Seventh Amendment of the United States Constitution. That is the only remedy which Congress has provided for the recovery of unpaid minimum wages and overtime compensation by suit instituted and prosecuted by the Secretary. By the proviso to § 17, Congress provided: 'That no court shall have jurisdiction, in any action brought by the Secretary of Labor to restrain such violations, to order the payment to employees of unpaid minimum wages or unpaid overtime compensation or an additional equal amount as liquidated damages in such action.' The Conference Report that accompanied that bill, H.R.Conf.Rep.No. 1453, 81st Cong., 1st Sess., p. 32, said, respecting the proviso, that: 'The provision * * * will have the effect of reversing such decisions as McComb v. Scerbo * * *, in which the court included a restitution order in an injunction decree granted under § 17.' It seems evident from that statement of the Conference Committee that Congress intended the proviso to, in effect, reverse not only McComb v. Scerbo, but also all other 'such decisions.' Not only is it clear from the opinions themselves that the Second Circuit applied the same legal principles in Scerbo that it had earlier applied in O'Grady, but, moreover, that court said that it did so. In the Scerbo case the court said: 'Defendants attempt to distinguish the O'Grady case because the individual employee's right to sue for back pay lost by a discriminatory discharge is not explicit in the Act. We do not agree that the case is distinguishable * * *.' 177 F.2d at page 138. And, in his separate opinion concurring only in the result, Judge Learned Hand's opening sentence was: 'I agree that the decision below followed from what has been decided before * * *.' 177 F.2d at page 140. It thus seems quite clear, not only from the terms of the proviso but also from the legislative history declaring its purpose, that Congress intended not only to deny jurisdiction to District Courts, in injunction actions brought by the Secretary under § 17, to award reparations for unpaid minimum wages or overtime compensation, but also, in effect, to reverse 'such decisions as McComb v. Scerbo.' Surely Walling v. O'Grady, supra, was 'such (a) decision' as McComb v. Scerbo.3
31
This review seems plainly to show that Congress intended by § 16(c) to allow recovery of unpaid minimum wages and overtime compensation at the instance of the Secretary only in an action at law, brought under that subsection, and triable by a jury; and that it intended by the proviso to § 17 to deny jurisdiction to District Courts, in injunction actions brought by the Secretary under that section, to award reparations for 'wages,' including 'unpaid minimum wages (and) unpaid overtime compensation,' whether earned by the rendition of services or by unlawful denial of the opportunity to earn them.
32
I think a wrongfully discharged employee may maintain in his own right an action at law, triable by a jury, under either § 16(b) or the common law, or the Secretary may do so by an action at law under § 16(c), to recover wages lost by the employee as a result of his wrongful discharge. But, for the reasons hereinbefore stated, it seems to me that the Court of Appeals was correct in holding that the District Court was without jurisdiction to make an award of reparations for lost wages in this injunction action brought by the Secretary under § 17, and I would affirm its judgment.
1
In addition to the conduct prohibited by § 15(a)(3), various other activities are proscribed by paragraphs (1), (2), (4), and (5) of subdivision (a) of that section.
2
The opinion of the District Court is reported in 180 F.Supp. 800, 13 WH Cases 709.
3
Cf. Bonner v. Elizabeth Arden, Inc., 2 Cir., 177 F.2d 703, 705; Powell v. Washington Post Co., 105 U.S.App.D.C. 374, 375, 267 F.2d 651, 652.
4
A further limitation was that there would be no right to seek double damages, which are recoverable only in actions brought by employees under § 16(b).
5
The Conference Report makes this clear: 'This proviso has been inserted * * * in view of the provision of the conference agreement contained in section 16(c) of the act which authorizes the Administrator in certain cases to bring suits for damages for unpaid minimum wages and overtime compensation owing to employees at the written request of such employees. Under the conference agreement the proviso does not preclude the Administrator from joining in a single complaint causes of action arising under section 16(c) and section 17.' H.R.Conf.Rep. No. 1453, 81st Cong., 1st Sess., p. 32; see 95 Cong.Rec. 14879.
1
Porter v. Warner Holding Co., supra, involved § 205(a) of the Emergency Price Control Act of 1942, 56 Stat. 23, 33, which authorized state and federal courts, upon complaint of the Administrator, to grant 'a permanent or temporary injunction, restraining order, or other order,' to enforce compliance with the Act and its policy. (Emphasis added.) There the Administrator had sued a landlord to enjoin collection of excessive rents and to require the landlord to tender to his tenants the excess rents collected. The District Court granted the relief prayed. This Court approved that action, saying that 'An order for the recovery and restitution of illegal rents may be considered a proper 'other order' * * *.' 328 U.S., at page 399, 66 S.Ct. at page 1089. It observed that the Report of the Senate Committee, submitted with the bill that became the Emergency Price Control Act, stated that under § 205(a) of that Act '* * * Such courts are given jurisdiction to issue whatever order to enforce compliance is proper in the circumstances of each particular case.' 328 U.S. at pages 400—401, 66 S.Ct. at page 1090. In the light of the provisions of § 205(a) and its legislative history, this Court held 'that the traditional equity powers of a court remain unimpaired in a proceeding under that section so that an order of restitution may be made.' 328 U.S. at page 400, 66 S.Ct. at page 1090.
2
Subdivision (c), added to § 16 of the Act by Congress in 1949, in pertinent part, provides:
'* * * When a written request is filed by any employee with the Secretary of Labor claiming unpaid minimum wages or unpaid overtime compensation under section 6 or section 7 of this Act, the Secretary of Labor may bring an action in any court of competent jurisdiction to recover the amount of such claim: * * * The consent of any employee to the bringing of any such action by the Secretary of Labor, unless such action is dismissed without prejudice on motion of the Secretary of Labor, shall constitute a waiver by such employee of any right of action he may have under subsection (b) of this section for such unpaid minimum wages or unpaid overtime compensation and an additional equal amount as liquidated damages. * * *' 63 Stat. 919.
3
When, in 1949, Congress adopted the proviso to § 17 there were only two decisions, in addition to the O'Grady and Scerbo cases, holding that a District Court had jurisdiction in an injunction action brought by the Secretary under § 17 to make an award of reparations for unpaid wages, namely, Fleming v. Warshawsky & Co., 7 Cir., 123 F.2d 622, and Fleming & Alderman, D.C.D.Conn., 51 F.Supp. 800. In neither the these cases did the employer contest the jurisdiction of the District Court to award reparations for unpaid wages. Instead, each employer appeared in the District Court and agreed to the entry of a consent decree awarding back pay to the employees. It was largely because of those agreements that those courts held that they had jurisdiction to enter the consent decrees. Thus, when Congress adopted the proviso to § 17, the only contested decisions on the point were the O'Grady and Scerbo cases. Hence, the reference in the House Conference Report, supra, to 'such decisions as McComb v. Scerbo' seems necessarily to have been intended to include the O'Grady decision as well as McComb v. Scerbo, for it was really the only other 'such decision' in the books. The separate concurring opinion of one of the judges in Walling v. Miller, 8 Cir., 138 F.2d 629, saying that a District Court had jurisdiction under § 17, as it stood prior to the adoption of the 1949 proviso, to make an award for unpaid wages did not express the view of the court.
| 67
|
361 U.S. 278
80 S.Ct. 310
4 L.Ed.2d 279
Albert H. GRISHAM, Petitioner,v.Charles R. HAGAN, Warden.
No. 58.
Argued Oct. 22, 1959.
Decided Jan. 18, 1960.
Messrs. Charles Wolfe Kalp, Lewisburg, Pa., and Frederick Bernays Wiener, Washington, D.C., for petitioner.
Mr. Oscar H. Davis, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This case tests by habeas corpus the validity of Article 2(11) of the Uniform Code of Military Justice, 10 U.S.C. § 802, 10 U.S.C.A. § 802,1 as applied to a civilian tried by courtmartial for a capital offense while employed overseas by the United States Army. It is a companion case to Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, which involves the application of the same Article to non-capital offenses committed by dependents accompanying soldiers stationed outside the United States, and to McElroy v. Gaugliardo and Wilson v. Bohlender, 361 U.S. 281, 80 S.Ct. 305, involving non-capital offenses committed by armedservices employees while stationed overseas—all of which cases are decided today.
2
Petitioner, a civilian employee of the United States Army attached to an Army installation in France, was tried by a general court-martial for the capital offense of premeditated murder as defined in Article 118(1) of the Uniform Code of Military Justice. 10 U.S.C.A. § 918(1). He was found guilty of the lesser and included offense of unpremeditated murder, and sentenced to confinement at hard labor for the term of his natural life. The sentence was subsequently reduced to 35 years. While serving this sentence at the United States Penitentiary at Lewisburg, Pennsylvania, he filed this petition for a writ of habeas corpus, claiming that Article 2(11) was unconstitutional as applied to him, for the reason that Congress lacked the power to deprive him of a civil trial affording all of the protections of Article III and the Fifth and Sixth Amendments of the Constitution. The writ was dismissed, Grisham v. Taylor, D.C., 161 F.Supp. 112, and the Court of Appeals affirmed, 3 Cir., 261 F.2d 204. In the light of the opinion of this Court on the rehearing in Reid v. Covert, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 as well as that of the Court of Appeals on the issue of the severability of Article 2(11) in Guagliardo v. McElroy, 104 U.S.App.D.C. 112, 259 F.2d 927,2 we granted certiorari. 1959, 359 U.S. 978, 79 S.Ct. 900, 3 L.Ed.2d 927.
3
We are of the opinion that this case is controlled by Reid v. Covert, supra. It decided that the application of the Article to civilian dependents charged with capital offenses while accompanying servicemen outside the United States was unconstitutional as violative of Article III and the Fifth and Sxith Amendments. We have carefully considered the Government's position as to the distinctions between civilian dependents and civilian employees, especially its voluminous historical materials relating to court-martial jurisdiction. However, the considerations pointed out in Covert have equal applicability here. Those who controlled the majority there held that the death penalty is so irreversible that a dependent charged with a capital crime must have the benefit of a jury. The awesomeness of the death penalty has no less impact when applied to civilian employees. Continued adherence to Covert requires civilian employees to be afforded the same right of trial by jury. Furthermore, the number of civilian employees is much smaller than the number of dependents, and the alternative procedures available for controlling discipline as to the former more effective. See McElroy v. Guagliardo. For the purposes of this decision, we cannot say that there are any valid distinctions between the two classes of persons. The judgment is therefore reversed.
4
It is so ordered.
5
Reversed.
1
Art. 2. 'The following persons are subject to this chapter:
'(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the following: that part of Alaska east of longitude 172 degrees west, the Canal Zone, the main group of the Hawaiian Islands, puerto Rico, and the Virgin Islands.'
2
In the light of our opinion in McElroy v. U.S. ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, we deny the contention that the article is nonseverable.
| 12
|
361 U.S. 281
80 S.Ct. 305
4 L.Ed.2d 282
McELROY, Secretary of Defense, et al., Petitioners,v.UNITED STATES ex rel. Dominic GUAGLIARDO. Bruce WILSON, Petitioner, v. Major General John F. BOHLENDER, Commander, Fitzsimons Army Hospital.
Nos. 21, 37.
Argued Oct. 21, 22, 1959.
Decided Jan. 18, 1960
Mr. Oscar H. Davis, Washington, D.C., for petitioners McElroy and others.
Mr. Michael A. Schuchat, Washington, D.C., for respondent Guagliardo.
Mr. Frederick Bernays Wiener, Washington, D.C., for petitioner Wilson.
Mr. Harold H. Greene, Washington, D.C., for respondent Bohlender.
Mr. Justice CLARK delivered the opinion of the Court.
1
These are companion cases to Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, and Grisham v. Hagan, 361 U.S. 278 80 S.Ct. 310. All the cases involve the application of Article 2(11)1 of the Uniform Code of Military Justice. Here its application to noncapital offenses committed by civilian employees of the armed forces while stationed overseas is tested.
2
In No. 21 the respondent, a civilian employee of the Air Force performing the duties of an electrical lineman, was convicted by court-martial at the Nouasseur Air Depot near Casablanca, Morocco, of larceny and conspiracy to commit larceny from the supply house at the Depot. Before being transferred to the United States Disciplinary Barracks, New Cumberland, Pennsylvania, respondent filed a petition for a writ of habeas corpus in the District Court for the District of Columbia alleging that the military authorities had no jurisdiction to try him by court-martial. This petition was dismissed. D.C., 158 F.Supp. 171. The Court of Appeals reversed and ordered respondent discharged. It held that Reid v. Covert, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, was binding as to all classes of persons included within the section and that each class was nonseverable. 104 U.S.App.D.C. 112, 259 F.2d 927. We granted certiorari, 359 U.S. 904, 79 S.Ct. 580, 3 L.Ed.2d 570, in view of the conflict with Grisham v. Taylor, 3 Cir., 261 F.2d 204.
3
In No. 37, petitioner, a civilian auditor employed by the United States Army and stationed in Berlin, was convicted by a general court-martial on a plea of guilty to three acts of sodomy. While serving his five-year sentence, petitioner filed a petitioner for a writ of habeas corpus in the United States District Court for Colorado. The petition was dismissed, 167 F.Supp. 791, and appeal was perfected to the Court of Appeals for the Tenth Circuit. Prior to argument we granted certiorari.2 359 U.S. 906, 79 S.Ct. 601, 3 L.Ed.2d 571.
4
We first turn to respondent Guagliardo's contention that Article 2(11) is nonseverable. As desirable as it is to avoid constitutional issues, we cannot do so on this ground. The Act provides for severability of the remaining section if 'a part of this Act is invalid in one or more of its applications.' 70A Stat. 640. The intention of Congress in providing for severability is clear, and legal effect can be given to each category standing alone. See Dorchy v. State of Kansas, 1924, 264 U.S. 286, 290, 44 S.Ct. 323, 324, 68 L.Ed. 686.
5
We believe that these cases involing the applicability of Article 2(11) to employees of the armed services while serving outside the United States are controlled by our opinion in Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, and Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, announced today. In Singleton we refused, in the light of Reid v. Covert, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, to apply the provisions of the article to noncapital offenses committed by dependents of soldiers in the armed services while overseas; in Grisham we held that there was no constitutional distinction for purposes of court-martial jurisdiction between dependents and employees insofar as application of the death penalty is concerned. The rationale of those cases applies here.
6
Although it is true that there are materials supporting trial of sutlers and other civilians by courts-martial, these materials are 'too expisodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution, for constitutional adjudication.' Concurring opinion, Covert, 354 U.S. at page 64, 77 S.Ct. at page 1255. Furthermore, those trials during the Revolutionary Period, on which it is claimed than court-martial jurisdiction rests, were all during a period of war, and hence are inapplicable here. Moreover, the materials are not by any means one-sided. The recognized authority on court-martial jurisdiction, after a careful consideration of all the historical background, concluded: 'That a civilian, entitled as he is, by Art. VI of the Amendments to the Constitution, to trial by jury, cannot legally be made liable to the military law and jurisdiction, in time of peace, is a fundamental principle of our public law * * *.'3 But it is contended that Ex parte Reed, 1879, 100 U.S. 13, 25 L.Ed. 538, is controlling because the forces covered by Article 2(11) are overseas and therefore 'in the field.' Examination of that case, as well as Johnson v. Sayre, 1895, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914, however, shows them to be entirely inapposite. Those cases permitted trial by courts-martial of paymasters' clerks in the navy. The Court found that such a position was 'an important one in the machinery of the navy,' the appointment being made only upon approval of the commander of the ship and for a permanent tenure 'until discharged.' Also the paymaster's clerk was required to agree in writing 'to submit to the laws and regulations for the government and discipline of the navy.' Moreover, from time immemorial the law of the sea has placed the power of disciplinary action in the commander of the ship when at sea or in a foreign port. None of these considerations are present here. As we shall point out subsequently, a procedure along the lines of that used by the navy as to paymasters' clerks might offer a practical alternative to the use of civilian employees by the armed services. As was stated in the second Covert case, supra, 354 U.S. at page 23, 77 S.Ct. at page 1233, 'there might be circumstances where a person could be 'in' the armed services for purposes of Clause 14 even though he had not formally been inducted into the military * * *.'
7
The only other authorities cited in support of court-martial jurisdiction over civilians appear to be opinions by the Attorney General and the Judge Advocate General of the Army. However, the 1866 opinion of the Judge Advocate General (cited in support of the Government's position) was repudiated by subsequent Judge Advocate Generals.4 To be sure, the 1872 opinion of the Attorney General, dealing with civilians serving with troops in the building of defensive earthworks to protect against threatened Indian uprisings, is entitled to some weight. However, like the other examples of frontier activities based on the legal concept of the troops' being 'in the field,' they are inapposite here. They were in time of 'hostilities' with Indian tribes or were in 'territories' governed by entirely different considerations. See second Covert, 354 U.S. at pages 12—13, 77 S.Ct. at page 1228. Such opinions, however, do not have the force of judicial decisions and, where so 'episodic,' have little weight in the reviewing of administrative practice. Moreover, in the performance of such functions as were involved there, the military service would today use engineering corps subject to its jurisdiction. This being entirely practical, as we hereafter point out, as to all civilians serving with the armed forces today, we believe the Toth doctrine, United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, that we must limit the coverage of Clause 14 to 'the least possible power adequate to the end proposed,' 350 U.S., at page 23, 76 S.Ct. at page 8, to be controlling.
8
In the consideration of the constitutional question here we believe it should be pointed out that, in addition to the alternative types of procedure available to the Government in the prosecution of civilian dependents and mentioned in Kinsella v. Singleton, supra, additional practical alternatives have been suggested in the case of employees of the armed services. One solution might possibly be to follow a procedure along the line of that provided for paymasters' clerks as approved in Ex parte Reed, supra. Another would incorporate those civilian employees who are to be stationed outside the United States directly into the armed services, either by compulsory induction or by voluntary enlistment. If a doctor or dentist may be 'drafted' into the armed services, 50 U.S.C.Appendix § 454(i), extended, 73 Stat. 13, 50 U.S.C.A.Appendix § 454(i); Orloff v. Willoughby, 1953, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842, there should be no legal objection to the organization and recruitment of other civilian specialists needed by the armed services.
9
Moreover, the armed services presently have sufficient authority to set up a system for the voluntary enlistment of 'specialists.' This was done with much success during the Second World War. 'The Navy's Construction Battalions, popularly known as the Seabees, were established to meet the wartime need for uniformed men to perform construction work in combat areas.' 1 Building the Navy's Bases in World War II (1947) 133. Just as electricians, clerks, draftsmen, and surveyors were enlisted as 'specialists' in the Seabees, id., at 136, provisions can be made for the voluntary enlistment of an electrician (Guagliardo), an auditor (Wilson), or an accountant (Grisham). It likewise appears entirely possible that the present 'specialist' program conducted by the Department of the Army5 could be utilized to replace civilian employees if disciplinary problems require military control. Although some workers might hesitate to give up their civilian status for government employment overseas, it is unlikely that the armed forces would be unable to obtain a sufficient number of volunteers to meet their requirements. The increased cost to maintain these employees in a military status is the price the Government must pay in order to comply with constitutional requirements.
10
The judgment in No. 21 is affirmed and the judgment in No. 37 is reversed.
11
No. 21, affirmed.
12
No. 37, reversed.
13
For dissenting and concurring opinions see 361 U.S. 234, 80 S.Ct. 311.
1
Article 2. 'The following persons are subject to this chapter:
'(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the following: that part of Alaska east of longitude 172 degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands.' 10 U.S.C.A. § 802(11).
2
Since the offense occurred within the United States Area of Control of West Berlin, the Government now contends that petitioner Wilson is amenable to the military government jurisdiction of an occupied territory. However the charges were drawn in terms of Article 2(11) power, and jurisdiction was sustained on that basis. Moreover the Court of Military Appeals refused to consider that issue when raised by the Government and the trial court did not rest its decision sustaining military jurisdiction over petitioner on that ground. This contention is consequently denied.
3
Winthrop, Military Law and Precedents (2d ed. 1896), 143. See also, Ex parte Milligan, 1866, 4 Wall. 2, 121, 123, 18 L.Ed. 281; Maltby, Courts Martial and Military Law, 37; Rawle, Constitution (2d ed. 1829), 220; 3 Op.Atty.Gen. 690; 5 Op.Atty.Gen. at 736; 13 Op.Atty.Gen. at 63.
4
See 16 Op.Atty.Gen. 13; Id., at 48; Dig.Op. JAG (1901), 563, 2023; id. (1895), at 599—600, 4; id. (1880), at 384, 4.
5
See Army Regulations 600—201, 20 June 1956, as changed 15 March 1957, and Army Regulations 624—200, 19 May 1958, as changed 1 July 1959.
| 12
|
361 U.S. 234
80 S.Ct. 297
4 L.Ed.2d 268
KINSELLA, Warden, Appellant,v.UNITED STATES ex rel. SINGLETON.
No. 22.
Argued Oct. 22, 1959.
Decided Jan. 18, 1960.
Mr. Harold H. Greene, Washington, D.C., for appellant.
Mr. Frederick Bernays Wiener, Washington, D.C., for appellee.
Mr. Justice CLARK delivered the opinion of the Court.
1
This direct appeal tests the constitutional validity of peace time court-martial trials of civilian persons 'accompanying the armed forces outside the United States'1 and charged with noncapital offenses under the Uniform Code of Military Justice, 10 U.S.C. § 802, 70A Stat. 37. Appellee contends that the dependent wife of a soldier can be tried only in a court that affords her the safeguards of Article III and of the Fifth and Sixth Amendments of the Constitution. The trial court held Article 2(11) of the Code unconstitutional as applied to civilian dependents accompanying the armed forces overseas and charged with noncapital offenses, D.C., 164 F.Supp. 707, and the Government appealed. We noted probable jurisdiction and permitted appellee to proceed in forma pauperis. 359 U.S. 903, 79 S.Ct. 581, 3 L.Ed.2d 569.
2
The appellee is the mother of Mrs. Joanna S. Dial, the wife of a soldier who was assigned to a tank battalion of the United States Army. The Dials and their three children lived in government housing quarters at Baumholder, Germany. In consequence of the death of one of their children, both of the Dials were charged with unpremeditated murder, under Article 118(2) of the Uniform Code of Military Justice. 10 U.S.C.A. § 918(2). Upon the Dials' offer to plead guilty to involuntary manslaughter under Article 119 of the Code, 10 U.S.C.A. § 919, both charges were withdrawn and new ones charging them separately with the lesser offense were returned. They were then tried together before a general court-martial at Baumholder. Mrs. Dial challenged the jurisdiction of the court-martial over her but, upon denial of her motion, pleaded guilty, as did her husband. Each was sentenced to the maximum penalty permitted under the Code. Their convictions were upheld by the Court of Military Appeals, and Mrs. Dial was returned to the United States and placed in the Federal Reformatory for Women at Alderson, West Virginia. Thereafter the appellee filed this petition for habeas corpus and obtained Mrs. Dial's discharge from custody. From this judgment the warden has appealed.
3
As has been noted, the jurisdiction of the court-martial was based upon the provisions of Article 2(11) of the Code. The Congress enacted that article in an effort to extend, for disciplinary reasons, the coverage of the Uniform Code of Military Justice to the classes of persons therein enumerated. The jurisdiction of the Code only attached, however, when and if its applicability in a given foreign territory was sanctioned under 'any treaty or agreement to which the United States is or may be a party' with the foreign sovereignty, or under 'any accepted rule of international law.' The existence of such an agreement here is admitted. The constitutionality of Article 2(11), as it applies in time of peace to civilian dependents charged with noncapital offenses under the Code, is the sole issue to be decided.
4
The question is not one of first impression, as we had before us in 1956 the constitutionality of the article as applied to civilian dependents charged with capital offenses, in the companion cases of Kinsella v. Krueger, 351 U.S. 470, 76 S.Ct. 886, 100 L.Ed. 1342, and Reid v. Covert, 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352. At the original submission of those cases, we decided by a bare majority that the article was a valid exercise of the power of the Congress, under art. IV, § 3, to 'make all needful Rules and Regulations' for the 'Territories' of the United States. We held further that the 'procedure in such tribunals need not comply with the standards prescribed by the Constitution for Article III courts,' 351 U.S. at page 475, 76 S.Ct. at page 889, and specifically upheld court-martial jurisdiction in such cases against the contention that its procedures did not provide for indictment by grand jury or trial by petit jury. In short, we said that the failure to provide such protections raised 'no constitutional defect,' citing In re Ross, 1891, 140 U.S. 453, 11 S.Ct. 897, 36 L.Ed. 581, and the Insular Cases, such as Balzac v. People of Porto Rico, 1922, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627. After rehearing at the following Term, these opinions were withdrawn and judgments were entered declaring the article unconstitutional when applied to civilian dependents charged with capital offenses. Reid v. Covert, consolidated with Kinsella v. Krueger, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148. The Court held2 that the power over 'Territories,' as applied by the In re Ross doctrine, was neither applicable nor controlling. It found that trial by court-martial was the exercise of an exceptional jurisdiction springing from the power granted the Congress in art. I, § 8, cl. 14, 'To make Rules for the Government and Regulation of the land and naval Forces,' as supplemented by the Necessary and Proper Clause of art. I, § 8, cl. 18.3 But as applied to the civilian dependents there involved it must be considered, the Court said, in relation to Article III and the Fifth and Sixth Amendments. The majority concluded that, in those capital cases, trial by court-martial as provided could not constitutionally be justified.
5
The appellee contends that this result, declaring civilian dependents charged with capital offenses not to be subject to the provisions of the Code, bears directly on its applicability to the same class charged with noncapital crimes. She says that the test of whether civilian dependents come within the power of Congress as granted in Clause 14's limitation to the 'land and naval Forces' is the status of the person involved. Her conclusion is that if civilian dependents charged with capital offenses are not within that language, a fortiori, persons in the same class charged with noncapital offenses cannot be included, since the clause draws no distinction as to offenses. The Government fully accepts the holding in the second Covert case, supra. It contends that the case is controlling only where civilian dependents are charged with capital offenses, and that in fact the concurrences indicate that considerations of a compelling necessity for prosecution by courts-martial of civilian dependents charged with noncapital offenses might permit with reason the inclusion of that limited category within court-martial jurisdiction. It submits that such necessities are controlling in the case of civilian dependents charged with noncapital crimes. It points out that such dependents affect the military community as a whole; that they have, in fact, been permitted to enjoy their residence in such communities on the representation that they are subject to military control; and that realistically they are a part of the military establishment. It argues that, from a morale standpoint, the present need for dependents to accompany American forces maintained abroad is a pressing one; that their special status as integral parts of the military community requires disciplinary control over them by the military commander; that the effectiveness of this control depends upon a readily available machinery affording a prompt sanction and resulting deterrent present only in court-martial jurisdiction; and that not only is court-martial procedure inherently fair but there are no alternatives to it. The Government further contends that it has entered into international agreements with a large number of foreign governments permitting the exercise of military jurisdiction in the territory of the signatories, and pursuant to the same it has been utilizing court-martial procedures at various American installations abroad. Its legal theory is based on historical materials which it asserts indicate a well-established practice of court-martial jurisdiction over civilians accompanying the armed forces, during Colonial days as well as the formative period of our Constitution. From this it concludes that civilian dependents may be included as a necessary and proper incident to the congressional power 'To make Rules for the Government and Regulation of the land and naval Forces,' as granted in Clause 14.
6
In this field, United States ex rel. Toth v. Qualres, 1955, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, cited with approval by a majority in the second Covert case, supra, is a landmark. Likewise, of course, we must consider the effect of the latter case on our problem.4 We therefore turn to their teachings. The Toth case involved a discharged soldier who was tried by court-martial after his discharge from the Army, for an offense committed before his discharge. It was said there that the Clause 14 'provision itself does not empower Congress to deprive people of trials under Bill of Rights safeguards,' 350 U.S. at pages 21—22, 76 S.Ct. at page 8, and that military tribunals must be restricted 'to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service,' id., 350 U.S. at page 22, 76 S.Ct. at page 8. We brushed aside the thought that 'considerations of discipline' could provide an excuse for 'new expansion of court-martial jurisdiction at the expense of normal and constitutionally preferable systems of trial by jury.' Id., 350 U.S. at pages 22—23, 76 S.Ct. at page 8. (Italics supplied.) We were therefore 'not willing to hold that power to circumvent these safeguards should be inferred through the Necessary and Proper Clause.' Id., 350 U.S. at page 22, 76 S.Ct. at page 8. The holding of the case may be summed up in its own words, namely, that 'the power granted Congress 'To make Rules' to regulate 'the land and naval Forces' would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces.' Id., 350 U.S. at page 15, 76 S.Ct. at page 4.
7
It was with this gloss on Clause 14 that the Court reached the second Covert case, supra. There, as we have noted, the person involved was the civilian dependent of a soldier, who was accompanying him outside the United States when the capital offense complained of was committed. The majority concluded that 'Trial by court-martial is constitutionally permissible only for persons who can, on a fair appraisal, be regarded as falling within the authority given to Congress under Article I to regulate the 'land and naval Forces' * * *.' Concurring opinion, 354 U.S. at page 42, 77 S.Ct. at page 1244.5 (Italics supplied.) The test for jurisdiction, it follows, is one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces.' The Court concluded that civilian dependents charged with capital offenses were not included within such authority, the concurring Justices expressing the view that they did not think 'that the proximity, physical and social, of these women to the 'land and naval Forces' is, with due regard to all that has been put befoure us, so clearly demanded by the effective 'Government and Regulation' of those forces as reasonably to demonstrate a justification for court-martial jurisdiction over capital offenses.' Concurring opinion, 354 U.S. at pages 46—47, 77 S.Ct. at page 1246.
8
In the second Covert case, each opinion supporting the judgment struck down the article as it was applied to civilian dependents charged with capital crimes. The separate concurrences supported the judgment on the theory that the crime being 'in fact punishable by death,' id., 354 U.S. at page 45, 77 S.Ct. at page 1245, the question to be decided is 'analogous, ultimately, to issues of due process,' id., 354 U.S. at page 75, 77 S.Ct. at page 1261. The Justices joining in the opinion announcing the judgment, however, did not join in this view, but held that the constitutional safeguards claimed applied in 'all criminal trials' in Article III courts and applied 'outside of the States,' pointing out that both the Fifth and Sixth Amendments were 'all inclusive with their sweeping references to 'no person' and to 'all criminal prosecutions." Id., 354 U.S. at pages 7—8, 77 S.Ct. at pages 1225—1226. The two dissenters6 found 'no distinction in the Constitution between capital and other cases,' id., 354 U.S. at page 89, 77 S.Ct. at page 1268, but said that the constitutional safeguards claimed were not required under the power granted Congress in art. IV, § 3, and the cases heretofore mentioned. The briefs and argument in Covert reveal that it was argued and submitted by the parties on the theory that no constitutional distinction could be drawn between capital and noncapital offenses for the purposes of Clause 14. Supplemental Brief for Government on Rehearing, Nos. 701 and 713, at pp. 16—20, 82—95.
9
We have given careful study to the contentions of the Government. They add up to a reverse of form from the broad presentation in Covert, where it asserted that no distinction coud be drawn between capital and noncapital offenses. But the same fittings are used here with only adaptation to noncapital crimes. The Government asserts that the second Covert case, rather than foreclosing the issue here, indicates that military tribunals would have jurisdiction over civilian dependents charged with offenses less than capital. It says that the trial of such a person for a noncapital crime is 'significantly different' from his trial for a capital one, that the maintaining of different standards or considerations in capital cases is not a new concept, and that, therefore, there must be a fresh evaluation of the necessities for court-martial jurisdiction and a new balancing of the rights involved. As we have indicated, these necessities add up to about the same as those asserted in capital cases and which the concurrence in second Covert held as not of sufficient 'proximity, physical and social * * * to the 'land and naval Forces' * * * as reasonably to demonstrate a justification' for court-martial prosecution. Likewise in the Government's historical material—dealing with court-martial jurisdiction during peace which was found in Covert 'too episodic, too meager * * * for constitutional adjudication,' concurring opinion, 354 U.S. at page 64, 77 S.Ct. at page 1255, 1 L.Ed.2d 1148, it has been unable to point out one court-martial which drew any distinction, insofar as the grant of power to the Congress under Clause 14 was concerned, between capital and noncapital crimes.7 The Government makes no claim that historically there was ever any distinction made as to the jurisdiction of courts-martial to try civilian dependents on the basis of capital as against noncapital offenses. Without contradiction, the materials furnished show that military jurisdiction has always been based on the 'status' of the accused, rather than on the nature of the offense. To say that military jurisdiction 'defies definition in terms of military 'status" is to defy unambiguous language of art. I, § 8, cl. 14, as well as the historical background thereof and the precedents with reference thereto.8
10
Furthermore, we are not convinced that a critical impact upon discipline will result, as claimed by the Government (even if anyone deemed this a relevant consideration), if noncapital offenses are given the same treatment as capital ones by virtue of the second Covert case. The same necessities claimed here were found present in the second Covert case (see the dissent there) and were rejected by the Court. Even if the necessity for court-martial jurisdiction be relevant in cases involving deprivation of the constitutional rights of civilian dependents, which we seriously question, we doubt that the existence of the small number of noncapital cases now admitted by the Government in its brief here,9 when spread over the world-wide coverage of military installations, would of itself bring on such a crisis. Moreover, in the critical areas of occupation, other legal grounds may exist for court-martial jurisdiction as claimed by the Government in No. 37, Wilson v. Bohlender, 361 U.S. 281, 80 S.Ct. 305. See Madsen v. Kinsella, 1952, 343 U.S. 341, 72 S.Ct. 699, 96 L.Ed. 988. Another serious obstacle to permitting prosecution of noncapial offenses, while rejecting capital ones, is that it would place in the hands of the military an unreviewable discretion to exercise jurisdiction over civilian dependents simply by downgrading the offense, thus stripping the accused of his constitutional rights and protections. By allowing this assumption of 'the garb of mercy,'10 we would be depriving a capital offender of his constitutional means of defense and in effect would nullify the second Covert case. This situation will be aggravated by the want of legislation providing for trials in capital cases in Article III courts sitting in the United States. At argument, the Government indicated that there had been no effort in the Congress to make any provision for the prosecution of such cases either in continental United States or in foreign lands. Still we heard no claim that the total failure to prosecute capital cases against civilian dependents since the second Covert decision in 1957 had affected in the least the discipline at armed services installations. We do know that in one case, Wilson v. Girard, 1957, 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed.2d u544, the Government insisted and we agreed that it had the power to turn over an American soldier to Japanese civil authorities for trial for an offense committed while on duty. We have no information as to the impact of that trial on civilian dependents. Strangely, this itself might prove to be quite an effective deterrent. Moreover, the immediate return to the United States permanently of such civilian dependents, or their subsequent prosecution in the United States for the more serious offenses when authorized by the Congress, might well be the answer to the disciplinary problem. Certainly such trials would not involve as much expense nor be as difficult of successful prosecution as capital offenses.
11
We now reach the Government's suggestion that, in the light of the noncapital nature of the offense here, as opposed to the capital one in the Covert case, we should make a 'fresh evaluation and a new balancing.' But the power to 'make Rules for the Government and Regulation of the land and naval Forces' bears no limitation as to offenses. The power there granted includes not only the creation of offenses but the fixing of the punishment therefor. If civilian dependents are included in the term 'land and naval Forces' at all, they are subject to the full power granted the Congress therein to create capital as well as noncapital offenses. This Court cannot diminish and expand that power, either on a case-by-case basis or on a balancing of the power there granted Congress against the sageguards of Article III and the Fifth and Sixth Amendments. Due process cannot create or enlarge power. See, United States ex rel. Toth v. Quarles, supra. It has to do, as taught by the Government's own cases,11 with the denial of that 'fundamental fairness, shocking to the universal sense of justice.' Betts v. Brady, 1942, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595. It deals neither with power nor with jurisdiction, but with their exercise. Obviously Fourteenth Amendment cases dealing with state action have no application here, but if they did, we believe that to deprive civilian dependents of the safeguards of a jury trial here, an infamous case by constitutional standards, would be as invalid under those cases as it would be in cases of a capital nature. Nor do we believe that due process considerations bring about an expansion of Clause 14 through the operation of the Necessary and Proper Clause. If the exercise of the power is valid it is because it is granted in Clause 14, not because of the Necessary and Proper Clause. The latter clause is not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry out the specifically granted 'foregoing' powers of § 8 'and all other Powers vested by this Constitution. * * *' As James Madison explained, the Necessary and Proper Clause is 'but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those (powers) otherwise granted are included in the grant.' VI Writings of James Madison, edited by Gaillard Hunt, 383. There can be no question but that Clause 14 grants the Congress power to adopt the Uniform Code of Military Justice. Our initial inquiry is whether Congress can include civilian dependents within the term 'land and naval Forces' as a proper incident to this power and necessary to its execution. If answered in the affirmative then civilian dependents are amenable to the Code. In the second Covert case, supra, it was held they were not so amenable as to capital offenses. Our final inquiry, therefore, is narrowed to whether Clause 14, which under the second Covert case has been held not to include civilian dependents charged with capital offenses, may now be expanded to include civilian dependents who are charged with noncapital offenses. We again refer to James Madison:
12
'When the Constitution was under the discussions which preceded its ratification, it is well known that great apprehensions were expressed by many, lest the omission of some positive exception, from the powers delegated, of certain rights, * * * might expose them to the danger of being drawn, by construction, within some of the powers vested in Congress, more especially of the power to make all laws necessary and proper for carrying their other powers into execution. In reply to this objection, it was invariably urged to be a fundamental and characteristic principle of the Constitution, that all powers not given by it were reserved; that no powers were given beyond those enumerated in the Constitution, and such as were fairly incident to them; * * *.' Writings, supra, at 390.
13
We are therefore constrained to say that since this Court has said that the Necessary and Proper Clause cannot expand Clause 14 so as to include prosecution of civilian dependents for capital crimes, it cannot expand Clause 14 to include prosecution of them for noncapital offenses.
14
Neither our history nor our decisions furnish a foothold for the application of such due process concept as the Government protjects. Its application today in the light of the irreversibility of the death penalty would free from military prosecution a civilian accompanying or employed by the armed services who committed a capital offense, while the same civilian could be prosecuted by the military for a noncapital crime. It is illogical to say that 'the power respecting the land and naval forces encompasses * * * all that Congress may appropriately deem 'necessary' for their good order' and still deny to Congress the means to exercise such power through the infliction of the death penalty. But that is proposed here. In our view this would militate against our whole concept of power and jurisdiction. It would likewise be contrary to the entire history of the Articles of War. Even prior to the Constitutional Convention, the Articles of War included 17 capital offenses applicable to all persons whose status brought them within the term 'land and naval Forces.' There were not then and never have been any exceptions as to persons in the applicability of these capital offenses. In 1806 when the Articles of War were first revised, Congress retained therein 16 offenses that carried the death penalty, although there was complaint that 'almost every article in the bill was stained with blood.' 15 Annals of Cong. 326.
15
Nor do we believe that the exclusion of noncapital offenses along with capital ones will cause any additional disturbance in our 'delicate arrangements with many foreign countries.' The Government has pointed to no disruption in such relations by reason of the second Covert decision. Certainly this case involves no more 'important national concerns into which we should be reluctant to enter' than did Covert. In truth the problems are identical and are so intertwined that equal treatment of capital and noncapital cases would be a palliative to a troubled world.
16
We therefore hold that Mrs. Dial is protected by the specific provisions of Article III and the Fifth and Sixth Amendments and that her prosecution and conviction by court-martial are not constitutionally permissible. The judgment must therefore be affirmed.
17
Affirmed.
18
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins, dissenting in Nos. 22, 21, and 37, and concurring in No. 58.
19
Within the compass of 'any treaty or agreement to which the United States is or may be a party' and 'any accepted rule of international law,' Article 2(11) of the Uniform Code of Military Justice makes subject to the Code, and therefore prosecutable by courts-martial for offenses committed abroad, all 'persons serving with, employed by, or accompanying the armed forces' outside the United States and certain other areas.1
20
These four cases, involving persons and crimes concededly covered by the Military Code, bring before us the constitutionality of Article 2(11) as applied to (1) civilian service dependents charged with noncapital offenses (No. 22); (2) civilian service employees, also charged with noncapital offenses (Nos. 21 and 37);2 and (3) civilian service employees charged with capital offenses (No. 58). In each instance the Court holds the Act unconstitutional. While I agree with the judgment in No. 58, which involves a capital offense, I cannot agree with the judgments in Nos. 22, 21 and 37, in each of which the conviction was for a noncapital offense.
21
The effect of these decisions is to deny to Congress the power to give the military services, when the United States is not actually at war, criminal jurisdiction over noncapital offenses committed by nonmilitary personnel while accompanying or serving with our armed forces abroad. I consider this a much too narrow conception of the constitutional power of Congress and the result particularly unfortunate in the setting of the present-day international scene. To put what the Court has decided in proper context, some review of the past fate of Article 2(11) in this Court is desirable.
22
At the 1955 Term there came before the Court in Kinsella v. Krueger, 351 U.S. 470, 76 S.Ct. 886, 100 L.Ed. 1342, and Reid v. Covert, 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352, the question whether two army wives could be constitutionally convicted, under Article 2(11), of the capital offense of first degree murder, committed while stationed with their husbands at military bases abroad. Initially a divided Court, in two opinions which I joined, upheld the convictions.3 In so holding the Court relied not upon the constitutional power of Congress 'To make Rules for the Government and Regulation of the land and naval Forces,' Art. 1, § 8, cl. 14, but upon In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581, the U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581, the People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627, and Art. IV, § 3, of the Constitution, respecting congressional power over Territories. These factors, in combination, led the Court to conclude that the constitutional guarantees of Article III and the Fifth and Sixth Amendments did not apply to criminal trials of Americans abroad before legislatively established tribunals; that it was permissible for Congress to conclude that persons circumstanced as those women were should be tried before a court-martial, rather than a civil tribunal; and that such trials did not offend the fundamentals of due process.
23
The decisions in these cases were reached under the pressures of the closing days of the Term. See Kinsella v. Krueger, 351 U.S. at pages 483—486, 76 S.Ct. at pages 893—894. Having become convinced over the summer that the grounds on which they rested were untenable, I moved at the opening of the 1956 Term that the cases be reheard, being joined by the four Justices who had been in the minority. See Reid v. Covert, 352 U.S. 901, 77 S.Ct. 123, 1 L.Ed.2d 92; Id., 354 U.S. 1, 65—67, 77 S.Ct. 1222, 1255—1256, 1 L.Ed.2d 11484 Upon a consolidated rehearing of the cases, the Court's original opinions and the judgments of conviction were set aside, a majority of the Court then holding that whether the convictions should stand or fall depended solely on the Art. I, § 8, cl. 14 power, and that such power could not be constitutionally applied in those cases. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148. There was, however, no opinion for the Court. Four Justices joined in an opinion broadly holding that 'civilians' can never be criminally tried by military courts in times of peace, id., 354 U.S. at pages 3—41, 77 S.Ct. at pages 1223—1243.5 Two Justices concurred specially in the result, on the narrow ground that Article 2(11) could not be so applied to civilian service dependents charged with capital offenses, explicitly reserving judgment, however, as to whether nonmilitary personnel charged with other than capital offenses could be subjected to such trials.6 Id., 354 U.S. at pages 41—64, 65—78, 77 S.Ct. at pages 1243—1255, 1255—1262. Two Justices dissented, adhering to the grounds expressed in the earlier majority opinions.7 Id., 354 U.S. at page 78, 77 S.Ct. at page 1262. And one Justice did not participate in the cases.8
24
Thus the only issue that second Covert actually decided was that Article 2(11) could not be constitutionally applied to civilian service dependents charged with capital offenses. Nevertheless, despite the wide differences of views by which this particular result was reached—none of which commanded the assent of a majority of the Court—Covert is now regarded as establishing that nonmilitary personnel are never within the reach of the Article I power in times of peace. On this faulty view of the case, it is considered that Covert controls the issues presently before us. Apart from that view I think if fair to say different results might well have been reached in the three noncapital cases now under consideration. Without needlessly traversing ground already covered in my separate opinion in Covert, id., 354 U.S. at pages 67—78, 77 S.Ct. 1256—1262, I shall give my reasons for believing that while the result reached by the Court in the capital case is right, its decisions in the noncapital cases are wrong.
25
First. The Court's view of the effect of Covert in these noncapital cases stems from the basic premise that only persons occupying a military 'status' are within the scope of the Art. I, § 8, cl. 14 power. The judgment in Covert having decided that civilian service dependents were not within the reach of that power in capital cases, it is said to follow that such dependents, and presumably all other 'civilians,' may also not be tried by courts-martial in noncapital cases; this because neither the statute nor Article I makes exercise of the power turn upon the nature of the offense involved.
26
I think the 'status' premise on which the Court has proceeded is unsound. Article I, § 8, cl. 14, speaks not in narrow terms of soldiers and sailors, but broadly gives Congress power to prescribe 'Rules for the Government and Regulation of the land and naval Forces.'9 This power must be read in connection with Clause 18 of the same Article, authorizing Congress
27
'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.'
28
Thus read, the power respecting the land and naval forces encompasses, in my opinion, all that Congress may appropriately deem 'necessary' for their good order. It does not automatically exclude the regulation of non military personnel.
29
I think it impermissible to conclude, as some of my brethren have indicated on an earlier occasion (see second Covert, supra, 354 U.S. at pages 20—22, 77 S.Ct. at pages 1232—1233), and as the Court now holds, 80 S.Ct. 304, that the Necessary and Proper Clause may not be resorted to in judging constitutionality in cases of this type. The clause, itself a part of Art. I, § 8, in which the power to regulate the armed forces is also found, applies no less to that power than it does to the other § 8 congressional powers, and indeed is to be read 'as an integral part of each' such power. Second Covert, supra, 354 U.S. at page 43, 77 S.Ct. at page 1244 (concurring opinion of Frankfurter, J.). As Mr. Justice Brandeis put it in Jacob Ruppert v. Caffey, 251 U.S. 264, at pages 300—301, 40 S.Ct. 141, at page 150, 64 L.Ed. 260:
30
'Whether it be for purposes of national defense, or for the purpose of establishing post offices and post roads, or for the purpose of regulating commerce among the several states Congress has the power 'to make all laws which shall be necessary and proper for carrying into execution' the duty so reposed in the federal government. While this is a government of enumerated powers, it has full attributes of sovereignty within the limits of those powers. In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. Some confusion of thought might perhaps have been avoided, if, instead of distinguishing between powers by the terms 'express and implied,' the term 'specific and general' had been used. For the power conferred by clause 18 of section 8 'to make all laws which shall be necessary and proper for carrying into execution' powers specifically enumerated is also an express power. * * *'
31
See also United States v. Classic, 313 U.S. 299, 320, 61 S.Ct. 1031, 85 L.Ed. 1368.
32
Of course, the Necessary and Proper Clause cannot be used to 'expand' powers which are otherwise constitutionally limited, but that is only to say that when an asserted power is not appropriate to the exercise of an express power, to which all 'necessary and proper' powers must relate, the asserted power is not a 'proper' one. But to say, as the Court does now, that the Necessary and Proper Clause 'is not itself a grant of power' is to disregard Clause 18 as one of the enumerated powers of § 8 of Art. I.
33
Viewing Congress' power to provide for the governing of the armed forces in connection with the Necessary and Proper Clause, it becomes apparent, I believe, that a person's 'status' with reference to the military establishment is but one, and not alone the determinative, factor in judging the constitutionality of a particular exercise of that power. By the same token, the major premise on which the Court ascribes to Covert a controlling effect in these noncapital cases disappears.
34
Second. It is further suggested that the difference between capital and non-capital offenses is not constitutionally significant, and that if Article 2(11) of the Military Code, as applied to nonmilitary persons, is unconstitutional in one case, it equally is so in the other. I think this passes over too lightly the awesome finality of a capital case, a factor which in other instances has been reflected both in the constitutional adjudications of this Court and in the special procedural safeguards which have been thrown around those charged with such crimes.
35
Thus, this Court has held that the Fourteenth Amendment requires a State to appoint counsel for an indigent defendant in a capital case, Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, whereas in noncapital cases a defendant has no such absolute right to counsel, Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. Again, the Congress in first degree murder cases has in effect put infliction of the death penalty in the hands of the jury, rather than the judge, 18 U.S.C. § 1111(b), 18 U.S.C.A. § 1111(b); see also 60 Stat. 766, as amended, 42 U.S.C. § 2274(a), 42 U.S.C.A. § 2274(a), and various States have similar statutes.10 Further illustrations of the same concern about capital cases are the prohibition on acceptance of pleas of guilty in such cases,11 and, in the appellate field, provisions for mandatory or automatic appeals from such convictions.12
36
In my Covert opinion I pointed out that the Government itself had in effect acknowledged that because of the gravity of the offense, a treason case against a nonsoldier in time of peace could not constitutionally be held to be within the otherwise unlimited scope of Article 2(11); and I expressed the view that the same constitutional limitation should obtain whenever the death penalty is involved. 354 U.S. at page 77, 77 S.Ct. at page 1262. I see no reason for retreating from that conclusion. The view that we must hold that nonmilitary personnel abroad are subject to peacetime court-martial jurisdiction either for all offenses, or for none at all, represents an inexorable approach to constitutional adjudication to which I cannot subscribe.
37
It is one thing to hold that nonmilitary personnel situated at our foreign bases may be tried abroad by courts-martial in times of peace for noncapital offenses, but quite another to say that they may be so tried where life is at stake. In the latter situation I do not believe that the Necessary and Proper Clause, which alone in cases like this brings the exceptional Article I jurisdiction into play, can properly be taken as justifying the trial of nonmilitary personnel without the full protections of an Article III court. See 354 U.S. at page 77, 77 S.Ct. at page 1262. Before the constitutional existence of such a power can be found, for me a much more persuasive showing would be required that Congress had good reason for concluding that such a course is necessary to the proper maintenance of our military establishment abroad than has been made in any of the cases of this kind which have thus far come before the Court.
38
Third. I revert to the Court's 'status' approach to the power of Congress to make rules for governing the armed forces. How little of substance that view holds appears when it is pointed out that had those involved in these cases been inducted into the army, though otherwise maintaining their same capacities, it would presumably have been held that they were all fullly subject to Article 2(11). Yet except for this formality their real 'status' would have remained the same.
39
Although it was recognized in the second Covert case that a person might be subject to Article 2(11) 'even though he had not formally been inducted into the military or did not wear a uniform,' 354 U.S. at page 23, 77 S.Ct. at page 1233, I think that drawing a line of demarcation between those who are constitutionally subject to the Art. I, § 8, cl. 14 power, and those who are not, defies definition in terms of military 'status.' I believe that the true issue on this aspect of all such cases concerns the closeness or remoteness of the relationship between the person affected and the military establishment. Is that relationship close enough so that Congress may, in light of all the factors involved, appropriately deem it 'necessary' that the military be given jurisdiction to deal with offenses committed by such persons?
40
I think that such relationship here was close enough, and in this respect can draw no constitutional distinction between the army wife in No. 22 and the civilian service employees in the other cases. Though their presence at these army overseas bases was for different reasons and purposes, the relationship of both to the military community was such as to render them constitutionally amenable to the Article 2(11) jurisdiction. By the same token, being of the view that the constitutional existence of such jurisdiction has not been shown as to civilian service dependents charged with capital offenses, I am equally of the opinion that it cannot be found with respect to civilian service employees similarly charged. For these reasons I concur in the judgment of the Court in No. 58.
41
Fourth. The other factors which must be weighed in judging the constitutionality of Article 2(11) as applied to noncapital cases have, in my opinion, been adequately satisfied. I need not add to what was said in my concurring opinion in Covert, 354 U.S. at pages 70—73, 76—77, 77 S.Ct. at pages 1258—1260, 1261—1262, with reference to the matters which originally were adumbrated by my Brother Clark in his dissent in the same case. Id., 354 U.S. at pages 83—88, 77 S.Ct. at pages 1265—1267. Nothing in the supplemental historical data respecting courts-martial which have been presented in these cases persuades me that we would be justified in holding that Congress' exercise of its constitutional powers in this area was without a rational and appropriate basis, so far as noncapital cases are concerned. Although it is now suggested that the problem with which Congress sought to deal in Article 2(11) may be met in other ways, I submit that once it is shown that Congress' choice was not excluded by a rational judgment concerned with the problem it is beyond our competence to find constitutional command for other procedures.
42
I think it unfortunate that this Court should have found the Constitution lacking in enabling Congress to cope effectively with matters which are so intertwined with broader problems that have been engendered by present disturbed world conditions. Those problems are fraught with many factors that this Court is ill-equipped to assess, and involve important national concerns into which we should be reluctant to enter except under the clearest sort of constitutional compulsion. That such compulsion is lacking here has been amply demonstrated by the chequered history of the past cases of this kind in the Court. Today's decisions are the more regrettable because they are bound to disturb delicate arrangements with many foreign countries, and may result in our having to relinquish to other nations where United States forces are stationed a substantial part of the jurisdiction now retained over American personnel under the Status of Forces Agreements.
43
I would reverse in Nos. 22, 21, and 58, and affirm in No. 37.
44
Mr. Justice WHITTAKER, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.
45
In No. 22, one Joanna Dial (whose cause is prosecuted here by respondent Singleton), an American civilian wife accompanying her husband, an American soldier serving in Germany, was there tried and convicted in 1957 by a general court-martial for manslaughter in violation of Article 119 of the Uniform Code of Military Justice,1 10 U.S.C. § 919, 10 U.S.C.A. § 919, and was sentenced to imprisonment for a term of three years. In No. 21, respondent Guagliardo, an American civilian employed as an electrical lineman by the United States Air Force at Nouasseur Air Depot in Morocco, was there tried and convicted in 1957 by a general court-martial for conspiring to commit larceny from the stores of the Air Force in violation of Article 81 of the Code, 10 U.S.C. § 881, 10 U.S.C.A. § 881, and was sentenced to imprisonment for a term of three years. In No. 37, petitioner Wilson, an American civilian employed as an auditor by the United States Army in Berlin, Germany, was there tried and convicted in 1956 by a general courtmartial for three acts of sodomy committed upon military personnel in violation of Article 134 of the Code, 50 U.S.C. § 728,* and was sentenced to imprisonment for a term of five years. In No. 58, petitioner Grisham, an American civilian employed as a cost accountant by the United States Army Corps of Engineers in Orleans, France, was there tried by a general court-martial for the capital offense of premeditated murder and convicted of the lesser included offense of unpremeditated murder in violation of Article 118 of the Code, 50 U.S.C. § 712,** and was sentenced, as reduced by clemency action of the Secretary of the Army, in 1957, to imprisonment for a term of 35 years.
46
Each of the accused persons objected to trial by court-martial upon the ground that it had no jurisdiction to try him. After their convictions, sentences, and return to the United States, each sought release by habeas corpus in a Federal District Court. Two were successful—Singleton (United States ex rel. Singleton v. Kinsella, D.C.S.D.W.Va., 164 F.Supp. 707) and Guagliardo (United States ex rel. Guagliardo v. McElroy, 104 U.S.App.D.C. 112, 259 F.2d 927)—but the other two were not—Wilson (United States ex rel. Wilson v. Bohlander, D.C.Colo., 167 F.Supp. 791) and Grisham (Grisham v. Taylor, 3 Cir., 261 F.2d 204)—and the four cases were brought here for review.
47
These cases fall into three categories. No. 22, the Singleton case, involves a civilian dependent tried for a noncapital offense; Nos. 21 and 37, the Guagliardo and Wilson cases, involve civilian employees of the military tried for noncapital offenses, and No. 58, the Grisham case, involves a civilian employee of the military tried for a capital offense. Each claims that, being a civilian, he was not constitutionally subject to trial by court-martial but, instead, could constitutionally be tried by the United States only in an Article III court, upon an indictment of a grand jury under the Fifth Amendment, and by an impartial petit jury under the Sixth Amendment to the Constitution.
48
The cases present grave questions and, for me at least, ones of great difficulty. Our recent decision in Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, makes clear that the United States Constitution extends beyond our territorial boundaries and reaches to and applies within all foreign areas where jurisdiction is or may be exercised by the United States over its citizens—that when the United States proceeds against its citizens abroad '(i) t can only act in accordance with all the limitations imposed by the Constitution.' 354 U.S. at page 6, 77 S.Ct. at page 1225.
49
The broad question presented, then, is whether our Constitution authorizes trials and punishments by courts-martial in foreign lands in time of peace of civilian dependents 'accompanying' members of the armed forces and of civilians 'employed by' the armed forces, for conduct made an offense by the Uniform Code of Military Justice, whether capital or noncapital in character.
50
The source of the power, if it exists, is Art. I, § 8, cl. 14, of the Constitution.2 It provides:
51
'The Congress shall have Power * * *
52
'To make Rules for the Government and Regulation of the land and naval Forces.'
53
Pursuant to that grant of power, Congress by the Act of August 10, 1956, c. 1041, 70A Stat. 36 et seq.—revising the pre-existing Articles of War—enacted the Uniform Code of Military Justice. Article 2(11) of that Code, 10 U.S.C.A. § 802(11), provides, in pertinent part:
54
'The following persons are subject to this chapter:
55
'(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States * * *.'
56
It is not disputed that existing treaties with each of the foreign sovereignties, within whose territory the alleged offenses occurred, permitted the armed forces of the United States to punish offenses against the laws of the United States committed by persons embraced by Article 2(11) of the Code. Arguments challenging the reasonableness of Article 2(11) are presently put aside, for if Clause 14 does not grant to Congress the power to provide for the court-martial trial and punishment of the persons embraced in Article 2(11) of the Code it may not do so, however reasonable. Reid v. Covert, supra, 354 U.S. at page 74, 77 S.Ct. at page 1260 (concurring opinion).
57
Did Clause 14 empower Congress to enact Article 2(11) of the Code? Certain aspects of that broad question have recently been determined in Reid v. Covert, supra, and, though not a Court opinion, I consider that decision to be binding upon me.3 In that case four members of the Court held that Article 2(11) of the Code cannot constitutionally be applied to civilian dependents 'accompanying' members of the armed forces outside the United States in time of peace, because, in their view, to do so would violate Art. III, § 2, and the Fifth and Sixth Amendments of the Constitution; and two members of the Court, in separate concurring opinions, agreed with that result, but only with respect to capital offenses.
58
Like my Brother CLARK who writes for the Court today, I am unable to find any basis in the Constitution to support the view that Congress may not constitutionally provide for the court-martial trial and punishment of civilian dependents for capital offenses but may do so for noncapital ones. Certainly there is nothing in Clause 14 that creates any such distinction or limitation. Legalistically and logically, it would seem that the question is one of status of the accused person, and that courts-martial either do or do not have jurisdiction and, hence, power to try the accused for all offenses against the military law or for none at all. Sympathetic as one may be to curtailment of the awesome power of courts-martial to impose maximum sentences in capital cases, the question, for me at least, is the perhaps cold but purely legal one of constitutional power. There would seem to be no doubt that Congress may constitutionally prescribe gradations of offenses and punishments in military cases. The question is solely whether Clause 14 has granted to Congress any power to provide for the court-martial trial and punishment of civilian dependents 'accompanying,' and civilians 'employed by,' the armed forces at military posts in foreign lands in time of peace. If it has, then Congress has acted within its powers in enacting Article 2(11) of the Code—otherwise not. Inasmuch as six members of the Court have held in Covert that Congress may not constitutionally provide for the court-martial trial and punishment of civilian dependents 'accompanying the armed forces' overseas in peacetime in capital cases, and because I can see no constitutional distinction between Congress' power to provide for the court-martial punishment of capital offenses, on the one hand, and noncapital offenses, on the other hand, I conclude that the holding in Covert means that civilian dependents accompanying the armed forces in peacetime are not subject to military power, and that it requires affirmance of No. 22, the Singleton case.
59
But each of the three opinions supporting the conclusion reached in Covert was at pains to limit the decision to civilian dependents. '(T)he wives, children and other dependents of servicemen cannot be placed in that category (of being 'in' the armed services for purposes of Clause 14), even though they may be accompanying a serviceman abroad at Government expense and receiving other benefits from the Government.' 354 U.S. at page 23, 77 S.Ct. at page 1233. 'The mere fact that these women had gone overseas with their husbands should not reduce the protection the Constitution gives them.' 354 U.S. at page 33, 77 S.Ct. at page 1239. See also 354 U.S. at page 45, 77 S.Ct. at page 1245 (concurring opinion of Frankfurter, J.), and 354 U.S. at pages 75 76, 77 S.Ct. at pages 1260—1261 (concurring opinion of Harlan, J.). The main opinion carefully pointed out that 'Mrs. Covert and Mrs. Smith * * * had never been employed by the army, had never served in the army in any capacity.' 354 U.S. at page 32, 77 S.Ct. at page 1238. (Emphasis added.)
60
There is a marked and clear difference between civilian dependents 'accompanying the armed forces' and civilian persons 'serving with (or) employed by' the armed forces at military posts in foreign lands. The latter, numbering more than 25,000 employed at United States military bases located in 63 countries throughout the world—mainly highly trained specialists and technicians possessing skills not readily available to the armed forces—are engaged in purely military work,—as in the case of Guagliardo, employed as an electrical lineman by the Air Force to construct and maintain lines of communication and airfield lighting apparatus and equipment, as also in the case of Wilson, an auditor employed to audit the accounts of the United States Army in Berlin, and as in the case of Grisham, employed as a cost accountant by the United States Army Corps of Engineers to assist in setting up a cost accounting system for the building of a line of communications from Pardeau, france, to Kossalater in the American-occupied section of Germany. These civilian employees thus perform essential services for the military and, in doing so, are subject to the orders , direction and control of the same military command as the 'members' of those forces; and, not infrequently, members of those forces who are assigned to work with and assist those employees are subject to their direction and control. They have the same contact with, and information concerning, the military operations as members of those forces and present the same security risks and disciplinary problems. They are paid from the same payroll, and have the same commissary, housing, medical, dental, mailing, transportation, banking, tax-exemption, customs, border-crossing and other privileges as members of the armed forces. They are so intertwined with those forces and military communities as to be in every practical sense an intergral part of them. On the other hand, civilian dependents 'accompanying the armed forces' perform no services for those forces, present dissimilar security and disciplinary problems, have only a few of the military privileges, and generally stand in a very different relationship to those forces than the civilian employees. Nor should there be any confusion about the fact that the materials found in Covert to be 'too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution, for constitutional adjudication' (354 U.S. at page 64, 77 S.Ct. at page 1255, concurring opinion), related, as did the whole case, to 'civilian dependents in particular,' id., not to persons employed at foreign military bases to do essential military work. And I readily agree with the Court today that under the severability clause in the Code, 70A Stat. 640, '* * * legal effect can be given to each category standing alone.' McElroy v. U.S. ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305.
61
Determination of the scope of the powers intended by the Framers of the Constitution to be given to Congress by Clause 14 requires an examination into the customs, practices and general political climate known to the Framers and existing at that time. The first Articles of War in this country were those adopted by the Provisional Congress of Massachusetts Bay on April 5, 1775.4 Those Articles, initially governing the 'civilian' army of farmers and tradesmen—the minutemen—who were first involved in the War of the Revolution, were made applicable to 'all Officers, Soldiers, and others concerned'. Winthrop (Reprint 1920) 947. Article 31 provided:
62
'All sellers and retailers to a camp, and all persons whatsoever serving with the Massachusetts Army in the field, though not enlisted Soldiers, are to be subject to the Articles, Rules and Regulations of the Massachusetts Army.' Id., at 950.
63
The American Revolutionary Army initially was governed by 'Articles of War' adopted by the Continental Congress on June 30, 1775.5 Nine of the original 69 Articles provided for the trial by court-martial of persons serving with the army but who were not soldiers. Those Articles were revised by the Continental Congress on September 20, 1776,6 and, save for minor revisions not here pertinent, governed the Revolutionary Army during the remainder of the war.7 Thirteen of those Articles provided for the trial by court-martial of civilians serving with the army, such as 'commissaries,'8 'suttlers,'9 'storekeepers,'10 persons 'belonging to the forces employed in the service of the United States,'11 and persons 'belonging to the forces of the United States, employed in foreign parts.'12 In 1778, a relevant addition was made. It provided, in pertinent part: 'That every person employed either as Commissary, Quarter Master, forage Master, or in any other Civil Department of the Army shall be subject to trial by Court Martial for neglect of duty, or other offence committed in the execution of their office * * *.' Journals of the Continental Congress, Vol. X, p. 72. (Emphasis added.) Wagon drivers 'receiving pay or hire' in the service of the artillery were made subject to court-martial jurisdiction under the American Articles of 177513 and 1776.14 Throughout the Revolutionary period, 'drivers' and 'artillery gunners' were civilian experts. 'Horses or oxen, with hired civilian drivers, formed the transport' for the cannon. Manucy, Artillery Through The Ages (G.P.O. 1949), p. 10. Their civilian status in Washington's army is concretely shown by his writings.15
64
There was a protracted controversy in the Constitutional Convention over whether there should be a standing army or whether the militia of the various States should be the source of military power.16 There was, on the one hand, fear that a standing army might be detrimental to liberty; on the other was the necessity of an army for the preservation of peace and defense of the country.17 The problem of providing for essential forces and also of assuring enforcement of the unanimous determination to keep them in subjection to the civil power was resolved by inserting the provision that no appropriation for the support of the army could be made for a longer period than two years (Art. I, § 8, cl. 12), and by the continuance of the militia 'according to the discipline prescribed by Congress.' Art. I, § 8, cls. 15 and 16, and Amend. II.18
65
It was in the light of this background and upon these considerations that the Framers gave to the representatives of the people—the Congress—the power 'To make Rules for the Government and Regulation of the land and naval Forces.' Clause 14. That language was taken straight from the Articles of Confederation.19 In respect thereto, Hamilton said in Beloff, The Federalist, No. XXIII, p. 111:
66
'These powers ought to exist without limitation; because it is impossible to foresee or to define the extent and variety of national exigencies, and the corresponding extent and variety of the means which may be necessary to satisfy them * * *.'20
67
Soon after the formation of the Government under the Constitution, Congress, by the Act of September 29, 1789, c. 25, § 4, 1 Stat. 96, adopted the Articles of War which were essentially the Articles of 1776. By that Act, Congress—it is almost necessary to assume—approved the consistent practice of exercising military jurisdiction over civilians serving with the armed forces, although not actually soldiers. The first complete enactment of the Articles of War subsequent to the adoption of the Constitution was the Act of April 10, 1806. Article 60 of that Act (2 Stat. 366) re-enacted the provisions for jurisdiction over sutlers, retainers, and 'all persons whatsoever, serving with the armies of the United States in the field, though not enlisted soldiers.' Provisions similar to Article 60 have been made in all subsequent re-enactments of the Military Code: In the revision of 1874, Rev.Stat. (2d ed. 1878), p. 236 (Article 63); in 1916, 39 Stat. 651; in 1920, 41 Stat. 787; and in the adoption of the Uniform Code of Military Justice, 64 Stat. 109, codified in 70A Stat. 37, 10 U.S.C. § 802(11), 10 U.S.C.A. § 802(11).
68
In the 1916 general revision of the Articles of War, Congress used language which is substantially equivalent to that of Article 2(11),21 and it appears it did not consider that any new concept was being adopted.22 After full consideration by an eminent committee of experts, Congress, in 1956—recognizing that, although we are not at war, turbulent world conditions require large military commitments throughout the world—reenacted, in Article 2(11), the provision that civilians 'serving with' the armies of the United States 'outside the United States' are subject to military jurisdiction, and it redefined that concept by adding the 'employed by' classification.
69
Clause 14 does not limit Congress to the making of rules for the government and regulation of 'members' of the armed forces. Rather, it empowers Congress to make rules for the government and regulation of 'the land and naval Forces.' The term 'land and naval Forces' does not appear to be, nor ever to have been treated as, synonymous with 'members' of the armed services.23
70
Viewed in the light of its birth and history, is it not reasonably clear that the grant of Clause 14, to make rules for the government and regulation of the land and naval forces, empowers Congress to govern and reulate all persons so closely related to and intertwined with those forces as to make their government essential to the government of those forces? Do not civilians employed by the armed forces at bases in foreign lands to do essential work for the military establishment, such as was being done by respondent Guagliardo and petitioners Wilson and Grisham, occupy that status and stand in that relationship to the armed forces for which they worked?
71
This Court has consistently held, in various contexts, that Clause 14 does not limit the power of Congress to the government and regulation of only those persons who are 'members' of the armed services. In Ex parte Milligan, 4 Wall. 2, 123, 18 L.Ed. 281, it was said, relative to the discipline necessary to the efficient operation of the army and navy, that 'Every one connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts.' In Duncan v. Kahanamoku, 327 U.S. 304, 313, 66 S.Ct. 606, 610, 90 L.Ed. 688, this Court recognized the 'well-established power of the military to exercise jurisdiction over members of the armed forces (and) those directly connected with such forces * * *.' (Emphasis added.) In United States ex rel. Toth v. Quarles, 350 U.S. 11, 15, 76 S.Ct. 1, 4, 100 L.Ed. 8, this Court said that Clause 14 'would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces.' (Emphasis added.) Of even greater relevance, the main opinion in Covert, although expressing the view that Clause 14 authorized military trials only of persons 'in' the armed forces, recognized 'that there might be circumstances where a person could be 'in' the armed services for purposes of Clause 14 even though he had not formally been inducted into the military or did not wear a uniform.' 354 U.S. at page 23, 77 S.Ct. at page 1233. To repeat the query of this Court, made under very similar circumstances, in Ex parte Reed, 100 U.S. 13, 22, 25 L.Ed. 538, 'If these (civilian employees) are not in the (armed) service, it may well be asked who are.' (Emphasis added.) That case held that a civilian, employed to serve aboard ship as the clerk of a paymaster of the United States Navy and who was dismissable at the will of the commander of the ship, occupied such 'an important (place) in the machinery of the navy * * * (that) (t)he good order and efficiency of the service depend(ed) largely upon the faithful performance of (his) duties' and brought him 'in the naval service,' so that he was subject to trial and punishment by court-martial for an offense committed in a Brazilian port. 100 U.S. at pages 21—22. Johnson v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914, reaffirmed the principle on practically identical facts.
72
The provisions of Art. III, § 2, and the Fifth and Sixth Amendments of the Constitution requiring the trial of capital or otherwise infamous crimes in an Article III court, upon an indictment of a grand jury, by an impartial petit jury, are not applicable to 'cases arising in the land or naval forces.' The Fifth Amendment expressly excepts those cases. It cannot be said that the 'words in the fifth amendment, relating to the mode of accusation, restrict the jurisdiction of courts martial in the regular land and naval forces.' Johnson v. Sayre, supra, 158 U.S. at page 115, 15 S.Ct. at page 776. The exception in the Fifth Amendment 'was undoubtedly designed to correlate with the power granted Congress to provide for the 'Government and Regulation' of the armed services * * *.' (Reid v. Covert, supra, 354 U.S. at page 22, 77 S.Ct. at page 1233), and so was the jury-trial provision of the Sixth Amendment, for 'the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth.' Ex parte Milligan, supra, 4 Wall. at page 123. See also Ex parte Quirin, 317 U.S. 1, 40, 63 S.Ct. 2, 17, 87 L.Ed. 3. The power conferred upon Congress by Clause 14 to provide for court-martial trials of offenses arising in the land and naval forces is independent of and not restricted by Article III or the Fifth and Sixth Amendments to the Constitution.
73
Counsel for the convicted employees argue, with the citation and force of much history, that even if civilians 'serving with (or) employed by' the armed forces are subject to the military power of courts-martial, such could be so only in respect of offenses committed while those forces are 'in the field.' Some of the early Articles of War limited military jurisdiction over certain civilian employees to the period when the army was 'in the field.'24 What is really meant by the term 'in the field'? Seemingly, it does not mean 'in actual war' or even 'in time of war.' 'The essential element was thought to be, not so much that there be war, in the technical sense, but rather that the forces and their retainers be 'in the field." Reid v. Covert, supra, 354 U.S. at page 71, n. 8, 77 S.Ct. at page 1259 (concurring opinion). Historically, the term has been thought to include armed forces located at points where the civil power of the Government did not extend or where its civil courts did not exist. Prior to the Civil War, a number of civilians employed by the armed forces were tried and punished by courts-martial in time of peace.25 In 1814, the Attorney General expressed the opinion that civilian employees of the navy were subject to punishment by court-martial for offenses committed on board vessels beyond the territorial jurisdiction of our civil courts. 1 Op.Atty.Gen. 177. The term 'in the field' was thought to apply to organized camps stationed in remote places where civil courts did not exist or were not functioning. In 1866, the Judge Advocate General of the Army so declared.26 But thereafter, Winthrop expressed the view that the term 'in the field' is to be 'confined both to the period and pendency of war and to acts committed on the theatre of the war.'27 This would seem to ignore the fact that the constitutional authority involved is Clause 14, not the war power, and that the Clause 14 powers apply to times of both peace and war. Moreover, even at the time when Winthrop wrote, there was no consensus of interpretation supporting his view. In 1872, the Attorney General issued an opinion which concluded that civilians serving with troops in Kansas, Colorado, New Mexico, and the Indian Territory (where civil courts did not exist or were not functioning) in the building of defensive earthworks to protect against threatening Indians were 'in the field.' 14 Op.Atty.Gen. 22.28 As earlier observed, this Court held, in 1879, in Ex parte Reed, supra, and again in 1895, in Johnson v. Sayre, supra, that the civilian clerk of a paymaster of the navy might be tried and punished by a court-martial for a military offense committed in peacetime aboardship in a foreign port.
74
Doubtless, with the passing of the frontier and the extension of civil courts throughout the territorial boundaries of the United States, detachments of troops stationed within our borders may not in time of peace be regarded as 'in the field.' But, it seems to me that armed forces of the United States stationed at bases in foreign lands—where jurisdiction of our civil courts does not extend—must, under turbulent world conditions, be otherwise regarded. Because of longexisting world tensions and with the fervent hope of preventing worse, the United States Government has stationed armed forces at military bases in 63 foreign lands throughout the world. We are told that they must be kept constantly alert and ready to prevent or, if and when they arise, to put down 'brush fires' which if allowed to spread might ignite a world-wide holocaust of atomic war. Because of physical necessities, such a war, like the frequently recurring 'brush fires,' could be suppressed, if at all, mainly from those bases. The forces at those bases are as much 'in the field' in the one case as in the other. Though there be no war in the technical sense, those forces while so engaged in foreign lands—where our civil courts do not exist—are in every practical sense 'in the field.' They are as clearly 'in the field' as were American soldiers while building fortifications to protect against threatening Indians in New Mexico and the Indian Territory, where our civil courts did not exist, in the days of the frontier. Op. J.A.G. of the Army, Nov. 15, 1866, 23 Letters sent, 331 (National Archives) and see note 26; 14 Op.Atty.Gen. 22, and see note 28.
75
Clause 14 empowers Congress to 'make Rules'—all necessary and proper rules—' for the Government and Regulation of the land and naval Forces'—not just for 'members' of those forces, but the 'Forces,' and not only in time of war but in times of both peace and war. In the exercise of that granted power, Congress has promulgated rules, the Uniform Code of Military Justice, for the government of the 'armed forces' and, to that end, has deemed it necessary, as witness Article 2(11), to include persons 'employed by' those forces when 'outside the United States'—where our civil courts have no jurisdiction and do not exist—in times of both peace and war. In the light of all the facts, it would seem clear enough that Congress could rationally find that those persons are 'in' those forces and, though there be no shooting war, that those forces, in turn, are 'in the field'; and hence Congress could and did constitutionally make those employees subject to the military power. Both the practical necessities and the lack of alternatives, so clearly demonstrated by Mr. Justice Clark in the Covert case, 354 U.S., at page 78, 77 S.Ct. at page 1262 (dissenting opinion), strongly buttress this conclusion, if, indeed, it could otherwise be doubted.
76
For these reasons, I would affirm No. 22, the Singleton case; reverse No. 21, the Guagliardo case; and affirm Nos. 37 and 58, the Wilson and Grisham cases.
1
Art. 2. 'The following persons are subject to this chapter:
'(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the following: that part of Alaska east of longitude 172 degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands.' 10 U.S.C.A. § 802(11).
2
Four Justices joined in an opinion announcing the judgment, two concurred in the result, and two dissented. Mr. Justice Whittaker, having come to the Court subsequent to the time of argument and decision in this case, took no part.
3
Clause 18. 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.'
4
See also Dynes v. Hoover, 1857, 20 How. 65, 15 L.Ed. 838; Ex parte Milligan, 1866, 4 Wall. 2, 18 L.Ed. 281; Duncan v. Kahanamoku, 1946, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688; and Winthrop, Military Law and Precedents (2d ed. 1896), 144 et seq. and Reprint (1920) 105—107.
5
The second concurring opinion expressed the view that Article I was an unlimited grant of power to Congress 'to make such laws in the regulation of the land and naval forces as are necessary to the proper functioning of those forces' and indicated that the Necessary and Proper Clause 'modified' Clause 14 'expanding' its power 'under changing circumstances.' 354 U.S. at page 68, 77 S.Ct. at page 1257.
6
The writer of this opinion wrote the dissent.
7
Even at argument here government counsel admitted he had found no such distinction other than that asserted by the concurrences in second Covert:
'Mr. Justice Black: What is the historical difference as to the 'Members of the land and naval Forces' and the constitutional power of Congress dependent upon whether they are capital crimes or noncapital crimes? When did that distinction first come into existence?'
'Mr. Davis: Well, I think that distinction was first articulated in the concurring opinions in the Covert case.'
'Mr. Justice Black: I really asked you about the history because I was curious to know (whether), in your reading and so forth, you found any reference to that distinction in this field before the Covert case.'
'Mr. Davis: No. No explicit reference Mr. Justice Balck.'
8
It was for this reason that the majority in the first Covert case, supra, based its decision on art. IV, § 3, rather than the congressional power under Clause 14.
9
Aside from traffic violations, there were only 273 cases (both capital and noncapital) involving dependents subject to foreign jurisdiction during the period between December 1, 1954, and November 30, 1958. This number includes 54 'Offenses against economic control laws' and 88 offenses denominated 'other.' Government's Brief on the Merits in McElroy v. United States ex rel. Guagliardo, No. 21, at page 75. (361 U.S. 281, 80 S.Ct. 305)
10
'He was glad, he said, that the penalty under this bill was not to be greater than that to which persons were subjected who were convicted of counterfeiting the great seal; but, on the other hand, he feared that this seeming lenity was not what it appeared to be, the child of mercy; he apprehended that its object was to facilitate the conviction of the accused, by taking from him the means of defence, which he might claim as his right, if the bill left the enumerated acts within the statute of the 25th of Edward III. These acts might be considered as proofs of an adherence to the king's enemies, and consequently came within the species of treason on which corruption of blood attached; but, by classing them under the head of treasons which did not operate a corruption of blood, the framers of the bill had contrived to take from the accused the means of defence, under the appearance of lenity. Of all the characters of cruelty, he considered that as the most odious which assumed the garb of mercy: such was the case here; under the pretence of mercy to the accused, in not charging him with corruption of blood, he was to be deprived of the means of making his defence. That he might not stand a chance in the contest, his shield was to be taken from him. The list of the jury, to give him the benefit of the challenge—the list of witnesses, to enable him to detect conspiracies and to prevent perjury—the copy of the charge ten days before the trial, to enable him to prepare himself for the awful day—the assistance of a learned gentleman to speak for an unlearned man—all the arms and means of protection with which the humanity of the law of England had fortified an individual, when accused by the crown, were to be taken away. Harshness and severity were to be substituted for tenderness and compassion; and then he was to be insulted by being told he was spared the corruption of blood!' 5 The Speeches of the Right Hon. Charles James Fox in the House of Commons (London 1815) 78.
11
Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, and Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, both Fourteenth Amendment cases which would, of course, have no application here.
1
To wit: 'that part of Alaska east of longitude 172 degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands.'
2
In No. 37 the Government, alternatively, relies on the 'War Power,' the offense having been committed in the American Occupied Zone of West Berlin. Cf. Madsen v. Kinsella, 343 U.S. 341, 72 S.Ct. 699, 96 L.Ed. 988. Apart from whether or not the contention is available in light of the course of the proceedings below, I do not reach that issue.
3
In addition to myself, the majority opinions, written by Mr. Justice Clark, were joined by Justices Reed, Burton and Minton, 351 U.S. 470 and 487, 76 S.Ct. 886 and 880. The Chief Justice and Justices Black and Douglas dissented. Id., 351 U.S. at page 485, 76 S.Ct. at page 894. Mr. Justice Frankfurter filed a Reservation. Id., 351 U.S. at page 481, 76 S.Ct. at page 892.
4
The three remaining members of the original majority were in dissent, 352 U.S. at page 902, 77 S.Ct. at page 124, Mr. Justice Minton having meanwhile retired. Mr. Justice Brennan, his successor, did not participate on the motion.
5
The Chief Justice, Mr. Justice Black (the writer of the opinion), and Justices Douglas and Brennan.
6
Mr. Justice Frankfurter and myself.
7
Justices Clark and Burton.
8
Mr. Justice Whittaker, succeeding Mr. Justice Reed who had meanwhile retired.
9
The Fifth Amendment excepts from its protection 'cases arising,' not persons, 'in the land or naval forces.'
10
E.g., M.G.L.A. c. 265 § 2; Miss.Code Ann. § 2536; N.H.R.S.A. c. 585, § 4.
11
E.g., N.Y.Code Cr.Proc. § 332.
12
E.g., Cal.Penal Code, § 1239(b); ORS 138.810.
1
The Uniform Code of Military Justice, 70A Stat. 36 et seq., will hereafter, for brevity, be called the 'Code.'
*
Now 10 U.S.C.A. § 934.
**
Now 10 U.S.C.A. § 918.
2
This does not overlook the 'necessary and proper' Clause, Art. I, § 8, cl. 18, of the Constitution, but, in my view, that Clause, though applicable, adds nothing to Clause 14, because the latter Clause, empowering Congress 'To make Rules for the Government and Regulation of the land and naval Forces,' plainly means all necessary and proper rules for those purposes.
Mr. Justice STEWART is of the view that Clause 14 must be read in connection with the 'necessary and proper' Clause, and agrees with the views expressed in Mr. Justice HARLAN'S separate opinion as to the applicability and effect of that clause.
3
Although a member of the Court when the opinions in the Covert case were handed down, I was ineligible to and did not participate in the decision of that case because it had been argued, submitted and decided prior to my coming to the Court.
4
Winthrop, Military Law and Precedents (Reprint 1920) 947.
5
Journals of the Continental Congress, Vol. II, p. 111. Those Articles, with additional Articles enacted November 7, 1775, are reprinted in Winthrop 953 et seq.
6
Those Articles are reprinted in Winthrop 961—971.
7
The Articles were prepared principally by John Adams. See John Adams, Works, Vol. 3, pp. 83—84; Winthrop 22.
8
Articles of War, Sept. 20, 1776, § IV, Art. 6.
9
Id., § VIII, Art. 1.
10
Id., § XII, Art. 1.
11
Id., § XIII, Art. 9.
12
Id., § XIII, Art. 17.
13
Articles of War, June 30, 1775, Art. XLVIII; Winthrop 957.
14
Articles of War, Sept. 20, 1776, § XVI, Art. I; Winthrop 970.
15
See the report which Washington made to the Committee of Congress With The Army, on January 29, 1778: 'As it does not require military men, to discharge the duties of Commissaries, Forage Masters and Waggon Masters, who are also looked upon as the money making part of the army, no rank should be allowed to any of them, nor indeed to any in the departments merely of a civil nature. Neither is it, in my opinion proper, though it may seem a trivial and inconsequential circumstance, that they should wear the established uniforms of the army, which ought to be considered as a badge of military distinction.' Writings of Washington, Vol. 10, at 379. (Emphasis added.)
Numerous instances of the exercise of military jurisdiction over civilians serving with the army are detailed in Washington's Writings. A 'Wagon Master' was so tried and acquitted on January 22, 1778. Vol. 10, p. 359. A 'waggoner' was so tried and sentenced on May 25, 1778 (Vol. 11, p. 487), and another on September 2, 1780. At the same time, an 'express rider' was so tried and convicted. Vol. 20, pp. 24—25. On September 1, 1779, a 'Commissary of Issues' and a 'Commissary of Hides' were tried by court-martial. Vol. 16, pp. 385—386. On September 23, 1780, another 'waggoner' was so tried and acquitted. Vol. 20, pp. 96-97. On December 6 and 16, 1780, another 'commissary' and also a 'barrack master' were so tried. Vol. 21, p. 10, and pp. 22—23. Numerous other court-martial trials of civilians serving with the army are recited in Vol. 10, p. 507; Vol. 12, p. 242; Vol. 13, pp. 54, 314; Vol. 21, p. 190.
16
Prescott, Drafting the Federal Constitution (1941), pp. 515—525; 5 Elliot's Debates 443—445.
17
Glenn and Schiller, The Army and the Law, pp. 14, 18—20.
18
The basis of this conclusion was summarized by James Madison in Beloff, The Federalist, No. XLI, p. 207:
'Next to the effectual establishment of the union, the best possible precaution against danger from standing armies, is a limitation of the term for which revenue may be appropriated to their support. This precaution the constitution has prudently added. * * *'
19
Prescott, Drafting the Federal Constitution (1941), p. 526; 5 Elliot's Debates 443.
20
Hamilton, aide-de-camp to Washington and a distinguished army officer, undoubtedly knew that civilians serving with the army were commonly subjected to court-martial jurisdiction. The same must be presumed to have been known by most, if not all, of the members of the Constitutional Convention, for so many of them had been a part of the Revoluntary Army wherein that practice was commonplace.
21
Article 2(d) of the 1916 Articles provided that the following persons should be subject to the Articles of War:
'(d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles.' This section was re-enacted in 1920, 41 Stat. 787.
22
General Enoch H. Crowder, then Judge Advocate General of the Army, stated before the House Committee on Military Affairs:
'There is nothing new in the article in subjecting these several classes to the provisions of article 65. It is a jurisdiction which has always been exercised. When any person joins an army in the field and subjects himself by that act to the discipline of the camp he acquires the capacity to imperil the safety of the command to the same degree as a man under the obligation of an enlistment contract or of a commission.' Hearings on H.R. 23628, 62d Cong., 2d Sess., p. 61.
23
See Cong.Globe, 37th Cong., 3d Sess., 995 et seq.
24
Article XXXII of American Articles of War of 1775, 2 J.Const.Cong. 111, provided that 'All suttlers and retailers to a camp, and all persons whatsoever, serving with the continental army in the field * * *' were subject to court-martial jurisdiction.
Article 60 of the American Articles of War of 1806, 2 Stat. 359, 366, provided that 'All suttlers and retainers to the camp, and all persons whatsoever, serving with the armies of the United States in the field * * *.' were subject to court-martial jurisdiction.
Article 63 of American Articles of War of 1874, R.S. § 1342, provided that 'All retainers to the camp, and all persons serving with the armies of the United States in the field * * *' were within the jurisdiction of courts-martial.
25
At Ft. Monroe, Va., in 1825; Ft. Washington, Md., in 1825; Ft. Gibson, in what is now Oklahoma, in 1833; Ft. Brooke, Fla., in 1838; Camp Scott, Utah Territory, in 1858; Ft. Bridger, Utah Territory, in 1858.
26
On November 15, 1866, the Judge Advocate General of the Army formulated the following opinion and direction:
'It is held by this Bureau and has been the general usage of the service in times of peace, that a detachment of troops is an army 'in the field' when on the march, or at a post remote from civil jurisdiction.
'It has been the custom and is held to be advisable, that civil employees, sutlers and camp followers when guilty of crimes known to the civil law, to turn the parties over to the courts of the vicinity in which the crimes were committed. For minor offences against good orders and discipline, it has been customary to expel the parties from the Army: If, however, it is sought to punish civil employees in New Mexico, for crimes committed at a post where there are no civil courts before which they can be tried, it is held that they can be brought to trial before a General Court Martial, as they must be considered as serving with 'an army in the field' and, therefore, within the provision of the 60th Article of War.' Op. J.A.G. of the Army, Nov. 15, 1866, 23 Letters sent, 331 (National Archives).
27
Winthrop, Military Law and Precedents, 101.
28
The opinion rested primarily on the ground that the term 'in the field' implies military operations with a view to an enemy, and that an army was 'in the field' when 'engaged in offensive or defensive operations.' It also noted, at page 24, that:
'Possibly the fact that troops are found in a region of country chiefly inhabited by Indians, and remote from the exercise of civil authority, may enter into the description of 'an army in the field."
| 12
|
361 U.S. 340
80 S.Ct. 357
4 L.Ed.2d 341
Ellen GOETT, as Administratrix of the Estate of Marvin Paul Goett, Deceased, Petitioner,v.UNION CARBIDE CORPORATION and Amherst Barge Company.
No. 3.
Argued Nov. 12, 1959.
Decided Jan. 18, 1960.
Mr. E. Franklin Pauley, Charleston, W. Va. (Mr. Harvey Goldstein, New York City, Mr. S. Eldridge Sampliner, Cleveland, Ohio, of counsel), for petitioner.
Charles M. Love, Charleston, W. Va., for respondent.
PER CURIAM.
1
This was a libel in admiralty brought against respondent Union Carbide Corporation by petitioner, the administratrix of Marvin Paul Goett. Goett had been an employee of respondent Amherst Barge Company, which was engaged in repairing a river barge owned by Union. The decedent was working on the barge when he fell off into the waters of the Kanawha River, and, after fruitless efforts at rescue, was drowned. The theory of the libel was that, alternatively, Union was negligent in turning over the barge to Amherst without its being equipped with rescue equipment, or that the vessel was unseaworthy without such equipment; and that the lack of rescue equipment caused the decedent's death. The accident had taken place in West Virginia waters and that State's Wrongful Death Act, Code W.Va. 55—7—5 et seq., was relied upon. The District Court found that the vessel was in fact unseaworthy and that Union was negligent in the respect charged, causing the death of decedent, and that the decedent was not shown to have been guilty of contributory negligence or to have assumed the risk. The District Court bottomed Union's liability on negligence, and awarded petitioner $20,000 in damages, the maximum allowable under the West Virginia Act, though finding that the actual damages were substantially higher. On Union's appeal to the Court of Appeals, the judgment was reversed. 4 Cir., 256 F.2d 449.
2
The Court of Appeals held that, as a matter of law, Union owed no duty to the employees of Amherst once the vessel had been turned over to the latter. It accordingly reversed the District Court's finding of negligence. It further held, contrary to the District Court, that the vessel was not unseaworthy at the time of the accident, and that in any event the decedent was not a person to whom the warranty of seaworthiness was owed. In the light of this determination, it did not pass on the question whether unseaworthiness would be in any event available as a ground for recovery in a West Virginia wrongful death action involving a maritime tort. We granted certiorari. 359 U.S. 923, 79 S.Ct. 604, 3 L.Ed.2d 627.
3
This case was decided in the lower courts before the decision of this Court in The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, where it was held that it was a question of state law as to what is the proper substantive law to be applied to maritime torts within the territorial jurisdictions of the States in wrongful death cases. See Hess v. United States, 361 U.S. 314, 80 S.Ct. 341. Under this holding, in a maritime tort death case, the State might apply the substantive law generally applicable to wrongful death cases within its territory, or it might choose to incorporate the general maritime law's concepts of unseaworthiness or negligence.1 Here the Court of Appeals did not decide which standard the West Virginia Act adopted. It did not articulate on what basis it was applying federal law if in fact it was; there is no intimation that it believed the West Virginia Act incorporated the maritime law's negligence standard, and in fact it expressly left open the question whether that Act incorporated the maritime standard of seaworthiness. It seems more likely to us to have passed on the negligence issue as a matter of federal maritime law; it cited only cases applying the general maritime law's and the Jones Act's concepts of negligence, and general treatises, 46 U.S.C.A. § 688; no West Virginia authority was relied upon.2 The least that can be said is that it is highly doubtful3 which law the Court of Appeals applied;4 and so in the absence of any expression by it of which standard the West Virginia Act adopted, we do not believe we can permit its judgment to stand after our intervening decision in The Tungus.
4
Accordingly, so that the Court of Appeals, which is closer than we to matters of local law, may pass upon the questions of West Virginia law involved in the light of this Court's holding in The Tungus, we vacate its judgment and remand the cause to it to determine: (a) Whether the West Virginia Wrongful Death Act, as to this maritime tort, employs the West Virginia or the general maritime law concept of negligence; and, in the light of its determination, (b) whether the district judge's finding as to negligence is correct under the proper substantive law. To facilitate our discretionary review of the Court of Appeals' findings as to unseaworthiness, it should also determine whether the West Virginia Act incorporates this standard of the general maritime law in death actions involving maritime torts. Cf. Barr v. Matteo, 355 U.S. 171, 78 S.Ct. 204, 2 L.Ed.2d 179.5
5
Vacated and remanded.
6
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins, dissenting.
7
I dissent from the Court disposition of this case on the following grounds:
8
First. For reasons elaborated in my Brother STEWART'S dissenting opinion, there is no reasonable basis for concluding that the Court of Appeals' disposition of the negligence cause of action did not rest upon state substantive law, which in maritime wrongful death actions controls, The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, if, as I expressed in my dissenting opinion in Hess v. United States, 361 U.S. 322, 80 S.Ct. 347, it does not impose duties greater than those created by maritime substantive law.
9
In any event, there being no suggestion that the state standards of duty differ in any way from those obtaining under maritime law, the remand of the negligence cause of action to the Court of Appeals seems to me to be a needless and therefore wasteful procedure.
10
Second. As to the unseaworthiness cause of action, no one suggests that West Virginia has such a doctrine of its own. The Court of Appeals deliberately decided (256 F.2d, at page 454) that it need not reach the difficult question of whether the West Virginia Wrongful Death Statute embraced a cause of action for unseaworthiness based on federal concepts, because it found that in any event, under federal law, the vessel was not unseaworthy, and that the petitioner was not one to whom the duty to provide a seaworthy ship was owing.
11
In resting its decision on these grounds the Court of Appeals exercised the traditional discretion of any court to choose what appeals to it a narrower and clearer ground of decision in preference to a broader and more controverted one. The Court does not suggest that the limits of this discretion were exceeded in this instance. Cf. Barr v. Matteo, 355 U.S. 171, 78 S.Ct. 204, 2 L.Ed.2d 179. In my view we cannot properly require the Court of Appeals to decide a question which it intentially and sensibly left open unless we first reverse that court on the issues which it did decide. This the Court does not do. Hence, I believe there is no justification for remanding the case on this score.
12
Mr. Justice WHITTAKER, dissenting.
13
I am persuaded that the Court of Appeals has made sufficiently clear that it thought this diversity, admiralty, death case was governed by the general maritime law, as remedially supplemented by the West Virginia Wrongful Death statute, and properly decided it on that basis.
14
The Court's opinion says that The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, 'decided that it was a question of state law as to what is the proper substantive law to be applied to maritime torts within the territorial jurisdiction of the States in wrongful death cases (and that) (u) nder this holding, in a maritime tort death case, the State might apply the substantive law generally applicable to wrongful death cases within its territory, or it might choose to incorporate the general maritime law's concepts of unseaworthiness or negligence.' I do not understand the Tungus case to so hold, and if such a holding was intended by its author or by any of the Justices who joined it, it does not say so.
15
It seems to me that the substantive legal rights and liabilities involved in this admiralty case are not in any true sense governed by West Virginia law, but rather, are within the full reach of exclusive admiralty jurisdiction and are to be measured by the standards of the general maritime law, Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408, 3 L.Ed.2d 550, as remedially supplemented by the West Virginia Wrongful Death statute. See The Tungus, supra, 358 U.S. at page 592, 79 S.Ct. at page 506.
16
Although state Wrongful Death statutes are not ones of survivorship and are generally spoken of as creating a new cause of action for death, it seems rather clear that the West Virginia Wrongful Death statute, like most others, creates a cause of action only in the sense of providing a remedy for death resulting from an act made wrongful by other laws—whether common, statutory or maritime laws—which would have redressed the wrong 'if death had not ensued.' W.Va.Code, 1955, § 5474(5). And when, in a case encompassed by the terms of the State's Wrongful Death statute, admiralty 'adopts' such statute, it does so only to afford a remedy for a substantive cause of action created by the maritime law which, 'if death had not ensued,' would have redressed it.
17
It is true that when admiralty 'adopts' a State's Wrongful Death statute 'it must enforce (it) as an integrated whole, with whatever conditions and limitations the creating State has attached.' The Tungus, supra, 358 U.S. at page 592, 79 S.Ct. at page 506. But the West Virginia Wrongful Death statute, like most such state statutes, apart from prescribing who may prosecute the action, the time within which it must be brought, and the measure and limit of recovery, has attached only the condition that the wrongful 'act, neglect or default (be) such as would * * * have entitled the party injured to maintain an action to recover damages in respect thereof (if death had not ensued).' W.Va.Code, 1955, § 5474(5). Surely this means that the act, neglect or default, must be such as would, under other laws whether common, statutory, or maritime laws—have entitled the party injured to recover damages in respect thereof 'if death had not ensued.'
18
Adoption by admiralty of such a remedial statute cannot be permitted to, and does not, so expand the essential purposes and characteristic features of the general maritime law as to interfere with its proper nation-wide harmony and uniformity, Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086; Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210. By such adoption, admiralty takes over only the remedy afforded for death by the State's Wrongful Death statute—albeit the whole thereof. It does not thereby abandon the nonconflicting substantive admiralty law which gave rise to the right of action that it would have enforced 'if death had not ensued.' In such a case, the real and substantive right in suit is still the one created by, and—to the extent not conflicting with the adopted State Wrongful Death statute—is governed by, the maritime law.
19
This is what I understood the Tungus case to mean when I joined it, and re-examination of it confirms that conclusion. I submit there is not a word in it to the contrary. And this conclusion is buttressed by the separate opinion of my Brother BRENNAN in that case. Although this Court has many times and uniformly held that the maritime law creates no cause of action for wrongful death, and that, in circumstances like these, admiralty 'adopts' the State's Wrongful Death Act, the separate opinion in Tungus said, in effect, that admiralty would merely look to see whether the State had enacted a wrongful death statute and, if it had, would not 'adopt' that act but would put it aside and fashion its own remedy for wrongful death, 358 U.S., at pages 608—609, 79 S.Ct. at pages 514—515, which, I thought and still think, is contrary to this Court's cases holding that the maritime law does not create a cause of action for wrongful death and that, in actions for wrongful death arising on the territorial waters of a State, admiralty 'adopts' the State's Wrongful Death Act cum onere.
20
I believe that the opinion of the Court of Appeals makes reasonably clear that the court regarded this case as governed by, and that it applied, the general maritime law as remedially supplemented by the West Virginia Wrongful Death statute. I also believe that the court correctly concluded that the maritime doctrine of unseaworthiness was not applicable, and that respondent was not guilty of negligence causing or contributing to cause the death of petitioner's decedent, because, as it found, the barge was both withdrawn from navigation for extensive repairs and completely out of respondent's control—points we thoroughly explored and decided only the other day. West v. United States, 361 U.S. 118, 80 S.Ct. 189. I would affirm.
21
Mr. Justice STEWART, dissenting.
I.
22
In this wrongful death action it was incumbent upon the Court of Appeals to apply the substantive law of West Virginia. The Court today finds it 'highly doubtful' whether the Court of Appeals did so. I entertain no such doubt for the following reasons: (1) This Court's 'intervening decision'1 in The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, announced no new principle, but simply restated a doctrine well established in this Court. (2) Long before the decision in The Tungus, this doctrine had been specifically recognized as the law in the Fourth Circuit. (3) The express language of the Court of Appeals' opinion in the present case makes clear that the court understood that its function was to apply West Virginia law, and that it did so.
23
Our decision in The Tungus simply reaffirmed a principle articulated in many decisions of this Court. This principle, compendiously stated, is that admiralty enforces 'the obligatio' created by a state wrongful death action '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. See The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed 358; 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. 210.2 Under this weight of authority, it could be presumed that the Court of Appeals for the Fourth Circuit would recognize, as other federal courts, have recognized whenever the specific question has arisen, that the right to recover for wrongful death occurring on the navigable waters of a State is to be determined by reference to state law.3
24
But there is no need to indulge in such a presumption, because the Court of Appeals for the Fourth Circuit, several years before the present case was decided, manifested a thorough understanding of the controlling doctrine exactly in accord with the principles confirmed by this Court last Term in The Tungus. In Continental Casualty Co. v. The Benny Skou, 4 Cir., 1952, 200 F.2d 246, a suit to recover for a death occurring on board a ship in the territorial waters of Virginia, the court held that the action was barred by the one-year limitation contained in the Virginia Wrongful Death Act. The court's reasoning was unambiguous: 'The right of action which appellant has sought to enforce is one created solely by the Virginia statute. * * * 'Virginia has bestowed upon admiralty a right to grant a recovery not previously possessed by admiralty. The endowment must be taken cum onere.' As appellant grounds his action upon the Virginia statute, he is obliged to accept the statute in its entirety as construed by the Virginia court of last resort.' 200 F.2d at page 250.
25
Even if the Court of Appeals for the Fourth Circuit had not previously expressed such a clear understanding that cases like these are controlled by the substantive law of the State, I think that its opinion in the present case, standing alone, unambiguously shows a recognition of the duty to apply the substantive law of West Virginia. What the court said seems to me quite clear: 'The maritime law does not allow recovery for wrongful death. * * * The right to maintain such a suit can be enforced in admiralty only in accordance with the substantive law of the state whose statute is being adopted. The endowment must be taken cum onere.' 256 F.2d at page 453. This Court's suggestion that the above language was confined to the issue of the monetary limitation upon damages in the West Virginia statute is to me entirely unconvincing, because the Court of Appeals never reached the question of damages.
II.
26
Even if I were able to agree that it is uncertain whether the Court of Appeals decided this case under standards of state or federal law, I still could not join in the Court's judgment. For even if the Court of Appeals mistakenly applied substantive standards of federal maritime law, no purpose could be served by remanding this case unless it were shown that the state law is somehow more favorable to the petitioner. But there has been no showing—nor any suggestion—that the law of West Virginia is in any way more favorable to plaintiffs than the general maritime law.4 Contrast Hess v. United States, 361 U.S. 314, 80 S.Ct. 341.
27
A remand of this case is equally pointless on the issue of whether, as a matter of West Virginia law, the state death statute incorporates the maritime duty of providing a seaworthy vessel. The district judge found that the barge was unseaworthy, but went on to hold that 'this case is not one for the applicability of the doctrine of liability without fault.' The Court of Appeals expressly refrained from deciding whether the West Virginia Wrongful Death statute has imported the maritime concept of unseaworthiness, finding that the circumstances of this case were not such as to impose liability under that concept, even if incorporated in the state statute. The court found as a fact that the barge was not unseaworthy, and held as a matter of law that in any event there could be no warranty of seaworthiness with respect to a vessel withdrawn from navigation and delivered into the sole custody and control of a dry dock company for the purpose of major repairs. Only last month we unanimously held that this view of the scope of unseaworthiness liability is correct. West v. United States, 361 U.S. 118, 80 S.Ct. 189. There is no point in requiring the Court of Appeals to make what would therefore be so completely irrelevant an inquiry into an elusive question of state law.
28
I would affirm.
1
For examples of the general maritime law's concept of negligence, see Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 204, 98 L.Ed. 143; The Max Morris, 137 U.S. 1, 14—15, 11 S.Ct. 29, 32—33, 34 L.Ed. 586.
2
The respondent here cites West Virginia precedents in an effort to sustain the Court of Appeals' determination.
3
The views of the dissenting opinions here confirm us in our doubts. Some of the dissents take the view that the Court of Appeals should be affirmed because it undoubtedly decided the point as a matter of state law, while another is of the view that the Court of Appeals should be affirmed because it made sufficiently clear that it decided the point as a matter of federal law. Our views lie between these two.
4
While the Court of Appeals declared that 'The right to maintain such a suit can be enforced in admiralty only in accordance with the substantive law of the state whose statute is being adopted,' 256 F.2d at page 453, this discussion seems to us probably to have been in the context of the monetary limitation of the Act. Certainly there was no specific identification of this statement with the discussion of whether the negligence finding was justified. And if the statement is taken to mean that a State cannot adopt the maritime standard, it is not correct.
5
The CHIEF JUSTICE, Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice BRENNAN join this opinion, but solely under compulsion of the Court's ruling in The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524. They believe that as long as the view of the law represented by that ruling prevails in the Court, it should be applied even-handedly, despite the contrary views of some of those originally joining it that state law is the measure of recovery when it helps the defendant, as in The Tungus, and is not the measure of recovery when it militates against the defendant, as in Hess v. United States, 361 U.S. 314, 80 S.Ct. 341. However, they note their continued disagreement with the ruling in The Tungus, and reserve their position as to whether it should be overruled, particularly in the light of the controversy application of it has engendered among its original subscribers. See the various separate opinions in this case and in Hess v. United States, supra.
1
The judgment of the Court of Appeals in the present case was entered May 27, 1958. The decision of this Court in The Tungus was announced February 24, 1959.
2
The law took a different turn with respect to state workmen's compensation laws. See Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086. Such legislation was differentiated from state wrongful death statutes because of the greater burden imposed on shipowners by 'heavy penalties and onerous conditions' of the compensation statutes, and because of the 'novel remedies incapable of enforcement by an admiralty court.' Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 166, 40 S.Ct. 438, 442, 64 L.Ed. 834. More than 15 years ago this Court pointed out that '(T)he Jensen case has already been severely limited, and has no vitality beyond that which may continue as to state workmen's compensation laws.' Standard Dredging Corporation v. Murphy, 319 U.S. 306, 309, 63 S.Ct. 1067, 1068, 87 L.Ed. 1416. Cf. Davis v. Department of Labor and Industries of Washington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246; Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292.
3
See, e.g., Turner v. Wilson Line of Massachusetts, Inc., 1 Cir., 242 F.2d 414; Halecki v. United Pilots Ass'n, 2 Cir., 251 F.2d 708, judgment vacated and cause remanded, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541; Curtis v. A. Garcia y Cia, Ltda., 3 Cir., 241 F.2d 30; Graham v. A. Lusi, Ltd., 5 Cir., 206 F.2d 223; Lee v. Pure Oil Co., 6 Cir., 218 F.2d 711.
4
Indeed the case was submitted to us upon the contrary assumption. The petitioner's argument was pitched upon his contention that we should overrule The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, so that his rights could be determined under federal law. The respondent relied upon West Virginia decisions in urging affirmance.
| 78
|
361 U.S. 373
80 S.Ct. 400
4 L.Ed.2d 380
SUPERIOR COURT OF STATE OF WASHINGTON for KING COUNTY et al.v.STATE OF WASHINGTON on the Relation of YELLOW CAB SERVICE, INC.
No. 76.
Supreme Court of the United States
January 25, 1960
Richard P. Donaldson, Seattle, Wash., for the petitioners.
Kenneth A. Cox, Seattle, Wash., for the respondent.
On writ of certiorari to the Supreme Court of Washington.
PER CURIAM.
1
The judgment is reversed. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.
| 910
|
361 U.S. 363
80 S.Ct. 391
4 L.Ed.2d 373
LOCAL NO. 8—6, OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, et al., Appellants,v.MISSOURI.
No. 42.
Argued Nov. 19, 1959.
Decided Jan. 25, 1960.
Mr. Mozart G. Ratner, Chicago, Ill., for appellants.
Mr. Robert R. Welborn, Jefferson, Mo., for appellee.
Mr. Justice STEWART delivered the opinion of the Court.
1
This is an appeal from a judgment of the Supreme Court of Missouri affirming a decree which enjoined the appellants from continuing a strike against a St. Louis public utility. The judgment upheld the constitutionality of certain provisions of a Missouri law, commonly known as the King-Thompson Act, which authorizes the Governor on behalf of the State to take possession of and operate a public utility affected by a work stoppage when in his opinion 'the public interest, health and welfare are jeopardized,' and 'the exercise of such authority is necessary to insure the operation of such public utility.'1
2
In the state courts and in this Court the appellants have contended that the Missouri law conflicts with federal legislation enacted under the Commerce Clause of the Federal Constitution, and that it violates the Due Process Clause of the Fourteenth Amendment. Because of doubt as to whether the controversy was moot, we postponed further consideration of the question of jurisdiction to the hearing of the case on the merits. 359 U.S. 982, 79 S.Ct. 941, 3 L.Ed.2d 932.
3
The appellants are labor unions which represent employees of the Laclede Gas Company, a corporation engaged in the business of selling natural gas in the St. Louis area. In the spring of 1956 the appellants notified Laclede of their desire to negotiate changes in the terms of the collective bargaining agreement which was to expire in that year. Extended negotiations were conducted, but no new agreement was reached, and upon expiration of the existing contract on June 30, 1956, the employees went out on strike.2
4
Five days later the Governor of Missouri issued a proclamation stating that after investigation he believed that the public interest, health, and welfare were in jeopardy, and that seizure under authority of the state law was necessary to insure the company's continued operation. In an executive order issued the same day the Governor took 'possession' of Laclede 'for the use and operation by the State of Missouri in the public interest.' A second executive order provided that all the 'rules and regulations * * * governing the internal management and organization of the company, and its duties and responsibilities, shall remain in force and effect throughout the term of operation by the State of Missouri.' After the seizure the appellants continued the strike in violation of the statute,3 and the State of Missouri filed suit for an injunction against them in the Circuit Court of St. Louis.4 At the end of a three-day hearing the trial court entered an order enjoining the appellants from continuing the strike, and in an amendment to the decree declared the entire King-Thompson Act constitutional and valid. 'On July 14, 1956, the day after the injunction issued, the strike was terminated. On August 10, 1956, the appellants and Laclede signed a new labor agreement, and on October 31, 1956, the Governor ended the seizure.
5
On appeal the Supreme Court of Missouri, although noting that the injunction had 'expired by its own terms,' nevertheless proceeded to consider the merits of certain of the appellants' contentions. The court restricted its consideration, however, to those sections of the King-Thompson Act 'directly involved' 'Section 295.180, relating to the power of seizure, and subparagraphs (1) and (6) of Section 295.200 RSMo, V.A.M.S., making unlawful a strike or concerted refusal to work after seizure and giving the state courts power to enforce the provisions of the Act by injunction or other means.'5 317 S.W.2d at page 316. In upholding the constitutionality of these sections of the Act the court explicitly declined to pass on other provisions which the appellants sought to attack, stating: 'The sections which we have considered are severable from and may stand independently of the remainder of the Act. Although the defendants argue strenuously to the contrary, no case is made in this record for determination of the constitutionality of section 295.090, pertaining to a written labor agreement of a minimum duration and section 295.200, subparagraphs 2, 3, 4 and 5, relating to monetary penalties and loss of seniority. We, therefore, refrain from expressing any opinion with reference thereto.' 317 S.W.2d at page 323. Accordingly, the court 'limited and modified' the judgment of the trial court so as to remove all possible intimation that any provisions of the Act had been held constitutional, other than those necessarily upheld in sustaining the validity of the injunction.6
6
Because that injunction has long since 'expired by its own terms,' we cannot escape the conclusion that there remain for this Court no 'actual matters in controversy essential to the decision of the particular case before it.' United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808. Whatever the practice in the courts of Missouri, the duty of this Court 'is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.' Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293. See Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees, etc. v. Wisconsin Employment Relations Board, 340 U.S. 416, 71 S.Ct. 373, 95 L.Ed. 389. To express an opinion upon the merits of the appellants' contentions would be to ignore this basic limitation upon the duty and function of the Court, and to disregard principles of judicial administration long established and repeatedly followed.7
7
In Harris v. Battle, 348 U.S. 803, 75 S.Ct. 34, 99 L.Ed. 634, these principles were given concrete application in a context so parallel as explicitly to control disposition of the primary issue here. That case originated as an action to enjoin the enforcement of a Virginia statute, markedly similar to the King-Thompson Act, under which the Governor had ordered that 'possession' be taken of a transit company whose employees were on strike. Although the labor dispute was subsequently settled and the seizure terminated, the trial court nevertheless proceeded to decide the merits of the case, holding that the seizure was constitutional. Harris v. Battle, 32 L.R.R.M. 83. The Virginia Supreme Court refused an appeal. Harris v. Battle, 195 Va. lxxxviii. In this Court it was urged that the controversy was not moot because of the continuing threat of state seizure in future labor disputes.8 It was argued that the State's abandonment of alleged unconstitutional activity after its objective had been accomplished should not be permitted to forestall decision as to the validity of the statute under which the State had purported to act.9 It was contended that the situation was akin to cases like Southern Pac. Terminal Co. v. Interstate Commerce Comm., 219 U.S. 498, 514—516, 31 S.Ct. 279, 283—284, 55 L.Ed. 310.10 In finding that the controversy was moot, the Court necessarily rejected all these contentions. 348 U.S. 803, 75 S.Ct. 34, 99 L.Ed. 634. Upon the authority of that decision the same contentions must be rejected in the present case. See also Barker Painting Co. v. Local No. 734, Brotherhood of Painters, etc., 281 U.S. 462, 50 S.Ct. 356, 74 L.Ed. 967; Commercial Cable Co. v. Burleson, 250 U.S. 360, 39 S.Ct. 512, 63 L.Ed. 1030.
8
However, as the appellants point out, the decision in Harris v. Battle is not completely dispositive here because, unlike the Virginia statute, the King-Thompson Act contains provisions which impose: (1) monetary penalties upon labor unions which continue a strike after seizure;11 and (2) loss of seniority for employees participating in such a strike.12 The Missouri court found that these separable provisions of the Act were not involved in the present case, and it carefully refrained from passing on their validity.13 The court noted that liability for monetary penalties had been asserted in a separate lawsuit, 317 S.W.2d at page 314, and the parties have informed us that the action is still pending in the state courts.
9
We cannot agree that the pendency of that litigation gives life to the present appeal. When that claim is litigated it will be subject to review, but it is not for us now to anticipate its outcome. "Constitutional questions are not to be dealt with abstractly' * * *. They will not be anticipated but will be dealt with only as they are appropriately raised upon a record before us. * * * Nor will we assume in advance that a State will so construe its law as to bring it into conflict with the federal Constitution or an act of Congress.' Allen-Bradley Local, etc., v. Wisconsin Employment Relations Board, 315 U.S. 740, at page 746, 62 S.Ct. 820, at page 824, 86 L.Ed. 1154.
10
The guiding principle is well illustrated in American Book Co. v. State of Kansas, 193 U.S. 49, 24 S.Ct. 394, 48 L.Ed. 613. There the Kansas Supreme Court had ousted the appellant from doing business in the State until it complied with provisions of the local law governing foreign corporations. Pending appeal the appellant satisfied the judgment by complying with the requirements of the statute. But meanwhile the State had brought another action against the appellant to void contracts it had made prior to the date of its compliance. Because of this pending litigation the appellant argued that "there still exists a controversy, undetermined and unsettled,' involving the right of the State to enforce the statute against a corporation engaged in interstate commerce.' 193 U.S. at page 51, 24 S.Ct. at page 395. What the Court said in rejecting that argument and dismissing the appeal as moot is entirely relevant here. '(T)hat suit is not before us. We have not now jurisdiction of it or its issues. Our power only extends over and is limited by the conditions of the case now before us.' 193 U.S. at page 52, 24 S.Ct. at page 396. See Alejandrino v. Quezon, 271 U.S. 528, 46 S.Ct. 600, 70 L.Ed. 1071.
11
The asserted threat to the seniority rights of Laclede employees is even more speculative. Almost four years have passed since the strike, and the appellants concede that no action has been taken to deprive any employees of their seniority. Moreover, the section of the Act which relates to seniority rights imposes no legal sanctions on the employees or their unions, but makes unlawful only the action of the utility company which rehires he employees without loss of seniority.14 In the unlikely event that a legal proceeding should now be brought against Laclede for having done so, there is no way to know what the outcome of such a proceeding in the Missouri courts might be.15
12
The decision we are asked to review upheld only the validity of an injunction, an injunction that expired by its own terms more than three years ago. Any judgment of ours at this late date 'would be wholly ineffectual for want of a subject-matter on which it could operate. An affirmance would ostensibly require something to be done which had already taken place. A reversal would ostensibly avoid an event which had already passed beyond recall. One would be as vain as the other. To adjudicate a cause which no longer exists is a proceeding which this court uniformly has declined to entertain.' Brownlow v. Schwartz, 261 U.S. 216, 217 218, 43 S.Ct. 263, at page 264, 67 L.Ed. 620.
13
The judgment of the Supreme Court of Missouri is vacated, and the cause is remanded for such proceedings as by that court may be deemed appropriate.
14
Vacated and remanded.
15
Mr. Justice BLACK, whom The CHIEF JUSTICE and Mr. Justice BRENNAN join, dissenting.
16
We think this controversy is not moot. As the Court's opinion points out, the appellant unions may still be held liable for monetary penalties and their members may lose seniority because of the strike the Missouri Supreme Court held illegal under state law. Its holding was made long after the strike had ended. It was moot then if it is moot now. But the state court treated it as a live controversy, and so should we. Otherwise, the appellant union and their members stand constantly under threats of penalties and continuing injunctions under the state statute the Missouri Supreme Court held validly applied in this case.
17
The wrongfulness in holding the case moot is emphasized by our belief that the state court was plainly without any jurisdiction over this controversy unless the Court wants to overrule Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees, etc. v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364, and adopt the views of the three dissenters in that case. We would follow that holding and reverse this case on the merits.
1
The King-Thompson Act is Chapter 295 of the Revised Statutes of Missouri, 1949, V.A.M.S. The section of the statute which authorizes seizure by the Governor on behalf of the State is Mo.Rev.Stat., 1949, § 295.180, V.A.M.S.
2
All employees represented by the appellants, approximately 2,200, participated in the strike; approximately 300 supervisors and others not in the bargaining units represented by the appellants remained at work.
3
Missouri Rev.Stat., 1949, § 295.200, subd. 1, V.A.M.S., provides: 'It shall be unlawful for any person, employee, or representative as defined in this chapter to call, incite, support or participate in any strike or concerted refusal to work for any utility or for the state after any plant, equipment or facility has been taken over by the state under this chapter, as means of enforcing any demands against the utility or against the state.'
4
Missouri Rev.Stat., 1949, § 295.200, subd. 6, V.A.M.S., provides: 'The courts of this state shall have power to enforce by injunction or other legal or equitable remedies any provision of this chapter or any rule or regulation prescribed by the governor hereunder.'
5
See notes 1, 3 and 4, supra.
6
The court did reaffirm an earlier decision (State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75) upholding the constitutionality of provisions of the King-Thompson Act relating to the State Board of Mediation and public hearing panels, '(t)o the extent that those sections are a necessary predicate for the additional sections * * * with which we are now concerned * * *.' 317 S.W.2d at page 315.
7
See, e.g., Singer Mfg. Co. v. Wright, 141 U.S. 696, 12 S.Ct. 103, 35 L.Ed. 906; People of State of California v. San Pablo & Tulare R. Co., 149 U.S. 308, 13 S.Ct. 876, 37 L.Ed. 747; Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293; American Book Co. v. State of Kansas, 193 U.S. 49, 24 S.Ct. 394, 48 L.Ed. 613; United States v. Hamburg-American Co., 239 U.S. 466, 36 S.Ct. 212, 60 L.Ed. 387; Commercial Cable Co. v. Burleson, 250 U.S. 360, 39 S.Ct. 512, 63 L.Ed. 1030; United States v. Alaska S.S. Co., 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808; Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620; Alejandrino v. Quezon, 271 U.S. 528, 46 S.Ct. 600, 70 L.Ed. 1071; Barker Painting Co. v. Local No. 734, Brotherhood of Painters, etc., 281 U.S. 462, 50 S.Ct. 356, 74 L.Ed. 967.
8
See jurisdictional statement in Harris v. Battle, No. 111, O.T. 1954, pp. 12—13.
9
Ibid.
10
Ibid.
11
Missouri Rev.Stat.1949, § 295.200, subd. 3, V.A.M.S., provides: 'Any labor organization or labor union which violates paragraph 1 of this section shall forfeit and pay to the state of Missouri for the use of the public school fund of the state, the sum of ten thousand dollars for each day any work stoppage resulting from any strike which it has called, incited, or supported, continues, to be recovered by civil action in the name of the state and against the labor organization or labor union in its commonly used name.'
12
Missouri Rev.Stat.1949, § 295.200, subd. 2, V.A.M.S., provides: 'It shall be unlawful for any public utility to employ any person or employee who has violated paragraph 1 of this section except that such person or employee may be employed only as a new employee.'
13
See, at pages 366—367 of 361 U.S., at page 394 of 80 S.Ct., supra. Since neither the statutory penalties nor possible loss of seniority turns on the validity of the injunction, this case is quite unlike Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees, etc. v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364, where the very judgment in controversy imposed financial liability. Nor did this case involve a 'perpetual' injunction. See Amalgamated Ass'n of Street, Electric Railway & Motor Coach Employees, etc., v. Wisconsin Employment Relations Board, 340 U.S. 416, note at pages 417—418, 71 S.Ct. 373, at pages 374—375, 95 L.Ed. 389.
14
See note 12, supra.
15
The appellee asserts and the appellants do not deny that the statute imposes no penalty for violation of the seniority provisions.
| 89
|
361 U.S. 354
80 S.Ct. 387
4 L.Ed.2d 366
Clifford M. DAVIS, Petitioner,v.VIRGINIAN RAILWAY COMPANY.
No. 53.
Argued Dec. 10, 1959.
Decided Jan. 25, 1960.
Mr. Henry E. Howell, Jr., Norfolk, Va., for petitioner.
Mr. Thomas R. McNamara, Norfolk, Va., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is a negligence case under the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C. § 51, 45 U.S.C.A. § 51. Petitioner, an employee of respondent, was injured while shifting various railroad cars on its tracks in and about the Ford Motor Company plant at Norfolk, Virginia. His first cause of action charged respondent with negligence in requiring the shifting of the cars in such an accelerated time and with such inexperienced help that petitioner was injured in attempting to carry out his instructions. In his second claim petitioner alleged that the physician furnished petitioner by respondent subsequent to his injury administered him improper treatment, thus aggravating his injury, and that respondent was responsible for such negligence. At the close of the case, the trial judge sustained the motion of respondent to strike petitioner's evidence and discharged the jury. On petition for writ of error claiming that the issues should have been presented to the jury, the Virginia Supreme Court of Appeals rejected the petition and, in effect, affirmed the judgment, without written opinion. Believing that the question posed was of importance in the uniform administration of this federal statute, we granted certiorari. 359 U.S. 964, 79 S.Ct. 883, 3 L.Ed.2d 833. We conclude that the issue of negligence as to the injury should have been submitted to the jury, but that the evidence was insufficient to support the malpractice claim.
2
Petitioner was a yard conductor for respondent. On July 3, 1957, he was instructed to 'shift' or 'spot' various railway cars to a loading platform on a spur track of the Ford Motor Company at Norfolk. There were 43 cars involved. Some were empty and standing at the loading tracks at the plant. These had to be moved out to make way for the loaded cars which were outside the plant in respondent's shifting yards. The job called for them to be lined up and then moved to particular positions or spots on the tracks at the loading platform in the plant where Ford employees might remove their contents. On the morning of the accident there were designated at the Ford loading platform some 22 spots to which the loaded cars were to be switched. Two brakemen were assigned to assist petitioner in the operation. Petitioner was to complete the spotting during the lunch period at the Ford plant, which was 30 minutes. The evidence shows that neither of the brakemen assigned to petitioner was experienced in this particular operation. The senior brakeman had never spotted cars at the plant before, nor had he worked as a senior brakeman. The other brakeman had spotted cars at the plant for only a short period. Railroad employees classed the Ford 'switching operation' as 'a hot job' because 'you do your job a little faster there than you would in the yard.' In the opinion of brakemen who had spotted cars there, the minimum time for completion of an operation involving this many cars was 50 minutes, and the maximum well over an hour. Since petitioner was instructed to perform the task in 30 minutes, it was necessary for him to work faster than he normally would. In addition, the senior brakeman had informed petitioner of his inexperience, which required petitioner to take a position on top of the boxcars in order to be ready to assist the brakemen. Normally, petitioner would have taken his position on the ground where a conductor, such as he, usually carried out his assigned duties. When one of the brakemen called for assistance in the spotting operation, petitioner ran along the top of the boxcars toward the brakeman to give him help, but, upon coming to a gondola car, was obliged to descend the ladder of the boxcar next to it. Petitioner slipped on the ladder and fell to the ground, suffering the injury complained of here.
3
The record indicates that petitioner would have taken his position on the ground rather than on the railroad cars but for the inexperience of the brakemen. This required petitioner to take his position on top of the cars in order to assist the brakemen—a function not ordinarily performed by a yard conductor. We think it should have been left to the jury to decide whether the respondent's direction to complete the spotting operation within 30 minutes,1 plus the inexperience of the brakemen assigned to perform this 'hot job,' might have precipitated petitioner's injury. 'The debatable quality of that issue, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness of leaving the question to the jury. The jury is the tribunal under our legal system to decide that type of issue (Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610) as well as issues involving controverted evidence. Jones v. East Tennessee, V. & G.R. Co., 128 U.S. 443, 445, 9 S.Ct. 118, 32 L.Ed. 478; Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235. To withdraw such a question from the jury is to usurp its functions.' Bailey v. Central Vermont R. Co., 1943, 319 U.S. 350, 353—354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444.2
4
As to the malpractice claim, the trial court held that the railroad would not be liable for any negligence on the part of Dr. Leigh, the physician it furnished petitioner. We need not pass on this issue, however, since we find no evidence sufficient to support a malpractice recovery. Proof of malpractice, in effect, requires two evidentiary steps: evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of plaintiff. The trial judge acknowledged these to be the tests of malpractice and allowed petitioner's counsel to make an offer of proof, although ruling that the railroad was not responsible for Dr. Leigh's actions. The evidence shows that the physician was of unquestioned qualification ad treated petitioner in accordance with his best medical judgment and long practice. The only evaluation concerning his treatment was that of Dr. Thiemeyer, another physician who had treated petitioner, who testified that he did not 'think that (the treatment) is proper.' Dr. Thiemeyer's opinion was that 'a fracture should be immobilized until it is healed sufficiently to bear weight without jeopardy of its healing,' and that he 'would say that activity would aggravate this fracture in that period.' This offer of proof was fatally deficient. No foundation was laid as to the recognized medical standard for the treatment of such a fracture. No standard having been established, it follows that the offer of proof was not sufficient. The trial judge, therefore, was correct in declining to submit the malpractice claim to the jury.
5
In view of our holding on the first cause of action, the judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
6
It is so ordered.
7
Reversed and remanded.
8
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 was improvidently granted.
9
As I read the record and the briefs, petitioner's theory was that this accident would not have happened had he not been forced to work on top of the cars, instead of on the ground where he usually worked, in consequence of (1) the company's instructions to perform the car-shifting operation in unusually short order, and (2) its failure to supply him with experienced helpers. Under the Rogers 'rule of reason,' 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, I suppose it could be said that there was an issue for the jury on both scores, in light of the not unequivocal testimony of the petitioner, quoted in my Brother WHITTAKER'S opinion, and the other matters referred to in the Court's opinion. Even so, this makes out no case for the jury, unless there is evidence that one or both of these factors contributed to increase the normal hazards of petitioner's employment. I think there is no such evidence.
10
The record is barren of anything showing why this accident occurred. There was no evidence whatever that either the car or the ladder from which the petitioner fell was faulty. Petitioner admitted to being an experienced railroad worker whose duties had at times carried him up and down ladders and on the tops of railroad cars. At the time of his fall the cars had stopped moving, or nearly so. When asked by the trial court to explain how he happened to fall, all petitioner could say was 'it might have been grease or anything on my shoe'; and this was pure conjecture, as the record shows. More especially, petitioner did not say that he fell because he was 'rushed.'
11
In these circumstances, to hold that the jury might have found that what respondent did contributed to enhance the normal hazards of petitioner's employment is, in my opinion, to say in effect that the jury should have been allowed to substitute atmosphere for evidence and speculation for reason.
12
On the basis of the criteria governing our certiorari jurisdiction, this case has not been profitable business for this Court.
13
I would affirm.
14
Mr. Justice WHITTAKER, concurring in part and dissenting in part.
15
I agree that there was no evidence to support petitioner's contention that respondent is liable to him upon his claim of malpractice by the treating physician, But, with all deference, I must disagree that there was any evidence of negligence by respondent that caused or directly contributed to cause petitioner's injury. I am unable to find in the record any evidence of any 'direction' by respondent to petitioner 'to complete the spotting operation within 30 minutes.'* And the 'senior brakeman,' whom the Court finds to have been 'inexperienced', is shown by his own undisputed testimony to have pursued that occupation for more than a year. Even the 'junior brakeman' is shown by his undisputed testimony to have worked at that occupation for respondent for 'about a year.' Moreover, no act either of commission or omission—of those brakemen is shown to have in any way caused or contributed to cause petitioner to slip and fall from the ladder of the standing or very slowly moving boxcar, and that is what caused his injury. Nor is there any evidence, or even any claim, of defect in that ladder. Where, then, is the evidence of respondent's negligence and of causation that is thought to have presented an issue of fact for the jury? Petitioner has pressed upon us an assignment that respondent failed to provide him with a safe place to work, in that it failed to make smooth and level the right of way adjoining the track so that, if a trainman were to slip and fall from a car ladder to the ground, he would land on level ground and be less likely to suffer injury. It is easy to understand why the Court makes no mention of that claim, but, as I see it and as the judges of the two state courts unanimously saw it, the claims it does mention are equally without substance.
16
Citing Bailey v. Central Vermont R. Co., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444, the Court quotes: 'To withdraw such a question from the jury is to usurp its functions.' If by that quotation the Court means that the Bailey case involved 'such a question' as we have here, I must respectfully disagree. For the facts of that case see 319 U.S. at pages 351—352, 63 S.Ct. at page 1063. On this record, I am compelled to think that the trial court and the Virginia Supreme Court of Appeals were right in holding that petitioner failed to make a submissible case of negligence and causation, and I would affirm the judgment.
17
Mr. Justice HARLAN, dissenting.
18
From the point of view of the functions of this Court, this decision provides another example of the futility of continuing to bring here for review cases of this kind. So long as jury verdicts remain subject to some degree of judicial supervision, cf. Harris v. Pennsylvania R. Co., 361 U.S. 15, 27—28, 80 S.Ct. 22, 29—30, 4 L.Ed.2d 1 (dissenting opinion), whether or not the evidence is sufficient to warrant removing a particular case from consideration of the jury is a question which will doubtless continue to divide equally conscientious judges in all except the clearest instances. As to the issue upon which the judgment below is now reversed,* a majority of the Court disagrees with the unanimous view of the record taken by the two state courts. My Brother WHITTAKER, in dissent, takes a different view from that of the majority. And I, also in dissent, take still a different view from either approach.
1
While the evidence indicates that this fact is undisputed, if the evidence is in conflict, such an issue is of course for the jury.
2
See also Tennant v. Peoria & P.U.R. Co., 1944, 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520; Lavender v. Kurn, 1946, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916; Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.
*
Bearing on the matter of the time allowed to do this switching work, petitioner testified on direct examination as follows:
'Q. What instructions did the General Yardmaster for the Virginian Railway Company give to you? A. My instructions was to line up those cars there for Ford Motor Company while they are at lunch.
'Q. Did you ascertain how long that lunch period lastd at the Ford plant? A. Yes, sir.
'Q. How long did it last? A. 30 minutes.'
On cross-examination petitioner testified:
'Q. He (the yardmaster) did not tell you that you had to meet that schedule even if it meant for you to abandon safety precautions, did he? A. No, sir.
'Q. It is always your job, no matter what you are doing, to observe safety precautions for yourself and for your men, is it not? A. Yes, sir.
'Q. * * * And if you reach a point where it is necessary to abandon safety in order to do a certain thing by a certain time, you just have to go slower, don't you? A. Yes, sir.
'Q. You were the top man from the Virginian Railway on that job at that time? A. Yes, sir.
'Q. You had charge? A. Yes, sir.
'Q. It was up to you as to how fast or how slow the job was carried out, was it not? A. It was up to me to see the Ford plant was set up.'
*
I agree with the Court as to the other issue.
| 78
|
361 U.S. 398
80 S.Ct. 441
4 L.Ed.2d 400
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.DEENA ARTWARE, INC., et al.
No. 46.
Argued Dec. 8, 1959.
Decided Feb. 23, 1960.
Mr. Ralph S. Spritzer, Washington, D.C., for petitioner.
Mr. James G. Wheeler, Paducah, Ky., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This litigation has been long and drawn out and the present case is merely a small segment of it. In 1949 petitioner found that respondent Deena Artware, Inc. (Artware), had violated the National Labor Relations Act, 61 Stat. 136, 29 U.S.C. § 158(a), 29 U.S.C.A. § 158(a), by discharging and refusing to reinstate 66 employees who had engaged in a strike (86 N.L.R.B. 732, 95 N.L.R.B. 9); and it ordered Artware 'and its officers, agents, successors, and assigns' to offer reinstatement to those employees and to make them whole for any loss of pay suffered by them as a result of the discriminating action. The Court of Appeals in 1952 affirmed the Board's decision with respect to 62 of the 66 employees and entered a decree enforcing the Board's order, 6 Cir., 198 F.2d 645, remanding the case to the Board to determine the amounts due the individual employees. In 1953 Artware offered reinstatement to all of these employees but shortly closed its plant (which was located in Kentucky), never resumed operations, and never paid any back pay to the employees in question.
2
It appears that Weiner, one of the respondents, created a series of corporations, at the top of which was Deena Products, Inc., (Products), an Illinois corporation. Beneath it was a group of subsidiaries—formed under Kentucky law—Artware, Deena of Arlington, Inc., Sippi Products Co., Inc., and Industrial Realty Co., Inc.—all of whose shares, except for qualifying shares, were owned by Products. Weiner owned all the shares of Products, except for qualifying shares; and all the officers and directors of Products and the several subsidiaries were Weiner, his wife, his son, and his secretary. Weiner was president and treasurer of Products and of each of the subsidiaries, including Artware.
3
Artware in 1949 gave Products a promissory note secured by a mortgage on Artware's property, allegedly for advances made. In 1952 Artware made an assignment to Products in partial satisfaction of its indebtedness. In 1953 the Board applied to the Court of Appeals for an order restraining that assignment. It also asked for an order of discovery, alleging that the affairs of Products and Artware were being conducted in such a way as to dissipate Artware's assets and to avoid making the back wage payments. The court denied these motions, holding that, until the amount of back pay was liquidated and payment of the fixed sum refused, there was no warrant for granting that relief (6 Cir., 207 F.2d 798), the court adding that if upon liquidation of Artware 'any financial inability' on its part to pay the awards was shown to be 'the result of improper actions on its part in the meantime, appropriate contempt action can then be taken.' Id., at page 802.
4
At that time, the Board had not issued an order determining the specific amounts of back pay owed the individual employees. In 1955—nearly two years later—it made that determination and entered an order, directing payment of back pay totaling about $300,000; and the Court of Appeals ordered Artware, 'its officers, agents, successors and assigns' to pay that amount to specified employees. 6 Cir., 228 F.2d 871, 872. That was on December 16, 1955.
5
In 1957 the Board moved the Court of Appeals for discovery, inspection, and depositions, naming Artware, Weiner, Products, and the other subsidiaries of Products. It alleged that Weiner had caused the assets of Artware to be siphoned off through the other corporations under his control for the purpose of evading the back pay obligation. The Court of Appeals denied the motion, 6 Cir., 251 F.2d 183, holding that a contempt proceeding, rather than discovery, was the proper procedure.
6
On August 20, 1958, the Board petitioned the Court of Appeals to hold Artware, Weiner, Products and the other subsidiaries in civil contempt for failure to pay the amounts due employees under the back pay order. On October 11, 1958, the Board renewed its motion for discovery, inspection, and the taking of depositions from Artware, the affiliated corporations, and Weiner, and other officers of these corporations.
7
In its petition the Board made charges of dealings between these corporations and between them and Weiner occurring from 1949 to 1955 which, it maintained, showed both (1) fraud and wrongdoing for the purpose of frustrating the back pay order and (2) the operation of these various corporations 'as a single enterprise,' each of the corporations performing 'a particular function, as a department or division of the one enterprise in the manufacture, sale and distribution of the common product.' The allegations (which are summarized in the opinion below, 261 F.2d 503, 506—507) need not be repeated here, as the Court of Appeals merely held that, although the enforcement order was entered July 30, 1952, it was not made specific as to amounts owed until December 16, 1955. It, therefore, concluded that prior to the latter date the decree was 'not sufficiently definite and mandatory to serve as the basis for contempt proceedings.' Id., at page 510. It, therefore, dismissed the Board's petition for adjudication in civil contempt. It also denied the Board's motion for discovery, inspection, and depositions. 261 F.2d 503, 510. The case is here on a petition for certiorari, 359 U.S. 983, 79 S.Ct. 942, 3 L.Ed.2d 932, which we granted in order to consider the validity of the action of the Court of Appeals in dismissing the petition insofar as it charged the existence of 'a single enterprise.'
8
The Court of Appeals dismissed the petition without considering the second group of allegations made by the Board, viz., that these various corporations were in fact 'a single enterprise.' And it denied the motion for discovery even as it pertained to that alternative theory of liability. It may have done so because it thought that the issues tendered in the petition related solely to intercompany transactions alleged to be conveyances in fraud of creditors or preferences in favor of some creditors. That seemed to be its preoccupation, as is evident by its references to possible causes of action under Kentucky law to set those transactions aside. Id., 261 F.2d at page 509.
9
We do not stop to consider what would be a proper formulation of a rule of law governing liability in contempt for frustration of a decree. The Court of Appeals may have considered the transactions and assignments as if they were made between separate and distinct corporations. If they are viewed in that light, we cannot say they are so colorable as to warrant us in reversing the Court of Appeals. But we think the Board is entitled to show that these separate corporations are not what they appear to be, that in truth they are but divisions or departments of a 'single enterprise.' That is the alternative theory of liability which the Court of Appeals did not consider. We think that the Board is entitled to a hearing on that alternative theory and to discovery in aid of it.
10
The question whether the corporations under Weiner's ownership were only departments or divisions in one single enterprise is in a different category than those that arise under either 13 Eliz. or the modern law of preferences. Whether one corporation is liable for the obligations of an affiliate turns on other considerations. The insulation of a stockholder from the debts and obligations of his corporation is the norm, not the exception. See Pullman's Palace Car Co. v. Missouri Pacific R. Co., 115 U.S. 587, 597, 6 S.Ct. 194, 198, 29 L.Ed. 499. Yet as Mr. Justice Cardozo said in Berkey v. Third Avenue R. Co., 244 N.Y. 84, 95, 155 N.E. 58, 61, 50 A.L.R. 599, 'Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent. Where control is less than this, we are remitted to the tests of honesty and justice.' That is not a complete catalogue. The several companies may be represented as one.1 Apart from that is the question whether in fact the economic enterprise is one, the corporate forms being largely paper arrangements that do not reflect the business realities. One company may in fact be operated as a division of another;2 one may be only a shell, inadequately financed;3 the affairs of the group may be so intermingled that no distinct corporate lines are maintained.4 These are some, though by no means all,5 of the relevant considerations, as the authorities recognize. See Lattin on Corporations (1959) ch. 2, §§ 13, 14; Stevens on Corporations (1949) § 17; Berle, The Theory of Enterprise Entity, 47 Col.L.Rev. 343.
11
We do not intimate an opinion on the merits of this alternative theory of liability. The authorities we have cited merely indicate the range of inquiry which the petition of the Board presented. Discovery is useful in determining what the facts are. It is, indeed, necessary to determine whether the decree of the court enforcing the Board's order should run to any of the affiliated corporations or their stockholders. When the facts are resolved, it will be time enough to consider what further enforcement decree, if any, would be appropriate.6
12
The petition should be reinstated insofar as it charges the existence of 'a single enterprise,' and the motion for discovery should be granted so that the Board will have an opportunity to prove those allegations.
13
Reversed.
14
Mr. Justice STEWART took no part in the consideration or decision of this case.
15
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, concurring in reversal on the grounds herein stated.
16
Due regard for the controlling facts in this case will lay bare their legal significance. This requires that the facts, and the procedural setting in which they are to be considered, be stated with particularity.
17
The respondents are an individual and several corporations. The individual respondent, one Weiner, is the sole stockholder, except for qualifying shares, of Deena Products (Products), an Illinois corporation engaged in the manufacture and sale of lamps. The remaining respondents are wholly owned subsidiaries of Products. They are Deena Artware (Artware), a now defunct Kentucky corporation which formerly engaged in the manufacture of china urns for use as lamp bases; Deena of Arlington, another Kentucky corporation, engaged in the production of shades and the assembly of lamps; Sippi Products Company (Sippi), a Kentucky corporation engaged, as was Artware formerly, in the manufacture of china urns for use as lamp bases; and Industrial Realty Company (Industrial), a Kentucky corporation organized to hold title to the physical assets formerly held by Artware. Weiner has, at all relevant times, completely controlled Products, which in turn has similarly dominated all of the respondent subsidiaries. Weiner served as President, Treasurer1 and a director of all of the corporations; his wife, son and successive secretaries as the other directors.
18
Artware was organized by Products in 1946, and shortly thereafter acquired a factory for the production of lamp bases at Paducah, Kentucky. In 1947 construction was undertaken, allegedly by Products, of a lamp assembly plant adjacent to the Artware plant at Paducah. At about the same time the labor dispute arose which led to the Labor Board orders underlying this proceeding. On October 25, 1949, Artware was found by the Board to have violated § 8(a)(1), (3) and (5) of the National Labor Relations Act (as amended), 29 U.S.C.A. § 158(a)(1, 3, 5) and was ordered, inter alia, to reinstate with back pay sixty-six named employees whose discharge during the dispute was found to have been improper. 86 N.L.R.B. 732, 736. On July 30, 1952, the Court of Appeals for the Sixth Circuit, at the Board's petition, granted enforcement of its order, 198 F.2d 645. At about the same time that court also sustained Artware's recovery against the union of a money judgment for injuries it sustained by virtue of a secondary boycott engaged in by the union during the same dispute. United Brick & Clay Workers of America v. Deena Artware, 6 Cir., 198 F.2d 637.
19
The Board then petitioned the Court of Appeals for an injunction against payment of a part of the judgment Artware had recovered against the union, alleging that Artware had undertaken to render itself unable to pay any back pay in the amounts which the Board was authorized to fix by virtue of the court's order of July 30, 1952. The Court of Appeals refused the injunction primarily upon the ground that the definite amount of back pay owing under its order had not yet been determined by the Board. The court noted that if, after such determination, it appeared that Artware had acted improperly, the court could deal with the matter in contempt proceedings. 6 Cir., 207 F.2d 798.
20
As a result of the proceedings to fix the amount of back pay, the Board, by an order of April 21, 1955, directed Artware to pay the back pay it owed various employees in specified amounts totaling about $300,000. 112 N.L.R.B. 371. This order was sustained by the Court of Appeals. 6 Cir., 228 F.2d 871. On a showing that Artware was entirely without assets, had ceased operations on April 24, 1953, and had, on November 24, 1954, transferred all its assets to Products, purportedly in satisfaction of a mortgage, the Board sought a discovery order in the Court of Appeals to inquire into the disposition of Artware's assets. The Board proceeded on the assumption that discovery would reveal facts requiring payment of Artware's back-pay debt by the companies affiliated with it. Discovery was denied (one judge dissenting). 6 Cir., 251 F.2d 183. The court's ground for denying discovery was, surprisingly enough, that the Board should first test the legal sufficiency of a complaint charging respondents with contempt. The Board thereupon filed this petition alleging contempt of the court's decree of enforcement of July 30, 1952, and renewed its motion for discovery.
21
The Board's petition charged that pursuant to a plan to frustrate the award of back pay against Deena Artware, conceived by Weiner during or shortly after the dispute with the union and carried out by him through exercise of his control of Products and all its subsidiaries, all of the assets of Artware were systematically transferred to Products and its other subsidiaries for the purpose of rendering Artware unable to pay any back-pay order that might thereafter be enforced against it. It alleged that acts in pursuance of that plan occurred after, and therefore in contempt of, the decree of the Court of Appeals which was entered on July 30, 1952. All of the acts alleged in pursuance of the plan occurred before the entry of the 1955 decree affirming the Board's order to pay specific amounts. The Board charged that Weiner and Products prevented Artware from showing any operating profits and thereby from accumulating assets in the ordinary course of its business, by causing Artware to lower the price at which it sold urns to Products, so that Artware showed losses while Products made substantial profits; and that Weiner and Products caused Artware to issue notes, secured by mortgages on all of its assets, to Products, for which Artware received nothing in return, in order that Artware's assets could be, as they were, transferred to Products after Artware was adjudicated liable to pay back pay. The Board alleged the following:
22
1. Early in 1948, after Artware, under Weiner's direction, had committed the unfair labor practices so found by the Board, Products began to treat the new assembly plant construction at Paducah adjacent to Artware's plant as if it had been undertaken by Artware, and not, as was the fact, by itself. Artware therefore recorded the losses resulting from abandonment of that construction in July 1948. Nevertheless, when Products undertook alternative new construction at Arlington for the same purpose, it used the construction materials, engineering and architectural plans and services, and other services and materials, which it had already charged to Artware, and did so without paying Artware or crediting it with their value.
23
2. Products thereafter made further use of its purported shift of the Paducah construction to Deena Artware. About October 31, 1949, a few days after the Board issued its order directing, inter alia, that Artware pay back pay, Products and Weiner caused Artware to execute a note to Products in the amount of $75,459.65, payable within five years, and secured by a mortgage on all the real and personal property of Artware, purportedly in return for advances by Products for the construction at Paducah, despite the fact that the construction had been abandoned more than a year before, and had been undertaken not by Artware, but by Products. A second note, similarly secured, was issued about September 19, 1952, in the amount of $5,797.74. On November 24, 1954, after the Court of Appeals' first enforcement order of July 30, 1952, but before the Board's fixation of the amounts due on April 21, 1955, Weiner and Products caused Artware to transfer to Products all of its assets in satisfaction of these mortgages. In December 1952 Products and Weiner also caused Artware to assign to Products part of the proceeds of the judgment Artware had recovered against the union, as additional security for its obligations to Products. In January 1954, $19,320.97 of Artware's recovery was received by Products, the remainder having been assigned to Artware's counsel in payment of attorney's fees.
24
3. Beginning about March 1949, after the hearing on the Board's complaint against Artware, Products and Weiner caused Artware to lower its prices to Products, causing inflation of Products' profits, and operating losses to Artware.
25
4. About April 24, 1953, Products and Weiner caused Artware to cease all operations. From that time until November 24, 1954, Products and Sippi used Artware's plant premises, facilities and properties at Paducah, without payment to Artware, and Products obtained from Sippi the supplies it had formerly secured from Artware. On November 24, 1954, Products and Weiner caused Artware to transfer all its assets to Products in satisfaction of its obligations which then, with accrued interest (at 6% payable semi-annually, but not theretofore paid), totaled $105,000, leaving, as Artware's sole unsatisfied obligation, the back-pay order. Thereafter Sippi continued to use the Artware facilities, title to which, about May 4, 1955, Products caused to be transferred to the newly created subsidiary, Industrial. About November 17, 1955, Products and Weiner caused Industrial to lease the facilities formally to Sippi; and since December 1, 1955, Sippi has operated the Artware facilities in the same manner and to the same end as did Artware formerly.
26
The Court of Appeals, on respondents' motion, dismissed the complaint for failure to state a cause of action, and denied the Board's accompanying motion for discovery. It held that since its order of July 30, 1952, in affirming the Board's determination of liability for back pay which the Board had not yet individualized, did not specify the exact monetary amount which Artware owed its various employees, it was 'not sufficiently definite and mandatory' to sustain an adjudication of contempt. The basis of this conclusion was not a construction by the court of the special terms of its own decree. This was in terms the order entered by the Board. The court applied what it believed to be a general principle of law that an enforcement decree of a Board order determining liability for back pay, but leaving for a later stage determination of the specific amounts due to individual employees, is too indefinite to sustain contempt proceedings.
27
The respondents urge in support of the decision below that after the 1952 decree Artware was entitled to a further administrative hearing to determine whether the conduct of the named employees after their wrongful discharge disentitled them to recover, and that despite the 1952 decree it might therefore ultimately be determined that Artware was not in fact obligated to make any payment whatever. It follows, the argument runs, that since the Board's 1952 order did not purport to adjudicate a liability free of defenses to make back-pay payments, it could not, for purposes of such payments, be considered final. Accordingly, the 1952 decree which in terms enforced it could not embody a final mandate concerning the payments, disobedience of which could constitute contempt.2
28
The Board concedes that the 1952 decree having been entered before any determination of specific amounts owing, it did not direct present payment to be made, and that respondent Artware could not be held in contempt for failure to make payment before the entry of the 1955 decree. But it urges that the 1952 decree could and did impose an immediate and definite obligation upon Artware not to design and execute a plan for the very purpose of disabling itself from obeying the decree which had definitely adjudicated its obligation to pay whatever would be found to be the dollar-and-cents amount of its theretofore established liability. If the allegations in the petition for contempt are sustained by proof, there can be no doubt that Artware disregarded this obligation not to frustrate the 1952 decree.
29
The vital question of the legal implications of enforcement of a Board order rendered in an unfair labor practice proceeding directing reinstatement and payment of back pay, was the sole question dealt with in the opinion below. It was the primary issue between the parties here. It is the issue for our decision. The Board's procedure in unfair labor practice cases is first to hold a hearing to determine whether an unfair labor practice was committed, and, if it was, whether it would 'effectuate the policies' of the Act for the Board to order reinstatement with back pay of any employees who were discharged. § 10(c), 29 U.S.C.A. § 160(c). In such a proceeding the Board does not concern itself with the amount of back pay actually owing. This is excluded from the proceeding in the interest of the efficient administration of the Act. The determination of specific liabilities may involve a protracted contest. An employee who is wrongfully discharged may, for example, not be entitled to back pay because he failed to accept other employment. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197—200, 61 S.Ct. 845, 853—855, 85 L.Ed. 1271. Since the determination that the discharge was wrongful is subject to review, extensive proceedings to determine the amount of liability may be rendered superfluous by reversal. And if the determination is sustained and becomes final, it may be expedient for a respondent to reach agreement and avoid further litigation. The propriety of this established two-stage procedure of the Board in these back-pay cases is not questioned.
30
It will not do to hold that because the Board's determination of the duty to make back-pay payments does not result in fixed money judgments, no final order with regard to back pay is in fact entered or enforced. The Board is not, as respondents suggest, merely the statutory representative of the employees for recovery of their losses.3 Its primary function under § 10, in connection with which it makes specific monetary orders for specific employees, is to prevent the conduct defined as unfair labor practices in § 8. Section 10(c) provides that once the Board determines that an unfair labor practice occurred, it may make such remedial orders for reinstatement with back pay as will 'effectuate the policies' of the Act. We have held that the Board is granted broad discretion over the fashioning of remedial orders by this provision. Phelps Dodge Corp. v. National Labor Relations Board, supra, 313 U.S. at pages 195—199, 61 S.Ct. at pages 852—855.
31
It is plainly within that area of discretion for the Board to order an employer who is found to have violated § 8 by the discriminatory discharge of employees, to refrain from conduct which is solely designed to defeat any remedial back-pay order which may be entered when specific amounts are finally determined. It is equally appropriate for the Court of Appeals, by a decree enforcing the Board's order, to place him at the hazard that if an amount is found to be owing, such conduct subsequent to the decree may be found to be contumacious. The salient fact which brings the Board's remedial power into play under § 10(c) is its finding that the employer's conduct constituted an unfair labor practice. The separation of that finding from the determination of amounts being an eminently reasonable method for administering the Act, it is irrelevant that as yet undetermined matters subsequent to the discriminatory discharge may in fact disentitle some or all of the employees to receive payment. Cf. McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599. Enforcement of such a Board order does not interfere with the ordinary conduct of the respondent's business, or subject it unreasonably to the hazard of contempt. The decree is a form of assurance that business will be conducted with reference to business motives, and not merely so as to evade the remedies designed to enforce the policies of the Act.
32
It is further urged, however, that even if power exists in the Board and the courts to enter and enforce such an order of liability for back pay in amounts to be ascertained, the 1952 decree contained no such direction. But the decree on its face is an exercise of the equity power to act in personam to direct a specific course of conduct. To fail to accord it at least the implied effect of a direction not to act solely for the purpose of defeating it, makes of the decree less than a brutum fulmen and transmutes it into a mockery. The Board's determinations are not merely administrative analogues of common-law judgments, and they do not purport to be. As here, they uniformly contain a specific direction to take 'affirmative action.' In enforcing the Board's orders the Courts of Appeals similarly act not merely to review a common-law judgment, but to 'effectuate the policies' of the National Labor Relations Act by enforcement orders directing that action be taken to remove the unfair labor practice found to exist. Every affirmative order in equity carries with it the implicit command to refrain from action designed to defeat it. Such an implication may arise from the mere assumption of jurisdiction as to specific property. See Merrimack River Savings Bank v. City of Clay Center, 219 U.S. 527, 535—536, 31 S.Ct. 295, 296—297, 55 L.Ed. 320. Here, although specific property is not involved, the 1952 order was more than an assumption of jurisdiction. It adjudicated a liability to redress the consequences of a discriminatory discharge. Implicit in that adjudication, and the direction to pay in which it was embodied, was the command to the respondent Deena Artware not to conduct its business and transfer all its assets for the sole purpose of evading the specific dollar-and-cents obligations in the offing. In the Merrimack River Savings Bank case, supra, the Court held that 'the wilful removal beyond the reach of the court of the subject-matter of the litigation or its destruction pending an appeal from a decree praying, among other things, an injunction to prevent such removal or destruction until the right shall be determined, is, in and of itself, a contempt of the appellate jurisdiction of this court.' 219 U.S. at pages 535—536, 31 S.Ct. at page 296. Our case is a fortiori governed by this principle. Here the Court of Appeals had already adjudicated that the respondents were subject to a liability for backpay wages, and the individualization of the amounts flowing from this liability merely awaited the determination by the Board. The assumption that no money would be due to any of the workers is so fanciful as surely not to be made the basis of the legal assumption that although the Court of Appeals had adjudicated the liability of the respondents, no liability would follow. By putting beyond reach the means for satisfying the dollar-and-cents amount of their liability, the respondents certainly frustrated the Court of Appeals' power to effectuate enforcement of the liability which it had already established.
33
On the Board's allegations there can be no doubt of the liability of some or all of the other respondents in contempt. Weiner, Products and the subsidiaries are alleged to have been active participants in a deliberate scheme to frustrate enforcement of Artware's liability established by the 1952 decree. The alleged 'relations and behaviors' of the several respondents are sufficient to bring them within the terms of Rule 65(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A. See Regal Knitwear Co. v. National Labor Relations Board, 324 U.S. 9, 14—15, 65 S.Ct. 478, 481—482, 89 L.Ed. 661.
34
Accordingly, the petition for contempt should have been sustained, and an appropriate motion for discovery should have been granted. The ground here taken to sustain the petition, of course, makes it unnecessary to consider the Board's alternative theory that all respondents constitute a 'single enterprise' and as such are liable in contempt for failure to pay the specific amounts decreed in 1955. That ground should, of course, be open for consideration by the Court of Appeals.
1
See Platt v. Bradner Co., 131 Wash. 573, 230 P. 633. Cf. American Nat. Bank v. National Wall-Paper Co., 8 Cir., 77 F. 85, 91.
2
See Foard Co. of Baltimore City v. State of Maryland, 4 Cir., 219 F. 827, 829; Portsmouth Cotton Oil Refining Corp. v. Fourth Nat. Bank, D.C., 280 F. 879; Dillard & Coffin Co. v. Richmond Cotton Oil Co., 140 Tenn. 290, 296, 204 S.W. 758; Costan v. Manila Electric Co., 2 Cir., 24 F.2d 383, 384—385. Cf. United States v. Delaware, L. & W.R. Co., 238 U.S. 516, 529, 35 S.Ct. 873, 878, 59 L.Ed. 1438; Chicago, M. & St. P.R. Co. v. Minneapolis & Commerce Civic Ass'n, 247 U.S. 490, 500—502, 38 S.Ct. 553, 556 557, 62 L.Ed. 1229; Erickson v. Minnesota & Ontario Power Co., 134 Minn. 209, 213—215, 158 N.W. 979, 980—981.
3
See Luckenbach S.S. Co. v. W. R. Grace & Co., 4 Cir., 267 F. 676, 681; Oriental Investment Co. v. Barclay, 25 Tex.Civ.App. 543, 554—557, 64 S.W. 80, 86—87. For discussion of the situation where a company is 'deliberately kept judgmentproof' see Weisser v. Mursam Shoe Corp., 2 Cir., 127 F.2d 344, 346, 145 A.L.R. 467.
4
See The Willem Van Driel, 4 Cir., 252 F. 35, 38; Wichita Falls & N.W.R. Co. v. Puckett, 53 Okl. 463, 502—505, 157 P. 112, 124—125. Cf. United States v. Lehigh Valley R. Co., 220 U.S. 257, 272—274, 31 S.Ct. 387, 391—392, 55 L.Ed. 458.
5
Cf. Union Sulphur Co. v. Freeport Texas Co., D.C., 251 F. 634, 661—662; Harlan Public Service Co. v. Eastern Const. Co., 254 Ky. 135, 143, 71 S.W.2d 24, 29.
6
Cf. Regal Knitwear Co. v. National Labor Relations Board, 324 U.S. 9, 16, 65 S.Ct. 478, 482, 89 L.Ed. 661.
1
The respondents' answer denies that Weiner was in fact Treasurer of Artware or the other subsidiaries.
2
The question involved here was not presented for decision in National Labor Relations Board v. New York Merchandise Co., 2 Cir., 134 F.2d 949. To the extent that the opinion in that case is inconsistent with the principles here announced, it is of course disapproved.
3
Nathanson v. National Labor Relations Board, 344 U.S. 25, 73 S.Ct. 80, 97 L.Ed. 23, is not to the contrary. We there held simply that a back-pay order does not establish a debt owing to the United States and therefore entitled to priority under § 64, sub. a(5) of the Bankruptcy Act, 11 U.S.C. § 104, sub. a(5), 11 U.S.C.A. § 104, sub. a(5).
| 78
|
361 U.S. 529
80 S.Ct. 450
4 L.Ed.2d 490
George B. PETITE, Petitioner,v.UNITED STATES of America.
No. 45.
Decided Feb. 23, 1960.
PER CURIAM.
1
Petitioner was indicted, with others, in the Eastern District of Pennsylvania for conspiring to make false statements to an agency of the United States at hearings held in Philadelphia and Baltimore under proceedings for the deportation of an alien. Petitioner was also separately indicted for suborning perjury at the Philadelphia hearings. Petitioner's co-defendants pleaded guilty to the conspiracy charged. Petitioner went to trial on both indictments, but at the close of the Government's case he changed his plea to nolo contendere to the conspiracy charge, and the Government dismissed the subornation indictment. He was fined $500 and sentenced to two months' imprisonment, which he served. Petitioner was subsequently indicted in the District of Maryland for suborning the perjury of two witnesses at the Baltimore hearings. Among the overt acts which had been relied upon in the Pennsylvania conspiracy indictment was the testimony of these two witnesses. Because of this, petitioner moved to dismiss the Maryland indictment on the ground of double jeopardy, but his motion was denied, D.C., 147 F.Supp. 791, and the conviction which resulted was affirmed by the Court of Appeals for the Fourth Circuit, 262 F.2d 788.
2
Thereupon a petition for a writ of certiorari was filed with the double jeopardy issue as the single question presented, and certiorari was granted. 360 U.S. 908, 79 S.Ct. 1293, 3 L.Ed.2d 1259. The Government did not oppose the granting of this petition, but informed the Court that the case was under consideration by the Department of Justice to determine whether the second prosecution in the District of Maryland was consistent with the sound policy of the Department in discharging its responsibility for the control of government litigation wholly apart from the question of the legal validity of the claim of double jeopardy.
3
In due course the Government filed this motion for an order vacating the judgment below and remanding the case to the United States District Court for the District of Maryland with directions to dismiss the indictment. It did so on the ground that it is the general policy of the Federal Government 'that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.' The Solicitor General on behalf of the Government represents this policy as closely related to that against duplicating federal-state prosecutions, which was formally defined by the Attorney General of the United States in a memorandum to the United States Attorneys. (Department of Justice Press Release, Apr. 6, 1959.) Counsel for petitioner 'joins in and consents' to the Government's motion.
4
The case is remanded to the Court of Appeals to vacate its judgment and to direct the District Court to vacate its judgment and to dismiss the indictment. In the interest of justice, the Court is clearly empowered thus to dispose of the matter, 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, and we do so with due regard for the settled rule that the Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. By thus disposing of the matter, we are of course not to be understood as remotely intimating in any degree an opinion on the question of double jeopardy sought to be presented by the petition for certiorari.
5
Case remanded with directions.
6
Mr. Chief Justice WARREN, concurring.
7
I concur with the judgment of the Court, but desire to record my reasons for so doing.
8
The Solicitor General, who has statutory authority to conduct litigation in this Court,1 has requested us to vacate the judgment and remand for dismissal in the interests of justice. The petitioner has consented. Under these circumstances, I believe that 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, empowers us to entertain the motion.2
9
Authority to grant this type of motion is one thing, however, and determination of the considerations relevant to a proper exercise of that authority is another. As I believe that the Court should not deny all such motions peremptorily, so do I believe that we should not automatically grant them through invocation of the policy of avoiding decision of constitutional issues. There are circumstances in which our responsibility of definitively interpreting the law of the land and of supervising its judicial application would dictate that we dispose of a case on its merits. In a situation, for example, where the invalidity of the judgment is clear and the motion to vacate and remand is obviously a means of avoiding an adjudication, I think we would be remiss in our duty were we to grant the motion.
10
But this is not such a case. Although a full hearing might well establish petitioner's contention that his conviction violated the Double Jeopardy Clause of the Constitution, Amend. 5, no devious purpose can be ascribed to the Government, which asserts that the prosecution of petitioner 'was * * * by inadvertence,' and that it 'does not intend to take (such action) in the future.' Its representation with respect to future practice is given support by the Attorney General's memorandum to United States Attorneys which establishes a closely related policy against successive federal-state prosecutions; and the reasonableness of its request is demonstrated by the fact that this memorandum was issued after the prosecution, the conviction, and the judgment of the Court of Appeals in this case. For these reasons the action requested is, in the words of § 2106, 'just under the circumstances.' Mr. Justice BRENNAN, with whom Mr. Justice BLACK and Mr. Justice DOUGLAs join.
11
The Government has commendably done the just and right thing in asking us to wipe the slate clean of this second federal conviction for the same criminal conduct. But with all deference, I do not see how our duty can be fully performed in this case if our action stops with simply giving effect to a 'policy' of the Government—a policy whose only written expression does not even cover the case at bar. Even where the Government confesses error, this Court examines the case on the merits itself, Young v. United States, 315 U.S. 257, 258—259, 62 S.Ct. 510, 511—512, 86 L.Ed. 832, and one would not have thought our duty less in this case particularly where the Government has reserved the right to apply or not apply its 'policy' in its discretion. Presumably this reservation would apply to cases at the appellate level as well. '(T)he proper administration of the criminal law cannot be left merely to the stipulation of parties.' Id., 315 U.S. at page 259, 62 S.Ct. at page 511. I believe that the Double Jeopardy Clause of the Fifth Amendment was an insurmountable barrier to this second prosecution. My reasons supporting this view have been detailed in my separate opinion in Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 671, 3 L.Ed.2d 729. On this basis I agree that the judgment of the Court of Appeals is not to stand; but I would reverse it on the merits.
1
1 Stat. 92, 16 Stat. 162; R.S. § 359; 5 U.S.C. § 309, 5 U.S.C.A. § 309.
2
Section 2106 reads as follows:
'The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.'
| 01
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361 U.S. 459
80 S.Ct. 489
4 L.Ed.2d 442
John L. LEWIS, Henry G. Schmidt and Josephine Roche, as Trustees of the United Mine Workers of America Welfare and Retirement Fund, Petitioners,v.BENEDICT COAL CORPORATION. UNITED MINE WORKERS OF AMERICA and United Mine Workers of America, District 28, Petitioner, v. BENEDICT COAL CORPORATION.
Nos. 18 and 19.
Argued Oct. 21, 1959.
Decided Feb. 23, 1960.
Mr. Russell R. Kramer, Knoxville, Tenn., for petitioners Lewis and others.
Mr. M. E. Boiarsky, Charleston, W. Va., for petitioners United Mine Workers.
Mr. Robert T. Winston, Jr., Norton, Va., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The National Bituminous Coal Wage Agreement of 1950, a collective bargaining agreement between coal operators and the United Mine Workers of America, provides for a union welfare fund meeting the requirements of § 302(c)(5) of the Taft-Hartley Act.1 The fund is the 'United Mine Workers of America Welfare and Retirement Fund of 1950.' Each signatory coal operator agreed to pay into the fund a royalty of 30¢, later increased to 40¢, for each ton of coal produced for use or for sale.
2
Benedict Coal Corporation, the respondent in both No. 18 and No. 19, is a signatory coal operator. From March 5, 1950, through July 1953, Benedict produced coal upon which the amount of royalty was calculated to be $177,762.92. Benedict paid $101,258.68 of this amount but withheld $76,504.24. The petitioners in No, 18, who are the trustees of the fund, brought this action to recover that balance in the District Court for the eastern District of Tennessee.2 Benedict's main defense was that the performance of the duty to pay royalty to the trustees, regarding them as third-party beneficiaries of the collective bargaining agreement, was excused when the promisee contracting party, the union and its District 28—who are the petitioners in No. 19 and who will be referred to as the union violated the agreement by strikes and stoppages of work. Benedict also cross-claimed against the union for damages sustained from the strikes and stoppages. By its answer to the cross-claim, the union denied that its conduct violated the agreement.
3
The jury, using a verdict form provided by the trial judge, found that the trustees were entitled to recover the full amount of the unpaid royalty but that Benedict was entitled to a setoff of $81,017.68; the jury also gave a verdict to Benedict for that sum on its cross-claim against the union. In a single entry, two judgments were entered on this verdict. One was a judgment in favor of Benedict on its cross-claim on which immediate execution was ordered, but with direction that the sum collected from the union be paid into the registry of the court. The other was a judgment in favor of the trustees for the unpaid balance of the royalty. However, effect was given to Benedict's defense in the trustees' suit by refusing immediate execution, and interest, on the trustees' judgment and ordering instead that that judgment be satisfied only out of the proceeds collected by Benedict on its judgment and paid into the registry of the court.3
4
The union and the trustees prosecuted separate appeals to the Court of Appeals for the Sixth Circuit. The union alleged that the District Court erred in holding that the strikes and stoppages violated the collective bargaining agreement, contending that, properly construed, the agreement did not forbid the strikes and stoppages; in the alternative, the union urged that the damages awarded were excessive. The trustees alleged as error, primarily, the refusal of the trial court to allow them immediate and unconditional execution, and interest, on their judgment against Benedict.
5
The Court of Appeals affirmed the District Court except as to the amount of damages awarded to Benedict on its cross-claim, which the court adjudged was excessive. The court held that, under the evidence, Benedict's damages would not equal the amount of the trustees' judgment of $76,504.26. The case was remanded for a redetermination of Benedict's damages, with instructions that '(t)he judgment in favor of the Trustees will then be amended by the district court to allow execution and interest on that part of the said judgment which is in excess of the set-off in favor of Benedict as so redetermined.' 6 Cir., 259 F.2d 346, 355. This left unaffected so much of the District Court's order as predicated the trustees' recovery, to the extent of the amount of Benedict's judgment as finally determined, upon Benedict's recovery of that judgment. The trustees and the union filed separate petitions for certiorari. We granted the trustee's petition, No. 18, and also the union's petition, No. 19, except that we limited the latter grant to the question whether the strikes and stoppages complained of by Benedict violated the collective bargaining agreement. 359 U.S. 905, 79 S.Ct. 580, 581, 3 L.Ed.2d 570.
6
In No. 19, the Court is equally divided. The judgment of the Court of Appeals, so far as it sustains the holding of the District Court that the union violated the collective bargaining agreement, is therefore affirmed.
7
We turn to the question presented in No. 18, whether the lower courts were correct in holding in effect that Benedict might assert the union's breaches as a defense to the trustees' suit, for to the extent Benedict (the promisor) does not collect from the union (the promisee) the union's liability is set off against Benedict's liability to the third-party beneficiary. The answer to that question requires, we think, our consideration of the nature of the interests of the union, the company, and the trustees in the fund under the collective bargaining agreement.
8
The provisions of the collective bargaining agreement creating the fund include the express provision that 'this Fund is an irrevocable trust created pursuant to Section 302(c) of the 'Labor-Management Relations Act, 1947." Another provision specifies that the purposes of the fund shall be all purposes 'provided for or permitted in Section 302(c).'4 In this way the agreement plainly declares what the statute requires, namely, that the fund shall be used 'for the sole and exclusive benefit' of the employees, their families and dependents. Thus, the fund is in no way an asset or property of the union.
9
Benedict does not, however, base its claim of setoff on any contention that the royalty was owing to the union and might because of this be applied to the payment of its damages. Benedict's position is that in an amount equal to the amount of the damages sustained from the union's breaches, no fund property came into existence under the terms of the collective bargaining agreement. This depends upon whether the agreement is to be construed as making performance by the union of its promises a condition precedent to Benedict's promise to pay royalty to the trustees. Benedict argues that the contracting parties expressed this meaning in an article at the close of the agreement—' This Agreement is an integrated instrument and its respective provisions are interdependent'—and in the provision in another article that the no-strike clauses are 'part of the consideration of this contract.' However, the specific provisions of the article creating the fund provide: (1) 'During the life of this (collective bargaining) Agreement, there shall be paid into such Fund by each operator signatory * * * (a royalty) on each ton of coal produced for use or for sale.' (2) The operator is required to make payment 'on the 10th day of each * * * calendar month covering the production of all coal for use or sale during the preceding month.' (3) 'This obligation of each Operator signatory hereto, which is several and not joint, to so pay such sums shall be a direct and continuing obligation of said Operator during the life of this Agreement * * *.' (4) 'Title to all the moneys paid into and or due and owing said Fund shall be vested in and remain exclusively in the Trustees of the Fund * * *.'5 (Emphasis added.) These provisions, rather than the stipulations of general application, are controlling. Their clear import is that the parties meant that the duty to pay royalty should arise on the production of coal independent of the union's performance. Indeed, Benedict's conduct was not consistent with the interpretation which it is now urging. Benedict continued despite the breaches to perform all of its several promises under the contract, including the promise to pay royalty, paying over $100,000 on coal produced during the period in dispute and withholding only the portion in suit.
10
But our conclusion that the union's performance of its promises is not a condition precedent to Benedict's duty to pay royalty does not fully answer the question we are to decide. For it may reasonably be argued that the damages sustained by Benedict may nevertheless affect the amount of the trustees' recovery. Professor Corbin, while acknowledging that 'No case of the sort has been discovered,'6 states: 'It may perhaps be regarded as just to make the right of the beneficiary not only subject to the conditions precedent but also subject (as in the case of an assignee) to counter-claims against the promisee—at least if they arise out of a breach by the promisee of his duties created by the very same contract on which the beneficiary sues.'7 Using terms like 'counterclaim' or 'setoff' in a third-party beneficiary context may be confusing. In a two-party contract situation, when a promisor's duty to perform is absolute, the promisee's breaches will not excuse performance of that duty; the promisor has an independent claim against the promisee in damages. Formerly the promisor was required to bring a separate action to recover his damages. Under modern practice, when the promises are to pay money, or are reducible to a money amount, the promisor, when sued by the promisee, offsets the damages which he has sustained against the amount he owes, and usually obtains a judgment for any excess.8
11
However, a third-party beneficiary has made no promises and therefore has breached no duty to the promisor. Accordingly, to hold, as the lower courts in this case did, that a promisor may 'set off' the damages caused by the promisee's breach is actually to read the contract, which is the measure of the third party's rights, as so providing. In other words, although the promisor's duty to perform has become fixed by the occurrence of applicable conditions precedent, the parties may be taken to have agreed that the extent of the promisor's duty to the third party will be affected by the promisee's breach of contract. When it is said that 'it may be just' to make the third party subject to the counterclaim, what must be meant is that a court should infer an intention of the promisor and promisee that the third party's rights be so limited.
12
This may be a desirable rule of construction to apply to third-party beneficiary contract where the promisor's interest in or connection with the third party, in contrast with the promisee's, begins with the promise and ends with its performance. Of course, in entering into such a contract, the promisor may be held to have given up some defense against the third party's claim to performance of the promise, for example, the right to defeat that claim by rescinding the contract at any time he and the promisee agree. Nevertheless it may be fair to assume that had the parties anticipated the possibility of a breach by the promisee they would have provided that the promisor might protect himself by such means as would be available against the promisee under a two-party contract.9 This suggestion has not been crystallized into a rule of construction. Our problem is whether we should infer such an intention in this contract because there may be reasons making it appropriate to do so in the generality of third-party beneficiary contracts.
13
This collective bargaining agreement, however, is not a typical third-party beneficiary contract. The promisor's interest in the third party here goes far beyond the mere performance of its promise to that third party, i.e., beyond the payment of royalty. It is a commonplace of modern industrial relations for employers to provide security for employees and their families to enable them to meet problems arising from unemployment, illness, old age or death. While employers in may other industries assume this burden directly, this welfare fund was jointly created by the coal industry and the union for that purpose. Not only has Benedict entered into a longterm relationship with the union in this regard, but in compliance with § 302(c)(5)(B) it has assumed equal responsibility with the union for the management of the fund. In a very real sense Benedict's interest in the soundness of the fund and its management is in no way less than that of the promisee union. This of itself cautions against reliance upon language which does not explicitly provide that the parties contracted to protect Benedict by allowing the company to set off its damages against its royalty obligation.
14
Moreover, unlike the usual third-party beneficiary contract, this is an industry-wide agreement involving many promisors. If Benedict and other coal operators having damage claims against the union for its breaches may curtail royalty payments, the burden will fall in the first instance upon the employees and their families across the country. Ultimately this might result in pressures upon the other coal operators to increase their royalty payments to maintain the planned schedule of benefits. The application of the suggested rule of construction to this contract would require us to assume that the other coal operators who are parties to the agreement were willing to risk the threat of diminution of the fund in order to protect those of their number who might have become involved in local labor difficulties.
15
Furthermore, Benedict promised in the collective bargaining agreement to pay a specified scale of wages to the employees. It would not be contended that Benedict might recoup its damages by decreasing these wages. This could be rationalized by saying that the covenant to pay wages is included in separate contracts of hire entered into with each employee. The royalty payments are really another form of compensation to the employees,10 and as such the obligation to pay royalty might be thought to be incorporated into the individual employment contracts. This is not to say that the same treatment should necessarily be accorded to royalty payments as is accorded to wages, but the similarity militates against the inference that the parties intended that the trustees' claim be subject to offset.
16
Finally a consideration which is not present in the case of other third-party beneficiary contracts is the impact of the national labor policy. Section 301(b) of the Taft-Hartley Act, 29 U.S.C.A. § 185(b), provides that '(a)ny money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.' At the least, this evidences a congressional intention that the union as an entity, like a corporation, should in the absence of agreement be the sole source of recovery for injury inflicted by it.'11 Although this policy was prompted by a solicitude for the union members, because they might have little opportunity to prevent the union from committing actionable wrongs,12 it seems to us to apply with even greater force to protecting the interests of beneficiaries of the welfare fund, many of whom may be retired, or may be dependents, and therefore without any direct voice in the conduct of union affairs. Thus the national labor policy becomes an important consideration in determining whether the same inferences which might be drawn as to other third-party agreements should be drawn here.
17
Section 301 authorizes federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. In the discharge of this function, having appropriate regard for the several considerations we have discussed, including the national labor policy, we hold that the parties to a collective bargaining agreement must express their meaning in unequivocal words before they can be said to have agreed that the union's breaches of its promises should give rise to a defense against the duty assumed by an employer to contribute to a welfare fund meeting the requirements of § 302(c)(5). We are unable to find such words in the general provisions already mentioned—'This Agreement is an integrated instrument and its respective provisions are interdependent,' and 'The contracting parties agree that (the no-strike clauses are) * * * part of the consideration of this contract'—or elsewhere in the agreement. The judgment of the Court of Appeals is therefore modified to provide that the District Court shall amend the judgment in favor of the trustees to allow immediate and unconditional execution, and interest, on the full amount of the trustees' judgment for $76,504.26 against Benedict.
18
It is so ordered.
19
Judgment of the Court of Appeals modified.
20
Mr. Justice STEWART took no part in the consideration or decision of this case.
21
Mr. Justice FRANKFURTER, dissenting.
22
This litigation arose out of an agreement entered into on March 5, 1950, between coal operators, including respondent, and United Mine Workers. It was the outcome of collective bargaining between the parties to fix the terms of industrial relations, wages and other conditions of employment, between the coal operators and their employees as represented by the union. It is an elaborate document of twenty pages, formulating the rights and obligations of the union on the one side and the rights and obligations of the operators on the other. Part of the agreement called for the establishment of a welfare and retirement fund for the benefit of employees and their families. This obligated the respondent, as one of the operators bound by the agreement, to pay the Fund a fixed amount per ton of coal that it produced during the period in controversy. The narrow question before the Court is whether the respondent operator may withhold from the amount it is obligated, as a matter of arithmetic, to pay into the Fund, the amount of assessable damage owing it from the union in discharge of the union's liability for violation of its obligation under the agreement.
23
The suit was by the Trustees of the Fund, who claimed the payment in full of the scheduled amounts to be paid into the Fund. This liability is conceded, subject however to deduction for the amount owing from the union to Benedict on the basis of judicially determined liability. The Court of Appeals sustained the right of respondent to set off against its obligation to pay the defined amount into the Fund the amount arising out of liability by the union for breach of the union's obligation under the same agreement.
24
A considered reading of the Court's opinion compels the conclusion that if the agreement, which it is the Court's duty to construe, were 'a typical third-party beneficiary contract,' the respondent would not have to pay over the full amount payable to the Fund but could withhold the amount which is owing it for breach of the union's undertaking. The Court holds that this is not such a contract, although the agreement was not merely a single document with obviously interrelated sections, but specifically provided, 'This agreement is an integrated instrument and its respective provisions are interdependent and shall be effective from and after March 5, 1950.' The Court justifies rejecting what is assumed to be applicable to 'a typical third-party beneficiary contract,' partly by devising a policy distilled from two provisions of the Taft-Hartley Act, §§ 301(b) and 302(c)(5), and partly by its assumptions about the community of interest between the employer and the trust fund in the assertedly special context of labor relations.
25
I have no doubt that legislation may be a source for reasoning in court-made law. But when legislation is thus drawn upon there should be a close relation between the terms of an enactment and what the courts deduce therefrom as a direction for adjudication. I find none such here. The two provisions drawn upon do not afford the radiations attributed to them. The relevant language of § 301(b) of the Taft-Hartly Act provides that 'Any money judgment against a labor organization * * * shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.' The text deals expressly only with the enforcement of a money judgment rendered against a labor organization. No such judgment is involved in this case. The undoubted concern of Congress behind this provision was to avoid the liability of union members solely by virtue of their union membership, a liability notoriously imposed by the laws of several of the States in 1947 and vividly remembered by labor unions by reason of the Danbury Hatters' case in federal courts. See Loewe v. Lawlor, 1908, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488; Lawlor v. Loewe, 1915, 235 U.S. 522, 35 S.Ct. 170, 59 L.Ed. 341; Loewe v. Savings Bank of Danbury, 2 Cir., 1916, 236 F. 444, L.R.A. 1917B, 938.1 The intent and scope of § 301(b) were accurately described in the Senate Report on what became the Taft-Hartley Act as affording members of a union 'all the advantages of limited liability without incorporation of the union.' S.Rep.No.105, 80th Cong., 1st Sess., at 16.
26
Nor does any emanation from § 302(c)(5) of the Taft-Hartley Act negate what would otherwise dictate the right of setoff setoff, be it remembered, not a condition on Benedict's duty to pay into the Fund—of what is owing to Benedict for breach of the contract by the union under the same contract by which Benedict promised the union to pay into the Fund for its mined coal. The function of § 302(c)(5) is to define the conditions set by Congress for permitted industrial welfare funds. It was not an implied qualification of just principles relevant to the enforcement of contracts generally. Only the other day the Court stated the purpose of the Congress in enacting § 302(c)(5):
27
'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.' Arroyo v. United States, 359 U.S. 419, 426, 79 S.Ct. 864, 868, 3 L.Ed.2d 915.
28
Congress was concerned with abuses by union officers, e.g., United States v. Ryan, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335. It gave not a thought to withdrawing the enforcement of an agreement such as the one before us from rules relevant to the fair administration of justice.
29
The Court quotes one of the twin leading authorities on the law of contracts: 'It may perhaps, be regarded as just to make the right of the beneficiary not only subject to the conditions precedent but also subject (as in the case of an assignee) to counter-claims against the promisee—at least if they arise out of a breach by the promisee of his duties created by the very same contract on which the beneficiary sues.' 4 Corbin, Contracts, § 819. As I understand it, apart from the effects attributed to §§ 301(b) and 302(c)(5), the Court rejects this 'just' view as simply not applicable to this kind of a collective bargaining agreement. But the rule stated by Professor Corbin is not a technical rule narrowly limited to particular kinds of contracts. It reflects the broader generalization that under a civilized system of law all just presuppositions of an agreement are to be deemed part of it, and that courts, whose duty it is to determine the legal consequences of agreements, should attribute to an agreement such just presuppositions.
30
Underlying the Court's view is the assumption that the law of contracts is a rigorously closed system applicable to a limited class of arrangements between parties acting at arm's length, and that collective bargaining agreements are a very special class of voluntary agreements to which the general law pertaining to the construction and enforcement of contracts is not relevant. As a matter of fact, the governing rules pertaining to contracts recognize the diversity of situations in relation to which contracts are made and duly allow for these variant factors in construing and enforcing contracts. And so, of course, in construing agreements for the reciprocal rights and obligations of employers and employees, account must be taken of the many implications relevant to construing a document that governs industrial relations. There is no reason for jettisoning principles of fairness and justice that are as relevant to the law's attitude in the enforcement of collective bargaining agreements as they are to contracts dealing with other affairs, even giving due regard to the circumstances of industrial life and to the libretto that this furnishes in construing collective bargaining agreements.
31
One of the most experienced students of labor law has warned against the dangers of such an approach:
32
'The ease with which one can show that collective bargaining agreements have characteristics which preclude the application of some of the familiar principles of contracts and agency creates the danger that those who are knowledgeable about collective bargaining will demand that we discard all the precepts of contract law and create a new law of collective bargaining agreements. I have already expressed the view that the courts would ignore the plea but surely it is unwise even if they would sustain it. Many legal rules have hardened into conceptual doctrines which lawyers invoke with little thought for the underlying reasons, but the doctrines themselves represent an accumulation of tested wisdom, they are bottomed upon notions of fairness and sound public policy, and it would be a foolish waste to climb the ladder all over again just because the suggested principles were developed in other contexts and some of them are demonstrably inapposite. * * *' Cox, The Legal Nature of Collective Bargaining Agreements, in Collective Bargaining and the Law (Univ. of Mich. Law School), pp. 121—122.
33
Judges will do well to heed this admonition. Their experience makes them much more sure-footed in applying principles pertinent to the enforcement of contracts than they are likely to be in discerning the needs of wise industrial relations.
34
I would affirm the judgment.
1
Section 302(c)(5) is as follows:
'The provisions of this section (making it unlawful for the employer to deliver and a representative of the employees to receive anything of value) shall not be applicable * * * 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 such 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.' Act of June 23, 1947, § 302, 61 Stat. 157, 29 U.S.C. § 186(c)(5), 29 U.S.C.A. § 186(c) (5).
2
The article creating the fund provides that 'Title to all the moneys paid into and or due and owing said Fund shall be vested in and remain exclusively in the Trustees of the Fund * * *.'
3
The District Court's entry reads in pertinent part as follows:
'Thereupon this action came on to be heard on a former day before the Court and a verdict was rendered by the jury in favor of Benedict Coal Corporation in the sum of $81,017.68 and in favor of John L. Lewis, Charles A. Owen and Josephine Roche (trustees of the fund) in the sum of $76,504.26, the verdict containing an offset provision.
'In accordance with the Court's interpretation of the offset provision in the jury's verdict and as a means of carrying out the intended effect of the verdict, it is ordered that the Benedict Coal Corporation have and recover the sum of $81,017.68 from United Mine Workers of America and United Mine Workers of America District 29, for which execution may issue.
'It is further ordered that said sum of $81,017.68 be paid into the registry of the Court to be disbursed by the clerk in accordance with instructions appearing below.
'It is further ordered that said Trustees, in accordance with the verdict rendered in their favor, have and recover of Benedict Coal Corporation the sum of $76,504.26, said recovery to be had in the manner following: From the aforesaid $81,017.68 ordered paid into the registry of the Court, that the sum of $76,504.26 be paid to said Trustees. That the difference between $76,504.26 and $81,017.68 be paid to Benedict Coal Corporation.'
4
See note 1, supra.
5
In an earlier agreement the last clause read 'moneys paid into said Fund' and was amended to read 'moneys paid into and or due and owing said Fund' (emphasis added) after the decision in Lewis v. Jackson & Squire, Inc., D.C., 86 F.Supp. 354, appeal dismissed, 8 Cir., 181 F.2d 1011, holding, among other things, that under the agreement, no trust arose as to royalty not paid into the fund.
6
But cf. Fulmer v. Goldfarb, 171 Tenn. 218, 101 S.W.2d 1108; Depuy v. Loomis, 74 Pa.Super. 497.
7
4 Corbin, Contracts, § 819.
8
See 3 Corbin, Contracts, § 709. Cf. 3 Williston, Contracts, § 883 (Rev. ed. 1936). Compare Thornton v. Wynn, 12 Wheat. 183, 6 L.Ed. 595, Withers v. Greene, 9 How. 213, 13 L.Ed. 109.
9
To some degree the third-party beneficiary may be thought of as being 'substituted' for the promisee. See Dunning v. Leavitt, 85 N.Y. 30, 35.
10
See 93 Cong.Rec. 4746—4747. See also S.Rep. No. 105, 80th Cong., 1st Sess. 52 (supplemental views).
11
See 93 Cong.Rec. 5014; id., at 3839. Cf. Hearings before House Committee on Education and Labor on H.R. 8, H.R. 725, H.R. 880, H.R. 1095, and H.R. 1096, 80th Cong., 1st Sess. 135—136.
12
See 93 Cong.Rec. 6283.
1
The result of this litigation was a judgment for $250,000 against the goods and estate of over 150 named defendants and attachment was issued against them.
| 78
|
361 U.S. 431
80 S.Ct. 459
4 L.Ed.2d 423
UNITED STATES, Appellant,v.Bernard MERSKY et al.
No. 31.
Argued Nov. 10, 1959.
Decided Feb. 23, 1960.
Mr. Eugene L. Grimm, Washington, D.C., for appellant.
Mr. Julius L. Schapira, New York City, for appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
The Congress has provided in the Tariff Act of 1930, 46 Stat. 590, as amended, that imported articles be marked to indicate to an ultimate purchaser in the United States the English name of the country of origin. 19 U.S.C. § 1304, 19 U.S.C.A. § 1304.1 Pursuant to the Act, the Secretary of the Treasury adopted implementing regulations. This case tests the application of these provisions to the importation of 10 violins from the Soviet Zone of Germany. Appellees were charged with removing the labels from the violins with intent to conceal from the ultimate purchasers in the United States the identity of the violins' country of origin. The District Court dismissed the information, holding that the changing of the labels did not violate the Act because the applicable regulation appeared to require the Soviet Zone marking only for tariff purposes rather than to apprise the ultimate purchasers of the place of origin. In any event, the court found, the intent of the regulation was not 'manifested in a manner sufficiently clear and unambiguous to justify a criminal prosecution.' On appeal by the Government, the Court of Appeals held that the District Court's opinion, interpreting the regulation, was tantamount to a construction of the statute upon which the information was founded; and hence, under the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, the order of dismissal was appealable directly to this Court, rather than to the Court of Appeals.2 It was also of the opinion that the effect of the dismissal was to sustain a motion in bar, which, under s 3731, likewise required appeal to this Court. Accordingly, it certified the appeal, 2 Cir., 261 F.2d 40, and we postponed the question of jurisdiction to a hearing on the merits, 359 U.S. 951, 79 S.Ct. 740, 3 L.Ed.2d 760. We have concluded to accept the certification of the Court of Appeals and, on the merits, to affirm the District Court judgment dismissing the information.
2
Appellees, dealers in musical instruments in the United States, had purchased the violins from importers and thereafter sold them to other dealers. Upon obtaining possession of the violins from the importers, appellees replaced labels marked 'Germany/USSR Occupied,' then on each of the violins, with others inscribed 'Made in Germany.' After resale of the violins, an information was filed against appellees, charging that they removed the original labels attached to the violins with intent to conceal from the ultimate purchasers the identity of the country of origin.3 The Government's theory was that the removal of the labels violated 19 U.S.C. § 1304, 19 U.S.C.A. § 1304, and its implementing regulations.
I.
3
Our first consideration is the jurisdictional issue. The Criminal Appeals Act specifies several conditions, any one of which permits a direct appeal by the Government to this Court, and makes our jurisdiction in such cases exclusive. In the event that an appeal which should have been taken here is erroneously effected to a Court of Appeals, that court is directed to certify it here. Prior to 1907, the date of the original Act, the United States had no appeal whatever in criminal cases. As passed by the House, the bill gave the Government 'the same right of review by writ of error that is given to the defendant.' However, in the Senate, the bill was amended so as to allow review from judgments setting aside indictments, 'where the ground for such motion or demurrer is the invalidity or construction of the statute upon which the indictment is founded.' 41 Cong.Rec. 2819. The final language emerged from the Conference Committee of the two Houses. See H.R.Conf.Rep. No. 8113, 59th Cong., 2d Sess. As was stated by Senator Knox, one of the proponents of the measure, a member of the Judiciary Committee and a former Attorney General of the United States, the bill 'only proposed to give it (the Government) an appeal upon questions of law raised by the defendant to defeat the trial * * *.' 41 Cong.Rec. 2752. The bill was intended to create 'the opportunity to settle important questions of law,' its 'great purpose' being 'to secure the ultimate decision of the court of final resort on questions of law.'4 The situation sought to be remedied was outlined by Senator Patterson, also of the Judiciary Committee and a proponent of the bill, in these words:
4
'We have a district court in one jurisdiction holding that a law is ineffective for one reason or another—it may be that it is unconstitutional, or for some other reason—and we have a district court in another jurisdiction holding the reverse; and as the cases multiply in the several sections of the country we may find one half of the courts of the country arrayed against the other half of the courts of the country upon the same identical law; one half holding that it is entirely constitutional and the other half holding that it is unconstitutional. So, Mr. President, that confusion, that ridiculous condition, exists and must continue to exist, because, as the law now stands, until a case involving the question shall go to the Supreme Court and it is brought there by the defendant, there can be no adjudication by a court whose decision and judgment is controlling. * * * The bill is intended to cure a defect in the administration of justice * * *.'5
5
It therefore appears abundantly clear that the remedial purpose of the Act was to avert 'the danger of frequent conflicts, real or apparent, in the decisions of the various district or circuit courts, and the unfortunate results thereof'; and to eliminate 'the impossibility of the government's obtaining final and uniform rulings by recourse to a higher court.' 20 Harv.L.Rev. 219. Moreover, the desirability of expedition in the determination of the validity of Acts of Congress, which is pointed to as a desideratum for direct appeal, applies equally, to regulations. In practical operation correction of a regulation by agency revision invariably awaits judicial action.
6
The information charged violations of 19 U.S.C. § 1304, 19 U.S.C.A. § 1304, 'and the regulations promulgated thereunder.' This section requires imported articles to be marked 'to indicate to an ultimate purchaser * * * the country of origin,' and imposes criminal sanctions on anyone who removes such a mark with intent to conceal the information contained therein. The Secretary of the Treasury is authorized to implement it by appropriate regulations. The term 'country,' as used by the Congress in requiring the markings, was defined by regulation to mean 'the political entity known as a nation.' 19 CFR § 11.8. By Treasury Decision 51527, August 28, 1946, Germany was to be considered the country of origin of articles manufactured or produced in all parts of Germany. Following a change in duty rates applicable to Soviet Zone products, T.D. 53210 was issued in 1953, providing that articles from Eastern Germany should be 'marked to indicate Germany (Soviet occupied).'6 The issue posed to the District Court was whether this last regulation carried with it the sanctions of § 1304. As we see it, a construction of the regulation necessarily is an interpretation of the statute.
7
An administrative regulation, of course, is not a 'statute.' While in practical effect regulations may be called 'little laws,'7 they are at most but off-spring of statutes. Congress alone may pass a statute, and the Criminal Appeals Act calls for direct appeals if the District Court's dismissal is based upon the invalidity or construction of a statute. See United States v. Jones, 1953, 345 U.S. 377, 73 S.Ct. 759, 97 L.Ed. 1086. This Court has always construed the Criminal Appeals Act narrowly, limiting it strictly 'to the instances specified.' United States v. Borden Co., 1939, 308 U.S. 188, 192, 60 S.Ct. 182, 185, 84 L.Ed. 181. See also United States v. Swift & Co., 1943, 318 U.S. 442, 63 S.Ct. 684, 87 L.Ed. 889. Here the statute is not complete by itself, since it merely declares the range of its operation and leaves to its progeny the means to be utilized in the effectuation of its command. But it is the statute which creates the offense of the willful removal of the labels of origin and provides the punishment for violations. The regulations, on the other hand, prescribe the identifying language of the label itself, and assign the resulting tags to their respective geographical areas. Once promulgated, these regulations, called for by the statute itself, have the force of law, and violations thereof incur criminal prosecutions, just as if all the details had been incorporated into the congressional language. The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other. The charges in the information are founded on § 1304 and its accompanying regulations, and the information was dismissed solely because its allegations did not state an offense under § 1304, as amplified by the regulations. When the statute and regulations are so inextricably intertwined, the dismissal must be held to involve the construction of the statute. This, we believe, gives recognition to the congressional purpose to give the Government the right of appeal upon 'questions of law raised by the defendant to defeat the trial' and thus promptly to 'secure the ultimate decision' of this Court, affording a desired 'uniform enforcement of the law throughout the entire limits of the United States.' In view of this conclusion, we need not pass upon the claim that the District Court sustained in effect a 'motion in bar.' Our disposition requires that the case come directly here, and accordingly we accept the certificate of the Court of Appeals and now turn to the merits.
II.
8
In 1946, the Treasury implemented the country-of-origin provisions of § 1304 by issuance of T.D. 51527, which provided that, 'For the purposes of the marking provisions of the Tariff Act of 1930, * * * Germany shall be considered the country of origin of articles manufactured * * * in all parts of the German area subject to the authority of the Allied Control Commission and the United States, British, Soviet, and French zone Commanders * * *.' Thus the marking on articles produced in the Soviet Zone were required to be labeled 'Made in Germany.'
9
In 1951 the Congress directed the President to suspend or withdraw any reduction in the rates of custom duties or other concessions then applicable to the importation of articles manufactured in any areas dominated by the Soviet Union. 65 Stat. 73; 19 U.S.C. § 1362, 19 U.S.C.A. § 1362. In Proclamation No. 2935, 65 Stat. C25, 19 U.S.C.A. § 1362 note, the President suspended any reduction in rates of duty applicable to any articles manufactured in the Soviet Zone of Germany and the Soviet Sector of Berlin. Treasury Decision 52788, issued the same day, changed the rate of duty as provided in this proclamation. In 1953 the Secretary issued T.D. 53210, the regulation in controversy. This Treasury Decision is headed: 'Tariff status, marking to indicate the name of the country of origin, and customs valuation of products of Germany, Poland, and Danzig.' The first paragraph of T.D. 53210 refers to the presidential proclamation changing the structure of the rates of duty. The second paragraph specifies that, 'For the purposes of the value provisions of section 402, Tariff Act of 1930 (19 U.S.C.A. § 1402),' Western Germany shall be treated as one country, and 'the Soviet Zone * * * shall be treated as another 'country." The third paragraph is the one crucial to this prosecution: it provides that products of Western Germany shall be 'marked to indicate Germany as the 'country of origin,' but products of the Soviet Zone * * * shall be marked to indicate Germany (Soviet occupied) as the 'country of origin." The District Court concluded that T.D. 53210 was 'issued primarily to establish markings for purposes of the differences in the duties applicable'; thus the indication of Soviet Zone origin would not be required beyond entry into this country, the stage at which duty is payable.
10
We agree with the District Court. It appears that T.D. 53210, unlike T.D. 51527, is aimed at the collection of duties rather than the protection of the ultimate purchaser in the United States. Its caption indicates that it deals with 'tariff status' and 'customs valuation,' and the marking requirements are but aids thereof. Taking up the body of the document, we note that the first paragraph deals entirely with the fact that Soviet-dominated areas 'shall not receive reduced rates of duty,' while Western Germany and the Western Sectors of Berlin shall 'continue to receive most-favored-nation treatment.' The second paragraph is introduced by the phrase, 'For the purposes of the value provisions' of the Tariff Act, and provides that 'the Soviet Zone * * * shall be treated as another 'country." This language, as well as the make-up of the regulation, suggests that the third paragraph (the one involved here), requiring distinctive marking for Soviet Zone products, is but another step in the implementation of the tariff changes. It contains no reference to the requirement of § 1304 that the article be marked in a 'conspicuous place,' 'legibly, indelibly, and permanently,' so that an 'ultimate purchaser in the United States' would be on notice. We note that appellees placed on the violins the labels 'Made in Germany' as required by T.D. 51527.
11
In the context of criminal prosecution, we must apply the rule of strict construction when interpreting this regulation and statute. United States v. Halseth, 1952, 342 U.S. 277, 280, 72 S.Ct. 275, 277, 96 L.Ed. 308; United States v. Wiltberger, 1820, 5 Wheat. 76, 95—96, 5 L.Ed. 37. A reading of the regulation leaves the distinct impression that it was intended to protect and expedite the collection of customs duties. Certainly its emphasis on duties and its silence on the protection of the public from deceit support the conclusion that the old provisions were to continue insofar as markings after importation are concerned.8 If the intent were otherwise, it should not have been left to implication. There must be more to support criminal sanctions: businessmen must not be left to guess the meaning of regulations. The appellees insist that they changed the labels in good faith, believing their actions to be permissible under the law. There is nothing in the record to the contrary. A United States district judge concurred in their reading of the regulation. In the framework of criminal prosecution, unclarity alone is enough to resolve the doubts in favor of defendants.
12
Accordingly, the judgment of the District Court is affirmed.
13
Affirmed.
14
Mr. Justice BRENNAN, concurring.
15
I join the opinion of the Court. But I think it plain under our precedents that jurisdiction over this appeal also lies here on the ground that the dismissal was one 'sustaining a motion in bar, when the defendant has not been put in jeopardy.' Except that arguments are made here in dissent which would unsettle what has been settled by our precedents and reintroduce archaisms into federal criminal procedure, I would have refrained from expressing my views.
16
The touchstone of what constitutes a 'judgment sustaining a motion in bar' is precisely what Judge Lumbard in the Court of Appeals said it was—whether the judgment is one which will end the cause and exculpate the defendant. United States v. Hark, 320 U.S. 531, 536, 64 S.Ct. 359, 362, 88 L.Ed. 290; United States v. Murdock, 284 U.S. 141, 147, 52 S.Ct. 63, 64, 76 L.Ed. 210; United States v. Storrs, 272 U.S. 652, 654, 47 S.Ct. 221, 71 L.Ed. 460. As established by these precedents, the focal point of inquiry is not the form of the defendant's plea, but the effect of the ruling of the District Court.1 'The material question is not how the defendant's pleading is styled but the effect of the ruling sought to be reviewed * * *.' United States v. Hark, supra, 320 U.S. at page 536, 64 S.Ct. at page 361. 'Its (the judgment's) effect, unless reversed, is to bar further prosecution for the offense charged. It follows unquestionably that, without regard to the particular designation or form of the plea or its propriety, this court has jurisdiction under the Criminal Appeals Act.' United States v. Murdock, supra, 284 U.S. at page 147, 52 S.Ct. at page 64. To turn the thrust of these precedents around and focus on the common-law pigeonhole of the defendant's plea would be an anomaly indeed, as is recognized, particularly 15 years after the Federal Rules of Criminal Procedure swept away the old pleas. See Rule 12.
17
These cases establish criteria for judging the question that are foreign to the technicalities of the old pleas. It is suggested, however, that Justice Holmes' opinion in United States v. Storrs, supra, 272 U.S. at page 654, 47 S.Ct. at page 221, demonstrates that these technicalities still exist. A less selective quotation of his opinion, however, makes it plain that he was referring to one technical touchstone—the very one that Judge Lumbard applied below and which was followed in Murdock and Hark. Storrs involved the dismissal of an indictment for irregularities committed in the grand jury room. The statute of limitations had run at the time of the dismissal so that a new indictment could not be found. But the nature of the Court's action itself was not to exculpate the defendant, as the opinion explained: '(It) cannot be that a plea filed a week earlier is what it purports to be, and in its character is, but a week later becomes a plea in bar because of the extrinsic circumstance that the statute of limitations has run. The plea looks only to abating the indictment not to barring the action. It has no greater effect in any circumstances. If another indictment cannot be brought, that is not because of the judgment on the plea, but is an independent result of a fact having no relation to the plea and working equally whether there was a previous indictment or not. The statute uses technical words, 'a special plea in bar' and we see no reason for not taking them in their technical sense.' 272 U.S. at page 654, 47 S.Ct. at page 221. Clearly the point of the discussion was not whether the plea was by way of 'confession and avoidance' or the like, but whether the judgment on it was in itself an exculpatory one—the announced test that subsequent decisions have followed. There is, then, no inconsistency between Storrs and Hark—both turned on the same basic principle.
18
Whatever retrospective exegesis of the leading cases now suggests, the one thing reading their own language discloses is that none of them asserts the 'confession and avoidance' rationale now ascribed to them. Rather they were conceived as turning on the rationale that the Court of Appeals explained below. I would adhere to the basic principles of Hark, Murdock and Storrs here, and put the nineteenth century pleading books back on the shelves.2
19
Memorandum of Mr. Justice WHITTAKER.
20
Although I agree with so much of the dissenting opinions of my Brothers FRANKFURTER and STEWART as concludes that a 'regulation' is not embraced by the term 'statute' as used in the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. s 3731, I also agree with so much of my Brother BRENNAN'S concurring opinion as would hold that the dismissal was one 'sustaining a motion in bar, when the defendant has not been put in jeopardy,' and hence conclude that we have jurisdiction. On the merits, I join the Court's opinion.
21
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
22
The Criminal Appeals Act of 1907, 34 Stat. 1246, c. 2564, provides that in a criminal case an appeal from a District Court '(f)rom a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded,' '(f)rom a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded,' and '(f)rom the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy,'1 cannot be taken by the Government to the Court of Appeals, but must come to this Court directly. In this case the indictment rested upon a regulation of the Secretary of the Treasury, violation of which constitutes an offense under 19 U.S.C. § 1304(e), 19 U.S.C.A. § 1304(e). The District Court decided against the Government, which thereupon appealed to the Court of Appeals. That court certified the case to this Court, 2 Cir., 261 F.2d 40.
23
The question whether construction of a 'statute,' as that term is used in the Act of 1907, includes construction of a regulation promulgated under a statute is another variant of the recurring problem of resolving an ambiguity of legal language. Here ambiguity inheres not only in the word 'statute' as an English word 'see 'statute,' Oxford English Dictionary), but also in the word 'statute' as a legal term. (Compare the construction of the term 'statute' in two cases decided contemporaneously, King Mfg. Co. v. City Council of Augusta, 1928, 277 U.S. 100, 48 S.Ct. 489, 72 L.Ed. 801, and Ex parte Collins, 1928, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990. In the former, 'statute' was held to include a city ordinance; in the latter, 'statute' was held to exclude a class of legislative enactments '(d)espite the generality of the language.' 277 U.S. at page 568, 48 S.Ct. at page 586.) Judged by the dictionary, one meaning of 'statute' is of course an enactment made by the legislature of a country. As a matter of English, it may also be respectably used to refer to the enactment of a body subordinate to a legislature or to the governing promulgations of a private body, like a college. Thus the dictionary does not resolve our problem, wholly apart from heeding the admonition, so frequently expressed by Judge Learned Hand, that judges in construing legislation ought not to imprison themselves in the fortress of the dictionary.
24
The immediately relevant ambiguity of 'statute' as a legal term derives from the fact that it may mean either the enactment of a legislature, technically speaking, that is the Congress of the United States or the respective legislatures of the fifty States; or it may have a more comprehensive scope, to wit, rules of conduct legally emitted by subordinate lawmaking agencies such as city councils or the various regulation-emitting bodies of the federal and state governments. Accordingly, whether the term 'statute,' as used in the Criminal Appeals Act of 1907, should be given the restrictive meaning, i.e., enactments by Congress, or the more extensive meaning, i.e., Treasury regulations, cannot be determined merely by reading the Criminal Appeals Act of 1907. The answer will turn on the total relevant environment into which that Act must be placed, including past relevant decisions, the legislative history of the Act, and due regard for the consequences resulting from a restrictive as against a latitudinarian construction.
25
For the problem in hand, there is no controlling authority in this Court nor are there decisions under other statutes helpful for decision; neither is there a body of practice reflected in lower court decisions over a sufficient period of time, unchallenged here, carrying the weight of professional understanding. The case, therefore, must be decided on the balance of considerations weighed here for the first time.
26
The origin of the legislation and the legislative history of its enactment leave no doubt as to the direction of its aim. Between the decision of this Court in United States v. Sanges, 1892, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445, and the enactment of the Criminal Appeals Act, the United States had no appellate remedy in criminal cases. (See the story as summarized in United States v. Dickinson, 213 U.S. 92, 29 S.Ct. 485, 53 L.Ed. 711.) This 'left all federal criminal legislation at the mercy of single judges in the district and circuit courts. This defect became all the more serious because it became operative just at the beginning of the movement for increasing social control through criminal machinery.' Frankfurter and Landis, The Business of the Supreme Court (1928), p. 114. Attorneys General had, since 1892, been emphasizing the need for the legislation which became the 1907 Act. See, id., pp. 114—115. Attorney General (later Mr. Justice) Moody in 1906 put the situation to be remedied in these terms: 'It is monstrous that a law which has received the assent of the Senate, the House of Representatives, and the President can be nullified by the opinion of a single man, not subject to review by the court of appeals and the Supreme Court.' Atty.Gen.Ann.Rep. 4 (1906).
27
The particular incident which precipitated the legislation was the Beef-Trust case, United States v. Armour & Co., D.C.1906, 142 F. 808, where a plea in bar, in its technical sense, was sustained, thereby finally ending a Sherman Law, 15 U.S.C.A. § 1 et seq. prosecution in which President Theodore Roosevelt was much interested. In his message to the Congress which eventually enacted the Act of 1907 the President thus expressed the need for legislation: 'It seems an absurdity to permit a single district judge, against what may be the judgment of the immense majority of his colleagues on the bench, to declare a law solemnly enacted by the Congress to be 'unconstitutional,' and then to deny to the Government the right to have the Supreme Court definitely decide the question.' 41 Cong.Rec. 22. The concern of those in charge of the bill throughout the debate upon the measure in the Senate, in which alone there was full discussion, was to afford the Government appellate review when a single judge had frustrated the formally expressed will of Congress.2
28
The legislative history gives no hint of any concern over misconstruction or invalidation of regulations to which statutes might give rise. Regulations were not mentioned. It is significant, however, that the measure which ultimately became law was one deliberately narrower in scope than that originally proposed in the Congress. The legislation originated in the House, which, in the first session of the 59th Congress, passed a bill giving the United States in all criminal prosecutions 'the same right of review by writ of error that is given to the defendant' provided that the defendant not be twice put in jeopardy for the same offense. 40 Cong.Rec. 5408. In the Senate, a less general measure, in the nature of a substitute for the House bill, was reported, giving the United States the right to take a writ of error from decisions or judgments 'quashing or setting aside an indictment * * * sustaining a demurrer to an indictment * * * arresting a judgment of conviction for insufficiency of the indictment * * * (or) sustaining a special plea in bar * * *.' 40 Cong.Rec. 7589—7590; S.Rep. No. 3922, 59th Cong., 1st Sess. This bill went over in the Senate to the second session of the 59th Congress. The chief objection to it was its breadth. Although it was amended to provide expressly for protection against double jeopardy, 41 Cong.Rec. 2819, Senators objected to any unnecessary extension of the number of situations in which defendants might, contrary to what had been the practice, be subjected to government appeals in criminal cases. E.g., 41 Cong.Rec. 2192—2194, 2819.
29
In response to this objection, Senator Clarke introduced a substitute bill providing only three categories of cases in which the Government would be allowed to appeal: 'From a decision or judgment quashing, setting aside, or sustaining a demurrer to any indictment or any count thereof where the ground for such motion or demurrer is the invalidity or construction of the statute upon which the indictment is founded'; 'From a decision arresting a judgment of conviction for insufficiency of the indictment, where the ground for the insufficiency thereof is the invalidity or construction of the statute upon which the same is founded'; 'From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.' 41 Cong.Rec. 2823. The Clarke substitute, passed by the Senate (41 Cong.Rec. 2825), was substantially adopted in its relevant aspects by the House (see H.R.Rep. No. 8113, 59th Cong., 2d Sess.) and eventually became the Act of 1907. 41 Cong.Rec. 3994, 4128. In explaining the reason for his amendment, Senator Clarke stressed the aim not to have the scope of the legislation greater than necessary: '(T)he object * * * is to limit the right of appeal upon the part of the General Government to the validity or constitutionality of the statute in which the prosecution is proceeding. It has been enlarged by the addition of another clause, which gives the right of appeal where the construction by the trial court is such as to decide that there is no offense committed, notwithstanding the validity of the statute, and in other respects the proceeding may remain intact. * * * A case recently occurring has drawn attention to the fact that if a circuit judge or a district judge holding the circuit should determine that a statute of Congress was invalid, the United States is without means of having that matter submitted to a tribunal that under the Constitution has power to settle that question. I do not believe the remedy ought to be any wider than the mischief that has been disclosed.' 41 Cong.Rec. 2819.
30
It is manifest that the preoccupying thought of the primary promoter of the legislation, President Roosevelt, and of Congress, was to bar a single judge from destroying, either by way of construction or invalidation, congressional enactments. Extension of the range of the meaning of 'statute' to include regulations to which penal consequences attach was apparently nobody's thought and certainly on nobody's tongue. This was at a time when the proliferation of regulations was not an unknown phenomenon in lawmaking. It is certainly not fictional to attribute to the preponderant profession represented in Congress knowledge of the elementary difference between statutes, conventionally speaking, and regulations authorized by statutes. Nor is this a formal or minor distinction. It is one thing to strike down a statute, or to eviscerate its meaning; it is quite another thing to construe a regulation adversely to the Government's desire. Legislation is complicated and cumber-some business. Correction of erroneous statutory construction, let alone invalidation of laws, is a difficult, even a hazardous process. Regulations are the products of officials unhobbled by legislative procedure with its potential opportunity for parliamentary roadblocking. In large measure, these officials have the means of self-help for correcting judicial misconception about a regulation.
31
Such being the practical differences between dealing with regulations and dealing with the laws of Congress as such, what is the bearing of these practical differences upon our duty of construing the term 'statute' in order to decide whether the right of direct appeal to this Court should be restricted to cases construing the formal enactments of Congress, or whether it should include cases construing regulations referable to such enactments? The answer to this question introduces a factor of weighty importance in deciding whether cases are required to be brought here in the first instance or may be brought here only by leave after adjudication by a Court of Appeals. That factor concerns due regard for the responsibility of this Court in relation to the judicial business of major public importance and the conditions necessary for its wise disposition.3
32
On more than one occasion this Court has given controlling consideration to the fact that by a latitudinarian construction of jurisdictional legislation the business of this Court would be 'largely and irrationally increased.' American Security & Trust Co. v. Commissioners, 224 U.S. 491, 495, 32 S.Ct. 553, 554, 56 L.Ed. 856. Since the merely abstractly logical arguments permit 'statute' to be construed in either a restrictive or a broad sense, that is, that appeals to this Court directly from an adjudication of a District Court under the Criminal Appeals Act may appropriately be confined to rulings under a statute as such, rather than to include interpretations of regulations arising under a statute, I not only feel free, but deem it incumbent, to oppose what is certainly a needless if not an irrational increase in the class of cases which can be brought directly to this Court from the District Courts. I would deny the right of the Government to appeal here every time one of the vast number of regulations to which penalties are attached is construed to its disfavor. I would leave the Government to revise its regulation, as so often can easily and effectively be accomplished by skillful drafting, to bring it within statutory authority, or to go to a Court of Appeals for review.
33
The presence in the Criminal Appeals Act of 1907 of the provision for an appeal by the Government from decisions or judgments sustaining a 'special plea in bar' when the defendant has not been put in jeopardy, has an historical explanation and its scope presents a different problem of statutory construction than that of giving meaning to 'statute.' Barring stimulation by this Court, Congress seldom initiates judiciary legislation except when a dramatic case stirs public interest. Such was the Beef-Trust case, United States v. Armour & Co., D.C., 142 F. 808. In that case, because of the then absence of the Government's right of appeal in a criminal case, the Government's antitrust prosecution was finally terminated by a successful plea in bar in the District Court. The Congress was determined not to permit a recurrence of that situation, and thus the inclusion in the Act of 1907 of a clause permitting appeals by the Government from decisions sustaining a 'special plea in bar' is easily accounted for.
34
Regarding the meaning of this clause, I agree with the opinion of my Brother STEWART. When Congress uses technical legal language the Court disregards the obvious guidance to meaning if it departs from its technical legal connotation. There have been two cases before the Court dealing with the matter, between which we have to choose: United States v. Storrs, 272 U.S. 652, 47 S.Ct. 221, 71 L.Ed. 460, and United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290. In Storrs Mr. Justice Holmes, as spokesman for the Court, applied his authoritative learning of the common law to take 'technical words' 'in their technical sense.' In Hark, the Court did not notice the Storrs analysis and gave a colloquial meaning to the phrase. Having to choose between these two decisions, I follow Storrs because it applied the appropriate criterion of construction.
35
Mr. Justice STEWART, whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, dissenting.
36
I do not reach the merits of this case, because I think the District Court's judgment was not of a kind which the Criminal Appeals Act makes directly reviewable by this Court. It seems clear to me that the dismissal of the information was not 'based upon the invalidity or construction of the statute,' and equally clear that the judgment was not one 'sustaining a motion in bar.'1
I.
37
The District Court's decision was based solely upon the interpretation of Treasury regulations, not upon the invalidity or construction of an Act of Congress. The court found it doubtful that the regulations in question were issued to implement the country-of-origin marking requirements of 19 U.S.C. § 1304, 19 U.S.C.A. § 1304,2 and held that in any event the intent of the regulations was not sufficiently unambiguous to support a criminal prosecution. No contention was made that the statute itself was invalid. The trial court did not question that the statute validly and clearly confers power upon the Secretary of the Treasury to issue a properly worded regulation making the acts of the appellees unlawful. This is made apparent by the district judge's statement that '(t)he Secretary could very easily have indicated that East and West Germany should be considered two separate countries for all purposes within the jurisdiction of the Treasury Department * * *.' Thus the decision we are asked to review in no way impinges upon or construes the legislation which Congress enacted. Compare United States v. Foster, 233 U.S. 515, 522—523, 34 S.Ct. 666, 669, 58 L.Ed. 1074.
38
Whether under the Criminal Appeals Act an appeal from an order of dismissal based upon a District Court's construction of an administrative regulation may be brought directly here is a question which apparently has not been considered until now. The Court's resolution of the question seems to me at odds with the tradition of strick construction of the Criminal Appeals Act and contrary to the policy, reflected notably in the Act of February 13, 1925, 43 Stat. 936, of narrowly limiting the appellate jurisdiction of this Court.3 'The exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified.' United States v. Borden Co., 308 U.S. 188, 192, 60 S.Ct. 182, 185, 84 L.Ed. 181. See United States v. Dickinson, 213 U.S. 92, 103, 29 S.Ct. 485, 489, 53 L.Ed. 711.
39
Avoidance of prolonged uncertainty as to the validity or meaning of a federal criminal law is obviously a desideratum in the effective administration of justice. Moreover, it is clearly desirable to bring to the attention of Congress as promptly as possible any occasion for legislative clarification or amendment. When a District Court holds a criminal statute invalid or gives it a construction inconsistent with the understanding of those in the Executive Branch charged with enforcing it, this policy is well served by expediting ultimate determination of the matter. But expedited review of the judgment in the present case serves no such policy.4 Uncertainty caused by the District Court's decision in this case could have been laid to rest at any time simply by issuance of a clearly worded Treasury regulation.
40
For these reasons I would hold that an administrative regulation such as is here involved is not a 'statute' within the meaning of this provision of the Criminal Appeals Act.
II.
41
Even if the above views should prevail, the Court would still have jurisdiction of this appeal if the District Court's judgment was one 'sustaining a motion in bar, when the defendant has not been put in jeopardy.' The motion which the court sustained was for an order dismissing the information 'on the ground that it does not state facts sufficient to constitute an offense against The United States.' I think such a pleading is not 'a motion in bar.' Until 1948 the Criminal Appeals Act provided for direct appeal to this Court from a 'decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.'5 In 1948 the phrase 'motion in bar' was substituted for 'special plea in bar.' 62 Stat. 845. The sole purpose of the change was to bring the terminology of the Criminal Appeals Act into conformity with Rule 12 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which abolished special pleas, demurrers and motions to quash as such, and substituted motions to dismiss or to grant appropriate relief. The statutory revision was not intended to, and did not, expand the Government's right of appeal. See H.R.Rep. No. 304, 80th Cong., 1st Sess. A—177.6 That right is still limited to a judgment sustaining a motion of a kind historically considered a 'special plea in bar.'
42
The label which the defendant may have attached to his pleading is of no great importance in this connection. United States v. Oppenheimer, 242 U.S. 85, 86, 37 S.Ct. 68, 61 L.Ed. 161; United States v. Goldman, 277 U.S. 229, 236, 48 S.Ct. 486, 488, 72 L.Ed. 862. As Mr. Justice Holmes remarked in United States v. Storrs, 272 U.S. 652, 654, 47 S.Ct. 221, 71 L.Ed. 460 '(t)he question is less what it is called than what it is.' But, in deciding 'what it is,' the Court's opinion in Storrs underscores the essential point—'The statute uses technical words, 'a psecial plea in bar' and we see no reason for not taking them in their technical sense.' 272 U.S. at page 654, 47 S.Ct. at page 221.7
43
At common law, a plea in bar had to either 'deny, or confess and avoid the facts stated in the declaration.' 1 Chitty, Pleading (16th Am. ed. 1883), *551; Stephen, Principles of Pleading (3d Am. ed. 1895), 89. Consequently, there were two types of pleas in bar pleas by way of traverse and pleas by way of confession and avoidance. Ibid. Shipman, Common-Law Pleading (Ballantine ed. 1923), 30. When a plea in bar was a plea other than the general issue, it was a 'special plea in bar.' Shipmen, supra, at 337; Stephen, supra, at 179. In civil cases pleas of this category included the specific traverse (equivalent to a special denial), the special traverse (a denial preceded by introductory affirmative matter), and the plea of confession and avoidance. In criminal cases special pleas in bar were primarily utilized by way of confession and avoidance, e.g., autrefois acquit, autrefois convict, and pardon. 2 Bishop, New Criminal Procedure (2d ed. 1913), §§ 742, 805—818; Heard, Criminal Pleading (1879), 279—296; 1 Starkie, Criminal Pleading (2d ed. 1822), 316—338. The plea in confession and avoidance did not contest the facts alleged in the declaration, but relied on new matter which would deprive those facts of their ordinary legal effect. Stephen, supra, 89, 205—206; Shipman, supra, 348; 1 Chitty, supra, *551—*552. It set up affirmative defenses which would bar the prosecution.
44
This concept of a special plea in bar as a plea similar in substance to confession and avoidance has been consistently followed in the decisions of this Court. The cases in which jurisdiction has been accepted on the ground that the decision below sustained a special plea in bar have invariably involved District Court decisions upholding an affirmative defense in the nature of a confession and avoidance.8 The motion to dismiss which was sustained by the District Court in this case was clearly not the equivalent of a special plea in bar, as thus historically understood, but, rather, the equivalent of a general demurrer. The judgment sustaining that motion is, therefore, not directly reviewable here.
45
This view is fully confirmed by an examination of the structure of the Criminal Appeals Act itself. For if, as the Court of Appeals thought, a 'motion in bar' is any motion which, if sustained, would exculpate the defendants, then a significant portion of the provision of the Criminal Appeals Act discussed in Part I of this opinion would be a meaningless redundancy. Every motion based upon the invalidity of a statute would, under the rough and ready definition of the Court of Appeals, also be a 'motion in bar,' because a dismissal based upon such a motion would with equal effectiveness 'end the cause and exculpate the defendants.' (261 F.2d 44.)
46
I would remand this case to the Court of Appeals.
1
'19 U.S.C. § 1304. Marking of imported articles and containers.
'(a) Marking of articles.
'* * * (E)very article of foreign origin * * * imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article. The Secretary of the Treasury may by regulations—
'(1) Determine the character of words and phrases or abbreviations thereof which shall be acceptable as indicating the country of origin * * *;
'(2) Require the addition of any other words or symbols which may be appropriate to prevent deception or mistake as to the origin of the article * * *.
'(e) Penalties.
'If any person shall, with intent to conceal the information given thereby or contained therein, deface, destroy, remove, alter, cover, obscure, or obliterate any mark required under the provisions of this chapter, he shall, upon conviction, be fined not more than $5,000 or imprisoned not more than one year, or both.'
2
18 U.S.C. § 3731, 18 U.S.C.A. § 3731 provides, in part:
'An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
'From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
'From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.
'If an appeal shall be taken pursuant to this section to any court of appeals which, in the opinion of such court, should have been taken directly to the Supreme Court of the United States, such court shall certify the case to the Supreme Court of the United States, which shall thereupon have jurisdiction to hear and determine the case to the same extent as if an appeal had been taken directly to that Court.'
3
In addition to the substantive charges, there was a count alleging conspiracy so to alter the labels.
4
Senator Bacon, a member of the Judiciary Committee. 41 Cong.Rec. 2195—2196.
5
41 Cong.Rec. 2753. See also comments of Senator Clarke, who, after discussing the matter with Senator Nelson, the manager of the bill on the floor, stated:
'(W)henever the validity of a statute has been adversely decided by a trial court * * * the Government ought to have the right to promptly submit that to the tribunal having authority to dispose of such questions in order that there may be a uniform enforcement of the law throughout the entire limits of the United States.' 41 Cong.Rec. 2820.
6
Several months later, T.D. 53281 was issued, providing alternative wordings for the Soviet Zone labels.
7
Vom Baur, Federal Administrative Law, § 490, at 489.
8
Since we hold that T.D. 53210 deals only with the collection of duties its marking provisions supersede those of T.D. 51527 only as the latter relate thereto.
1
See Friedenthal, Government Appeals in Federal Criminal Cases, 12 Stan.L.Rev. 71, 77—78.
2
It is suggested that this construction causes some overlap between those judgments appealable here as sustaining motions in bar and those appealable here as based on the construction or invalidity of the statute under which prosecution is had. The existence of such an overlap hardly would militate seriously against the construction of the statute espoused here and in Hark, Murdock and Storrs; where Congress has decided to make two categories of cases appealable to this Court, it is not a valuable guide to construction to assume that congressional intent would be offended if some cases were appealable as belonging to both categories. And it cannot be maintained, as is suggested, that every judgment based on the invalidity of a statute must also be one sustaining a motion in bar. For an indictment may be dismissed because it does not allege facts sufficient to indicate a constitutional application of the statute under which the prosecution was brought; and if the omission is not a pleading defect, and the statute was interpreted by the District Court as covering the charge, the dismissal is appealable here as from a judgment based on the invalidity of the statute. Yet such a judgment would not necessarily exculpate the defendant, and thus would not constitute the sustaining of a plea in bar, for a new indictment for the same criminal offense might be found by alleging sufficient additional facts to obviate the constitutional defect. Cf. United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 69, 61 L.Ed. 161.
1
Formal changes in this language have been made by the Act of May 9, 1942, c. 295, 56 Stat. 271, the 1948 Judicial Code, Act of June 25, 1948, c. 645, § 3731, 62 Stat. 844, and the Act of May 24, 1949, c. 139, § 58, 63 Stat. 97, 18 U.S.C.A. § 3731.
2
See, e.g., 41 Cong.Rec. 2757 (Senator Nelson, the manager of the bill in the Senate): '(T)he question now before us is whether we will allow a nisi prius judge of an inferior court to render ineffective our efforts in this behalf to protect the American people against trusts and monopolies and other dangerous things; whether we will allow ourselves to be handicapped and crippled by the decision of an inferior nisi prius judge.' See also, id., 2192 (Senator Bacon): '(A)nd a law of Congress is set aside, made absolutely null and void and inoperative by the decision of one judge, without the opportunity for the nine judges who sit in the Supreme Court to pass upon the great question * * * affecting not simply that accused, affecting not simply all others who may be accused, but affecting the operation of the law of the land * * *.'
3
Apart from other vital factors, increase in the range and mass of materials drawn upon in opinions during recent decades, and the investigation and appraisal thereby involved, entail a considerable increase in the burden of the Court's business compared with earlier periods.
1
The relevant provisions of the Criminal Appeals Act are reproduced in the Court's opinion, 361 U.S. at page 433, 80 S.Ct. at page 461, note 2.
2
The relevant provisions of this statute are reproduced in the Court's opinion, 361 U.S. at page 432, 80 S.Ct. at page 461, note 1.
3
The term 'statute' as used in the jurisdictional legislation which is now 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), providing for an appeal to this Court 'where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity,' has from the beginning been given a broad interpretation, consistent with the purpose of this legislation. See Williams v. Bruffy, 96 U.S. 176, 182, 183, 24 L.Ed. 716; Reinman v. City of Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900; Live Oak Water Users' Ass'n v. Railroad Commission of State of California, 269 U.S. 354, 356, 46 S.Ct. 149, 150, 70 L.Ed. 305. But it is one thing to say that 'statute' should be construed broadly in cases involving allegedly unconstitutional state action, and quite another to say that a similar construction should be given to the term in cases involving simply the meaning of regulations made pursuant to concededly valid federal legislation.
4
The Court notes 'the remedial purpose of the Act was to avert 'the danger of frequent conflicts, real or apparent, in the decisions of the various (trial courts), and the unfortunate results thereof'; and to eliminate 'the impossibility of the government's obtaining final and uniform rulings by recourse to a higher court." 80 S.Ct. 462. This purpose has now to a large degree been fulfilled by the Act of May 9, 1942, 56 Stat. 271, giving jurisdiction over government appeals in criminal cases to the Courts of Appeals. Any conflict between circuits could, of course, be resolved here. See Supreme Court Rule 19, par. 1(b), 28 U.S.C.A.
5
This was the language of the original Criminal Appeals Act (Act of March 2, 1907, c. 2564, 34 Stat. 1246), and the same wording was continued in subsequent re-enactments. See 18 U.S.C. (1940 ed.) § 682; 18 U.S.C. (1946 ed.) § 682, now 18 U.S.C.A. § 3731.
6
The 1948 revision supplemented Rule 54(c), Fed.Rules Crim.Proc., which provided that 'The words 'demurrer,' 'motion to quash,' 'plea in abatement,' 'plea in bar,' and 'special plea in bar,' or words to the same effect, in any act of Congress shall be construed to mean the motion raising a defense or objection provided in Rule 12.' The Notes of the Advisory Committee appended to Rule 54 make clear that an intent of this provision was to insure that the scope of the Government's right of appeal in criminal cases would remain unchanged.
7
The opinion in United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290, upon whose generalized language the Court of Appeals and my Brother BRENNAN here so heavily rely, did not cite Storrs. To the extent that the two opinions reflect divergent approaches, Storrs seems the more carefully considered and I would follow it.
8
See, e.g., United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195 (motion alleging special facts which showed that defendant was not subject to prosecution by the United States for the crime charged); United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (motion alleging that res judicata barred the action); United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333 (motion raising the affirmative defense that the charges contained in the indictment had been submitted to a previous grand jury which had refused to make a presentment thereon); United States v. Goldman, 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862 (motion alleging that the statute of limitations barred prosecution); United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (motion raising defense of privilege); United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (motion raising affirmative defense of revocation of pertinent provisions of regulation which appellees were charged with violating).
| 89
|
361 U.S. 516
80 S.Ct. 412
4 L.Ed.2d 480
Daisy BATES et al., Petitioners,v.CITY OF LITTLE ROCK et al.
No. 41.
Argued Nov. 18, 1959.
Decided Feb. 23, 1960.
Mr. Robert L. Carter, for petitioners.
Mr. Joseph C. Kemp, Little Rock, Ark., for respondent, City of Little rock.
No appearance for respondent, City of North Little Rock.
Mr. Justice STEWART delivered the opinion of the Court.
1
Each of the petitioners has been convicted of violating an identical ordinance of an Arkansas municipality by refusing a demand to furnish city officials with a list of the names of the members of a local branch of the National Association for the Advancement of Colored People. The question for decision is whether these convictions can stand under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
2
Municipalities in Arkansas are authorized by the State to levy a license tax on any person, firm, individual, or corporation engaging in any 'trade, business, profession, vocation or calling' within their corporate limits.1 Pursuant to this authority, the City of Little Rock and the City of North Little Rock have for some years imposed annual license taxes on a broad variety of businesses, occupations, and professions.2 Charitable organizations which engage in the activities affected are relieved from paying the taxes.
3
In 1957 the two cities added identical amendments to their occupation license tax ordinances. These amendments require that any organization operating within the municipality in question must supply to the City Clerk, upon request and within a specified time, (1) the official name of the organization; (2) its headquarters or regular meeting place; (3) the names of the officers, agents, servants, employees, or representatives, and their salaries; (4) the purpose of the organization; (5) a statement as to dues, assessments, and contributions paid, by whom and when paid, together with a statement reflecting the disposition of the funds and the total net income; (6) an affidavit stating whether the organization is subordinate to a parent organization, and if so, the latter's name. The ordinances expressly provide that all information furnished shall be public and subject to the inspection of any interested party at all reasonable business hours.3
4
Petitioner Bates was the custodian of the records of the local branch of the National Association for the Advancement of Colored People in Little Rock, and petitioner Williams was the custodian of the records of the North Little Rock branch. These local organizations supplied the two municipalities with all the information required by the ordinances, except that demanded under § 2E of each ordinance which would have required disclosure of the names of the organizations' members and contributors. Instead of furnishing the detailed breakdown required by this section of the North Little Rock ordinance, the petitioner Williams wrote to the City Clerk as follows: 'E. The financial statement is as follows:
5
January 1, 1957 to December 4, 1957.
Total receipts from membership and
6
contributors $252.00.
Total expenditures......... $183.60
7
(to National Office)
Secretarial help.............. 5.00
Stationery, stamps, etc....... 3.00
Total..................... $191.60
On Hand...................... 60.40
'F. I am attaching my affidavit as president indicating that we are a Branch of the National Association for the Advancement of Colored People, a New York Corporation.
'We cannot give you any information with respect to the names and addresses of our members and contributors or any information which may lead to the ascertainment of such information. We base this refusal on the anti-NAACP climate in this state. It is our good faith and belief that the public disclosure of the names of our members and contributors might lead to their harassment, economic reprisals, and even bodily harm. Moreover, even aside from that possibility, we have been advised by our counsel, and we do so believe that the city has no right under the Constitution and laws of the United States, and under the Constitution and laws of the State of Arkansas to demand the names and addresses of our members and contributors. We assert on behalf of the organization and its members the right to contribute to the NAACP and to seek under its aegis to accomplish the aims and purposes herein described free from any restraints or interference from city or state officials. In addition we assert the right of our members and contributors to participate in the activities of the NAACP, anonymously, a right which has been recognized as the basic right of every American citizen since the founding of this country. * * *'
A substantially identical written statement was submitted on behalf of the Little Rock branch of the Association to the Clerk of that city.
After refusing upon further demand to submit the names of the members of her organization,4 each petitioner was tried, convicted, and fined for a violation of the ordinance of her respective municipality. At the Bates trial evidence was offered to show that many former members of the local organization had declined to renew their membership because of the existence of the ordinance in question.5 Similar evidence was received in the Williams trial,6 as well as evidence that those who had been publicly identified in the community as members of the National Association for the Advancement of Colored People had been subjected to harassment and threats of bodily harm.7
On appeal the cases were consolidated in the Supreme Court of Arkansas, and, with two justices dissenting, the convictions were upheld. 229 Ark. 819, 319 S.W.2d 37, 43. The court concluded that compulsory disclosure of the membership lists under the circumstances was 'not an unconstitutional invasion of the freedoms guaranteed * * *' but 'a mere incident to a permissible legal result.'8 Because of the significant constitutional question involved, we granted certiorari. 359 U.S. 988, 79 S.Ct. 1118, 3 L.Ed.2d 977.
Like freedom of speech and a free press, the right of peaceable assembly was considered by the Framers of our Constitution to lie at the foundation of a government based upon the consent of an informed citizenry—a government dedicated to the establishment of justice and the preservation of liberty. U.S.Const., Amend. I. And it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States. De Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488.
Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925; N.A.A.C.P. v. State of Alabama, supra; Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. ,'it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute (an) effective * * * restraint on freedom of association. * * * This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. * * * Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.' N.A.A.C.P. v State of Alabama, 357 U.S. at page 462, 78 S.Ct. at page 1171.
On this record it sufficiently appears that compulsory disclosure of the membership lists of the local branches of the National Association for the Advancement of Colored People would work a significant interference with the freedom of association of their members.9 There was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm. There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and presures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members' names. N.A.A.C.P. v. State of Alabama, 357 U.S. at page 463, 78 S.Ct. at page 1172. Thus, the threat of substantial government encroachment upon important and traditional aspects of individual freedom is neither speculative nor remote.
Decision in this case must finally turn, therefore, on whether the cities as instrumentalities of the State have demonstrated so cogent an interest in obtaining and making public the membership lists of these organizations as to justify the substantial abridgment of associational freedom which such disclosures will effect. Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. See also Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; Schneider v. State of New Jersey, 308 U.S. 147, 60 S.ct. 146, 84 L.Ed. 155; Cox v. State of New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.
It cannot be questioned that the governmental purpose upon which the municipalities rely is a fundamental one. No power is more basic to the ultimate purpose and function of government than is the power to tax. See James v. Dravo Contracting Co., 302 U.S. 134, 150, 58 S.Ct. 208, 216, 82 L.Ed. 155. Nor can it be doubted that the proper and efficient exercise of this essential governmental power may sometimes entail the possibility of encroachment upon individual freedom. See United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754; Hubbard v. Mellon, 55 App.D.C. 341, 5 F.2d 764.
It was as an adjunct of their power to impose occupational license taxes that the cities enacted the legislation here in question.10 But governmental action does not automatically become reasonably related to the achievement of a legitimate and substantial governmental purpose by mere assertion in the preamble of an ordinance. When it is shown that state action threatens significantly to impinge upon constitutionally protected freedom it becomes the duty of this Court to determine whether the action bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification.
In this record we can find no relevant correlation between the power of the municipalities to impose occupational license taxes and the compulsory disclosure and publication of the membership lists of the local branches of the National Association for the Advancement of Colored People. The occupation license tax ordinances of the municipalities are squarely aimed at reaching all the commercial, professional, and business occupations within the communities. The taxes are not, and as a matter of state law cannot be, based on earnings or income, but upon the nature of the occupation or enterprise conducted.
Inquiry of organizations within the communities as to the purpose and nature of their activities would thus appear to be entirely relevant to enforcement of the ordinances. Such an inquiry was addressed to these organizations and was answered as follows:
'We are an affiliate of a national organization seeking to secure for American Negroes their rights as guaranteed by the Constitution of the United States. Our purposes may best be described by quoting from the Articles of Incorporation of our National Organization where these purposes are set forth as:
"* * * voluntarily to promote equality of rights and eradicate caste or race prejudice among the citizens of the United States; to advance the interest of colored citizens; to secure for them impartial suffrage; and to increase their opportunities for securing justice in the courts, education for their children, employment according to their ability, and complete equality before the law. To ascertain and publish all facts bearing upon these subjects and to take any lawful action thereon; together with any kind and all things which may lawfully be done by a membership corporation organized under the laws of the State of New York for the further advancement of these objects.'
'The Articles of Incorporation hereinabove referred to are on file in the office of the Secretary of State of the State of Arkansas. In accord with these purposes and aims, (this) * * * Branch, NAACP was chartered and organized, and we are seeking to effectuate these principles within (this municipality).'
The municipalities have not suggested that an activity so described, even if conducted for profit, would fall within any of the occupational classifications for which a license is required or a tax payable. On oral argument counsel for the City of Little Rock was unable to relate any activity of these organizations to which a license tax might attach.11 And there is nothing in the record to indicate that a tax claim has ever been asserted against either organization. If the organizations were to claim the exemption which the ordinance grants to charitable endeavors, information as to the specific sources and expenditures of their funds might well be a subject of relevant inquiry. But there is nothing to show that any exemption has ever been sought, claimed, or granted—and positive evidence in the record to the contrary.
In sum, there is a complete failure in this record to show (1) that the organizations were engaged in any occupation for which a license would be required, even if the occupation were conducted for a profit; (2) that the cities have ever asserted a claim against the organizations for payment of an occupation license tax; (3) that the organizations have ever asserted exemption from a tax imposed by the municipalities, either because of their alleged nonprofit character or for any other reason.
We conclude that the municipalities have failed to demonstrate a controlling justification for the deterrence of free association which compulsory disclosure of the membership lists would cause. The petitioners cannot be punished for refusing to produce information which the municipalities could not constitutionally require. The judgments cannot stand.
Reversed.
Mr. Justice BLACK and Mr. Justice DOUGLAS, concurring.
We concur in the judgment and substantially with the opinion because we think the facts show that the ordinances as here applied violate freedom of speech and assembly guaranteed by the First Amendment which this Court has many times held was made applicable to the States by the Fourteenth Amendment, as for illustration in Jones v. City of Opelika, 316 U.S. 584, at page 600, 62 S.Ct. 1231, at page 1240, 86 L.Ed. 1691, dissenting opinion adopted by the Court in 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, at page 108, 63 S.Ct. 870, at page 872, 87 L.Ed. 1292; Kingsley Intern. Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512. And see cases cited in Speiser v. Randall, 357 U.S. 513, 529, at page 530, 78 S.Ct. 1332, 1343, at pages 1352, 1353, 2 L.Ed.2d 1460 (concurring opinion).
Moreover, we believe, as we indicated in United States v. Rumely, 345 U.S. 41, 48, at page 56, 73 S.Ct. 543, 547, at page 550, 97 L.Ed. 770 (concurring opinion), that First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government. One of those rights, freedom of assembly, includes of course freedom of association; and it is entitled to no less protection than any other First Amendment right as N.A.A.C.P. v. State of Alabama, 357 U.S. 449, at page 460, 78 S.Ct. 1163, at page 1170, 2 L.Ed.2d 1488, and De Jonge v. State of Oregon, 299 U.S. 353, at page 363, 57 S.Ct. 255, at page 259, 81 L.Ed. 278, hold. These are principles applicable to all people under our Constitution irrespective of their race, color, politics, or religion. That is, for us, the essence of the present opinion of the Court.
1
Ark.stat. 1947, § 19—4601.
2
Little Rock Ord. No. 7444. North Little Rock Ord. No. 1786. These ordinances have been amended numerous times by adding various businesses, occupations and professions to be licensed, and by changing the rates of the taxes imposed.
3
The pertinent provisions of the ordinances are as follows:
'Whereas, it has been found and determined that certain organizations within the City * * * have been claiming immunity from the terms of (the ordinance), governing the payment of occupation licenses levied for the privilege of doing business within the city, upon the premise that such organizations are benevolent, charitable, mutual benefit, fraternal or non-profit, and
'Whereas, many such organizations claiming the occupation license exemption are mere subterfuges for businesses being operated for profit which are subject to the occupation license ordinance;
'Now, Therefore, Be It Ordained by the City Council of the City * * *.:
'Section 1. The word 'organization' as used herein means any group of individuals, whether incorporated or unincorporated.
'Section 2. Any organization operating or functioning within the City * * * including but not limited to civic, fraternal, political, mutual benefit, legal, medical, trade, or other organization, upon the request of the Mayor, Alderman, Member of the Board of Directors, City Clerk, City Collector, or City Attorney, shall list with the City Clerk the following information within 15 days after such request is submitted:
'A. The official name of the organization.
'B. The office, place of business, headquarters or usual meeting place of such organization.
'C. The officers, agents, servants, employees or representatives of such organization, and the salaries paid to them.
'D. The purpose or purposes of such organization.
'E. A financial statement of such organization, including dues, fees, assessments and/or contributions paid, by whom paid, and the date thereof, together with the statement reflecting the disposition of such sums, to whom and when paid, together with the total net income of such organization.
'F. An affidavit by the president or other officiating officer of the organization stating whether the organization is subordinate to a parent organization, and if so, the name of the parent organization.
'Section 3. This ordinance shall be cumulative to other ordinances heretofore passed by the City with reference to occupation licenses and the collection thereof.
'Section 4. All information obtained pursuant to this ordinance shall be deemed public and subject to the inspection of any interested party at all reasonable business hours.
'Section 5. Any section or part of this ordinance declared to be unconstitutional or void shall not affect the remaining sections of the ordinance, and to this end the sections or subsections hereof are declared to be severable.
'Section 6. Any person or organization who shall violate the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined * * *.'
4
Section 2E of the ordinances does not explicitly require submission of membership lists, but, rather, of 'dues * * * and/or contributions paid, by whom paid * * *.' That the effect of this language was to require submission of the names of all members was made clear in the supplemental request made by the City Clerk of North Little Rock to the petitioner Williams:
'Dear Madam:
'At a regular meeting of the North Little Rock City Council held in the Council Chamber on December 9, 1957, I was instructed to request a list of the names and addresses of all the officers and members of the North Little Rock Branch of the NAACP.
'This portion of the questionaire answered by you on December 4, 1957 did not furnish this information. The above information must be received not later than December 18, 1957 as requested in the original questionaire received by you on December 3, 1957.'
(In fact, the names of all the officers of the North Little Rock branch had already been submitted in accordance with § 2C of the ordinance.)
5
For example, petitioner Bates testified: 'Well, I will say it like this—for the past five years I have been collecting, I guess, 150 to 200 members each year—just renewals of the same people. This year, I guess I lost 100 or 150 of those same members because when I went back for renewals they said, 'Well, we will wait and see what happens in the Bennett Ordinance."
6
For example, a witness testified: 'Well, the people are afraid to join, afraid to join because the people—they don't want their names exposed and they are afraid their names will be exposed and they might lose their jobs. They will be intimidated and they are afraid to join. They said, 'Well, you will have to wait. I can't do It'. They are afraid to give their—because they are afraid somebody, if their names are publicized, then they will lose their jobs or be intimidated or what-not.'
7
For example, petitioner Williams testified: 'Well, I have we were not able to rest at night or day for quite a while, We had to have our phone number changed because they call that day and night and then we—they have found out the second phone number and they did the same way and they called me all hours of night over the telephone and then I had to get a new number and they have been trying to find out that one, of course. I would tell them who is talking and they have throwed stones at my home. They wrote me I got a—I received a letter threatening my life and they threaten my life over the telephone. That is the way.'
8
The Arkansas Supreme Court construed § 2E of the ordinances as requiring disclosure 'of the membership list.' 229 Ark. 826, 319 S.W.2d at page 41.
9
The cities do not challenge petitioners' right to raise any objections or defenses available to their organizations, nor do the cities challenge the right of the organizations in these circumstances to assert the individual rights of their members. Cf. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, at pages 458 459, 78 S.Ct. 1183, at pages 1169—1170.
10
See note 3, supra.
11
A 'catch-all' provision of the Little Rock ordinance imposes an annual tax upon '(a)ny person, firm, or corporation within the City * * * engaging in the business of selling any and all kinds of goods, wares, and merchandise, whether raw materials or finished products, or both, from a regularly established place of business maintained within the City * * *.' The tax is measured by 'the gross value of the average stock inventory for the preceding year,' with a minimum of $25. It was conceded on oral argument by counsel for the City of Little Rock that this provision was inapplicable. No brief was filed nor oral argument made on behalf of the City of North Little Rock.
| 23
|
361 U.S. 477
80 S.Ct. 419
4 L.Ed.2d 454
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.INSURANCE AGENTS' INTERNATIONAL UNION, AFL-CIO.
No. 15.
Argued Dec. 7, 8, 1959.
Decided Feb. 23, 1960.
Mr. Dominick L. Manoli, Washington, D.C., for petitioner.
Mr. Isaac N. Groner, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case presents an important issue of the scope of the National Labor Relations Board's authority under § 8(b)(3) of the National Labor Relations Act,1 which provides that 'It shall be an unfair labor practice for a labor organization or its agents * * * to refuse to bargain collectively with an employer, provided it is the representative of his employees * * *.' The precise question is whether the Board may find that a union, which confers with an employer with the desire of reaching agreement on contract terms, has nevertheless refused to bargain collectively, thus violating that provision, solely and simply because during the negotiations it seeks to put economic pressure on the employer to yield to its bargaining demands by sponsoring on-the-job conduct designed to interfere with the carrying on of the employer's business.
2
Since 1949 the respondent Insurance Agents' International Union and the Prudential Insurance Company of America have negotiated collective bargaining agreements covering district agents employed by Prudential in 35 States and the District of Columbia. The principal duties of a Prudential district agent are to collect premiums and to solicit new business in an assigned locality known in the trade as his 'debit.' He has no fixed or regular working hours except that he must report at his district office two mornings a week and remain for two or three hours to deposit his collections, prepare and submit reports, and attend meetings to receive sales and other instructions. He is paid commissions on collections made and on new policies written; his only fixed compensation is a weekly payment of $4.50 intended primarily to cover his expenses.
3
In January 1956 Prudential and the union began the negotiation of a new contract to replace an agreement expiring in the following March. Bargaining was carried on continuously for six months before the terms of the new contract were agreed upon on July 17, 1956.2 It is not questioned that, if it stood alone, the record of negotiations would establish that the union conferred in good faith for the purpose and with the desire of reaching agreement with Prudential on a contract.
4
However, in April 1956, Prudential filed a § 8(b)(3) charge of refusal to bargain collectively against the union. The charge was based upon actions of the union and its members outside the conference room, occurring after the old contract expired in March. The union had announced in February that if agreement on the terms of the new contract was not reached when the old contract expired, the union members would then participate in a 'Work Without a Contract' program—which meant that they would engage in certain planned, concerted on-the-job activities designed to harass the company.
5
A complaint of violation of § 8(b)(3) issued on the charge and hearings began before the bargaining was concluded.3 It was developed in the evidence that the union's harassing tactics involved activities by the member agents such as these: refusal for a time to solicit new business, and refusal (after the writing of new business was resumed) to comply with the company's reporting procedures; refusal to participate in the company's 'May Policyholders' Month Campaign'; reporting late at district offices the days the agents were scheduled to attend them, and refusing to perform customary duties at the offices, instead engaging there in 'sit-in-mornings,' 'doing what comes naturally' and leaving at noon as a group; absenting themselves from special business conferences arranged by the company; picketing and distributing leaflets outside the various offices of the company on specified days and hours as directed by the union; distributing leaflets each day to policyholders and others and soliciting policyholders' signatures on petitions directed to the company; and presenting the signed policyholders' petitions to the company at its home office while simultaneously engaging in mass demonstrations there.
6
The hearing examiner filed a report recommending that the complaint be dismissed. The examiner noted that the Board in the so-called Personal Products case, Textile Workers Union, 108 N.L.R.B. 743, had declared similar union activities to constitute a prohibited refusal to bargain; but since the Board's order in that case was set aside by the Court of Appeals for the District of Columbia Circuit, Textile Workers Union v. N.L.R.B., 97 U.S.App.D.C. 35, 227 F.2d 409, he did not consider that he was bound to follow it.
7
However, the Board on review adhered to its ruling in the Personal Products case, rejected the trial examiner's recommendation, and entered a cease-and-desist order, 119 N.L.R.B. 768. The Court of Appeals for the District of Columbia Circuit also adhered to its decision in the Personal Products case, and, as in that case, set aside the Board's order. 104 U.S.App.D.C. 218, 260 F.2d 736. We granted the Board's petition for certiorari to review the important question presented. 358 U.S. 944, 79 S.Ct. 352, 3 L.Ed.2d 351.
8
The hearing examiner found that there was nothing in the record, apart from the mentioned activities of the union during the negotiations, that could be relied upon to support an inference that the union had not fulfilled its statutory duty; in fact nothing else was relied upon by the Board's General Counsel in prosecuting the complaint.4 The hearing examiner's analysis of the congressional design in enacting the statutory duty to bargain led him to conclude that the Board was not authorized to find that such economically harassing activities constituted a § 8(b)(3) violation. The Board's opinion answers flatly 'We do not agree' and proceeds to say '* * * the Respondent's reliance upon harassing tactics during the course of negotiations for the avowed purpose of compelling the Company to capitulate to its terms is the antithesis of reasoned discussion it was duty-bound to follow. Indeed, it clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table where argument, persuasion, and the free interchange of views could take place. In such circumstances, the fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith * * *.' 119 N.L.R.B., at 769, 770—771. Thus the Board's view is that irrespective of the union's good faith in conferring with the employer at the bargaining table for the purpose and with the desire of reaching agreement on contract terms, its tactics during the course of the negotiations constituted per se a violation of § 8(b)(3).5 Accordingly, as is said in the Board's brief, 'The issue here * * * comes down to whether the Board is authorized under the Act to hold that such tactics, which the Act does not specifically forbid but Section 7 does not protect,6 support a finding of a failure to bargain in good faith as required by Section 8(b)(3).'
9
First. The bill which became the Wagner Act included no provision specifically imposing a duty on either party to bargain collectively. Senator Wagner thought that the bill required bargaining in good faith without such a provision.7 However, the Senate Committee in charge of the bill concluded that it was desirable to include a provision making it an unfair labor practice for an employer to refuse to bargain collectively in order to assure that the Act would achieve its primary objective of requiring an employer to recognize a union selected by his employees as their representative. It was believed that other rights guaranteed by the Act would not be meaningful if the employer was not under obligation to confer with the union in an effort to arrive at the terms of an agreement. It was said in the Senate Report:
10
'But, after deliberation, the committee has concluded that this fifth unfair labor practice should be inserted in the bill. It seems clear that a guarantee of the right of employees to bargain collectively through representatives of their own choosing is a mere delusion if it is not accompanied by the correlative duty on the part of the other party to recognize such representatives * * * and to negotiate with them in a bona fide effort to arrive at a collective bargaining agreement. Furthermore, the procedure of holding governmentally supervised elections to determine the choice of representatives of employees becomes of little worth if after the election its results are for all practical purposes ignored. Experience has proved that neither obedience to law nor respect for law is encouraged by holding forth a right unaccompanied by fulfillment. Such a course provokes constant strife, not peace.' S.Rep. No. 573, 74th Cong., 1st Sess., p. 12.
11
However, the nature of the duty to bargain in good faith thus imposed upon employers by § 8(5) of the original Act8 was not sweepingly conceived. The Chairman of the Senate Committee declared: 'When the employees have chosen their organization, when they have selected their representatives, all the bill proposes to do is to escort them to the door of their employer and say, 'Here they are, the legal representatives of your employees.' What happens behind those doors is not inquired into, and the bill does not seek to inquire into it.'9
12
The limitation implied by the last sentence has not been in practice maintained—practically, it could hardly have been—but the underlying purpose of the remark has remained the most basic purpose of the statutory provision. That purpose is the making effective of the duty of management to extend recognition to the union; the duty of management to bargain in good faith is essentially a corollary of its duty to recognize the union. Decisions under this provision reflect this. For example, an employer's unilateral wage increase during the bargaining processes tends to subvert the union's position as the representative of the employees in matters of this nature, and hence has been condemned as a practice violative of this statutory provision. See National Labor Relations Board v. Crompton-Highland Mills, Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320. And as suggested, the requirement of collective bargaining, although so premised, necessarily led beyond the door of, and into, the conference room. The first annual report of the Board declared: 'Collective bargaining is something more the mere meeting of an employer with the representatives of his employees; the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground. * * * The Board has repeatedly asserted that good faith on the part of the employer is an essential ingredient of collective bargaining.'10 This standard had early judicial approval, e.g., National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713. Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of 'take it or leave it'; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract. See Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309. This was the sort of recognition that Congress, in the Wagner Act, wanted extended to labor unions; recognition as the bargaining agent of the employees in a process that looked to the ordering of the parties' industrial relationship through the formation of a contract. See Local 24, International Brotherhood of Teamsters Union v. Oliver, 358 U.S. 283, 295, 79 S.Ct. 297, 304, 3 L.Ed.2d 312.
13
But at the same time, Congress was generally not concerned with the substantive terms on which the parties contracted. Cf. Terminal Railroad Ass'n v. Brotherhood of Railroad Trainmen, 318 U.S. 1, 6, 63 S.Ct. 420, 423, 87 L.Ed. 571. Obviously there is tension between the principle that the parties need not contract on any specific terms and a practical enforcement of the principle that they are bound to deal with each other in a serious attempt to resolve differences and reach a common ground. And in fact criticism of the Board's application of the 'good-faith' test arose from the belief that it was forcing employers to yield to union demands if they were to avoid a successful charge of unfair labor practice.11 Thus, in 1947 in Congress the fear was expressed that the Board had 'gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make.' H.R.Rep.No. 245, 80th Cong., 1st Sess., p. 19. Since the Board was not viewed by Congress as an agency which should exercise its powers to arbitrate the parties' substantive solutions of the issues in their bargaining, a check on this apprehended trend was provided by writing the good-faith test of bargaining into § 8(d) of the Act. That section defines collective bargaining as follows:
14
'For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession * * *.'12
15
The same problems as to whether positions taken at the bargaining table violate the good-faith test continue to arise under the Act as amended. See National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027; National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 722, 2 L.Ed.2d 823. But it remains clear that § 8(d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements. National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027.
16
Second. At the same time as it was statutorily defining the duty to bargain collectively, Congress, by adding § 8(b)(3) of the Act through the Taft-Hartley amendments, imposed that duty on labor organizations. Unions obviously are formed for the very purpose of bargaining collectively; but the legislative history makes it plain that Congress was wary of the position of some unions, and wanted to ensure that they would approach the bargaining table with the same attitude of willingness to reach an agreement as had been enjoined on management earlier. It intended to prevent employee representatives from putting forth the same 'take it or leave it' attitude that had been condemned in management. 93 Cong.Rec. 4135, 4363, 5005.13
17
Third. It is apparent from the legislative history of the whole Act that the policy of Congress is to impose a mutual duty upon the parties to confer in good faith with a desire to reach agreement, in the belief that such an approach from both sides of the table promotes the over-all design of achieving industrial peace. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893. Discussion conducted under that standard of good faith may narrow the issues, making the real demands of the parties clearer to each other, and perhaps to themselves, and may encourage an attitude of settlement through give and take. The mainstream of cases before the Board and in the courts reviewing its orders, under the provisions fixing the duty to bargain collectively, is concerned with insuring that the parties approach the bargaining table with this attitude. But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences. See Local 24, International Brotherhood of Teamsters Union v. Oliver, supra, 358 U.S. at page 295, 79 S.Ct. at page 304.
18
We believe that the Board's approach in this case—unless it can be defended, in terms of § 8(b)(3), as resting on some unique character of the union tactics involved here—must be taken as proceeding from an erroneous view of collective bargaining. It must be realized that collective bargaining, under a system where the Government does not attempt to control the results of negotiations, cannot be equated with an academic collective search for truth—or even with what might be thought to be the ideal of one. The parties—even granting the modification of views that may come from a realization of economic interdependence—still proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest. The system has not reached the ideal of the philosophic notion that perfect understanding among people would lead to perfect agreement among them on values. The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized. Abstract logical analysis might find inconsistency between the command of the statute to negotiate toward an agreement in good faith and the legitimacy of the use of economic weapons, frequently having the most serious effect upon individual workers and productive enterprises, to induce one party to come to the terms desired by the other. But the truth of the matter is that at the present statutory stage of our national labor relations policy, the two factors—necessity for good-faith bargaining between parties, and the availability of economic pressure devices to each to make the other party incline to agree on one's terms—exist side by side. One writer recognizes this by describing economic force as 'a prime motive power for agreements in free collective bargaining.'14 Doubtless one factor influences the other; there may be less need to apply economic pressure if the areas of controversy have been defined through discussion; and at the same time, negotiation positions are apt to be weak or strong in accordance with the degree of economic power the parties possess. A close student of our national labor relations laws writes: 'Collective bargaining is curiously ambivalent even today. In one aspect collective bargaining is a brute contest of economic power somewhat masked by polite manners and voluminous statistics. As the relation matures, Lilliputian bonds control the opposing concentrations of economic power; they lack legal sanctions but are nonetheless effective to contain the use of power. Initially it may be only fear of the economic consequences of disagreement that turns the parties to facts, reason, a sense of responsibility, a responsiveness to government and public opinion, and moral principle; but in time these forces generate their own compulsions, and negotiating a contract approaches the ideal of informed persuasion.' Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1409.
19
For similar reasons, we think the Board's approach involves an intrusion into the substantive aspects of the bargaining process—again, unless there is some specific warrant for its condemnation of the precise tactics involved here. The scope of § 8(b)(3) and the limitations on Board power which were the design of § 8(d) are exceeded, we hold, by inferring a lack of good faith not from any deficiencies of the union's performance at the bargaining table by reason of its attempted use of economic pressure, but solely and simply because tactics designed to exert economic pressure were employed during the course of the good-faith negotiations. Thus the Board in the guise of determining good or bad faith in negotiations could regulate what economic weapons a party might summon to its aid. And if the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract. As the parties' own devices became more limited, the Government might have to enter even more directly into the negotiation of collective agreements. Our labor policy is not presently erected on a foundation of government control of the results of negotiations. See S.Rep.No. 105, 80th Cong., 1st Sess., p. 2. Nor does it contain a charter for the National Labor Relations Board to act at large in equalizing disparities of bargaining power between employer and union.
20
Fourth. The use of economic pressure, as we have indicated, is of itself not at all inconsistent with the duty of bargaining in good faith. But in three cases in recent years, the Board has assumed the power to label particular union economic weapons inconsistent with that duty. See the Personal Products case,15 supra, 108 N.L.R.B. 743, set aside, Textile Workers Union v. N.L.R.B., 97 U.S.A.pp.D.C. 35, 227 F.2d 409;16 the Boone County case, United Mine Workers, 117 N.L.R.B. 1095, set aside, International Union, United Mine Workers v. N.L.R.B., 103 U.S.App.D.C. 207, 257 F.2d 211;17 and the present case. The Board freely (and we think correctly) conceded here that a 'total' strike called by the union would not have subjected it to sanctions under § 8(b)(3), at least if it were called after the old contract, with its no-strike clause, had expired. Cf. United Mine Workers, supra. The Board's opinion in the instant case is not so unequivocal as this concession (and therefore perhaps more logical).18 But in the light of it and the principles we have enunciated, we must evaluate the claim of the Board to power, under § 8(b)(3), to distinguish among various economic pressure tactics and brand the ones at bar inconsistent with good-faith collective bargaining. We conclude its claim is without foundation.19
21
(a) The Board contends that the distinction between a total strike and the conduct at bar is that a total strike is a concerted activity protected against employer interference by §§ 720 and 8(a)(1)21 of the Act, while the activity at bar is not a protected concerted activity. We may agree arguendo with the Board22 that this Court's decision in the Briggs-Stratton case, International Union, U.A.W., A.F. of L., Local 232 v. Wisconsin Employers Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651, establishes that the employee conduct here was not a protected concerted activity.23 On this assumption the employer could have discharged or taken other appropriate disciplinary action against the employees participating in these 'slow-down,' 'sit-in,' and arguably unprotected disloyal tactics. See National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627; National Labor Relations Board v. Local No. 1229, Intern. B. of Electrical Workers, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195. But surely that a union activity is not protected against disciplinary action does not mean that it constitutes a refusal to bargain in good faith. The reason why the ordinary economic strike is not evidence of a failure to bargain in good faith is not that it constitutes a protected activity but that, as we have developed, there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining. The Board suggests that since (on the assumption we make) the union members' activities here were unprotected, and they could have been discharged, the activities should also be deemed unfair labor practices, since thus the remedy of a cease-and-desist order, milder than mass discharges of personnel and less disruptive of commerce, would be available. The argument is not persuasive. There is little logic in assuming that because Congress was willing to allow employers to use self-help against union tactics, if they were willing to face the economic consequences of its use, it also impliedly declared these tactics unlawful as a matter of federal law. Our problem remains that of construing § 8(b)(3)'s terms, and we do not see how the availability of self-help to the employer has anything to do with the matter.
22
(b) The Board contends that because an orthodox 'total' strike is 'traditional' its use must be taken as being consistent with § 8(b)(3); but since the tactics here are not 'traditional' or 'normal,' they need not be so viewed.24 Further, the Board cites what it conceives to be the public's moral condemnation of the sort of employee tactics involved here. But again we cannot see how these distinctions can be made under a statute which simply enjoins a duty to bargain in good faith. Again, these are relevant arguments when the question is the scope of the concerted activities given affirmative protection by the Act. But as we have developed, the use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining. On this basis, we fail to see the relevance of whether the practice in question is time-honored or whether its exercise is generally supported by public opinion. It may be that the tactics used here deserve condemnation, but this would not justify attempting to pour that condemnation into a vessel not designed to hold it.25 The same may be said for the Board's contention that these activities, as opposed to a 'normal' strike, are inconsistent with § 8(b)(3) because they offer maximum pressure on the employer at minimum economic cost to the union. One may doubt whether this was so here,26 but the matter does not turn on that. Surely it cannot be said that the only economic weapons consistent with good-faith bargaining are those which minimize the pressure on the other party or maximize the disadvantage to the party using them. The catalog of union and employer27 weapons that might thus fall under ban would be most extensive.28
23
Fifth. These distinctions essayed by the Board here, and the lack of relationship to the statutory standard inherent in them, confirm us in our conclusion that the judgment of the Court of Appeals, setting aside the order of the Board, must be affirmed. For they make clear to us that when the Board moves in this area, with only § 8(b)(3) for support, it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly 'balanced'29 bargaining power, or some new distinction of justifiable and unjustifiable, proper and 'abusive'30 economic weapons into the collective bargaining duty imposed by the Act. The Board's assertion of power under § 8(b)(3) allows it to sit in judgment upon every economic weapon the parties to a labor contract negotiation employ, judging it on the very general standard of that section, not drafted with reference to specific forms of economic pressure. We have expressed our belief that this amounts to the Board's entrance into the substantive aspects of the bargaining process to an extent Congress has not countenanced.
24
It is one thing to say that the Board has been afforded flexibility to determine, for example, whether an employer's disciplinary action taken against specific workers is permissible or not, or whether a party's conduct at the bargaining table evidences a real desire to come into agreement. The statute in such areas clearly poses the problem to the Board for its solution. Cf. National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676. And specifically, we do not mean to question in any way the Board's powers to determine the latter question, drawing inferences from the conduct of the parties as a whole. It is quite another matter, however, to say that the Board has been afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful. Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions. See § 8(b)(4) of the National Labor Relations Act, as added by the Taft-Hartley Act, 61 Stat. 141, and as supplemented by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542; (29 U.S.C. § 158(b)(4)), 29 U.S.C.A. § 158(b)(4); § 8(b)(7), as added by the latter Act, 73 Stat. 544. But the activities here involved have never been specifically outlawed by Congress.31 To be sure, the express prohibitions of the Act are not exclusive—if there were any questions of a stratagem or device to evade the policies of the Act, the Board hardly would be powerless. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271. But it is clear to us that the Board needs a more specific charter than § 8(b)(3) before it can add to the Act's prohibitions here.
25
We recognize without hesitation the primary function and responsibility of the Board to resolve the conflicting interests that Congress has recognized in its labor legislation. Clearly, where the 'ultimate problem is the balancing of the conflicting legitimate interests' it must be remembered that 'The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.' National Labor Relations Board v. Truck Drivers Union, supra, 353 U.S. at page 96, 77 S.Ct. at page 648. Certainly a 'statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application.' Phelps Dodge Corp. v. National Labor Relations Board, supra, 313 U.S. at page 194, 61 S.Ct. at page 852. But recognition of the appropriate sphere of the administrative power here obviously cannot exclude all judicial review of the Board's actions. On the facts of this case we need not attempt a detailed delineation of the respective functions of court and agency in this area. We think the Board's resolution of the issues here amounted not to a resolution of interests which the Act had left to it for case-by-case adjudication, but to a movement into a new area of regulation which Congress had not committed to it. Where Congress has in the statute given the Board a question to answer, the courts will give respect to that answer; but they must be sure the question has been asked. We see no indication here that Congress has put it to the Board to define through its processes what economic sanctions might be permitted negotiating parties in an 'ideal' or 'balanced' state of collective bargaining.
26
It is suggested here that the time has come for a reevaluation of the basic content of collective bargaining as contemplated by the federal legislation. But that is for Congress. Congress has demonstrated its capacity to adjust the Nation's labor legislation to what, in its legislative judgment, constitutes the statutory pattern appropriate to the developing state of labor relations in the country. Major revisions of the basic statute were enacted in 1947 and 1959. To be sure, then, Congress might be of opinion that greater stress should be put on the role of 'pure' negotiation in settling labor disputes, to the extent of eliminating more and more economic weapons from the parties' grasp, and perhaps it might start with the ones involved here; or in consideration of the alternatives, it might shrink from such an undertaking. But Congress' policy has not yet moved to this point, and with only § 8(b)(3) to lean on, we do not see how the Board can do so on its own.32
27
Affirmed.
28
Separate opinion of Mr. Justice FRANKFURTER, which Mr. Justice HARLAN and Mr. Justice WHITTAKER join.
29
The sweep of the Court's opinion, with its far-reaching implications in a domain of lawmaking of such nationwide importance as that of legal control of collective bargaining, compels a separate statement of my views.
30
The conduct which underlies this action was the respondent union's 'Work Without a Contract' program which it admittedly initiated after the expiration of its contract with the Prudential Insurance Company on March 19, 1956. In brief, the union directed its members at various times to arrive late to work; to decline, by 'sitting-in' the company offices, to work according to their regular schedule; to refuse to write new business or, when writing it, not to report it in the ordinary fashion; to decline to attend special business meetings; to demonstrate before company offices; and to solicit petitions in the union's behalf from policyholders with whom they dealt. Prudential was given notice in advance of the details of this program and of the demands which the union sought to achieve by carrying it out.
31
This action was commenced by a complaint issued on June 5, 1956, alleging respondent's failure to bargain in good faith. After a hearing, the Trial Examiner recommended that the complaint be dismissed, finding that '(f)rom the 'circumstantial evidence' (of the union's state of mind) of the bargaining itself * * * but one inference is possible * * * the Union's motive was one of good faith . . .'; and that 'whatever inference may be as reasonably drawn from the Union's concurrent 'unprotected' activities' is not sufficient to outweigh this evidence of good faith.
32
The Board sustained exceptions to the Trial Examiner's report, concluding that respondent failed to bargain in good faith. The only facts relied on by the Board were based on the 'Work Without a Contract' program. The Board found that such tactics on respondent's part 'clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table' and that respondent therefore failed to bargain in good faith. In support of its conclusion of want of bargaining in good faith, the Board stated that '(h) arassing activities are plainly 'irreconcilable with the Act's requirement of reasoned discussion in a background of balanced bargaining relations upon which good-faith bargaining must rest' * * *.' The Board made no finding that the outward course of the negotiations gave rise to an inference that respondent's state of mind was one of unwillingness to reach agreement. It found from the character of respondent's activities in carrying out the 'Work Without a Contract' program that what appeared to be good faith bargaining at the bargaining table was in fact a sham:
33
'(T)he fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith, as the Respondent argues and the Trial Examiner believes. At most, it demonstrates that the Respondent was prepared to go through the motions of bargaining while relying upon a campaign of harassing tactics to disrupt the Company's business to achieve acceptance of its contractual demands.'
34
The Board issued a cease-and-desist order1 and sought its enforcement in the Court of Appeals for the District of Columbia. Respondent cross-petitioned to set it aside. The Court of Appeals, relying exclusively on its prior decision in Textile Workers Union v. National Labor Relations Board, 1955, 97 U.S.App.D.C. 35, 227 F.2d 409, denied enforcement and set aside the order. In the Textile Workers case the court had held (one judge dissenting) that the Board could not consider the 'harassing' activities of the union there involved as evidence of lack of good faith during the negotiations. 'There is not the slightest inconsistency between genuine desire to come to an agreement and use of economic pressure to get the kind of agreement one wants.' 97 U.S.App.D.C. 35, 36, 227 F.2d 409, 410.
35
The record presents two different grounds for the Board's action in this case. The Board's own opinion proceeds in terms of an examination of respondent's conduct as it bears upon the genuineness of its bargaining in the negotiation proceedings. From the respondent's conduct the Board drew the inference that respondent's state of mind was inimical to reaching an agreement, and that inference alone supported its conclusion of a refusal to bargain. The Board's position in this Court proceeded in terms of the relation of conduct such as respondent's to the kind of bargaining required by the statute, without regard to the bearing of such conduct on the proof of good faith revealed by the actual bargaining. The Board maintained that it
36
'could appropriately determine that the basic statutory purpose of promoting industrial peace through the collective bargaining process would be defeated by sanctioning resort to this form of industrial warfare as a collective bargaining technique.' The opinion of this Court, like that of the Court of Appeals, disposes of both questions by a single broad stroke. It concludes that conduct designed to exert pressure on the bargaining situation with the aim of achieving favorable results is to be deemed entirely consistent with the duty to bargain in good faith. No evidentiary significance, not even an inference of a lack of good faith, is allowed to be drawn from the conduct in question as part of a total context.
37
I agree that the position taken by the Board here is not tenable. In enforcing the duty to bargain the Board must find the ultimate fact whether, in the case before it and in the context of all its circumstances, the respondent has engaged in bargaining without the sincere desire to reach agreement which the Act commands. I further agree that the Board's action in this case is not sustainable as resting upon a determination that respondent's apparent bargaining was in fact a sham, because the evidence is insufficient to justify that conclusion even giving the Board, as we must, every benefit of its right to draw on its experience in interpreting the industrial significance of the facts of a record. See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. What the Board has in fact done is lay down a rule of law that such conduct as was involved in carrying out the 'Work Without a Contract' program necessarily betokens bad faith in the negotiations.
38
The Court's opinion rests its conclusion on the generalization that 'the ordinary economic strike is not evidence of a failure to bargain in good faith * * * (because) there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining.' This large statement is justified solely by reference to § 8(b)(3) and to the proposition that inherent in bargaining is room for the play of forces which reveal the strength of one party, or the weakness of the other, in the economic context in which they seek agreement. But in determining the state of mind of a party to collective bargaining negotiations the Board does not deal in terms of abstract 'economic pressure.' It must proceed in terms of specific conduct which it weighs as a more or less reliable manifestation of the state of mind with which bargaining is conducted. No conduct in the complex context of bargaining for a labor agreement can profitably be reduced to such an abstraction as 'economic pressure.' An exertion of 'economic pressure' may at the same time be part of a concerted effort to evade or disrupt a normal course of negotiations. Vital differences in conduct, varying in character and effect from mild persuasion to destructive, albeit 'economic,' violence2 are obscured under cover of a single abstract phrase.
39
While § 8(b)(3) of course contemplates some play of 'economic pressure,' it does not follow that the purpose in engaging in tactics designed to exert it is to reach agreement through the bargaining process in the manner which the statute commands, so that the Board is precluded from considering such conduct, in the totality of circumstances, as evidence of the actual state of mind of the actor. Surely to deny this scope for allowable judgment to the Board is to deny it the special function with which it has been entrusted. See Universal Camera Corp. v. National Labor Relations Board, supra. This Court has in the past declined to pre-empt by broad proscriptions the Board's competence in the first instance to weigh the significance of the raw facts of conduct and to draw from them an informed judgment as to the ultimate fact. It has recognized that the significance of conduct, itself apparently innocent and evidently insufficient to sustain a findings of an unfair labor practice, 'may be altered by imponderable subtleties at work which it is not our function to appraise' but which are, first, for the Board's consideration upon all the evidence. National Labor Relations Board v. Virginia Elec. & Power Co., 314 U.S. 469, 479, 62 S.Ct. 344, 349, 86 L.Ed. 348. Activities in isolation may be wholly innocent, lawful and 'protected' by the Act, but that ought not to bar the Board from finding, if the record justifies it, that the isolated parts 'are bound together as the parts of a single plan (to frustrate agreement). The plan may make the parts unlawful.' Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518. See also Aikens v. State of Wisconsin, 195 U.S. 194, 206, 25 S.Ct. 3, 6, 49 L.Ed. 154.
40
Moreover, conduct designed to exert and exerting 'economic pressure' may not have the shelter of § 8(b)(3) even in isolation. Unlawful violence, whether to person or livelihood, to secure acceptance of an offer, is as much a withdrawal of included statutory subjects from bargaining as the 'take it or leave it' attitude which the statute clearly condemns.3 One need not romanticize the community of interest between employers and employees, or be unmindful of the conflict between them, to recognize that utilization of what in one set of circumstances may only signify resort to the traditional weapons of labor may in another and relevant context offend the attitude toward bargaining commanded by the statute. Section 8(b)(3) is not a specific direction, but an expression of a governing viewpoint or policy to which, by the process of specific application, the Board and the courts must give concrete, not doctrinaire content.
41
The main purpose of the Wagner Act was to put the force of law behind the promotion of unionism as the legitimate and necessary instrument 'to give laborers opportunity to deal on equality with their employer.' Mr. Chief Justice Taft for the Court, in American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189. Equality of bargaining power between capital and labor, to use the conventional terminology of our predominant economic system, was the aim of this legislation. The presupposition of collective bargaining was the progressive enlargement of the area of reason in the process of bargaining through the give-and-take of discussion and enforcing machinery within industry, in order to substitute, in the language of Mr. Justice Brandeis, 'processes of justice for the more primitive method of trial by combat.' Duplex Printing Press Co. v. Deering, 254 U.S. 443, 488, 41 S.Ct. 172, 184, 65 L.Ed. 349 (dissenting). Promotion of unionism by the Wagner Act, with the resulting progress of rational collective bargaining, has been gathering momentum for a quarter of a century. In view of the economic and political strength which has thereby come to unions, interpretations of the Act ought not to proceed on the assumption that it actively throws its weight on the side of unionism in order to redress an assumed inequality of bargaining power. For the Court to fashion the rules governing collective bargaining on the assumption that the power and position of labor unions and their solidarity are what they were twenty-five years ago, is to fashion law on the basis of unreality. Accretion of power may carry with it increasing responsibility for the manner of its exercise.
42
Therefore, in the unfolding of law in this field it should not be the inexorable premise that the process of collective bargaining is by its nature a bellicose process. The broadly phrased terms of the Taft-Hartley Act should be applied to carry out the broadly conceived policies of the Act. At the core of the promotion of collective bargaining, which was the chief means by which the great social purposes of the National Labor Relations Act were sought to be furthered, is a purpose to discourage, more and more, industrial combatants from pressing their demands by all available means to the limits of the justification of self-interest. This calls for appropriate judicial construction of existing legislation. The statute lays its emphasis upon reason and a willingness to employ it as the dominant force in bargaining. That emphasis is respected by declining to take as a postulate of the duty to bargain that the legally impermissible exertions of so-called economic pressure must be restricted to the crudities of brute force. Cf. National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627.
43
However, it of course does not follow because the Board may find in tactics short of violence evidence that a party means not to bargain in good faith that every such finding must be sustained. Section 8(b)(3) itself, as previously construed by the Board and this Court and as amplified by § 8(d), provides a substantial limitation on the Board's becoming, as the Court fears, merely 'an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands.' The Board's function in the enforcement of the duty to bargain does not end when it has properly drawn an inference unfavorable to the respondent from particular conduct. It must weigh that inference as part of the totality of inferences which may appropriately be drawn from the entire conduct of the respondent, particularly its conduct at the bargaining table. The state of mind with which the party charged with a refusal to bargain entered into and participated in the bargaining process is the ultimate issue upon which alone the Board must act in each case, and on the sufficiency of the whole record to justify its decision the courts must pass. National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027.
44
The Board urges that this Court has approved its enforcement of § 8(b)(3) by the outlawry of conduct per se, and without regard to ascertainment of a state of mind. It relies upon four cases: H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309; National Labor Relations Board v. Crompton-Highland Mills, 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320; National Labor Relations Board v. F. W. Woolworth Co., 352 U.S. 938, 77 S.Ct. 261, 1 L.Ed.2d 235; and National Labor Relations Board v. Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823. These cases do not sustain its position. While it is plain that the per se proscription of an employer's refusal to reduce a collective agreement to writing was approved in the Heinz case, it is equally plain from its opinion in that case as well as its argument before this Court that the Board itself regarded the act of refusal to agree to the integration of the agreement in a writing as a manifestation that the employer's state of mind was hostile to agreement with the union. This Court so regarded the evidence. 311 U.S. at pages 525—526, 61 S.Ct. at page 325. Decision in the Borg-Warner case proceeded from a similar premise. By forcing a deadlock upon a non-statutory subject of bargaining the employer manifested his intention to withdraw the statutory subjects from bargaining. The Crompton-Highland decision rested not on approval of a per se rule that unilateral changes of the conditions of employment by an employer during bargaining constitute a refusal to bargain, but upon the inferences of a lack of good faith which arose from the facts, among others, that the employer instituted a greater increase than it had offered the union and that it did so without consulting the union. Finally, no such conclusion as the Board urges can be drawn from the summary disposition of the Woolworth case here.4 To the extent that in any of these cases language referred to a per se proscription of conduct it was in relation to facts strongly indicating a lack of a sincere desire to reach agreement.
45
Moreover, in undertaking to fashion the law of collective bargaining in this case in accordance with the command of § 8(b)(3), the Board has considered § 8(b)(3) in isolation, as if it were an independent provision of law, and not a part of a reticulated legislative scheme with interlacing purposes. It is the purposes to be drawn from the statute in its entirely, with due regard to all its interrelated provisions, in relation to which § 8(b)(3) is to be applied. Cf. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972. A pertinent restraint on the Board's power to consider as inimical to fair bargaining the exercise of the 'economic' weapons of labor is expressed in the Act by § 13:5
46
'Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.'
47
Section 501(2) of the Labor Management Relations Act provides a definition of 'strike':6
48
'When used in this Act—* * * (2) The term 'strike' includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slowdown or other concerted interruption of operations by employees.'
49
As the last clause of § 13 makes plain, the section does not recognize an unqualified right, free of Board interference, to engage in 'strikes,' as respondent contends. The Senate Report7 dealing with the addition of the clause to the section confirms that its purpose was to approve the elaboration of limitations on the right to engage in activities nominally within the definition of § 501(2) which this Court had heretofore developed in such cases as National Labor Relations Board v. Fansteel Metallurgical Corp., supra; National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; and Southern S.S. Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246. But 'limitations and qualifications' do not extinguish the rule. For the Board to proceed, as it apparently claims power to do, against conduct which, but for the bargaining context in which it occurs, would not be within those limitations,8 it must rely upon the specific grant of power to enforce the duty to bargain which is contained in § 8(b)(3). In construing that section the policy of the rule of construction set forth by § 13, see International Union, U.A.W., A.F. of L., Local 232 v. Wisconsin Board, 336 U.S. 245, 259, 69 S.Ct. 516, 524, must be taken into account. In the light of that policy there is no justification for divorcing from the total bargaining situation particular tactics which the Board finds undesirable, without regard to the actual conduct of bargaining in the case before it.
50
The scope of the permission embodied in § 13 must be considered by the Board in determining, under a proper rule of law, whether the totality of the respondent's conduct justifies the conclusion that it has violated the 'specific' command of § 8(b)(3). When the Board emphasizes tactics outside the negotiations themselves as the basis of the conclusion that the color of illegitimacy is imparted to otherwise apparently bona fide negotiations, § 13 becomes relevant. A total, peaceful strike in compliance with the requirements of § 8(d) would plainly not suffice to sustain the conclusion; prolonged union-sponsored violence directed at the company to secure compliance as plainly would. Here, as in so many legal situations of different gradations, drawing the line between them is not an abstract, speculative enterprise. Where the line ought to be drawn should await the decision of particular cases by the Board. It involves experienced judgment regarding the justification of the means and the severity of the effect of particular conduct in the specialized context of bargaining.
51
Section 8(d), which was added in the amendments of 1947, is also inconsistent with the Board's claim of power to proscribe conduct without regard to the state of mind with which the actor participated in negotiations. The 1935 Act did not define the 'practice and procedure of collective bargaining' which it purposed to 'encourage.' Act of July 5, 1935, § 1, 49 Stat. 449. That definition, until 1947, was evolved by the Board and the courts in the light of experience in the administration of the Act. See, e.g., H. J. Heinz Co. v. National Labor Relations Board, supra. In 1947, after considerable controversy over the need to objectify the elements of the duty to bargain, § 8(d) was enacted. We have held that the history of that enactment demonstrates an intention to restrain the Board's power to regulate, whether directly or indirectly, the substantive terms of collective agreements. National Labor Relations Board v. American National Ins. Co., supra, 343 U.S. at page 404, 72 S.Ct. at page 829. In the same case we recognized that implicit in that purpose is a restraint upon the Board's proceeding by the proscription of conduct per se and without regard to inferences as to state of mind to be drawn from the totality of the conduct in each case. Id., 343 U.S. at page 409, 72 S.Ct. at page 832.
52
Finally, it is not disputed that the duty to bargain imposed on unions in 1947 was the same as that previously imposed on employers, and it is therefore not without significance for its present assertion of power that for 25 years of administration of the employer's duty to bargain, which was imposed by the Act of 1935 and preserved by the amendments of 1947, the Board has not found it necessary to assert that it may proscribe conduct as undesirable in bargaining without regard to the actual course of the negotiations. See Federal Trade Comm. v. Bunte Bros., 312 U.S. 349, 351—352, 61 S.Ct. 580, 581—582, 85 L.Ed. 881.
53
These considerations govern the disposition of the case before the Court. Viewed as a determination upon all the evidence that the respondent bargained without the sincere desire to compose differences and reach agreement which the statute commands, the Board's conclusion must fall for want of support in the evidence as a whole. See Universal Camera Corp. v. National Labor Relations Board, supra. Apart from any restraint upon its conclusion imposed by § 13, a matter which the Board did not consider, no reason is manifest why the respondent's nuisance tactics here should be thought a sufficient basis for the conclusion that all its bargaining was in reality a sham. On this record it does not appear that respondent merely stalled at the bargaining table until its conduct outside the negotiations might force Prudential to capitulate to its demands, nor does any other evidence give the color of pretence to its negotiating procedure. From the conduct of its counsel before the Trial Examiner, and from its opinion, it is apparent that the Board proceeded upon the belief that respondent's tactics were, without more, sufficient evidence of a lack of a sincere desire to reach agreement to make other consideration of its conduct unnecessary. For that reason the case should be remanded to the Board for further opportunity to introduce pertinent evidence, if any there be, of respondent's lack of good faith.
54
Viewed as a determination by the Board that it could, quite apart from respondent's state of mind, proscribe its tactics because they were not 'traditional,' or were thought to be subject to public disapproval, or because employees who engaged in them may have been subject to discharge, the Board's conclusion proceeds from the application of an erroneous rule of law.
55
The decision of the Court of Appeals should be vacated, and the case remanded to the Board for further proceedings consistent with these views.
1
As added by the Labor Management Relations Act, 1947 (the Taft-Hartley Act), 61 Stat. 141, 29 U.S.C. § 158(b)(3), 29 U.S.C.A. § 158(b)(3).
2
A stenographic record of the discussions at the bargaining table was kept, and the transcription of it fills 72 volumes.
3
The hearings on the unfair labor practice charge were recessed in July to allow the parties to concentrate on the effort to negotiate the settlement which was arrived at in the new contract of July 17, 1956.
4
Examining the matter de novo without the Personal Products decision of the Board as precedent, the examiner called repeatedly upon the Board's General Counsel for some evidence of failure to bargain in good faith, besides the harassing tactics themselves. When such evidence was not forthcoming, he commented, 'It may well be that the Board will be able to 'objectively evaluate' the 'impact' of activities upon 'collective-bargaining negotiations' from the mere 'nature of the activities,' but the Trial Examiner is reluctant even to attempt this feat of mental pole vaulting with only presumption as a pole.' 119 N.L.R.B., at 781—782.
5
The Board observed that the union's continued participation in negotiations and desire to reach an agreement only indicated that it 'was prepared to go through the motions of bargaining while relying upon a compaign of harassing tactics to disrupt the Company's business to achieve acceptance of its contractual demands.' 119 N.L.R.B., at 771. The only apparent basis for the conclusion that the union was only going through the 'motions' of bargaining is the Board's own postulate that the tactics in question were inconsistent with the statutorily required norm of collective bargaining, and the Board's opinion, and its context, reveal that this was all that it meant. This per se rule amounted to the 'pole vaulting' that the examiner said he was 'reluctant even to attempt.' See note 4, supra.
6
We will assume without deciding that the activities in question here were not 'protected' under § 7 of the Act. See 361 U.S. 492, 80 S.Ct. 429, and note 22, infra.
7
See Hearings before the Senate Committee on Education and Labor on S.1958, 74th Cong., 1st Sess., p. 43: 'Therefore, while the bill does not state specifically the duty of an employer to recognize and bargain collectively with the representatives of his employees, because of the difficulty of setting forth this matter precisely in statutory language, such a duty is clearly implicit in the bill.'
8
49 Stat. 453. The corresponding provision in the current form of the Act is § 8(a)(5), 61 Stat. 141, 29 U.S.C. § 158(a)(5), 29 U.S.C.A. § 158(a)(5).
9
Senator Walsh, at 79 Cong.Rec. 7660.
10
1 N.L.R.B.Ann.Rep., pp. 85—86.
11
This Court related the history in National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027.
12
61 Stat. 142, 29 U.S.C. § 158(d), 29 U.S.C.A. § 158(d).
13
Senator Ellender was most explicit on the matter at 93 Cong.Rec. 4135.
The legislative history seems also to have contemplated that the provision would be applicable to a union which declined to identify its bargaining demands while attempting financially to exhaust the employer. See the remark by Senator Hatch at 93 Cong.Rec. 5005. Cf. note 15, infra. A closely related application is developed in American Newspaper Publishers Ass'n v. National Labor Relations Board, 7 Cir., 193 F.2d 782, 804—805, affirmed as to other issues on limited grant of certiorari, 345 U.S. 100, 73 S.Ct. 552, 97 L.Ed. 852.
14
G. W. Taylor, Government Regulation of Industrial Relations, p. 18.
15
The facts in Personal Products did, in the Board's view, present the case of a union which was using economic pressure against an employer in a bargaining situation without identifying what its bargaining demands were—a matter which can be viewed quite differently in terms of a § 8(b)(3) violation from the present case. See note 13, supra. The Board's decision in Personal Products may have turned on this to some extent, see 108 N.L.R.B., at 746; but its decision in the instant case seems to view Personal Products as turning on the same point as does the present case.
16
This Court granted certiorari, 350 U.S. 1004, 76 S.Ct. 650, 100 L.Ed. 867, on the Board's petition, to review that judgment; but in the light of intervening circumstances which at least indicated that the litigation had become less meaningful to the parties, cf. The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 79 S.Ct. 710, 3 L.Ed.2d 723, the order granting certiorari was vacated and certiorari was denied. 352 U.S. 864, 77 S.Ct. 90, 1 L.Ed.2d 73.
17
The court there displayed a want of sympathy to the Board's theory that a strike in breach of contract violated § 8(b)(3), see 103 U.S.App.D.D., at pages 210—211, 257 F.2d at pages 214—215. Cf. Feinsinger, The National Labor Relations Act and Collective Bargaining, 57 Mich.L.Rev. 806—807. However, the court turned its decision on its ruling, contra the Board, that there was no breach of the contract involved. On this point, contra is United Mine Workers v. Benedict Coal Corp., 6 Cir., 259 F.2d 346, 351, affirmed this day by an equally divided Court, 361 U.S. 459, 80 S.Ct. 489.
18
Said the Board: 'Consequently, whether or not an inference of bad faith is permissible where a union engages in a protected strike to enforce its demands, there is nothing unreasonable in drawing such an inference where, as here, the union's conduct is not sanctioned by the Act.' 119 N.L.R.B., at 771—772.
19
Our holding on this ground makes it unnecessary for us to pass on the other grounds for affirmance of the Court of Appeals' judgment urged by respondent. These we take to include the argument that the Board's order violated the standards of § 8(c) of the Act, 61 Stat. 142, 29 U.S.C. § 158(c), 29 U.S.C.A. § 158(c), and the points touched upon in notes 22 and 23, infra.
20
'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 * * *.' 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. § 157, 29 U.S.C.A. § 157.
21
'It shall be an unfair labor practice for an employer—(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 * * *.' 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. § 158(a) (1), 29 U.S.C.A. § 158(a)(1).
22
Respondent cites a number of specific circumstances in the activities here that might distinguish them from the Briggs-Stratton case as to protection under § 7. We do not pass on the matter.
23
Briggs-Stratton held, among other things, that employee conduct quite similar to the conduct at bar was neither protected by § 7 of the Act nor prohibited (made an unfair labor practice) by § 8. The respondent urges that the holding there that the conduct was not prohibited by § 8 in and of itself requires an affirmance of the judgment here, since in this case the Board's order found a violation of § 8. In fact the Board's General Counsel on oral argument made the concession that Briggs-Stratton would have to be overruled for the Board to prevail here.
But regardless of the status today of the other substantive rulings in the Briggs-Stratton case, we cannot say that the case's holding as to § 8 requires a judgment for the respondent here. Briggs-Stratton was a direct review on certiorari here of a state board order, as modified and affirmed in the State Supreme Court, against the union conduct in question. The order was assailed by the union here primarily as being beyond the competence of the State to make, by reason of the federal labor relations statutes. This Court held that the activities in question were neither protected by § 7 nor prohibited by § 8, and allowed the state order to stand. The primary focus of attention was whether the activities were protected by § 7; there seems to have been no serious contention made that they were prohibited by § 8. The case arose long before the line of cases beginning with Personal Products in which the Board began to relate such activities to § 8(b)(3). But of special significance is the fact that the approach to pre-emption taken in Briggs-Stratton was that the state courts and this Court on review were required to decide whether the activities were either protected by § 7 or prohibited by § 8. This approach is 'no longer of general application,' San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, note 4, 79 S.Ct. 773, 780, 3 L.Ed.2d 775, as this Court has since developed the doctrine in pre-emption cases that questions of interpretation of the National Labor Relations Act are generally committed in the first instance to the Board's administrative processes, San Diego Building Trades Council v. Garmon, supra, except in the atypical situation where those processes are not relevant to an answer to the question. See Local 24, International Brotherhood of Teamsters Union v. Oliver, supra. Therefore to view Briggs-Stratton as controlling on the § 8 issue here would be to compound the defects of a now discarded approach to pre-emption; it would amount to
saying that the Board would be foreclosed in its adjudicative development of interpretation of the Act by a decision rendered long ago, not arising in review of one of its own orders, at a time when its own views had not come to what they now are, and in which the precise issue (as to § 8(b)(3)) was not litigated at all, and the general § 8 issue not litigated seriously. Hence we construe § 8 here uninfluenced by what was said in Briggs-Stratton.
However, we will not here re-examine what was said in Briggs-Stratton as to §§ 13 and 501. The union here contends that the definition of 'strike' in § 501(2) of the Taft-Hartley Act, 61 Stat. 161, 29 U.S.C. § 142(2), 29 U.S.C.A. § 142(2), which is broad enough to include the activities here in question, must be applied here under § 13 of the N.L.R.A., which provides that 'Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.' 49 Stat. 457, as amended, 61 Stat. 151, 29 U.S.C. § 163, 29 U.S.C.A. § 163. And if it is so applied, the union argues that § 13 would prevent the Board from considering the conduct in question as an unfair labor practice. The issue was tendered in much the same light in Briggs-Stratton, and the Court quite plainly indicated that the definition in § 501(2) was only to be considered in connection with § 8(b)(4) and not with § 13, see 336 U.S., at pages 258—263, 69 S.Ct. at pages 523—526, especially the last page; at the very least this was a holding alternative to a holding, 336 U.S. at pages 263—264, 69 S.Ct. at page 526, that, however defined, § 13, unlike § 7, was not an inhibition on state power. Perhaps this element of the Briggs-Stratton decision has become open also, but certainly this is not so clear as is the fact that the § 8 point is open. In any event, we shall not consider the matter further since our affirmance of the Court of Appeals' reversal of the Board's order is, we believe, more properly bottomed on a construction of § 8(b)(3).
24
The Board quotes, in support of this, general language from a decision of this Court, Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 346, 64 S.Ct. 582, 585, 88 L.Ed. 788, dealing with a wholly different matter-the scope of subjects appropriate for collective bargaining.
25
'To say 'there ought to be a law against it' does not demonstrate the propriety of the NLRB's imposing the prohibition.' Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1437.
26
Though it is much urged in the Board's brief here as a general proposition, the Board's opinion (following its per se approach) contains no discussion of this point at all insofar as the facts of the case were concerned; it did not discuss the economic effect of the activities on the agents themselves and expressly declined to pass on their effect on the employer. 119 N.L.R.B., at 771. Respondent here urges that the evidence establishes quite the opposite conclusion.
27
'If relative power be the proper test, surely one who believed the unions to be weak would come to the opposite conclusion. Is it an abuse of 'bargaining powers' to threaten a strike at a department store two weeks before Easter instead of engaging in further discussion, postponing the strike until after Easter when the employer will feel it less severely? Is it unfair for an employer to stall negotiations through a busy season or while he is building up inventory so that he can stand a strike better than the workers?' Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401, 1440—1441.
28
There is a suggestion in the Board's opinion that it regarded the union tactics as a unilateral setting of the terms and conditions of employment and hence also on this basis violative of § 8(b)(3), just as an employer's unilateral setting of employment terms during collective bargaining may amount to a breach of its duty to bargain collectively. National Labor Relations Board v. Crompton-Highland Mills, Inc., 337 U.S. 217, 69 S.Ct. 960, 93 L.Ed. 1320. See 119 N.L.R.B., at 772. Prudential, as amicus curiae here, renews this point though the Board does not make it here. It seems baseless to us. There was no indication that the practices that the union was engaging in were designed to be permanent conditions of work. They were rather means to another end. The question whether union conduct could be treated, analogously to employer conduct, as unilaterally establishing working conditions, in a manner violative of the duty to bargain collectively, might be raised for example by the case of a union, anxious to secure a reduction of the working day from eight to seven hours, which instructed its members, during the negotiation process, to quit work an hour early daily. Cf. Note, 71 Harv.L.Rev. 502, 509. But this situation is not presented here, and we leave the question open.
29
The Board's opinion interprets the National Labor Relations Act to require, in this particular, 'a background of balanced bargaining relations.' 119 N.L.R.B., at 772.
30
The Board in Personal Products condemned the union's tactics as an 'abuse of the Union's bargaining powers.' 108 N.L.R.B., at 746.
31
It might be noted that the House bill, when the Taft-Hartley Act was in the legislative process, contained a list of 'unlawful concerted activities' one of which would quite likely have reached some of the union conduct here, but the provision never became law. H.R. 3020, 80th Cong., 1st Sess., § 12.
32
After we granted certiorari, we postponed to the consideration of the case on the merits a motion by the Board to join as a party a here Insurance Workers International Union, AFL CIO, the style of a new union formed by merger of respondent and another union after the decision of this case in the Court of Appeals, and a contingent motion by respondent that it be deleted as a party. 361 U.S. 872, 80 S.Ct. 137, 4 L.Ed.2d 112. In the light of our ruling on the merits, there is little point in determining here and now what the legal status of the predecessor and successor union is, and if the issue ever becomes important, we think that the matter is best decided then. For what it is worth, we shall treat both as parties before us in this proceeding. The Board's motion is granted and respondent's is denied. See National Labor Relations Board v. Lion Oil Co., 352 U.S. 282, 77 S.Ct. 330, 1 L.Ed.2d 331.
1
The order in part provided: '(T)he Respondent * * * shall: 1. Cease and desist from refusing to bargain collectively in good faith with The Prudential Insurance Company of America * * * by authorizing, directing, supporting, inducing or encouraging the Company's employees to engage in slowdowns, harassing activities or other unprotected conduct, in the course of their employment and in disregard of their duties and customary routines, for the purpose of forcing the Company to accept its bargaining demands, or from engaging in any like or related conduct in derogation of its statutory duty to bargain * * *.'
2
'There are plenty of methods of coercion short of actual physical violence.' Senator Taft, at 93 Cong.Rec. 4024.
3
As the Court states, the prevention of union conduct designed to enforce such an attitude was a primary purpose of the enactment of § 8(b)(3). See, e.g., 93 Cong. Rec. 4135.
4
The Court held that 'The Board acted within its allowable discretion in finding that under the circumstances of this case failure to furnish the wage information constituted an unfair labor practice.' (352 U.S. 938, 77 S.Ct. 261) It cited National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027; and in Truitt the entire Court was in agreement both that the withholding of wage information by the employer was weighty evidence of a lack of willingness to bargain sincerely, and that the judgment of the Board had to be predicated on all the facts pertinent to state of mind. 351 U.S. at pages 153, 155, 76 S.Ct. at pages 756, 757. Moreover, the lower court in the Woolworth case found that the Board had not proceeded by a per se determination, 9 Cir., 235 F.2d 319, 322, but that there was no basis for its conclusion that the information requested was relevant to administration of the agreement.
5
While the Board does consider these sections in connection with respondent's assertion that they afford protection to its conduct from Board regulation, see n. 8, infra, it does not consider their application as a rule of construction of § 8(b)(3).
6
Although I am in sympathy with the Court's conclusion that the construction of § 8 in this case is to be uninfluenced by what was said in International Union, U.A.W., A.F. of L., Local 232 v. Wisconsin Board, 336 U.S. 245, 69 S.Ct. 516, I do not agree that the case held that the definitions of § 501(2) are inapplicable to § 13. The question which the Court there considered was whether § 13, as defined in § 501(2), independently rendered activities within its terms immune from state regulation. The Court's observation that for § 501(2) to have so extended the force of § 13 would have been inconsistent with the purpose of the inclusion of the definition, which was to extend the Board's power with reference to the unfair labor practice defined by § 8(b)(4), 336 U.S. at page 263, 69 S.Ct. at page 526, was made in light of the contention that § 13 itself had the effect of precluding the States. The crux of the decision with regard to § 13 was that it announced no more than a rule of construction of the Federal Act. It was neither argued nor decided that § 501(2) does not apply to § 13. There appears to be no support for such a conclusion either in the text of the Act or in its legislative history. It is hardly conceivable that such a word as 'strike' could have been defined in these statutes without congressional realization of the obvious scope of its application.
7
S.Rep. No. 105, 80th Cong., 1st Sess. (1947), at p. 28. This provision of the Taft bill was adopted by the Conference. H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. (1947), at p. 59.
8
The Board urges that respondent's activities are not within the 'dispensation or protection' of § 13, because International Union, U.A.W., A.F. of L., Local 232 v. Wisconsin Board, 336 U.S. 245, 69 S.Ct. 516, held 'slowdowns' to be 'unprotected' activities subject to state regulation. The argument misreads the significance of that case as regards § 13. See n. 6, supra. Nor is it valid to assume that all conduct loosely described as a 'slowdown' has the same legal significance, or that union sponsorship of such conduct falls within the 'limitations or qualifications' on the right to strike incorporated in § 13 in every case in which employee participation in it would be 'unprotected' by § 7, and therefore subject to economic retaliation by the employer. See the portions of the Board's order quoted in n. 1, supra.
| 67
|
361 U.S. 376
80 S.Ct. 474
4 L.Ed.2d 384
PHILLIPS CHEMICAL COMPANY, Appellant,v.DUMAS INDEPENDENT SCHOOL DISTRICT.
No. 40.
Argued Nov. 17, 18, 1959.
Decided Feb. 23, 1960.
Mr. Clark M. Clifford, Washington, D.C., for appellant.
Mr. John F. Davis, Washington, D.C., for the United States, as amicus curiae, by invitation of the Court.
Mr. Jack N. Price for State of Texas, as amicus curiae, pro hac vice, by special leave of Court.
Mr. Earnest L. Langley for appellee.
Mr. CHIEF JUSTICE WARREN delivered the opinion of the Court.
1
In this case, among other issues which we need not reach, we are asked to decide whether a Texas tax statute, Article 5248 of the Revised Civil Statutes of Texas, as amended in 1950,1 discriminates unconstitutionally against the United States and those with whom it deals. We hold that it does.
2
Appellant, Phillips Chemical Company, engages in the commercial manufacture of ammonia on valuable industrial property leased from the Federal Government in Moore County, Texas. The lease, executed in 1948 pursuant to the Military Leasing Act of 1947, 61 Stat. 774, is for a primary term of 15 years and calls for an annual rental of over $1,000,000. However, it reserves to the Government the right to terminate upon 30 days' notice in the event of a national emergency and upon 90 days' notice in the event of a sale of the property.
3
In 1954, appellee, Dumas Independent School District, assessed a tax against Phillips for the years 1949 through 1954. The tax, measured by the estimated full value of the leased premises, was assessed in accordance with the District's ordinary ad valorem tax procedures.
4
When the District assessed the tax, Phillips commenced the present action in the state courts to enjoin its collection. Phillips contested both the District's right to levy the tax and the valuation figure upon which the amount of the tax was calculated. The latter issue was severed by the trial court for later decision and is not involved in this appeal. The lower state courts denied relief for the years subsequent to the effective date of the 1950 amendment to Article 5248, and on writ of error the Supreme Court of Texas, by a divided court, affirmed. 316 S.W.2d 382. Phillips appealed from the decision, and we noted probable jurisdiction. 359 U.S. 987, 79 S.Ct. 1118, 3 L.Ed.2d 977.
5
The District's power to levy the tax was found to lie in amended Article 5248. Before 1950, Article 5248 provided a general tax exemption for land and improvements 'held, owned, used and occupied by the United States' for public purposes. In 1950, the Texas Legislature added two provisions to Article 5248, one providing for taxation of privately owned personal property located on federal lands, and the other reading as follows:
6
'(P)rovided, further, that any portion of said lands and improvements which is used and occupied by any person, firm, association of persons or corporation in its private capacity, or which is being used or occupied in the conduct of any private business or enterprise, shall be subject to taxation by this State and its political subdivisions.'
7
As construed by a majority of the Texas court, this provision is an affirmative grant of authority to the State and its political subdivisions to tax private users of government realty. While the subject of the tax is the right to the use of the property, i.e., the leasehold, its measure is apparently the value of the fee.2 The constitutionality of the provision, thus construed, depended upon the court's interpretation of our decisions in the Michigan cases two Terms ago, where we held that a State might levy a tax on the private use of government property, measured by the full value of the property. United States v. City of Detroit, 355 U.S. 466, 78 S.Ct. 474, 2 L.Ed.2d 424; United States v. Township of Muskegon, 355 U.S. 484, 78 S.Ct. 483, 2 L.Ed.2d 436; cf. City of Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 458, 2 L.Ed.2d 441.
8
However, three members of the Texas court, joined by a fourth on petition for rehearing, were of the opinion that under the majority's construction the statute discriminates unconstitutionally against the United States and its lessees. Their conclusion rested on the fact that Article 7173 of the Revised Civil Statutes of Texas3 imposes a distinctly lesser burden on similarly situated lessees of exempt property owned by the State and its political subdivisions. We agree with the dissenters' conclusion.
9
Article 7173 is the only Texas statute other than Article 5248 which authorizes a tax on lessees. It provides in part that:
10
'Property held under a lease for a term of three years or more, or held under a contract for the purchase thereof, belonging to this State, or that is exempt by law from taxation in the hands of the owner thereof, shall be considered for all the purposes of taxation, as the property of the person so holding the same, except as otherwise specially provided by law.'
11
As construed by the Texas courts, Article 7173 is less burdensome than Article 5248 in three respects. First, the measure of a tax under Article 7173 is not the full value of leased tax-exempt premises, as it apparently is under Article 5248, but only the price the taxable leasehold would bring at a fair voluntary sale for cash—the value of the leasehold itself.4 Second, by its very terms, Article 7173 imposes no tax on a lessee whose lease is for a term of less than three years. Finally, and crucial here, a lease for three years or longer but subject—like Phillips'—to termination at the lessor's option in the event of a sale is not 'a lease for a term of three years or more' for purposes of Article 7173. Trammell v. Faught, 74 Tex. 557, 12 S.W. 317. Therefore, because of the termination provisions in its lease, Phillips could not be taxed under Article 7173.
12
Although Article 7173 is, in terms, applicable to all lessees who hold tax-exempt property under a lease for a term of three years or more, it appears that only lessees of public property fall within this class in Texas. Tax exemptions for real property owned by private organizations—charities, churches, and similar entities—do not survive a lease to a business lessee.5 The full value of the leased property becomes taxable to the owner, and the lessee's indirect burden consequently is as heavy as the burden imposed directly on federal lessees by Article 5248. Under these circumstances, there appears to be no discrimination between the Government's lessees and lessees of private property.
13
However, all lessees of exempt public lands would appear to belong to the class defined by Article 7173.6 In view of the fact that lessees in this class are taxed because they use exempt property for a nonexempt purpose, they appear to be similarly situated and presumably should be taxed alike. Yet by the amendment of Article 5248, the Texas Legislature segregated federal lessees and imposed on them a heavier tax burden than is imposed on the other members of the class by Article 7173. In this case the resulting difference in tax, attendant upon the identity of Phillips' lessor, is extreme; the State and the School District concede that Phillips would not be taxed at all if its lessor were the State or one of its political subdivisions instead of the Federal Government. The discrimination against the United States and its lessee seems apparent. The question, however, is whether it can be justified.
14
Phillips argues that because Article 5248 applies only to private users of federal property, it is invalid for that reason, without more. For this argument, it relies on Miller v. Milwaukee, 272 U.S. 713, 47 S.Ct. 280, 71 L.Ed. 487; see also Macallen Co. v. Massachusetts, 279 U.S. 620, 49 S.Ct. 432, 73 L.Ed. 874. Macallen might be deemed to support the argument, but to the extent that it does, it no longer has precedential value. See United States v. City of Detroit, supra, 355 U.S. at page 472, note 2, 78 S.Ct. at page 477. Miller was a rather different case. In Miller it was thought that a State had attempted indirectly to levy a tax on exempt income from government bonds. Phillips' use of the Government's property, by way of contrast, is not exempt. 10 U.S.C. § 2667(e), 10 U.S.C.A. § 2667(e);7 United States v. City of Detroit, supra. It is true that in Miller the ostensible incidence of the tax—shareholders' income from corporate dividends—was not itself exempt, but the measure of the tax excluded all income not attributable to federal bonds owned by the corporation; that was the defect in the tax.
15
See Pacific Co. v. Johnson, 285 U.S. 480, 493, 52 S.Ct. 424, 427, 76 L.Ed. 893. Therefore, in practical operation, the tax was either an indirect tax on the exempt income, or a discriminatory tax on shareholders of corporations which as bondholders, dealt with the Government. Thus, if Miller has any relevance here, it is only to the extent that it may support the proposition that a State may not single out those who deal with the Government, in one capacity or another, for a tax burden not imposed on others similarly situated.
16
A determination that Article 5248 is invalid, under this test, cannot rest merely on an examination of that article. It does not operate in a vacuum. First, it is necessary to determine how other taxpayers similarly situated are treated. Such a determination requires 'an examination of the whole tax structure of the state.' Cf. Tradesmens' National Bank v. Oklahoma Tax Comm., 309 U.S. 560, 568, 60 S.Ct. 688, 693, 84 L.Ed. 947. Although Macallen may have departed somewhat from this rule, nothing in Miller, at least as it has been interpreted in later cases, should be read as indicating that less is required. Cf. Educational Films Corp. v. Ward, 282 U.S. 379, 51 S.Ct. 170, 75 L.Ed. 400; Pacific Co. v. Johnson, 285 U.S. 480, 52 S.Ct. 424.
17
Therefore, we must focus on the nature of the classification erected by Articles 5248 and 7173. The imposition of a heavier tax burden on lessees of federal property than is imposed on lessees of other exempt public property must be justified by significant differences between the two classes. The School District addresses this problem, essentially, as one of equal protection, and argues that we must uphold the classification, though apparently discriminatory, 'if any state of facts reasonably can be conceived that would sustain it.' Allied Stores of Ohio, Inc., v. Bowers, 358 U.S. 522, 528, 79 S.Ct. 437, 441, 3 L.Ed.2d 480. The argument, in this context, turns on three supposed differences between the two classes. First, the School District and the State say that the State can collect in rent what it loses in taxes from its own lessees—something it cannot do, of course, with the Federal Government's lessees. Second, they argue that the State may legitimately foster its own interests by adopting measures which facilitate the leasing of its property. Finally, they claim that because of its allegedly greater magnitude, federal leasing of exempt land has a more serious impact on the finances and operations of local government than does the State's own leasing activities.
18
None of these considerations provides solid support for the classification. It is undoubtedly true, as a general proposition, that the State is free to adopt measures reasonably designed to facilitate the leasing of its own land. But if the incentive which it provides is in the form of a reduction in tax which discriminates against the Government's lessees, the question remains, is it permissible?
19
Likewise, it is not enough to say that the State can make up in rent what it loses in taxes from its lessees. What the State's political subdivisions lose in taxes from the State's lessees cannot be made up in this fashion. Other local taxpayers—including the Government's lessees—must make up the difference.
20
Nor is the classification here supported by the allegedly serious impact of federal leasing, as contrasted with state leasing, on the operations of local government. It is claimed, in this respect, that neither the State nor its subdivisions lease property exactly comparable—in size, value, or number of employees involved—to the ordnance works leased by Phillips from the Government. However, the classification erected by Article 5248 is not based on such factors. Article 5248 imposes its burdens on all lessees of federal property. It is conceded that the State and its subdivisions lease valuable property to commercial and business enterprises, as does the Federal Government. Warehouse facilities are an example.8 But the identity of the exempt lessor bears no relation to the impact on local government of otherwise identical leasing activities. Still, the variant tax consequences to the lessee, under Article 7173 on the one hand and Article 5248 on the other, differ widely.
21
It is true that perfection is by no means required under the equal protection test of permissible classification. But we have made it clear, in the equal protection cases, that our decisions in that field are not necessarily controlling where problems of intergovernmental tax immunity are involved. An Allied Stores of Ohio, Inc., v. Bowers, supra, for example, we noted that the State was 'dealing with (its) proper domestic concerns, and not trenching upon the prerogatives of the National Government.' 358 U.S. at page 526, 79 S.Ct. at page 440. When such is the case, the State's power to classify is, indeed, extremely broad, and its discretion is limited only by constitutional rights and by the doctrine that a classification may not be palpably arbitrary. Id., 358 U.S. at pages 526—528, 79 S.Ct. at pages 440—441. But where taxation of the private use of the Government's property is concerned, the Government's interests must be weighed in the balance. Accordingly, it does not seem too much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself. Compare Esso Standard Oil Co. v. Evans, 345 U.S. 495, 500, 73 S.Ct. 800, 802, 97 L.Ed. 1174.
22
Nevertheless, it is claimed that the classification here is supported by our decision in United States v. City of Detroit, supra, because of the assertedly similar nature of the classification created by the statute involved in that case.9 The Michigan statute, although applicable generally to lessees of exempt property,10 contained an exception for property owned by state-supported educational institutions. Appellee's argument, essentially, is that the exemption of lessees of school-owned property from the Michigan statute supports the imposition here of a heavier tax on federal lessees than is imposed on lessees of other exempt public property, in general
23
This argument misconceives the scope of the Michigan decisions. In those cases we did not decide—in fact, we were not asked to decide—whether the exemption of school-owned property rendered the statute discriminatory. Neither the Government nor its lessees, to whom the statute was applicable, claimed discrimination of this character.11 Since the issue was not raised, the basis for the separate classification of property owned by schools was not examined. Therefore, the Michigan cases shed no light on the classification problem here.12
24
None of these arguments, urged in support of the Texas classification, seems adequate to justify what appears to be so substantial and transparent a discrimination against the Government and its lessees. Here, Phillips is taxed under Article 5248 on the full value of the real property which it leases from the Federal Government, while businesses with similar leases, using exempt property owned by the State and its political subdivisions, are not taxed on their leaseholds at all. The differences between the two classes, at least when the Government's interests are weighed in the balance, seem too impalpable to warrant such a gross differentiation. It follows that Article 5248, as applied in this case, discriminates unconstitutionally against the United States and its lessee. As we had occasion to state, quite recently, it still remains true, as it has from the time of M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, that a state tax may not discriminate against the Government or those with whom it deals. See United States v. City of Detroit, supra, 355 U.S. at page 473, 78 S.Ct. at page 478. Therefore, this tax may not be exacted.
25
Reversed.
26
Mr. Justice FRANKFURTER concurs in the result.
1
Vernon's Tex.Rev.Civ.Stat., 1948 (Supp. 1950), Art. 5248. The amendatory Act is Tex.Laws, 1st C.S.1950, c. 37.
2
The Court of Civil Appeals thought that the tax should be limited to the value of Phillips' leasehold, 307 S.W.2d 605, 609, while the Texas Supreme Court expressed the view indicated above. However, as the State points out, these statements in the opinions of the two appellate courts were apparently dicta, for the trial court decided only the bare question of taxability, reserving for later a decision on the measure and amount of the tax. The measure of the tax, however, is not presently critical, for, as will be indicated, the levy of any tax in the circumstances of this case appears to discriminate against the Government and Phillips.
3
Vernon's Tex.Rev.Civ.Stat., 1948, Art. 7173.
4
Vernon's Tex.Rev.Civ.Stat., 1948, Art. 7174; State v. Taylor & Kelley, 72 Tex. 297, 12 S.W. 176; cf. Daugherty v. Thompson, 71 Tex. 192, 9 S.W. 99; Taylor v. Robinson, 72 Tex. 364, 10 S.W. 245.
5
Tex.Const., Art. VIII, § 2, Vernon's Ann.St.; Morris v. Masons, 68 Tex. 698, 5 S.W. 519; State v. Settegast, Tex.Com.App., 254 S.W. 925; cf. City of Houston v. Scottish Rite Benev. Ass'n, 111 Tex. 191, 230 S.W. 978; Markham Hospital v. Longview, Tex.Civ.App., 191 S.W.2d 695.
6
Although public lands in general are exenpt from state and local taxation in Texas, Tex.Const., Art. XI, § 9; Vernon's Tex.Rev.Civ.Stat., 1948, Art. 7150, subd. 4, there are certain conditions and exceptions to the exemption. The exemption does not survive a lease if the 'public purpose' of the property is abandoned. City of Abilene v. State, Tex.Civ.App., 113 S.W.2d 631; State v. City of Beaumont, Tex.Civ.App., 161 S.W.2d 344. The School District concedes that this condition is met in this case because the lease reserves to the United States the right to terminate in the event of a national emergency. Exceptions to the general exemption of land owned by the State and its political subdivisions are created by statutes expressly providing for the taxation of certain types of public property by specific taxing authorities. E.g., school-owned agricultural and grazing land is subject to local taxation, Tex.Const., Art. VII, § 6a; Vernon's Tex.Rev.Civ.Stat., 1948, Art. 7150a; state farms on which convict labor is employed are subject to county and school taxation, Vernon's Tex.Rev.Civ.Stat., 1948, Art. 7150, subd. 4; prison property is subject to school taxation, Vernon's Tex.Rev.Civ.Stat., 1948, Arts. 7150(17) and (18); and land which forms a part of the endowment of the University of Texas is subject to county taxation, Vernon's Tex.Rev.Civ.Stat., 1948, Art. 7150c. Although these exceptions to the general nontaxability of public lands reduce the extent of the discrimination created by Article 5248, they obviously do not eliminate it.
7
During the years in question, the leasehold was taxable under § 6 of the Military Leasing Act of 1947, 61 Stat. 774, the predecessor of the provision now codified as 10 U.S.C. § 2667(e), 10 U.S.C.A. § 2667(e). Section 6 provided in part that '(t)he lessee's interest, made or created pursuant to the provisions of this Act, shall be made subject to State or local taxation.'
8
See, e.g., Op.Tex.Atty.Gen., No. WW—531, Dec. 9, 1958.
9
Mich.Acts 1953, No. 189, now compiled in 6 Mich.Stat.Ann., 1950 (1957 Cum Supp.), §§ 7.7(5) and 7.7(6). See United States v. City of Detroit, supra, 355 U.S. at page 467, note 1, 78 S.Ct. at page 475.
10
'Under Michigan law this means persons who use property owned by the Federal Government, the State, its political subdivisions, churches, charitable organizations and a great host of other entities.' United States v. City of Detroit, supra, 355 U.S. at page 473, 78 S.Ct. at page 478.
11
In its brief, the Government stated that the exception was not pertinent to its argument. Its discrimination argument rested on the proposition that the Michigan statute was, in reality, 'special legislation' directed at government property. The Government argued that this purpose was manifested by the fact that the statute contained an exception for cases in which payments had been made by the United States 'in lieu of taxes in amounts equivalent to taxes which might otherwise be lawfully assessed.' It was argued that the purpose thus manifested was improper under Macallen Co. v. Massachusetts, supra. We pointed out, in rejecting the argument, that the exception to the tax relied on by the Government in this connection served to protect it against the possibility of a double contribution to the revenues of the State, and that the precedential value of Macallen had been substantially impaired by later decisions. See United States v. City of Detroit, supra, 355 U.S. at pages 472, note 2, 474, note 6, 78 S.Ct. at pages 477, 478.
12
Only issues raised by the jurisdictional statement or petition for certiorari, as the case may be, are considered by the Court. Supreme Court Rules, 15, par. 1(c)(1), 23, par. 1(c), 28 U.S.C.A.
| 910
|
361 U.S. 416
80 S.Ct. 481
4 L.Ed.2d 412
William R. FORMAN, Petitioner,v.UNITED STATES.
No. 43.
Argued Nov. 19, 1959.
Decided Feb. 23, 1960.
Solomon J. Bischoff, Portland, Or., for petitioner.
Abbott M. Sellers, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
In this criminal conspiracy case, petitioner raises questions of double jeopardy. Petitioner and one Seijas, his former partner in the pinball business, were convicted1 of conspiracy to commit the offense of willfully attempting to evade the individual income taxes of Seijas and his wife, in violation of § 145(b) of the Internal Revenue Code of 1939,2 and of furnishing false books, records, and financial statements to officers and employees of the Treasury Department for the purpose of concealing the true income tax liabilities of Seijas and his wife, in violation of 18 U.S.C. § 1001, 18 U.S.C.A. § 1001.3 The trial was prior to our decision in Grunewald v. United States, 1957, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931. The petitioner requested, and the trial judge included in his charge, language similar to that given in the charge in the Grunewald prosecution directing that petitioner should be acquitted unless the jury found that the partners entered into a subsidiary conspiracy, continuing to within six years of the indictment, to conceal their conspiracy to attempt to evade Seijas' and his wife's taxes. At the time of the appeal, our Grunewald opinion had come down. Citing Grunewald, the Court of Appeals reversed petitioner's conviction and remanded the case with instructions to enter a judgment of acquittal. 259 F.2d 128. On rehearing, however, the Court of Appeals decided that 'the case might have been tried' on an 'alternative theory,' namely, that 'certain of the overt acts listed in the indictment and charged to have occurred in 1948, 1951 and 1952, involving false statements, could well have been in furtherance of and during a conspiracy having as its objective not the concealment of the conspiractors' conspiracy but tax evasion.' 261 F.2d 181, 183. It modified its original order for an acquittal and entered one directing a new trial. Petitioner then contended that having once ordered his acquittal, the Court of Appeals, by directing a new trial, violated the command of the Fifth Amendment that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.' Petitioner's motion for rehearing was denied. 264 F.2d 955. We granted certiorari. 359 U.S. 982, 79 S.Ct. 942, 3 L.Ed.2d 932. We affirm the order directing a new trial.
2
The facts are detailed in the original opinion of the Court of Appeals, 259 F.2d 128, and it is sufficient here merely to summarize them. In 1941 petitioner and Seijas, a lawyer, formed a partnership to engage in the operation of pinball machines in Kitsap County, Washington. Receipts, less expenses, from the individual machines, were to be divided equally between the partners and the location owners. Beginning in 1942 and continuing until December 1945, however, the partners robbed the machines by extracting 'holdout' money from those located at the more profitable locations. These sums, without being split with the location owners, were divided between the partners. None of these amounts were entered on the books of the partnership, nor were they included in its tax returns. Seijas maintained diaries and kept a record of the amount of 'holdout' income that he received, but he paid no tax on it. During this period, tax returns omitting the 'holdout' income were filed each year. The Court of Appeals found that 'there was abundant proof' of petitioner's participation in a conspiracy to 'evade Seijas' income taxes for the years 1942 through 1945' through concealment of the 'holdout' income during that period. It also found that 'numerous false statements' were made by both Forman and Seijas in furtherance of this conspiracy and within the six-year period immediately prior to the indictment. (9 Cir., 259 F.2d 130.) The record shows, as the Court of Appeals indicated, that the concealment of the 'holdout' income continued until soon before the indictment, at which time Seijas turned over to the agents his diaries covering the receipt of this income for the years 1942—1945. The Court of Appeals, on the original submission, however, found that the case was submitted to the jury on the theory of Grunewald as expounded in 2 Cir., 233 F.2d 556, namely, that a subsidiary conspiracy to conceal the main conspiracy to attempt to evade Seijas' tax may be implied from circumstantial evidence showing that the latter conspiracy was kept a secret. This subsidiary conspiracy would make the prosecution timely under the applicable statute of limitations. But the Court of Appeals pointed out that the reversal of that case by this Court soon after the trial of petitioner gave it 'an advantage * * * that the trial court did not have' and required the conviction to be reversed and the case remanded 'with directions to enter judgment for the appellant' Forman.
3
On rehearing,4 as here, the Government contended that the essence of the conspiracy charged in the indictment filed November 19, 1953, was to evade the tax on the 'holdout' income and that at least five overt acts were committed within six years of the return of the indictment for the purpose of furthering that conspiracy to eavde. Contrary to what the trial court found, the Government said that the conspiracy did not end with the filing of the false income tax returns in the years 1943 through 1946, but embraced the subsequent efforts, made during the years 1947 through 1952, to evade those taxes. The only flaw in the record to the contrary, it claimed, was the erroneous 'subsidiary conspiracy' instruction, which it now points out was injected therein by the petitioner himself. The Government concluded that the interests of justice required the entry of an order directing a new trial rather than a judgment of acquittal. Although finding that the Government conceded 'that the case was submitted to the jury on an impermissible theory,' the Court of Appeals read the indictment as alleging that the conspiracy was one "to violate * * * § 145(b) of the Internal Revenue Code * * * by furnishing officers and employees of the Revenue Department false books and records and false financial statements, and by making false statements to such officers and employees, for the purpose of concealing from the Treasury Department their share of the unreported (holdout) income * * * and for the purpose of concealing * * * the true income tax liability of Amador A. Seijas." 261 F.2d at page 182. It held that 'the conspiracy continued past the filing of the returns' and 'that certain of the overt acts listed in the indictment and charged to have occurred in 1948, 1951 and 1952, involving false statements, could well have been in furtherance of and during a conspiracy having as its objective not the concealment of the conspirators' conspiracy but tax evasion.' Id., at page 183. It, therefore, modified its opinion 'so as to provide that the judgment is reversed and the cause remanded for a new trial.' Ibid. The petitioner then raised his plea of former jeopardy, which is the basis of his petition here. He says that the trial court correctly found that the conspiracy ended with the filing of the last false income tax return in 1946. Since there was no direct evidence of the existence of a subsidiary conspiracy to conceal the crime of attempting to evade, the trial court he concludes, should, have sustained his motion to acquit on that ground. When the Court of Appeals held that the trial court erred in failing to grant the motion, petitioner argues that it gave him a vested right to an acquittal, which matured at the time he so moved in the trial court. A new trial, he contends, would therefore place him in double jeopardy.5
4
The Government now says that through 'inadvertence' it allowed the case to be submitted to the jury on the 'impermissible theory' condemned in our Grunewald opinion, 353 U.S. at pages 399 406, 77 S.Ct. at pages 971—974; and that the trial judge was led into error by the request of the petitioner for an instruction on the 'subsidiary conspiracy' theory, which error was compounded by the failure of the Government to object thereto. This resulted, it maintains, in a Grunewald instruction being saddled onto a correct charge. In view of this complication, it concludes that the jury might well have based its conviction on either theory, and a new trial was therefore appropriate and would not place petitioner in double jeopardy.
I.
5
We believe that there was a misconstruction of the scope of the alleged conspiracy and its duration in both Grunewald and the present case. In Grunewald the indictment charged a conspiracy 'to fix' criminal tax cases and to conceal the acts of the conspirators. That case was submitted to the jury on the theory that 'the indictment alleges that the conspiracy comprehended within it a conspiracy to conceal the true facts from investigation * * *.' Did the conspiracy end when the 'no prosecution' rulings were issued, the Court charged, 'or was a part of the conspiracy a continuing agreement to conceal the acts done pursuant thereto?' The effect of the charge was that if there was such a continuing agreement, then the prosecution was timely. It appeared to us that the case should have been submitted to the jury on the theory that the central object of the conspiracy was not merely to obtain the 'no prosecution' rulings, but rather to immunize the taxpayers completely from prosecution for tax evasion. The evidence supported such a theory. We said, however, that, since this theory was not adequately submitted to the jury, the case should be remanded for a new trial rather than affirmed.
6
In petitioner's case the indictment charged him and Seijas with conspiracy, extending from 1942 to 1953, to attempt to evade the income taxes of Seijas and his wife for the period 1942—1945. Unlike Grunewald, the indictment did not allege that one of the objects of the conspiracy was to conceal the acts of the conspirators. The indictment specifically alleged that the conspiracy extended from 1942 to 1953 and, of the 33 overt acts charged, some were committed as late as 1953, the year of the indictment. This language, it must be admitted, certainly lends strong support to the Government's theory of the case. The petitioner says that the theory on which the case was submitted to the jury was that the conspiracy to attempt to evade the taxes 'was consummated' when the income tax returns for 1945 were filed and that, unless the jury found 'a subsidiary conspiracy' to conceal the conspiracy to attempt to evade the taxes, the 'verdict would have to be not guilty.' That was the theory he requested, but the charge differs little from the Grunewald one. In fact it appears to have been patterned after the Grunewald charge. The correct theory, we believe, was indicated by the indictment, i.e., that the conspiracy was a continuing one extending from 1942 to 1953 and its principal object was to evade the taxes of Seijas and his wife for 1942—1945, inclusive, by concealing their 'holdout' income. This object was not attained when the tax returns for 1945 concealing the 'holdout' income were filed. As was said in Grunewald, this was but the first step in the process of evasion. The concealment of the 'holdout' income must continue if the evasion is to succeed. It must continue until action thereon is barred and the evasion permanently effected. In this regard, the indictment alleged that the conspiracy to attempt such evasion actually did continue until 1953, when Seijas revealed the 'holdout' income for the first time. It therefore appears that the 'subsidiary conspiracy' theory covered by petitioner's requested charge had no place in the case and should not have been given. There was no such conspiracy alleged or proven. In view of the possible confusion resulting, it was entirely appropriate for a new trial to be ordered. Petitioner's raising this ground on appeal, rather than specifically asserting it in his motion for new trial, had no effect on the power of the Court of Appeals to correct the error.
7
Petitioner insists, however, that the fatal difference between the Grunewald charge and the one here is that here the 'alternative theory' was not submitted to the jury. Even if we agreed with this point, we do not believe that it would be relevant to our conclusion. The indictment was based on one continuing conspiracy to evade Seijas' tax. The evidence supported it and, if the petitioner had not injected the infected language into the charge, this clearly would have been the theory submitted to the jury. Its inclusion did make the charge ambiguous and the Court of Appeals, having power to direct 'such further proceedings to be had as may be just under the circumstances,' believed a new trial 'appropriate,' 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, and so ordered. Petitioner concedes that this would have been appropriate if such action had been taken by the Court of Appeals upon original submission; but he says that, once having ordered the entry of an acquittal judgment, it lost power to amend that direction on rehearing and order a new trial. This would subject him, he says, to double jeopardy. We think not.
II.
8
It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal. United States v. Ball, 1896, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300. See also Green v. United States, 1957, 355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199, which expressly affirmed the principle of the Ball case. Petitioner says that he does not come under that rule because he moved for a judgment of acquittal on the basis of a lack of evidence, and that his right to acquittal 'matured' at that time. A new trial, however, was one of petitioner's remedies. As we said in Bryan v. United States, 1950, 338 U.S. 552, 560, 70 S.Ct. 317, 321, 94 L.Ed. 335, where one seeks reversal of his conviction, 'assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal * * * 'there is no double jeopardy upon a new trial." Even though petitioner be right in his claim that he did not request a new trial with respect to the portion of the charge dealing with the statute of limitations, still his plea of double jeopardy must fail. Under 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, the Court of Appeals has full power to go beyond the particular relief sought. See Ball and other cases, supra. Nor does Sapir v. United States, 1955, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426, require a different conclusion, as petitioner claims. The Court of Appeals there, 10 Cir., 216 F.2d 722, holding the evidence insufficient to convict, had first reversed and remanded with instructions to dismiss the indictment, and later, on the Government's motion, had remanded instead for a new trial on the ground of newly discovered evidence. This Court held that the original order directing the indictment to be dismissed was the correct one, and refused to pass on questions presented by the order directing a new trial.
9
While petitioner contends that here the action of the Court of Appeal on rehearing was based on new evidence, as in Sapir, this is incorrect. Here there was no lack of evidence in the record. As the Court of Appeals pointed out, 'The jury was simply not properly instructed.' 264 F.2d at page 956. On the other hand, the order to dismiss in Sapir was based on the insufficiency of the evidence, which could be cured only by the introduction of new evidence, which the Government assured the court was available. Moreover, Sapir made no motion for a new trial in the District Court, while here petitioner filed such a motion. That was a decisive factor in Sapir's case. See concurring opinion, 348 U.S. at page 374, 75 S.Ct. at page 423. Furthermore, the power of the Court of Appeals to revise its original judgment and order the new trial on rehearing was not questioned in Sapir.
10
We believe petitioner overlooks that, when he opened up the case by appealing from his conviction, he subjected himself to the power of the appellate court to direct such 'appropriate' order as it thought 'just under the circumstances.' Its original direction was subject to revision on rehearing. The original opinion was entirely interlocutory and no mandate was ever issued thereon. It never became final and was subject to further action on rehearing. Department of Banking, State of Nebraska v. Pink, 1942, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254. In Pink, we said that the petition on rehearing 'operates to suspend the finality of the * * * court's judgment, pending the court's further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.' 317 U.S. at page 266, 63 S.Ct. at page 234. To hold otherwise would deprive the Government of the right to file a petition for certiorari here in criminal cases decided favorably to the defendant in the Court of Appeals, for such a petition might be attacked as a prohibited appeal by the Government on a motion for a new trial. It would be tantamount to a verdict of acquittal at the hands of the jury, not subject to review by motion for rehearing, appeal, or certiorari in this Court. We cannot subscribe to such a theory.
11
Affirmed.
12
Mr. Justice HARLAN, concurring.
13
I feel it necessary to add a few words to make clear the basis on which I join in the Court's judgment.
14
1. As I read the record I believe the case is fairly to be viewed as having been submitted to the jury only on the subsidiary-conspiracy theory. For although there are passages in the trial court's charge which can be said to have proceeded on a continuing-conspiracy theory, these passages, taking the charge as a whole, are, in my view, too ambiguous to justify our saying that the jury must have understood that it could also consider the case on that basis.
15
2. I do not think that because of its omission to object to the trial court's failure to give a continuing-conspiracy charge, the Government was precluded, under Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., from raising that point on appeal. That Rule provides:
16
'No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.'
17
In my view the Rule has no application here. Accepting, as I do, petitioner's claim that the charge did not include a continuing-conspiracy theory, it erred in the Government's favor. I cannot believe that Rule 30 requires the party favored by an erroneous charge to point out to the court what the correct charge would be if its decision were to be reversed on appeal. Furthermore, since our opinion in the Grunewald case, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, was not yet available to the parties or the court, the charge undoubtedly appeared correct to both sides. The Government was no more culpable for not challenging it than petitioner was for requesting it. Nor does the Government's request for a new trial in the Court of Appeals constitute a cross-appeal. It did not, and could not, seek a result more favorable to itself than that reached by the trial court; rather, it simply opposed the relief for which petitioner contended.
18
3. I think the record sustains petitioner's contention that he did not, either in the trial court or in the Court of Appeals, request a new trial with respect to the portion of the charge dealing with the statute of limitations.* He is subject to retrial solely because he appealed his conviction and because, in the circumstances disclosed by this record, such relief was just and appropriate under 28 U.S.C. § 2106, 28 U.S.C.A. § 2106. The Ball, Green, and Bryan cases, cited in the Court's opinion, 80 S.Ct. 486, establish that the right of an appellate court to order a new trial does not turn on the relief requested by the defendant, and the Sapir case does not suggest such a distinction.
19
4. Since the Court of Appeals held only that the case might have been tried on a continuing-conspiracy theory, I express no opinion on the permissible duration of a conspiracy to violate § 145(b) or on the sufficiency of the evidence adduced to prove its continuation. Those questions should be resolved in further proceedings.
20
Mr. Justice WHITTAKER, concurring.
21
I join the Court's opinion but desire to add a word. Mr. Justice CLARK'S clear, full, and accurate statement of the facts demonstrates errors by nearly everyone having to do with the case in the lower courts except the Government; yet it lost the case on appeal.
22
Petitioner, though not charged by the indictment with a 'subsidiary conspiracy,' nevertheless asked, and induced the court to give in his very words, a charge to the jury saying that unless they found a 'subsidiary conspiracy' they should acquit him. There being neither charge in the indictment nor evidence in the record of 'subsidiary conspiracy,' the requested and obtained charge to the jury amounted to a virtual direction to acquit. And if the jury, in obedience to that charge, had acquitted, its verdict would, of course, have ended the case. Therefore, petitioner, by requesting and inducing the court to give this erroneous charge, got much more than he was entitled to under the law. Yet, he claimed in the Court of Appeals that this very charge, because unsupported by evidence, was erroneous and required an outright reversal. The Court of Appeals, though finding adequate evidence to support the indictment, first took that view. It seems plain to me that petitioner, having asked and obtained an erroneous but far more favorable charge than he was entitled to, certainly invited the error, benefited by it , and surely may not be heard to attack it as prejudicial to him, especially when, as seems quite plain, it was prejudicial only to the Government. I realize there is no profit in decrying a spent transaction, but I cannot resist observing the obvious, namely, that in these circumstances, the law required affirmance of the judgment.
23
After the Court of Appeals had written its original opinion reversing, the Government, in an effort to salvage the case, timely moved for a rehearing, saying, in effect: 'Perhaps, we were in error in not objecting to the charge requested by the accused, and given by the court to the jury, on 'subsidiary conspiracy,' but we should at least have an opportunity to retry the case.' The Court of Appeals then agreed with the Government's forced contention, and accordingly modified its opinion and remanded the case for a new trial. Petitioner complains of this, urging that the court's original opinion 'acquitted' him, and that to try him again would violate the Fifth Amendment's prohibition against double jeopardy. That contention, it seems to me, is totally devoid of merit. The Court of Appeals rendered but one judgment in the case, and it was one remanding for a new trial. Petitioner, instead of complaining that he was given only a new trial, should be thankful that his conviction was not affirmed.
1
Seijas pleaded guilty and testified for the Government.
2
'§ 145. Penalties. * * * (b) Failure to collect and pay over tax, or attempt to defeat or evade tax. Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.' 26 U.S.C.A. § 145.
3
'§ 1001. Statements or entries generally. 'Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and will-fully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.'
4
Although petitioner contends that the petition for rehearing was in fact a motion for a new trial, this is not true. The purpose of a petition for rehearing is to point out error in the original judgment. Here the Government pointed out that the Court of Appeals applied the wrong theory (the Grunewald theory instead of the continuing conspiracy theory).
5
Petitioner also argues that there is insufficient evidence in the record to support a conviction based upon the 'alternative theory.' He urges that Grunewald established that, regardless of the nature of the charge, there must be 'direct evidence * * * to show * * * an express original agreement among the conspirators to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission.' 353 U.S. at page 404, 77 S.Ct. at page 973. (Emphasis supplied.) This statement, however, had reference to a subsidiary conspiracy to conceal, not to a continuing one. In Grunewald we were not required to decide whether a conviction under a proper charge could be supported where the only evidence during the period within the statute of limitations was independent acts of concealment, since more was present there. See 353 U.S. at page 409, note 23, 77 S.Ct. at page 976. Nor is that necessary here, since the Court of Appeals' determination that the evidence of record could sustain a conviction under a correct instruction was based upon evidence in addition to independent acts of concealment. See 259 F.2d at pages 132—134, and 261 F.2d at page 183. We cannot say that this determination was erroneous.
*
It appears that while petitioner's post-trial memorandum assigned the sufficiency of the evidence in routine fashion as one of the grounds for a new trial, he relied in the trial court entirely on the ground of newly discovered evidence, and in the Court of Appeals on that ground plus erroneous admission of evidence and certain errors in the charge not here relevant.
| 01
|
361 U.S. 388
80 S.Ct. 453
4 L.Ed.2d 393
John W. ARNOLD, Petitioner,v.BEN KANOWSKY, INC.
No. 60.
Argued Jan. 11, 1960.
Decided Feb. 23, 1960.
Rehearing Denied April 4, 1960.
See 362 U.S. 945, 80 S.Ct. 803.
Miss Bessie Margolin, Washington, D.C., for the United States, as amicus curiae.
Mr. Arthur J. Riggs, Dallas, Tex., for the petitioner.
Mr. G. H. Kelsoe, Jr., Dallas, Tex., for the respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This case concerns the provisions of the Fair Labor Standards Act of 1938 exempting from wages-and-hours coverage certain retail sales and service establishments.1 The suit was brought by petitioner individually under § 16(b) of the Act, 29 U.S.C.A. § 216(b) for payment of overtime wages claimed under § 7, 29 U.S.C.A. § 207. The Court of Appeals for the Fifth Circuit reversed a District Court judgment for petitioner2 and we granted certiorari, 359 U.S. 983, 79 S.Ct. 943, 3 L.Ed.2d 932. The proceedings in this Court are in forma pauperis. Both sides submitted on their briefs, and oral argument was heard only from the representative of the Secretary of Labor appearing as amicus curiae.
2
Respondent conducts an interior decorating and custom furniture business in Dallas, Texas. On the same premises he fabricates aircraft parts from phenolic, a cloth-impregnated phenol resin. This plastic is widely used in aircraft and automotive parts and can be machined on the woodworking equipment respondent has available in his furniture shop. Petitioner was employed by respondent from October 17, 1954, through September 2, 1955, primarily in the fabrication of phenolic parts.
3
At the trial, a representative of Chance Vought Aircraft, Inc., testified that his company purchased over $34,000 worth of phenolic parts from respondent in 1955, and that these parts were used in aircraft and missiles sold to the United States Navy. A representative of Temco Aircraft Company testified that it purchased about $2,000 worth of phenolic parts annually from Kanowsky for use in manufacturing aircraft subassemblies for the Air Force or for prime contractors, many of whom were located outside the State. Respondent also shipped a small amount of sheet phenolic directly outside the State.
4
During the year beginning October 1, 1954, respondent's sales totaled $99,117.52, and its sales of phenolic and phenolic parts were $39,751.71, or almost exactly 40% of its total sales. Its secretary-treasurer admitted that phenolic aircraft parts alone accounted for at least 25% of the company's total sales. Respondent introduced no evidence concerning the amount or nature of sales of phenolic in forms other than aircraft parts. Notwithstanding the admitted percentage of its total sales attributable to phenolic parts, respondent claimed exemption from the provisions of the Fair Labor Standards Act because of the retail character of its business.
5
The District Court found that petitioner was engaged in the production of goods for commerce within the meaning of the Act, and upon respondent's admission that petitioner had been paid for overtime hours only at straight time rates, entered judgment for petitioner for unpaid overtime compensation plus an attorney's fee. The Court of Appeals reversed on the ground that respondent was exempt from the Act's overtime requirements under § 13(a)(2) as a 'retail or service establishment.'
6
We believe that the Court of Appeals was in error and must be reversed. The wording of the statute, the clear legislative history, and the decisions of this Court require this conclusion.
7
Petitioner admittedly is engaged in the manufacture of phenolic parts for commerce. That this activity may be considered a 'sideline' from respondent's viewpoint does not remove petitioner from coverage under the Fair Labor Standards Act unless the respondent's activities fall within the specific exemptions enumerated in § 13 of the Act. As originally passed in 1938, the Fair Labor Standards Act exempted from coverage 'any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.'3 In 1949 Congress substituted a three-part definition for this provision. Any employee employed by a retail or service establishment is to be exempt if more than 50% of the establishment's annual dollar volume of sales is made within the State, if 75% of its annual sales volume is not for resale, and if 75% of its annual sales volume is recognized within the industry as retail sales.
8
This Court had occasion at the last Term to point out that the 1949 revision does not represent a general broadening of the exemptions contained in § 13.4 Rather, Congress 'was acting in implementation of a specific and particularized purpose' to replace the unsatisfactory 'business use' test, which had developed around the 1938 provision, with a formula that would be at once flexible and at the same time provide clear statutory guidance to the Administrator.5
9
We have held that these exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.6 The three conditions of § 13(a)(2) are explicit prerequisites to exemption, not merely suggested guidelines for judicial determination of the employer's status.7
10
While § 13(a)(2) contains the requirements every retail establishment must satisfy to qualify for exemption, a retailer-manufacturer must satisfy the additional requirements of § 13(a)(4) since it 'makes or processes' the goods it sells.8
11
Turning to the facts of this case, it is clear that respondent, through its fabrication of phenolic parts, is 'making or processing the goods that it sells.' To gain exemption it therefore must comply with the criteria of § 13(a)(2) as they are incorporated by reference in § 13(a)(4), as well as the additional requirements of § 13(a)(4) itself. It is clear that respondent does not meet at least two of the three standards of § 13(a)(2) as included in § 13(a)(4).
12
First, sales of phenolic parts account for more than 25% of the respondent's annual sales volume. The court below assumed that respondent's sales were recognized in the community as retail sales without any evidence to support the fact. This conclusion was not justified, since it is clear that Congress intended that 'any employer who asserts that his establishment is exempt must assume the burden of proving that at least 75 percent of his sales are recognized in his industry as retail.'9
13
Second, the Court of Appeals assumed that the sales of phenolic and phenolic parts were not for resale, but in doing so, it was in error. The sales of parts to one company alone for incorporation in airplanes and missiles that were to be sold to the United States Navy exceeded 25% of the total. These sales indisputably were made with the expectation that the parts would be incorporated in aircraft and that the aircraft would be sold. Such transactions are clearly within the concept of resale.10
14
Since respondent has not sustained its burden of proving that 75% of its annual sales volume is not for resale and is recognized as being retail in the particular industry, we need not reach the question whether the additional standards of § 13(a)(4) itself are met.11
15
We hold that respondent has not satisfied the requirements of § 13 and is not entitled to exemption thereunder. The judgment of the Court of Appeals is reversed; the judgment of the District Court is reinstated; and the cause is remanded to that court for consideration of the prayer of petitioner for further counsel fees in accordance with the provision of the Act.
16
It is so ordered.
17
Judgment of Court of Appeals reversed; judgment of District Court reinstated and cause remanded with directions.
18
Mr. Justice WHITTAKER (dissenting).
19
Section 13(a) of the Fair Labor Standards Act exempts from the wage-and-hour provisions of that Act employees of 'any retail or service establishment,' as there defined. See note 1 of the Court's opinion. Therefore, the entity to be considered is the 'establishment.' A single employer may conduct two (or more) 'establishments,' side by side or even under the same roof, one of which could be a 'retail or service establishment,' as defined in and exempted by § 13(a), and the other not. Here, respondent appears to have been separately engaged in three activities: (1) the manufacture and sale of phenolic, in which enterprise several persons—the number is not stated in the record—were employed, (2) an interior decorating business, commonly employing five persons, and (3) the custom manufacture and sale of furniture, employing a small, but varying, number of employees. During petitioner's employment by respondent—from October 17, 1954, through September 2, 1955—he worked for a period in one of these enterprises and then in another, but, as the Court says, he worked primarily in the fabrication of phenolic parts.* Upon respondent's admission at the trial, that petitioner had been paid for overtime hours worked only at straight time rates, the District Court, without any evidence showing the number of hours worked in the one as distinguished from the other of these enterprises, entered judgment for petitioner for overtime compensation for all overtime hours worked by petitioner, and an attorney's fee.
20
Although, as the Court correctly says, respondent, in its phenolic enterprise, was engaged in the production of goods for commerce and a major part of that production was sold for resale and, hence, that enterprise was not a 'retail or service establishment,' as defined in § 13(a), it appears that all of respondent's interior decorating services were rendered locally, and that all of the custom furniture manufacturing was done and the furniture sold locally and not for resale. And, therefore, it would appear—at least there is room for a finding—that respondent's interior decorating and custom furniture manufacturing and selling enterprises were 'retail or service establishment,' as defined in § 13(a). But, there is no finding by the District Court that these three enterprises were conducted by respondent in three 'establishments' or in only one 'establishment'; nor is there any finding as to what percentage of the interior decorating services were rendered locally, or what percentage of the custom furniture manufacturing and selling was done locally and not for resale.
21
Only if respondent's three enterprises constituted one 'establishment' would there be support in the record for the judgment, and, as stated, there is no finding to that effect. The only oral argument made here was by counsel for the Department of Labor, as amicus curiae. Its position is that, as a matter of law, respondent operated no more than two 'establishments'; that the phenolic enterprise might be one 'establishment,' and it clearly was not a 'retail or service establishment' as defined in § 13(a) (I agree that this is so); that the interior decorating and custom furniture manufacturing and sales enterprises might be another 'establishment'—why these two enterprises might not be two 'establishments' was not explicated. Its counsel then argues that, because some custom manufacturing of furniture was done in the latter 'establishment,' it could not, as a matter of law, be a 'retail or service establishment' as defined in § 13(a). That argument would have had some force prior to the 1949 amendment to § 13(a) (63 Stat. 917), but it is in the teeth of that amendment, as clause 4 of the section, as then amended, provides that the wage-and-hour provisions (§§ 6 and 7) of the Act do not apply with respect to a 'retail or service establishment' as defined 'notwithstanding that such establishment makes or processes at the retail establishment the goods that it sells * * *.' (Emphasis added.) In the absence, as here, of essential evidence (showing the overtime hours worked in each of the several 'establishments'—if more than one) and findings, I think the record does not support the judgment nor disclose the matters requisite to a decision of the question sought to be presented. I would, therefore, dismiss the writ as improvidently granted, or, at the very least, remand the case to the District Court for a new trial and for proper findings of fact on the determinative issues.
1
29 U.S.C. § 213(a), 29 U.S.C.A. § 213(a), 63 Stat. 917, § 13(a).
'The provisions of sections 6 and 7 shall not apply with respect to * * * (2) 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; * * * or (4) any employee employed by an establishment which qualifies as an exempt retail establishment under clause (2) of this subsection and is recognized as a retail establishment in the particular industry notwithstanding that such establishment makes or processes at the retail establishment the goods that it sells: Provided, That more than 85 per centum of such establishment's annual dollar volume of sales of goods so made or processed is made within the State in which the establishment is located; * * *.'
2
The decision of the Court of Appeals is reported at 250 F.2d 47. Denial of rehearing is reported at 252 F.2d 787.
3
52 Stat. 1060, 1067.
4
Mitchell v. Kentucky Finance Co., 359 U.S. 290, 294, 79 S.Ct. 756, 759, 3 L.Ed.2d 815.
5
Id., 359 U.S. at page 293, 79 S.Ct. at page 758. See also the statement made by Senator Holland, manager of the amendment, during the debate in the Senate, 95 Cong.Rec. 12491; and the remarks of Representative Lucas, who introduced the amendment in the House, 95 Cong.Rec. 11116.
6
Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295, 79 S.Ct. 756, 759, 3 L.Ed.2d 815.
7
Such cases as White Motor Co. v. Littleton, 5 Cir., 1941, 124 F.2d 92, relied upon by the Fifth Circuit in its opinion in this case and decided at a time when there was no statutory definition of 'retail or service establishment,' no longer can have any vitality in view of the 1949 amendment. The extent to which the White Motor Co. decision rests on the absence of a statutory definition of 'retail' is shown in 124 F.2d, at page 94.
8
Prior to the 1949 amendments to the Act, the whole area of manufacturing was excluded from the retail exemption. It had been repeatedly held that establishments engaged to any extent in manufacturing or processing activities could not qualify for exemption under former § 13(a)(2). E.g., Grant v. Bergdorf & Goodman Co., 2 Cir., 1949, 172 F.2d 109; Fred Wolferman, Inc. v. Gustafson, 8 Cir., 1948, 169 F.2d 759; Walling v. Goldblatt Bros., 7 Cir., 1945, 152 F.2d 475; Walling v. American Stores Co., 3 Cir., 1943, 133 F.2d 840; Davis v. Goodman Lumber Co., 5 Cir., 1943, 133 F.2d 52; Collins v. Kidd Dairy & Ice Co., 5 Cir., 1942, 132 F.2d 79; see Roland Electrical Co. v. Walling, 326 U.S. 657, 666—678, 66 S.Ct. 413, 417—423, 90 L.Ed. 383. The Administrator's interpretation comporting with this view is to be found in Interp. Bill. No. 6, as revised and reissued June 16, 1941, 1942 WH Manual 326.
The legislative history of the amendments, as reflected by statements of the sponsors and Committee Reports, clearly evidences that § 13(a)(2) as amended 'does not apply to any manufacturing activities since any such activities, when conducted by a retail establishment, if exempt, are intended to be exempt under section 13(a)(4).' Statement of the House Conferees, 95 Cong.Rec. 14932; see also the statements on the floor of Congress by the managers for the amendment in each House, Senator Holland and Representatives Lesinski and Lucas, 95 Cong.Rec. 12495, 14942, 11216.
9
Remarks of Senator Holland, 95 Cong.Rec. 12502; remarks of Representative Lucas, 95 Cong.Rec. 11004, 11116; see also the statement of the majority of the Senate Conferees, 95 Cong.Rec. 14877.
10
See statement of the House Conferees, 95 Cong.Rec. 14932; statement of majority of Senate Conferees, 95 Cong.Rec. 14877; 29 CFR § 779.15(c) (Supp.1959); cf. Mitchell v. Sherry Corine Corp., 4 Cir., 1959, 264 F.2d 831, 834. As the cited legislative materials indicate, the exemption from the general 'resale' rule for residence and farm construction repair and maintenance under § 3(n), 29 U.S.C. § 203(n), 29 U.S.C.A. § 203(n), evinces an intent to classify other sales for use in articles to be sold as 'resale.'
11
The employee having shown that the nature of his employment brings him within the coverage of the Act, the nature of the 'establishment' in which he is employed will be drawn into litigation only if the employer seeks an exemption under § 13, in which event the burden of proving the nature of the establishment is on the employer.
*
The witness Kanowsky testified:
'Q. To your knowledge, were there a number of weeks that he didn't do any work on phenolic aircraft parts at all? A. There had to be, yes, sir.
'Q. To your knowledge, were there a number of weeks in which he did seventy-five percent or more of his work on furniture and things of that nature? A. Yes, sir.'
The witness Justice, employed primarily in the interior decorating establishment, testified:
'Q. * * * How about when they were doing this (interior decorating) job down town? A. I believe he worked down town practically all of the time.
'Q. Were there weeks at a time that you know of that seventy-five percent of his work was done on furniture and stuff like that and the balance on phenolics? A. Yes, sir.'
| 67
|
362 U.S. 29
80 S.Ct. 503
4 L.Ed.2d 505
UNITED STATES, Appellant,v.PARKE, DAVIS AND COMPANY.
No. 20.
Argued Nov. 10, 1959.
Decided Feb. 29, 1960.
Mr. Daniel M. Friedman, Washington, D.C., for appellant.
Mr. Gerhard A. Gesell, Washington, D.C., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Government sought an injunction under § 4 of the Sherman Act against the appellee, Parke, Davis & Company, on a compliant alleging that Parke Davis conspired and combined, in violation of §§ 1 and 3 of the Act,1 with retail and wholesale druggists in Washington, D.C., and Richmond, Virginia, to maintain the wholesale and retail prices of Parke Davis pharmaceutical products. The violation was alleged to have occurred during the summer of 1956 when there was no Fair Trade Law in the District of Columbia or the State of Virginia.2 After the Government completed the presentation of its evidence at the trial, and without hearing Parke Davis in defense, the District Court for the District of Columbia dismissed the complaint under Fed.Rules Civ.Proc., Rule 41(b), 28 U.S.C.A. on the ground that upon the facts and the law the Government had not shown a right to relief. D.C., 164 F.Supp. 827. We noted probable jurisdiction of the Government's direct appeal under § 2 of the Expediting Act.3 359 U.S. 903, 79 S.Ct. 580, 3 L.Ed.2d 569.
2
Parke Davis makes some 600 pharmaceutical products which it markets nationally through drug wholesalers and drug retailers. The retailers buy these products from the drug wholesalers or make large quantity purchases directly from Parke Davis. Sometime before 1956 Parke Davis announced a resale price maintenance policy in its wholesalers' and retailers' catalogues. The wholesalers' catalogue contained a Net Price Selling Schedule listing suggested minimum resale prices on Parke Davis products sold by wholesalers to retailers. The catalogue stated that it was Parke Davis' continuing policy to deal only with drug wholesalers who observed that schedule and who sold only to drug retailers authorized by law to fill prescriptions. Parke Davis, when selling directly to retailers, quoted the same prices listed in the wholesalers' Net Price Selling Schedule but granted retailers discounts for volume purchases. Wholesalers were not authorized to grant similar discounts. The retailers' catalogue contained a schedule of minimum retail prices applicalbe in States with Fair Trade Laws and stated that this schedule was suggested for use also in States not having such laws. These suggested minimum retail prices usually provided a 50% mark up over cost on Park Davis products purchased by retailers from wholesalers but, because of the volume discount, often in excess of 100% mark up over cost on products purchased in large quantities directly from Parke Davis.
3
There are some 260 drugstores in Washington, D.C., and some 100 in Richmond, Virginia. Many of the stores are units of Peoples Drug Stores, a large retail drug chain. There are five drug wholesalers handling Parke Davis products in the locality who do business with the drug retailers. The wholesalers observed the resale prices suggested by Parke Davis. However, during the spring and early summer of 1956 drug retailers in the two cities advertised and sold several Parke Davis vitamin products at prices substantially below the suggested minimum retail prices; in some instances the prices apparently reflected the volume discounts on direct purchases from Parke Davis since the products were sold below the prices listed in the wholesalers' Net Price Selling Schedule. The Baltimore office manager of Parke Davis in charge of the sales district which included the two cities sought advice from his head office on how to handle this situation. The Parke Davis attorney advised that the company could legally 'enforce an adopted policy arrived at unilaterally' to sell only to customers who observed the suggested minimum resale prices. He further advised that this meant that 'we can lawfully say 'we will sell you only so long as you observe such minimum retail prices' but cannot say 'we will sell you only if you agree to observe such minimum retail prices,' since except as permitted by Fair Trade legislations (sic) agreements as to resale price maintenance are invalid.' Thereafter in July the branch manager put into effect a program for promoting observance of the suggested minimum retail prices by the retailers involved. The program contemplated the participation of the five drug wholesalers. In order to insure that retailers who did not comply would be cut off from sources of supply, representatives of Parke Davis visited the wholesalers and told them, in effect, that not only would Parke Davis refuse to sell to wholesalers who did not adhere to the policy announced in its catalogue, but also that it would refuse to sell to wholesalers who sold Parke Davis products to retailers who did not observe the suggested minimum retail prices. Each wholesaler was interviewed individually but each was informed that his competitors were also being apprised of this. The wholesalers without exception indicated a willingness to go along.
4
Representatives called contemporaneously upon the retailers involved, individually, and told each that if he did not observe the suggested minimum retail prices, Parke Davis would refuse to deal with him, and that furthermore he would be unable to purchase any Parke Davis products from the wholesalers. Each of the retailers was also told that his competitors were being similarly informed.
5
Several retailers refused to give any assurances of compliance and continued after these July interviews to advertise and sell Parke Davis products at prices below the suggested minimum retail prices. Their names were furnished by Parke Davis to the wholesalers. Thereafter Parke Davis refused to fill direct orders from such retailers and the wholesalers likewise refused to fill their orders.4 This ban was not limited to the Parke Davis products being sold below the suggested minimum prices but included all the company's products, even those necessary to fill prescriptions.
6
The president of Dart Drug Company, one of the retailers cut off, protested to the assistant branch manager of Parke Davis that Parke Davis was discriminating against him because a drugstore across the street, one of the Peoples Drug chain, had a sign in its window advertising Parke Davis products at cut prices. The retailer was told that if this were so the branch manager 'would see Peoples and try to get them in line.' The branch manager testified at the trial that thereafter he talked to a vice-president of Peoples and that the following occurred:
7
'Q. Well, now, you told Mr. Downey (the vice-president of Peoples) at this meeting, did you not, Mr. Powers, (the assistant branch manager of Parke Davis) that you moticed that Peoples were cutting prices? A. Yes.
8
'Q. And you told him, did you not, that it had been the Parke, Davis policy for many years to do business only with individuals that maintained the scheduled prices? A. I told Mr. Downey that we had a policy in our catalog, and that anyone that did not go along with our policy, we were not interested in doing business with them.
9
'Q. * * * Now, Mr. Downey told you on the occasion of this visit, did he not, that Peoples would stop cutting prices and would abide by the Parke-Davis policy, is that right? A. That is correct.
10
'Q. When you went to call on Mr. Downey, you solicited his support of Parke, Davis policies, is not that right? A. That is right.
11
'Q. And he said, I will abide by your policy? A. That is right.'
12
The District Court found, apparently on the basis of this testimony, that 'The Peoples' representative stated that Peoples would stop cutting prices on Parke, Davis' products and Parke, Davis continued to sell to Peoples.' (164 F.Supp. 833.)
13
But five retailers continued selling Parke Davis products at less than the suggested minimum prices from stocks on hand. Within a few weeks Parke Davis modified its program. Its officials believed that the selling at discount prices would be deterred, and the effects minimized of any isolated instances of discount selling which might continue, if all advertising of such prices were discontinued. In August the Parke Davis representatives again called on the retailers individually. When interviewed, the president of Dart Drug Company indicated that he might be willing to stop advertising, although continuing to sell at discount prices, if shipments to him were resumed. Each of the other retailers was then told individually by Parke Davis representatives that Dart was ready to discontinue advertising. Each thereupon said that if Dart stopped advertising he would also. On August 28 Parke Davis reported this reaction to Dart. Thereafter all of the retailers discontinued advertising of Parke Davis vitamins at less than suggested minimum retail prices and Parke Davis and the wholesalers resumed sales of Parke Davis products to them. However, the suspension of advertising lasted only a month. One of the retailers again started newspaper advertising in September and, despite efforts of Parke Davis to prevent it, the others quickly followed suit. Parke Davis then stopped trying to promote the retailers' adherence to its suggested resale prices, and neither it nor the wholesalers have since declined further dealings with them.5 A reason for this was that the Department of Justice, on complaint of Dart Drug Company, had begun an investigation of possible violation of the antitrust laws.
14
The District Court held that the Government's proofs did not establish a violation of the Sherman Act because 'the actions of (Parke Davis) were properly unilateral and sanctioned by law under the doctrine laid down in the case of United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992. * * *' 164 F.Supp. at page 829.
15
The Colgate case came to this Court on writ of error under the Criminal Appeals Act, 34 Stat. 1246, from a District Court judgment dismissing an indictment for violation of the Sherman Act. The indictment proceeded solely upon the theory of an unlawful combination between Colgate and its wholesale and retail dealers for the purpose and with the effect of procuring adherence on the part of the dealers to resale prices fixed by the company. However, the District Court construed the indictment as not charging a combination by agreement between Colgate and its customers to maintain prices. This Court held that it must disregard the allegations of the indictment since the District Court's interpretation of the indictment was binding and that without an allegation of unlawful agreement there was no Sherman Act violation charged. The Court said:
16
'The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce—in a word to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal; and, of course, he may announce in advance the circumstances under which he will refuse to sell.' 250 U.S. at page 307, 39 S.Ct. at page 468.
17
The Government concedes for the purposes of this case that under the Colgate doctrine a manufacturer, having announced a price maintenance policy, may bring about adherence to it by refusing to deal with customers who do not observe that policy. The Government contends, however, that subsequent decisions of this Court compel the holding that what Parke Davis did here by entwining the wholesalers and retailers in a program to promote general compliance with its price maintenance policy went beyond mere customer selection and created combinations or conspiracies to enforce resale price maintenance in violation of §§ 1 and 3 of the Sherman Act.
18
The history of the Colgate doctrine is best understood by reference to a case which preceded the Colgate decision, Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502. Dr Miles entered into written contracts with its customers obligating them to sell its medicine at prices fixed by it. The Court held that the contracts were void because they violated both the common law and the Sherman Act. The Colgate decision distinguished Dr. Miles on the ground that the Colgate indictment did not charge that company with selling its products to dealers under agreements which obligated the latter not to resell except at prices fixed by the seller. The Colgate decision created some confusion and doubt as to the continuing vitality of the principles announced in Dr. Miles. This brought United States v. Schrader's Son, Inc., 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471, to the Court. The case involved the prosecution of a components manufacturer for entering into price-fixing agreements with retailers, jobbers and manufacturers who used his products. The District Court dismissed, saying:
19
'Granting the fundamental proposition stated in the Colgate case, that the manufacturer has an undoubted right to specify resale prices and refuse to deal with any one who fails to maintain the same, or, as further stated, the act does not restrict the long-recognized right of a trader or manufacturer engaged in an entirely private business freely to exercise his own independent discretion as to parties with whom he will deal, and that he of course may announce in advance the circumstances under which he will refuse to sell, it seems to me that it is a distinction without a difference to say that he may do so by the subterfuges and devices set forth in the (Colgate) opinion and not violate the Sherman Anti-Trust Act, yet if he had done the same thing in the form of a written agreement, adequate only to effectuate the same purpose, he would be guilty of a violation of the law. * * *' D.C., 264 F. 175, 184.
This Court reversed, and said:
20
'The court below misapprehended the meaning and effect of the opinion and judgment in (Colgate). We had no intention to overrule or modify the doctrine of Dr. Miles Medical Co. v. John D. Park & Sons Co., where the effort was to destroy the dealers' independent discretion through restrictive agreements.' 252 U.S. at page 99, 40 S.Ct. at page 253.
21
The Court went on to explain that the statement from Colgate quoted earlier in this opinion meant no more than that a manufacturer is not guilty of a combination or conspiracy if he merely 'indicates his wishes concerning prices and declines further dealings with all who fail to observe them * * *'; however there is unlawful combination where a manufacturer 'enters into agreements—whether express or implied from a course of dealing or other circumstances—with all customers * * * which undertake to bind them to observe fixed resale prices.' Ibid.
22
The next decision was Frey & Son. Inc., v. Cudahy Packing Co., 256 U.S. 208, 41 S.Ct. 451, 65 L.Ed. 892. That was a treble damage suit alleging a conspiracy in violation of the Sherman Act between the manufacturer and jobbers to maintain resale prices. The plaintiff recovered a judgment. The Court of Appeals for the Fourth Circuit reversed on the authority of Colgate. The Court of Appeals concluded (261 F. 65, 67): 'There was no formal written or oral agreement with jobbers for the maintenance of prices' and in that circumstance held that under Colgate the trial court should have directed a verdict for the defendant. In holding that the Court of Appeals erred, this Court referred to the decision in Schrader as holding that the 'essential agreement, combination or conspiracy might be implied from a course of dealing or other circumstances,' so that in Cudahy, 'Having regard to the course of dealing and all the pertinent facts disclosed by the present record, we think whether there existed an unlawful combination or agreement between the manufacturer and jobbers was a question for the jury to decide, and that the Circuit Court of Appeals erred when it held otherwise.' 256 U.S. at page 210, 41 S.Ct. at page 451.
23
But the Court also held improper an instruction which was given to the jury that a violation of the Sherman Act might be found if the jury should find as facts that the defendant 'indicated a sales plan to the wholesalers and jobbers, which plan fixed the price below which the wholesalers and jobbers were not to sell to retailers, and * * * (that) defendant called this particular feature of this plan to their attention on very many different occasions, and * * * (that) the great majority of them not only (expressed) no dissent from such plan, but actually (cooperated) in carrying it out by themselves selling at the prices named * * *.' 256 U.S. 210—211, 41 S.Ct. 452, 65 L.Ed. 892. However, the authority of this holding condemning the instruction has been seriously undermined by subsequent decisions which we are about to discuss. Therefore, Cudahy does not support the District Court's action in this case, and we cannot follow it here. Less than a year after Cudahy was handed down, the Court decided Federal Trade Commission v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307, which presented a situation bearing a marked resemblance to the Parke Davis program.
24
In Beech-Nut the company had adopted a policy of refusing to sell its products to wholesalers or retailers who did not adhere to a schedule of resale prices. Beech-Nut later implemented this policy by refusing to sell to wholesalers who sold to retailers who would not adhere to the policy. To detect violations the company utilized code numbers on its products and instituted a system of reporting. When an offender was cut off, he would be reinstated upon the giving of assurances that he would maintain prices in the future. The Court construed the Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq. to authorize the Commission to forbid practices which had a 'dangerous tendency unduly to hinder competition or create monopoly.' (257 U.S. at page 454, 42 S.Ct. at page 154.) The Sherman Act was held to be a guide to what constituted an unfair method of competition. The company had urged that its conduct was entirely legal under the Sherman Act as interpreted by Colgate. The Court rejected this contention, saying that 'the Beech-Nut system goes for beyond the simple refusal to sell goods to persons who will not sell at stated prices, which in the Colgate Case was held to be within the legal right of the producer.' Ibid. The Court held further that the nonexistence of contracts covering the practices was irrelevant since '(t)he specific facts found show suppression of the freedom of competition by methods in which the company secures the co-operation of its distributors and customers, which are quite as effectual as agreements express or implied intended to accomplish the same purpose.' Id., 257 U.S. at page 455, 42 S.Ct. at page 155. That the Court considered that the Sherman Act violation thus established was dispositive of the issue before it is shown by the ground taken by Mr. Justice McReynolds in dissent. The parties had stipulated that there were no contracts covering the policy. Relying on his view of Colgate, he asked: 'How can there be methods of co-operation * * * when the existence of the essential contracts is definitely excluded?' Id., 257 U.S. at page 459, 42 S.Ct. at page 156. The majority did not read Colgate as requiring such contracts; rather, the Court dispelled the confusion over whether a combination effected by contractual arrangements, express or implied, was necessary to a finding of Sherman Act violation by limiting Colgate to a holding that when the only act specified in the indictment amounted to saying that the trader had exercised his right to determine those with whom he would deal, and to announce the circumstances under which he would refuse to sell, no Sherman Act violation was made out. However, because Beech-Nut's methods were as effective as agreements in producing the result that 'all who would deal in the company's products are constrained to sell at the suggested prices,' 257 U.S. at page 455, 42 S.Ct. at page 155, the Court held that the securing of the customers' adherence by such methods constituted the creation of an unlawful combination to suppress price competition among the retailers.
25
That Beech-Nut narrowly limited Colgate and announced principles which subject to Sherman Act liability the producer who secures his customers' adherence to his resale prices by methods which go beyond the simple refusal to sell to customers who will not resell at stated prices, was made clear in United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 722, 64 S.Ct. 805, 813, 88 L.Ed. 1024:
26
'The Beech-Nut case recognizes that a simple refusal to sell to others who do not maintain the first seller's fixed resale prices is lawful but adds as to the Sherman Act, 'He (the seller) may not, consistently with the act, go beyond the exercise of this right, and by contracts or combinations, express or implied, unduly hinder or obstruct the free and natural flow of commerce in the channels of interstate trade.' 257 U.S. at page 453, 42 S.Ct. at page 154. The Beech-Nut Company, without agreements, was found to suppress the freedom of competition by coercion of its customers through special agents of the company, by reports of competitors about customers who violated resale prices, and by boycotts of price cutters. * * *' Bausch & Lomb, like the instant case, was an action by the United States to restrain alleged violations of §§ 1 and 3 of the Sherman Act. The Court, relying on Beech-Nut, held that a distributor, Soft-Lite Lens Company, Inc., violated the Sherman Act when, as was the case with Parke Davis, the refusal to sell to wholesalers was not used simply to induce acquiescence of the wholesalers in the distributor's published resale price list; the wholesalers 'accepted Soft-Lite's proffer of a plan of distribution by cooperating in prices, limitation of sales to and approval of retail licensees. That is sufficient. * * * Whether this conspiracy and combination was achieved by agreement or by acquiescence of the wholesalers coupled with assistance in effectuating its purpose is immaterial.' 321 U.S. at page 723, 64 S.Ct. at page 813. Thus, whatever uncertainty previously existed as to the scope of the Colgate doctrine, Bausch & Lomb and Beech-Nut plainly fashioned its dimensions as meaning no more than that a simple refusal to sell to customers who will not resell at prices suggested by the seller is permissible under the Sherman Act. In other words, an unlawful combination is not just such as arises from a price maintenance agreement, express or implied; such a combination is also organized if the producer secures adherence to his suggested prices by means which go beyond his mere declination to sell to a customer who will not observe his announced policy.
27
In the cases decided before Beech-Nut the Court's inquiry was directed to whether the manufacturer had entered into illicit contracts, express or implied. The District Court in this case apparently assumed that the Government could prevail only by establishing a contractual arrangement, albeit implied, between Parke Davis and its customers. Proceeding from the same premise Parke Davis strenuously urges that Rule 52 of the Rules of Civil Procedure compels an affirmance of the District Court since under that Rule the finding that there were no contractual arrangements should 'not be set aside unless clearly erroneous.' But Rule 52 has no application here. The District Court premised its ultimate finding that Parke Davis did not violate the Sherman Act on an erroneous interpretation of the standard to be applied. The Bausch & Lomb and Beech-Nut decisions cannot be read as merely limited to particular fact complexes justifying the inference of an agreement in violation of the Sherman Act. Both cases teach that judicial inquiry is not to stop with a search of the record for evidence of purely contractual arrangements. The Sherman Act forbids combinations of traders to suppress competition. True, there results the same economic effect as is accomplished by a prohibited combination to suppress price competition if each customer, although induced to do so solely by a manufacturer's announced policy, independently decides to observe specified resale prices. So long as Colgate is not overruled, this result is tolerated but only when it is the consequence of a mere refusal to sell in the exercise of the manufacturer's right 'freely to exercise his own independent discretion as to parties with whom he will deal.' (250 U.S. 300, 39 S.Ct. 468.) When the manufacturer's actions, as here, go beyond mere announcement of his policy and the simple refusal to deal, and he employs other means which effect adherence to his resale prices, this countervailing consideration is not present and therefore he has put together a combination in violation of the Sherman Act. Thus, whether an unlawful combination or conspiracy is proved is to be judged by what the parties actually did rather than by the words they used. See Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 612, 34 S.Ct. 951, 954, 58 L.Ed. 1490. Because of the nature of the District Court's error we are reviewing a question of law, namely, whether the District Court applied the proper standard to essentially undisputed facts. See Interstate Circuit v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610; United States v. Masonite Corporation, 316 U.S. 265, 62 S.Ct. 1070, 86 L.Ed. 1461; United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057; and also United States v. John J. Felin & Co., 334 U.S. 624, 68 S.Ct. 1238, 92 L.Ed. 1614; Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162.
28
The program upon which Parke Davis embarked to promote general compliance with its suggested resale prices plainly exceeded the limitations of the Colgate doctrine and under Beech-Nut and Bausch & Lomb effected arrangements which violated the Sherman Act. Parke Davis did not content itself with announcing its policy regarding retail prices and following this with a simple refusal to have business relations with any retailers who disregarded that policy. Instead Parke Davis used the refusal to deal with the wholesalers in order to elicit their willingness to deny Parke Davis products to retailers and thereby help gain the retailers' adherence to its suggested minimum retail prices. The retailers who disregarded the price policy were promptly cut off when Parke Davis supplied the wholesalers with their names. The large retailer who said he would 'abide' by the price policy, the multi-unit Peoples Drug chain, was not cut off.6 In thus involving the wholesalers to stop the flow of Parke Davis products to the retailers, thereby inducing retailers' adherence to its suggested retail prices, Parke Davis created a combination with the retailers and the wholesalers to maintain retail prices and violated the Sherman Act. Although Parke Davis' originally announced wholesalers' policy would not under Colgate have violated the Sherman Act if its action thereunder was the simple refusal without more to deal with wholesalers who did not observe the wholesalers' Net Price Selling Schedule, that entire policy was tainted with the 'vice of * * * illegality,' cf. United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 724, 64 S.Ct. 805, 814, 88 L.Ed. 1024, when Parke Davis used it as the vehicle to gain the wholesalers' participation in the program to effectuate the retailers' adherence to the suggested retail prices.
29
Moreover, Parke Davis also exceeded the 'limited dispensation which (Colgate) confers,' Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 890, 97 L.Ed. 1277, in another way, which demonstrates how far Parke Davis went beyond the limits of the Colgate doctrine. With regard to the retailers' suspension of advertising, Parke Davis did not rest with the simple announcement to the trade of its policy in that regard followed by a refusal to sell to the retailers who would not observe it. First it discussed the subject with Dart Drug. When Dart indicated willingness to go along the other retailers were approached and Dart's apparent willingness to cooperate was used as the lever to gain their acquiescence in the program. Having secured those acquiescences Parke Davis returned to Dart Drug with the report of the accomplishment. Not until all this was done was the advertising suspended and sales to all the retailers resumed. In this manner Parke Davis sought assurances of compliance and got them, as well as the compliance itself. It was only by actively bringing about substantial unanimity among the competitors that Parke Davis was able to gain adherence to its policy. It must be admitted that a seller's announcement that he will not deal with customers who do not observe his policy may tend to engender confidence in each customer that if he complies his competitors will also. But if a manufacturer is unwilling to rely on individual self-interest to bring about general voluntary acquiescence which has the collateral effect of eliminating price competition, and takes affirmative action to achieve uniform adherence by inducing each customer to adhere to avoid such price competition, the customers' acquiescence is not then a matter of individual free choice prompted alone by the desirability of the product. The product then comes packaged in a competition-free wrapping—a valuable feature in itself—by virtue of concerted action induced by the manufacturer. The manufacturer is thus the organizer of a price-maintenance combination or conspiracy in violation of the Sherman Act. Under that Act 'competition, not combination, should be the law of trade,' National Cotton Oil Co. v. State of Texas, 197 U.S. 115, 129, 25 S.Ct. 379, 382, 49 L.Ed. 689, and 'a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce iis illegal per se.' United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129. And see United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209; Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219; Eastern States Retail Lumber Dealers' Ass'n v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490.
30
The District Court also alternatively rested its judgment of dismissal on the holding that '* * * even if the unlawful conditions alleged in the Complaint had actually been proved, since 1956 they no longer existed, and * * * (there is) no reason to believe, or even surmise, the unlawful acts alleged can possibly be repeated * * *.' 167 F.Supp. 827, 829, 830. We are of the view that the evidence does not justify any such finding. The District Court stated that 'the compelling reason for defendant's so doing (ceasing its efforts) was forced upon it by business and economic conditions in its field.' There is no evidence in the record that this was the reason and any such conclusion must rest on speculation. It does not appear even that Parke Davis has announced to the trade that it will abandon the practices we have condemned. So far as the record indicates any reason, it is that Parke Davis stopped its efforts because the Department of Justice had instituted an investigation. The president of Dart Drug Company testified that he had told the Parke Davis representatives in August that he had just been talking to the Department of Justice investigators. He stated that the Parke Davis representatives had said that 'they (knew) that the Antitrust Division was investigating them all over town,' and that this was one of their reasons for visiting him. The witness testified that it was on this occasion, after the discussion of the investigation, that the Parke Davis representatives finally stated that if Dart would stop advertising, Parke Davis 'would resume shipment, in so far as there was an Antitrust investigation going on.' Moreover Parke Davis' own employees, who were called by the Government as witnesses at the trial, admitted that they were aware of the investigation at the time and that the investigation was a reason for the discontinuance of the program. It seems to us that if the investigation would prompt Parke Davis to discontinue its efforts, even more so would the litigation which ensued.
31
On the record before us the Government is entitled to the relief it seeks. The courts have an obligation, once a violation of the antitrust laws has been established, to protect the public from a continuation of the harmful and unlawful activities. A trial court's wide discretion in fashioning remedies is not to be exercised to deny relief altogether by lightly inferring an abandonment of the unlawful activities from a cessation which seems timed to anticipate suit. See United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 695, 96 L.Ed. 978.
32
The judgment is reversed and the case remanded to the District Court with directions to enter an appropriate judgment enjoining Parke Davis from further violations of the Sherman Act unless the company elects to submit evidence in defense and refutes the Government's right to injunctive relief established by the present record.
33
It is so ordered.
34
Judgment reversed and case remanded with directions.
35
Mr. Justice STEWART, concurring.
36
I concur in the judgment. The Court's opinion amply demonstrates that the present record shows an illegal combination to maintain retail prices. I therefore find no occasion to question, even by innuendo, the continuing validity of the Colgate decision, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, or of the Court's ruling as to the jury instruction in Cudahy, 256 U.S. 210 211, 41 S.Ct. 451, 452, 65 L.Ed. 892.
37
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting.
38
The Court's opinion reaches much further than at once may meet the eye, and justifies fuller discussion than otherwise might appear warranted. Scrutiny of the opinion will reveal that the Court has done no less than send to its demise the Colgate doctrine which has been a basic part of antitrust law concepts since it was first announced in 1919 in United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992.
39
I begin with that doctrine and how it was applied by the District Court in this case. In the words of the Court's opinion, Colgate held that in the absence of a monopolistic setting, 'a manufacturer, having announced a price maintenance policy, may bring about adherence to it by refusing to deal with customers who do not observe that policy.' 'And,' as said in Colgate (at page 307, 39 S.Ct. at page 468), 'of course, he may announce in advance the circumstances under which he will refuse to sell.' The Government's complaint, seeking to enjoin alleged violations of §§ 1 and 3 of the Sherman Act,1 in substance charged Parke Davis with having combined and conspired with wholesalers and retailers of its products in the District of Columbia and Virginia, in four respects: (1) with retailers, to fix retail prices; (2) with retailers, to suppress advertising of cut prices; (3) with wholesalers, to fix wholesale prices; and (4) with wholesalers, to boycott retail price cutters. The Company's defense was that the activities complained of simply constituted a legitimate exercise of its rights under the Colgate doctrine. The detailed findings of the District Court are epitomized in its opinion as follows:
40
(1) Parke Davis 'had well-established policies concerning the prices at which (its) products were to be sold by wholesalers and retailers, and the type of retailers to whom the wholesalers could re-sell';2
41
(2) Parke Davis' 'representatives * * * notified retailers concerning the policy under which its goods must be sold, but the retailers were free either to do without such goods or sell them in accordance with defendant's policy';
42
(3) Parke Davis' 'representatives likewise contacted wholesalers, notifying them of its policy and the wholesalers were likewise free to refuse to comply and thus risk being cut off by the defendant';
43
(4) 'every visit made by the representatives to the retailers and wholesalers was, to each of them, separate and apart from all others';
44
(5) '(t)he evidence is clear that both wholesalers and retailers valued (Parke Davis') business so highly that they acceded to its policy'; (6) 'there was no coercion by defendant and no agreement with (wholesaler or retailer) co-conspirators as alleged in the Complaint';
45
(7) as to the Government's contention that proof of the alleged conspiracy 'is implicit in (1) defendant's calling the attention of both retailers and wholesalers to its policy, and (2) the distributors' acquiescence to the policy. (t)he Court cannot agree to such a nebulous deduction from the record before it.'
46
On these premises the District Court concluded: 'Clearly, the actions of defendant were properly unilateral and sanctioned by law under the doctrine laid down in the case of United States v. Colgate & Company, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992.'
47
The Court appears to recognize that as the Colgate doctrine was originally understood, the District Court's findings would require affirmance of its judgment here. It is said, however, that reversal is required because Federal Trade Commission v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307, and United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024, subsequently 'narrowly limited' the Colgate rule. The claim is that whereas prior to Beech-Nut it was considered that, fair trade laws apart, resale price maintenance came within the ban of the Sherman Act only if it was brought about by express or implied agreement between the parties—which the Court says meant 'contractual arrangements'—Beech-Nut, which was carried forward by Bausch & Lomb, later established that such agreements or contractual arrangements need not be shown. Recognizing that §§ 1 and 3 of the Sherman Act explicitly require a 'contract, combination * * * or conspiracy,' the Court says this requirement is satisfied by conduct which falls short of express or implied agreement, if it goes beyond the seller's mere announcement of terms and his refusal to deal with those who will not comply with them. Concluding that the District Court in the present case mistakenly proceeded solely on the 'agreement' view of Colgate, it is then said that its findings of fact are not binding on us because they were based on an erroneous legal standard, and that therefore 'Rule 52 has no application here.'3
48
I think this reasoning not only misconceives the Beech-Nut and Bausch & Lomb cases, but also mistakes the premises on which the District Court decided this case, and its actual findings of fact.
49
First. I cannot read Beech-Nut or Bausch & Lomb as introducing a new narrowing concept into the Colgate doctrine. Until today I had not supposed that any informed antitrust practitioner or judge would have had to await Beech-Nut to know that the concerted action proscribed by the Sherman Act need not amount to a contractual agreement. But neither do I think it would have been supposed that the Sherman Act does not require concerted action in some form. In Beech-Nut itself the Court stated the rule to be that a seller may not restrain trade 'by contracts or combinations, express or implied,' and there found suppression of competition 'by methods in which the company secures the co-operation of its distributors and customers, which are quite as effectual as agreements express or implied intended to accomplish the same purpose.' 257 U.S. at pages 453, 455, 42 S.Ct. at pages 154, 155, 66 L.Ed. 307. It is obvious that the 'methods' thus referred to were the 'cooperative methods' which the Federal Trade Commission had found to exist, for the Court expressly limited the Commission's order to the granting of relief against such methods. Id., 257 U.S. 455—456, 42 S.Ct. 155, 66 L.Ed. 307. Far from announcing that no concerted action need be shown, the Court accepted the Commission's factual determination that such action did exist.
50
Similarly, in Bausch & Lomb, the District Court had found that Soft-Lite had entered into 'agreements with wholesale customers' to fix prices and boycott unlicensed retailers. 321 U.S. at page 717, 64 S.Ct. at page 810, 88 L.Ed. 1024. This Court held that the facts 'all amply support, indeed require, the inference of the trial court that a conspiracy to maintain prices down the distribution system existed between the wholesalers and Soft-Lite.' Id., 321 U.S. at page 720, 64 S.Ct. at page 812, 88 L.Ed. 1024. The Court reiterated that resale price maintenance could not be achieved 'by agreement, express or implied.' Id., 321 U.S. at page 721, 64 S.Ct. at page 812, 88 L.Ed. 1024. In rejecting the applicability of the Colgate doctrine, it said that none of the cases applying the doctrine 'involve, as the present case does, an agreement between the seller and purchaser to maintain resale prices.' Ibid. It justified the finding of concerted action on the ground that '(t)he wholesalers accepted Soft-Lite's proffer of a plan of distribution by cooperating in prices, limitation of sales, to and approval of retail licensees.' Id., 321 U.S. at page 723, 64 S.Ct. at page 813, 88 L.Ed. 1024.
51
The results in Beech-Nut and Bausch & Lomb, as in all Sherman Act cases, turned on the application of established standards of concerted action to the full sweep of the particular facts in those cases, and not upon any new meaning given to the words 'contract, combination * * * or conspiracy.' The Court now says that the seller runs afoul of the Sherman Act when he goes beyond mere announcement of his policy and refusal to sell, not because the bare announcement and refusal fall outside the statutory phrase, but because any additional step removes a 'countervailing consideration' in favor of permitting a seller to choose his customers. But we are left wholly in the dark as to what the purported new standard is for establishing a 'contract, combination * * * or conspiracy.'
52
Second. The Court is mistaken in attributing to the District Court the limited view that Parke Davis' activities should, under Colgate, be upheld unless they involved some express or implied 'contractual arrangement' with wholesalers or retailers. The Government's complaint specifically charged a 'combination and conspiracy' between Parke Davis and its wholesale and retail customers in the areas involved, comprising a 'continuing agreement, understanding and concert of action' in the four aspects already noted. 362 U.S. at page 50, 80 S.Ct. at page 515. In its 31 detailed findings of fact the District Court repeatedly emphasized that Parke Davis did not have an 'agreement or understanding of any kind' with its distributors, and it concluded that the evidence as a whole did not support the Government's allegations. It determined with respect to each of the four facets of the alleged conspiracy that 'there was no coercion' and that 'Parke, Davis did not combine, conspire or enter into an agreement, understanding or concert of action' with the wholesalers, retailers, or anyone else. I cannot detect in the record any indication that the District Court in making these findings applied anything other than the standard which has always been understood to govern prosecutions based on §§ 1 and 3 of the Sherman Act.
53
Third. Bearing down heavily on the statement in Beech-Nut that the conduct there involved showed more than 'the simple refusal to sell,' 257 U.S. at page 454, 42 S.Ct. at page 154, 66 L.Ed. 307 (see also Bausch & Lomb, supra, 321 U.S. at page 722, 64 S.Ct. at page 813, 88 L.Ed. 1024), the Court finds that Parke Davis' conduct exceeded the permissible limits of Colgate in two respects. The first is that Parke Davis announced that it would, and did, cut off wholesalers who continued to sell to price-cutting retailers. The second is that the Company in at least one instance reported its talks with one or more retailers to other retailers; that in 'this manner Parke Davis sought assurances of compliance and got them'; and that it 'was only by actively bringing about substantial unanimity among the competitors that Parke Davis was able to gain adherence to its policy.' There are two difficulties with the Court's analysis on these scores. The first is the findings of the District Court. As to refusals to sell to wholesalers, the lower court found that such conduct did not involve any concert of action, but was wholly unilateral on Parke Davis' part. And I cannot see how such unilateral action, permissible in itself, becomes any less unilateral because it is taken simultaneously with similar unilateral action at the retail level. As to the other respect in which the Court holds Parke Davis' conduct was illegal, the District Court found that the Company did not make 'the enforcement of its policies, as to any one wholesaler or retailer dependent upon the action of any other wholesaler or retailer.' And it further stated that the 'evidence is clear that both wholesalers and retailers valued defendant's business so highly that they acceeded to its policy,' and that such acquiescence was not brought about by 'coercion' or 'agreement.' Even if this were not true, so that concerted action among the retailers at the 'horizontal' level might be inferred, as the Court indicates, under the principles of Interstate Circuit, Inc., v. United States, 306 U.S. 208, 59 S.Ct. 467, 83 L.Ed. 610. I do not see how that itself would justify an inference that concerted action at the 'vertical' level existed between Parke Davis and the retailers or wholesalers.
54
The second difficulty with the Court's analysis is that even reviewing the District Court's findings only as a matter of law, as the Court purports to do, the cases do not justify overturning the lower court's resulting conclusions. Beech-Nut did not say that refusals to sell to wholesalers who persisted in selling to cut-price retailers—conduct which was present in that case (257 U.S. at page 448, 42 S.Ct. at page 152, 66 L.Ed. 307)—was a per se infraction of the Colgate rule, but only that it was offensive if it was the result of cooperative group action. While the Court in Beech-Nut and Bausch & Lomb inferred from the aggressive, widespread, highly organized, and successful merchandising programs involved there that such concerted action existed in those cases, the defensive, limited, unorganized, and unsuccessful effort of Parke Davis to maintain its resale price policy4 does not justify our disregarding the District Court's finding to the contrary in this case.5
55
In light of the whole history of the Colgate doctrine, it is surely this Court, and not the District Court, that has proceeded on erroneous premises in deciding this case. Unless there is to be attributed to the Court a purpose to overturn the findings of fact of the District Court—something which its opinion not only expressly disclaims doing, but which would also be in plain definance of the Federal Rules of Civil Procedure, Rule 52(a), and principles announced in past cases (see, e.g., United States v. Yellow Cab Co., 338 U.S. 338, 341—342, 70 S.Ct. 177, 179, 94 L.Ed. 150; International Boxing Club of New York, Inc. v. United States, 358 U.S. 242, 252, 79 S.Ct. 245, 251, 3 L.Ed.2d 270)—I think that what the Court has really done here is to throw the Colgate doctrine into discard.
56
To be sure, the Government has explicitly stated that it does not ask us to overrule Colgate, and the Court professes not to do so. But contrary to the long understanding of bench and bar, the Court treats Colgate as turning not on the absence of the concerted action explicitly required by §§ 1 and 3 of the Sherman Act, but upon the Court's notion of 'countervailing' social policies. I can regard the Court's profession as no more than a bow to the fact that Colgate, decided more than 40 years ago, has become part of the economic regime of the country upon which the commercial community and the lawyers who advise it have justifiably relied.
57
If the principle for which Colgate stands is to be reversed, it is, as the Government's position plainly indicates, something that should be left to the Congress. It is surely the emptiest of formalisms to profess respect for Colgate and eviscerate it in application.
58
I would affirm.
1
The pertinent provision of Sections 1, 3 and 4 of the Act of July 2, 1890, 26 Stat. 209, as amended (15 U.S.C. §§ 1, 3, 4, 15 U.S.C.A. §§ 1, 3, 4), commonly known as the Sherman Act, are as follows:
'Sec. 1. 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 hereby declared to be illegal * * *. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a misdemeanor * * *.'
'Sec. 3. Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in * * * the District of Columbia, or in restraint of trade or commerce * * * between the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor * * *.
'Sec. 4. The several district courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several United States attorneys, in their respective districts, under the direction of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations * * *.'
2
Congress has provided that where a State adopts a 'Fair Trade Law' which permits sellers under certain circumstances to make price-fixing agreements with purchasers, such agreements shall not be held illegal under the Sherman Act, 15 U.S.C. § 1, 15 U.S.C.A. § 1. The Fair Trade Laws adopted in 16 States have been invalidated by their state courts on state grounds. H.R.Rep. No. 467, 86th Cong., 1st Sess. 6—7. On June 9, 1959, the House Committee on Interstate Commerce favorably reported a bill which, if passed, would enact a National Fair Trade Practice Act.
3
32 Stat. 823, 15 U.S.C. § 29, as amended by § 17 of the Act of June 25, 1948, 62 Stat. 989, 15 U.S.C.A. § 29.
4
When Parke Davis learned from a wholesaler's invoice that he had filled an order of one of the retailers, Parke Davis protested but was satisfied when the wholesaler explained that this was an oversight.
5
Except that in December 1957, Parke Davis informed Dart Drug Company that it did not intend to have any further dealings with Dart. The latter has, however, continued to purchase Parke Davis products from wholesalers. Thus, Dart Drug cannot receive the volume discount on large quantity purchases.
6
Indeed, if Peoples resumed adherence to the Parke Davis price scale after the interview between its vice-president and Parke Davis' assistant branch manager, 362 U.S. at page 34, 80 S.Ct. at page 507, supra, shows that Parke Davis and Peoples entered into a price maintenance agreement, express, tacit or implied, such agreement violated the Sherman Act without regard to any wholesalers' participation.
1
These are the 'restraint of trade,' not the 'monopoly,' provisions of the Sherman Act. See Note 1 of the Court's opinion.
2
Those 'authorized by law to fill or dispense prescriptions.'
3
Rule 52(a), F.R.Civ.P. provides in relevant part: 'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.'
4
The District Court found, among other things, that the efforts of Parke Davis in the District of Columbia and Virginia came about only after some of its competitors had engaged in damaging local 'deep price cutting' on Parke Davis products (Fdg. 12); that Parke Davis' sales in those areas constituted less than 5% of the total pharmaceutical sales therein (Fdg. 3); that these efforts followed the legal advice previously given by the Company's counsel (Fdg. 12); that Parke Davis did not have 'any regularized or systematic machinery for maintaining its suggested minimum prices as to either retailers or wholesalers' (Fdg. 10); that the entire episode lasted only from July to the fall of 1956, when the Company 'in good faith' abandoned all further such efforts (Fdgs. 12, 27); and that since that time retailers in these areas 'have continuously sold and advertised Parke, Davis products at cut prices, and have been able to obtain those products from both the wholesalers and/or Parke, Davis itself.' (Fdg. 27.)
5
It may be observed that the facts found by the District Court militate more strongly against violation of the Sherman Act than those which formed the basis of the charge held erroneous by this Court in Cudahy, 256 U.S. at pages 210—211, 41 S.Ct. at pages 451, 452, 65 L.Ed. 892. Although the Court now repudiates what was said in Cudahy in this respect, I submit that there is nothing in Beech-Nut, Bausch & Lomb, or any other case in this Court which justifies this.
| 78
|
362 U.S. 17
80 S.Ct. 519
4 L.Ed.2d 524
UNITED STATES, Appellant,v.James Griggs RAINES et al.
No. 64.
Argued Jan. 12, 1960.
Decided Feb. 29, 1960.
[Syllabus from pages 17-18 intentionally omitted]
Attorney General William P. Rogers, Washington, D.C., for appellant.
Mr. Charles J. Bloch, Macon, Ga., for the appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The United States brought this action in the United States District Court for the Middle District of Georgia against the members of the Board of Registrars and certain Deputy Registrars of Terrell County, Georgia. Its complaint charged that the defendants had through various devices, in the administration of their offices, discriminated on racial grounds against Negroes who desired to register to vote in elections conducted in the State. The complaint sought an injunction against the continuation of these discriminatory practices, and other relief.
2
The action was founded upon R.S. § 2004, as amended by § 131 of the Civil Rights Act of 1957, 71 Stat. 637, 42 U.S.C. § 1971, 42 U.S.C.A. § 1971. Subsections (a) and (c), which are directly involved, provide:1
3
'(a) All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.
4
'(c) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) * * *, the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. * * *'
5
On the defendants' motion, the District Court dismissed the complaint, holding that subsection (c) was unconstitutional. 172 F.Supp. 552. The court held that the statutory language quoted allowed the United States to enjoin purely private action designed to deprive citizens of the right to vote on account of their race or color. Although the complaint in question involved only official action, the court ruled that since, in its opinion, the statute on its face was susceptible of application beyond the scope permissible under the Fifteenth Amendment, it was to be considered unconstitutional in all its applications. The Government appealed directly to this Court and we postponed the question of jurisdiction to the hearing of the case on the merits. 360 U.S. 926, 79 S.Ct. 1448, 3 L.Ed.2d 1541. Under the terms of 28 U.S.C. § 1252, 28 U.S.C.A. § 1252, the case is properly here on appeal since the basis of the decision below in fact was that the Act of Congress was unconstitutional, no matter what the contentions of the parties might be as to what its proper basis should have been.
6
The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them. This was made patent in the first case here exercising that power—'the gravest and most delicate duty that this Court is called on to perform.'2 Marbury v. Madison, 1 Cranch 137, 177— 180, 2 L.Ed. 60. This Court, as is the case with all federal courts, 'has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Heald v. District of Columbia, 259 U.S. 114, 123, 42 S.Ct. 434, 435, 66 L.Ed. 852; Yazoo & Mississippi Valley R. Co. v. .jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193; Collins v. State of Texas, 223 U.S. 288, 295—296, 32 S.Ct. 286, 288, 56 L.Ed. 439; People of State of New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160—161, 27 S.Ct. 188, 190—191, 51 L.Ed. 415. Cf. Voeller v. Neilston Warehouse Co., 311 U.S. 531, 537, 61 S.Ct. 376, 379, 85 L.Ed. 322; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513, 57 S.Ct. 868, 874, 81 L.Ed. 1245; Virginian R. Co. v. System Federation, 300 U.S. 515, 558, 57 S.Ct. 592, 605, 81 L.Ed. 789; Blackmer v. United States, 284 U.S. 421, 442, 52 S.Ct. 252, 257, 76 L.Ed. 375; Roberts & Schaefer Co. v. Emmerson, 271 U.S. 50, 54 55, 46 S.Ct. 375, 376—377, 70 L.Ed. 827; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576, 35 S.Ct. 167, 169, 59 L.Ed. 364; Tyler v. Judges of the Court of Registration, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347—348, 56 S.Ct. 466, 483—484, 80 L.Ed. 688 (concurring opinion). In Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, this Court developed various reasons for this rule. Very significant is the incontrovertible proposition that it 'would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.' Id., 346 U.S. at page 256, 73 S.Ct. at page 1035. The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined. The Court further pointed to the fact that a limiting construction could be given to the statute by the court responsible for its construction if an application of doubtful constitutionality were in fact concretely presented. We might add that application of this rule frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.
7
The District Court relied on, and appellees urge here, certain cases which are said to be inconsistent with this rule and with its closely related corollary that a litigant may only assert his own constitutional rights or immunities. In many of their applications, these are not principles ordained by the Constitution, but constitute rather 'rule(s) of practice,' Barrows v. Jackson, supra, 346 U.S. at page 257, 73 S.Ct. at page 1035, albeit weighty ones; hence some exceptions to them where there are weightly countervailing policies have been and are recognized. For example, where, as a result of the very litigation in question, the constitutional rights of one not a party would be impaired, and where he has no effective way to preserve them himself, the Court may consider those rights as before it. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 459—460, 78 S.Ct. 1163, 1170—1171, 2 L.Ed.2d 1488; Barrows v. Jackson, supra. This Court has indicated that where the application of these rules would itself have an inhibitory effect on freedom of speech, they may not be applied. See Smith v. People of State of California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205; Thornhill v. State of Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741—742, 84 L.Ed. 1093. Perhaps cases can be put where their application to a criminal statute would necessitate such a revision of its text as to create a situation in which the statute no longer gave an intelligible warning of the conduct it prohibited. See United States v. Reese, 92 U.S. 214, 219—220, 23 L.Ed. 563; cf. Winters v. People of State of New York, 333 U.S. 507, 518—520, 68 S.Ct. 665, 671—672, 92 L.Ed. 840. And the rules' rationale may disappear where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of the cases it was originally designed to cover. See Butts v. Merchants & Miners Transportation Co., 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422. The same situation is presented when a state statute comes conclusively pronounced by a state court as having an otherwise valid provision or application inextricably tied up with an invalid one, see Dorchy v. State of Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 325, 68 L.Ed. 686;3 or possibly in that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its legislation to stand at all unless it could validly stand in its every application. Cf. The Trade-Mark Cases, 100 U.S. 82, 97—98, 25 L.Ed. 550; The Employers' Liability Cases, 207 U.S. 463, 501, 28 S.Ct. 141, 146, 52 L.Ed. 297. But we see none of the countervailing considerations suggested by these examples, or any other countervailing consideration, as warranting the District Court's action here in considering the constitutionality of the Act in applications not before it.4 This case is rather the most typical one for application of the rules we have discussed.
8
There are, to be sure, cases where this Court has not applied with perfect consistency these rules for avoiding unnecessary constitutional determinations,5 and we do not mean to say that every case we have cited for various exceptions to their application was considered to turn on the exception stated, or is perfectly justified by it. The District Court relied primarily on United States v. Reese, supra. As we have indicated, that decision may have drawn support from the assumption that if the Court had not passed on the statute's validity in toto it would have left standing a criminal statute incapable of giving fair warning of its prohibitions. But to the extent Reese did depend on an approach inconsistent with what we think the better one and the one established by the weightiest of the subsequent cases, we cannot follow it here.
9
Accordingly, if the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality. And as to the application of the statute called for by the complaint, whatever precisely may be the reach of the Fifteenth Amendment, it is enough to say that the conduct charged—discrimination by state officials, within the course of their official duties, against the voting rights of United States citizens, on grounds of race or color—is certainly, as 'state action' and the clearest form of it, subject to the ban of that Amendment, and that legislation designed to deal with such discrimination is 'appropriate legislation' under it. It makes no difference that the discrimination in question, if state action, is also violative of state law. Snowden v. Hughes, 321 U.S. 1, 11, 64 S.Ct. 397, 403, 88 L.Ed. 497. The appellees contend that since Congress has provided in subsection (d) of the statutory provision in question here that the District Courts shall exercise their jurisdiction 'without regard to whether the party aggrieved shall have exhausted any administrative or other remedies that may be provided by law,' and since such remedies were not exhausted here, appellees' action cannot be ascribed to the State. The argument is that the ultimate voice of the State has not spoken, since higher echelons of authority in the State might revise the appellees' action. It is, however, established as a fundamental proposition that every state official, high and low, is bound by the Fourteenth and Fifteenth Amendments. See Cooper v. Aaron, 358 U.S. 1, 16—19, 78 S.Ct. 1401, 1408—1410, 3 L.Ed.2d 5. We think this Court has already made it clear that it follows from this that Congress has the power to provide for the correction of the constitutional violations of every such official without regard to the presence of other authority in the State that might possibly revise their actions. The appellees can draw no support from the expressions in Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737, on which they so much rely.6 The authority of those expressions has been 'so restricted by our later decisions,' see Snowden v. Hughes, supra, 321 U.S. at page 13, 64 S.Ct. at page 403, that Barney must be regarded as having 'been worn away by the erosion of time,' Tigner v. State of Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124, and of contrary authority. See Raymond v. Chicago Union Traction Co., 207 U.S. 20, 37, 28 S.Ct. 7, 13, 52 L.Ed. 78; Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 283—289, 294, 33 S.Ct. 312, 313—315, 317, 57 L.Ed. 510; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 247, 52 S.Ct. 133, 136, 76 L.Ed. 265; Snowden v. Hughes, supra; Screws v. United States, 325 U.S. 91, 107—113, 116, 65 S.Ct. 1031, 1038—1041, 1043, 89 L.Ed. 1495. Cf. United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368. It was said of Barney's doctrine in Home Telephone & Telegraph Co. v. City of Los Angeles, supra, 227 U.S. at page 284, 33 S.Ct. at page 314, by Mr. Chief Justice White: '(its) enforcement * * * would * * * render impossible the performance of the duty with which the Federal courts are charged under the Constitution.' The District Court seems to us to have recognized that the complaint clearly charged a violation of the Fifteenth Amendment and of the statute, and that the statute, if applicable only to this class of cases, would unquestionably be valid legislation under that Amendment. We think that under the rules we have stated, that court should then have gone no further and should have upheld the Act as applied in the present action, and that its dismissal of the complaint was error.
10
The appellees urge alternative grounds on which they seek to support the judgment of the District Court dismissing the complaint.7 We do not believe these grounds are well taken. It is urged that it is beyond the power of Congress to authorize the United States to bring this action in support of private constitutional rights. But there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights, and we think it perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief. See United Steelworkers of America v. United States, 361 U.S. 39, 43, 80 S.Ct. 1, 4, 4 L.Ed.2d 12, and cases cited. Appellees raise question as to the scope of the equitable discretion reserved to the courts in suits under § 2004. Cf. Id., 361 U.S. at pages 41—42, 80 S.Ct. at pages 3—4. We need not define the scope of the discretion of a District Court in proceedings of this nature, because, exercising a traditional equity discretion, the court below declined to dismiss the complaint on that ground, and we do not discern any basis in the present posture of the case for any contention that it has abused its discretion. Questions as to the relief sought by the United States are posed, but remedial issues are hardly properly presented at this stage in the litigation.
11
The parties have engaged in much discussion concerning the ultimate scope in which Congress intended this legislation to apply, and concerning its constitutionality under the Fifteen Amendment in these various applications. We shall not compound the error we have found in the District Court's judgment by intimating any views on either matter.
12
Reversed.
13
Mr. Justice FRANKFURTER, with whom Mr. Justice HARLAN concurs, joining in the judgment.
14
The weighty presumptive validity with which the Civil Rights Act of 1957, like every enactment of Congress, comes here is not overborne by any claim urged against it. To deal with legislation so as to find unconstitutionality is to reverse the duty of courts to apply a statute so as to save it. Here this measure is sustained under familiar principles of constitutional law. Nor is there any procedural hurdle left to be cleared to sustain the suit of the United States. Whatever may have been the original force of Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737, that decision has long ceased to be an obstruction, nor is any other decision in the way of our result in this case. And so I find it needless to canvass the multitude of opinions that may generally touch on, but do not govern, the issues now before us.
1
Subsection (a) was originally § 1 of the Enforcement Act of May 31, 1870, c. 114, 16 Stat. 140, and was brought forward as R.S. § 2004. The remaining subsections were added by the 1957 legislation. Subsection (b) forbids various forms of intimidation and coercion in respect of voting for federal elective officers, and the enforcement provisions of subsection (c) likewise apply to it; but subsection (b) is not involved in this litigation.
2
Holmes, J., in Blodgett v. Holden, 275 U.S. 142, 148, 276 U.S. 594, 48 S.Ct. 105, 107, 72 L.Ed. 206.
3
Cf. Mountain Timber Co. v. State of Washington, 243 U.S. 219, 234, 37 S.Ct. 260, 263, 61 L.Ed. 685. But a State's determination of the class of persons who can invoke the protection of provisions of the Federal Constitution has been held not conclusive here. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603.
4
Certainly it cannot be said that the sort of action proceeded against here, and validly reachable under the Constitution (see pages 25—26 of 362 U.S., pages 524—526 of 80 S.Ct. infra), was so small and inessential a part of the evil Congress was concerned about in the statute that these defendants should be permitted to make an attack on the statute generally. Subsection (d) and innumerable items in the legislative history show Congress' particular concern with the sort of action charged here. See, e.g., Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, on Proposals to Secure, Protect, and Strengthen Civil Rights of Persons under the Constitution and Laws of the United States, 85th Cong., 1st Sess., pp. 4—7, 36—37, 77, 81, 189, 205, 293, 300; Hearings before Subcommittee No. 5 of the Committee on the Judiciary, House of Representatives, on Miscellaneous Bills Regarding the Civil Rights of Persons within the Jurisdiction of the United States, 85th Cong., 1st Sess., pp. 656, 1220; 103 Cong.Rec. 8705, 12149, 12898, 13126, 13732.
Nor can there be any serious contention that the statute, as a civil enactment, would fail to give adequate notice of the conduct it validly proscribed, even if certain applications of it were to be deemed unconstitutional. Criminal proceedings under the statute must depend on violation of a restraining order embracing the party charged.
5
Cf., e.g., Illinois Central R. Co. v. McKendree, 203 U.S. 514, 27 S.Ct. 153, 51 L.Ed. 298; United States v. Ju Toy, 198 U.S. 253, 262—263, 25 S.Ct. 644, 646—647, 49 L.Ed. 1040.
6
Barney was a property owner's action to enjoin state officials from construction of a rapid transit tunnel in a particular place. The suit was brought directly under the Fourteenth Amendment in federal court, and it was averred that the proposed action of the state officials was not authorized under state law. It does not appear that the complainant alleged that higher state administrative echelons were indisposed to halt the unauthorized actions or that the State offered no remedy at all to a property owner threatened with intereference with his property by state officials acting without authority. There was not presented any specific federal statute expressly authorizing federal judicial intervention with matters in this posture.
7
Many of these contentions are raised by what appellees style a 'cross-appeal.' Notice of cross-appeal was filed in the District Court, but the cross-appeal was not docketed here. However, since the judgment of the District Court awarded appellees all the relief they requested (despite rejecting most of their contentions, except the contral one), no cross-appeal was necessary to bring these contentions before us if they can be considered otherwise. They would simply be alternative grounds on which the judgment below could be supported. In view of the broad nature of § 1252, which seems to indicate a desire of Congress that the whole case come up (contrast 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, United States v. Borden Co., 308 U.S. 188, 193, 60 S.Ct. 182, 186, 84 L.Ed. 181), we have the power to pass on these other questions, and since the District Court expressed its views on most of them, we also deem it appropriate to do so.
| 12
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362 U.S. 58
80 S.Ct. 612
4 L.Ed.2d 535
UNITED STATES of America, petitioner,v.Curtis M. THOMAS, Registrar of Voters of Washington Parish, Louisiana, et al.
No. 667.
Supreme Court of the United States
February 29, 1960
Sol. Gen. J. Lee Rankin, Washington, D. C., for petitioner.
Messrs. Weldon A. Cousins and Henry J. Roberts, Jr., New Orleans, La., for respondents.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit.
PER CURIAM.
1
Pursuant to its order of January 26, 1960, 361 U.S. 950, 80 S.Ct. 398, the Court has before it (1) the application of the United States for an order vacating the order of the Court of Appeals, dated January 21, 1960, staying the judgment of the District Court for the Eastern District of Louisiana, New Orleans Division, dated January 11, 1960, 180 F.Supp. 10; and (2) the petition of the United States for a writ of certiorari to the Court of Appeals to review the judgment of the District Court as to the respondent, Curtis M. Thomas, Registrar of Voters, Washington Parish, Louisiana. Having considered the briefs and oral arguments submitted by both sides, the Court makes the following disposition of these matters:
2
The petition for certiorari is granted. Upon the opinion, findings of fact, and conclusions of law of the District Court and the decision of this Court rendered today in United States v. Raines, 80 S.Ct. 519, the aforesaid stay order of the Court of Appeals is vacated, and the judgment of the District Court as to the respondent Thomas is affirmed. It is so ordered.
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362 U.S. 1
80 S.Ct. 527
4 L.Ed.2d 494
Thomas W. NELSON and Arthur Globe, Petitioners,v.COUNTY OF LOS ANGELES et al.
No. 152.
Argued Jan. 31, 1960.
Decided Feb. 29, 1960.
Messrs. A. L. Wirin and Fred Okrand, Los Angeles, Cal., for the petitioners.
Mr. William E. Lamoreaux, Los Angeles, Cal., for the respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioners, when employees of the County of Los Angeles, California, were subpoenaed by and appeared before a Subcommittee of the House Un-American Activities Committee, but refused to answer certain questions concerning subversion. Previously, each petitioner had been ordered by the County Board of Supervisors to answer any questions asked by the Subcommittee relating to his subversive activity, and § 1028.1 of the Government Code of the State of California1 made it the duty of any public employee to give testimony relating to such activity on pain of discharge 'in the manner provided by law.' Thereafter the County discharged petitioners on the ground of insubordination and violation of § 1028.1 of the Code. Nelson, a permanent social worker employed by the County's Department of Charities, was, upon his request, given a Civil Service Commission hearing which resulted in a confirmation of his discharge. Globe was a temporary employee of the same department and was denied a hearing on his discharge on the ground that, as such, he was not entitled to a hearing under the Civil Service Rules adopted pursuant to the County Charter. Petitioners then filed these petitions for mandates seeking reinstatement, contending that the California statute and their discharges violated the Due Process Clause of the Fourteenth Amendment. Nelson's discharge was affirmed by the District Court of Appeal, 163 Cal.App.2d 607, 329 P.2d 978, and Globe's summary dismissal was likewise affirmed, 163 Cal.App.2d 595, 329 P.2d 971. A petition for review in each of the cases was denied without opinion by the Supreme Court of California, three judges dissenting. 163 Cal.App.2d 614, 329 P.2d 983; 163 Cal.App.2d 606, 329 P.2d 978. We granted certiorari. 360 U.S. 928, 79 S.Ct. 1455, 3 L.Ed.2d 1543. The judgment in Nelson's case is affirmed by an equally divided Court and will not be discussed. We conclude that Globe's dismissal was valid.
2
On April 6, 1956, Globe was served with a subpoena to appear before the Subcommittee at Los Angeles. On the same date, he was served with a copy of an order of the County Board of Supervisors, originally issued February 19, 1952, concerning appearances before the Subcommittee. This order provided, among other things, that it was the duty of any employee to appear before the Subcommittee when so ordered or subpoenaed, and to answer questions concerning subversion. The order specifically stated that any 'employee who disobeys the declaration of this duty and order will be considered to have been insubordinate * * * and that such insubordination shall constitute grounds for discharge * * *.'2 At the appointed time, Globe appeared before the Subcommittee and was interrogated by its counsel concerning his familiarity with the John Reid Club. He claimed that this was a matter which was entirely his 'own business,' and, upon being pressed for an answer, he stated that the question was 'completely out of line as far as my rights as a citizen are concerned, (and) I refuse to answer this question under the First and Fifth Amendments of the Constitution of the United States.' On the same grounds he refused to answer further questions concerning the Club, including one relating to his own membership. Upon being asked if he had observed any Communist activities on the part of members of the Club, Globe refused to answer, and suggested to committee counsel 'that you get one of your trained seals up here and ask them.' He refused to testify whether he was 'a member of the Communist Party now' 'on the same grounds' and 'as previously stated for previous reasons.' On May 2, by letter, Globe was discharged, 'without further notice,' on 'the grounds that (he had) been guilty of insubordination and of violation of Section 1028.1 of the Government Code of the State of California * * *.' The letter recited the fact that Globe had been served with a copy of the Board order relating to his 'duty to testify as a County employee * * * before said committee' and that, although appearing as directed, he had refused to answer the question, 'Are you a member of the Communist Party now?' Thereafter Globe requested a hearing before the Los Angeles County Civil Service Commission, but it found that, as a temporary employee, he was not entitled to a hearing under the Civil Service Rules.3 This the petitioner does not dispute.
3
However, Globe contends that, despite his temporary status, his summary discharge was arbitrary and unreasonable and, therefore, violative of due process. He reasons that his discharge was based on his invocation before the Subcommittee of his rights under the First and Fifth Amendments. But the record does not support even an inference in this regard, and both the order and the statute upon which the discharge was based avoided it. In fact, California's court held to the contrary, saying, 'At no time has the cause of petitioner's discharge been alleged to be anything but insubordination and a violation of section 1028.1, nor indeed under the record before us could it be.' 163 Cal.App.2d at page 599, 329 P.2d at page 974. Moreover, this finding is buttressed by the language of the order and of California's statute. Both require the employee to answer any interrogation in the field outlined. Failure to answer 'on any ground whatsoever any such questions' renders the employee 'guilty of insubordination' and requires that he 'be suspended and dismissed from his employment in the manner provided by law.' California law in this regard, as declared by its court, is that Globe 'has no vested right to county employment and may therefore be discharged summarily.' We take this interpretation of California law as binding upon us.
4
We, therefore, reach Globe's contention that his summary discharge was nevertheless arbitrary and unreasonable. In this regard he places his reliance on Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692. However, the New York statute under which Slochower was discharged specifically operated 'to discharge every city employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge.' Id., 350 U.S. at page 558, 76 S.Ct. at page 641. This 'built-in' inference of guilt, derived solely from a Fifth Amendment claim, we held to be arbitrary and unreasonable. But the test here, rather than being the invocation of any constitutional privilege, is the failure of the employee to answer. California has not predicated discharge on any 'built-in' inference of guilt in its statute, but solely on employee insubordination for failure to give information which we have held that the State has a legitimate interest in securing. See Garner v. Board of Public Works of City of Los Angeles, 1951, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education, 1952, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517. Moreover it must be remembered that here unlike Slochower—the Board had specifically ordered its employees to appear and answer.
5
We conclude that the case is controlled by Beilan v. Board of Public Education, School Dist. of Philadelphia, 1958, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414, and Lerner v. Casey, 1958, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423. It is not determinative that the interrogation here was by a federal body rather than a state one, as it was in those cases. Globe had been ordered by his employer as well as by California's law to appear and answer questions before the federal Subcommittee. These mandates made no reference to Fifth Amendment privileges. If Globe had simply refused, without more, to answer the Subcommittee's questions, we think that under the principles of Beilan and Lerner California could certainly have discharged him. The fact that he chose to place his refusal on a Fifth Amendment claim puts the matter in no different posture, for as in Lerner, supra, 357 U.S. at page 477, 78 S.Ct. at page 1316, California did not employ that claim as the basis for drawing an inference of guilt. Nor do we think that this discharge is vitiated by any deterrent effect that California's law might have had on Globe's exercise of his federal claim of privilege. The State may nevertheless legitimately predicate discharge on refusal to give information touching on the field of security. See Garner and Adler, supra. Likewise, we cannot say as a matter of due process that the State's choice of securing such information by means of testimony before a federal body4 can be denied. Finally, we do not believe that California's grounds for discharge constituted an arbitrary classification. See Lerner, 357 U.S. at page 478, 78 S.Ct. at page 1316. We conclude that the order of the County Board was not invalid under the Due Process Clause of the Fourteenth Amendment.
6
Nor do we believe that the remand on procedural grounds required in Vitarelli v. Seation, 1959, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012, has any bearing here. First, we did not reach the constitutional issues raised in that case. Next, Vitarelli was a Federal Department of Interior employee who 'could have been summarily discharged by the Secretary at any time without the giving of a reason.' Id., 359 U.S. at page 539, 79 S.Ct. at page 972. The Court held, however, that, since Vitarelli was dismissed on the grounds of national security rather than by summary discharge, and his dismissal 'fell substantially short of the requirements of the applicable departmental regulations,' it was 'illegal and of no effect.' Id., 359 U.S. at page 545, 79 S.Ct. at page 975. But petitioner here raises no such point, and clearly asserts that 'whether or not petitioner Globe was accorded a hearing is not the issue here.'5 He bases his whole case on the claim 'that due process affords petitioner Globe protection against the State's depriving him of employment on this arbitrary ground' of his refusal on federal constitutional grounds to answer questions of the Subcommittee. Having found that on the record here the discharge for 'insubordination' was not arbitrary, we need go no further.
7
We do not pass upon petitioner's contention as to the Privileges and Immunities Clause of the Fourteenth Amendment, since it was neither raised in nor considered by the California courts. The judgments are affirmed.
8
Affirmed.
9
Mr. Chief Justice WARREN took no part in the consideration or decision of this case.
10
Mr. Justice BLACK, whom Mr. Justice DOUGLAS joins, dissenting.
11
Section 1028.1 of the California Code, as here applied, provides that any California public employee who refuses to incriminate himself when asked to do so by a Congressional Committee 'shall be suspended and dismissed from his employment in the manner provided by law.' The Fifth Amendment, which is a part of the Bill of Rights, provides that no person shall be compelled to incriminate ('to be a witness against') himself. The petitioner, Globe, an employee of the State of California, appeared before the House Un-American Activities Committee of the United States Congress and claimed this federal constitutional privilege. California promptly discharged him, as the Court's opinion says, for 'insubordination and violation of § 1028.1 of the Code.' The 'insubordination and violation' consisted exclusively of Globe's refusal to testify before the Congressional Committee; a ground for his refusal was that his answers might incriminate him. It is beyond doubt that the State took Globe's job away from him only because he claimed his privilege under the Federal Constitution.
12
Here, then, is a plain conflict between the Federal Constitution and § 1028.1 of the California Code. The Federal Constitution told Globe he could, without penalty, refuse to incriminate himself before any arm of the Federal Government; California, however, has deprived him of his job solely because he exercised this federal constitutional privilege. In giving supremacy to the California law, I think the Court approves a plain violation of Article VI of the Constitution of the United States which makes that Constitution 'the supreme Law of the Land * * * any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' I also think that this discharge under state law is a violation of the Due Process Clause of the Fourteenth Amendment in its authentic historical sense: that a State may not encroach upon the individual rights of people except for violation of a law that is valid under the 'Law of the Land.' 'Law of the Land' of necessity includes the supreme law, the Constitution itself.
13
The basic purpose of the Bill of Rights was to protect individual liberty against governmental procedures that the Framers though should not be used. That great purpose can be completely frustrated by holdings like this. I would hold that no State can put any kind of penalty on any person for claiming a privilege authorized by the Federal Constitution. The Court's holding to the contrary here does not bode well for individual liberty in America.
14
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, dissenting.
15
This is another in the series of cases involving discharges of state and local employees from their positions after they claim their constitutional privilege against self-incrimination before investigating committees. See Solochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; 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. While I adhere on this matter of constitutional law to the views I expressed in dissent in the latter two cases, 357 U.S. at page 417, 78 S.Ct. at page 1328, it is enough to say here that I believe this case to be governed squarely by Slochower, and on that basis I put my dissent. Of course this opinion is limited solely to Globe's discharge.
16
California has commanded that its employees answer certain broad categories of questions when propounded to them by investigating bodies, including federal bodies such as the Subcommittee of the Un-American Activities Committee involved here. Cal.Government Code § 1028.1. Invocation of the privilege against self-incrimination before such a body, in response to questions of those sorts, is made a basis for discharge.1 In the case of a permanent employee, it is held that discharge may come only after a hearing at which the employee is given, at least, an opportunity to explain his exercise of the privilege. Board of Education of San Francisco Unified School District v. Mass, 47 Cal.2d 494, 304 P.2d 1015. But for a temporary or probationary employee like Globe the state law, as interpreted authoritatively by the California courts below, requires a discharge of the employee upon his claim of the privilege, without further ado. 163 Cal.App.2d at pages 605—606, 329 P.2d at page 978. Opportunity for an explanation by the employee or for administrative consideration of the circumstances of the claim of privilege is foreclosed under the state law.
17
In Slochower, this Court had a substantially identical situation before it. There a local law which made a claim of the constitutional privilege 'equivalent to a resignation' was struck down as violative of the Due Process Clause of the Fourteenth Amendment. Only one word is necessary to add here to the Court's statement there of its reason for voiding the provision: 'As interpreted and applied by the state courts, it operates to discharge every (temporary) employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge. No consideration is given to such factors as the subject matter of the questions, remoteness of the period to which they are directed, or justification for exercise of the privilege. It matters not whether the plea resulted from mistake, inadvertence or legal advice concientiously given, whether wisely or unwisely. The heavy hand of the statute falls alike on all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive.' 350 U.S. at page 558, 76 S.Ct. at page 641. The Court distinguished instances in which the employing government itself might be conducting an investigation into the 'fitness' of the employee.
18
As applied, then, to temporary or probationary employees, the California statute contains the identical vice of automatic discharge for a Fifth Amendment plea made before another body, not concerned with investigating the 'fitness' of the employee involved. It is sought here to equate Globe's case with those of Beilan and Lerner. But in the latter cases the Court took the view that the state discharges were sustainable because the employees' pleas of self-incrimination before local administrative agency investigations of their competence and reliability prevented those employing bodies from having an adequate record on which to reach an affirmative conclusion as to their competence and reliability. This failure to cooperate fully (styled lack of candor) within the framework of the employer's own proceeding to determine fitness, was said to be a constitutional basis for discharge. 357 U.S. at pages 405—408, 78 S.Ct. at pages 1321—1323; 357 U.S. at pages 475 479, 78 S.Ct. at pages 1315—1317, and see 357 U.S. at page 410, 78 S.Ct. at page 1324 (concurring opinion). But here there was not the vaguest semblance of any local administrative procedure designed to determine the fitness of Globe for further employment.2 It has not been hitherto suggested that the authorizing resolutions of the Un-American Activities Committee extend to enabling it to perform these functions on a grant-in-aid basis to the States. Accordingly there is presented here the very same arbitrary action—the drawing of an inference of unfitness for employment from exercise of the privilege before another body, without opportunity to explain on the part of the employee, or duty on the part of the employing body to attempt to relate the employee's conduct specifically to his fitness for employment—as was involved in Slochower. There is the same announced abdication of the local administrative body's own function of determining the fitness of its employees, in favor of an arbitrary and per se rule dependent on the behavior of the employee before another body not charged with determining his fitness.
19
It is said that this case differs from Slochower because that case involved a determination, based on his invocation of the privilege, that the employee was guilty of substantive misconduct, while this one simply involves a case of 'insubordination' in the employee's failure to answer questions asked by the Congressional Committee which the employing agency has ordered be answered. In the first place, Slochower did not involve any finding by the New York authorities that the employee was guilty of the matters as to which he claimed the privilege. The claim of the privilege was treated by the State as equivalent to a resignation, 350 U.S. at page 554, 76 S.Ct. at page 639, and it was only 'in practical effect,' id., 350 U.S. at page 558, 76 S.Ct. at page 641, that the questions asked were taken as confessed;3 that is, the State claimed the power to take the same action, discharge of the employee from employment, upon a plea of the privilege, as it could have taken upon a confession of the matters charged. The case involved an inference of unfitness for office, then, drawn arbitrarily and without opportunity to explain, from the assertion of the privilege. The same is involved here, and the thin patina of 'insubordination' that the statute encrusts on the exercise of the privilege does not change the matter. If the state labeled as 'insubordination' and mandatory ground for discharge every failure by an employee to respond to questions asked him by strangers on the street, its action would be as pointless as it was arbitrary. The point of the direction given to all employees here to answer the sort of questions covered by the statute must have been that the State thought that the matters involved in the questions bore some generic relationship to the 'fitness' of the employee to hold his position. But on this basis the case is again indistinguishable from Slochower. If it is unconstitutionally arbitrary for the State to treat every invocation of the privilege as conclusive on his fitness and in effect as an automatic discharge, then the command of the State that no temporary employee shall claim the privilege under pain of automatic discharge must be an unconstitutionally arbitrary command. A State could not, I suppose, discharge an employee for attending religious services on Sunday, see Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216, and equally so it could not enforce, by discharges for 'insubordination,' a general command to its employees not to attend such services.
20
The state court distinguished this case from Slochower on the grounds that Slochower was a state employee with tenure, but Globe was a temporary or probationary employee not entitled to a hearing on discharge. On this basis, it concluded that the requirement outlined by this Court in Slochower—that he could not be discharged ipso facto on his claim of the privilege, but only after a more particularized inquiry administered by his employer did not apply. 163 Cal.App.2d at pages 601—603, 329 P.2d at pages 975—976. But this Court has nothing to do with the civil service systems of the States, as such. And Globe does not here contend that he could not have been discharged without a hearing; but he does attack the specified basis of his discharge. Doubtless a probationary employee can constitutionally be discharged without specification of reasons at all; and this Court has not held that it would offend the Due Process Clause, without more, for a State to put its entire civil service on such a basis, if as a matter of internal policy it could stand to do so. But if a State discharged even a probationary employee because he was a Negro or a Jew, giving that explicit reason, its action could not be squared with the Constitution. So with Slochower's case; this Court did not reverse the judgment of New York's highest court because it had disrespected Slochower's state tenure rights, but because it had sanctioned administrative action taken expressly on an unconstitutionally arbitrary basis. So here California could have summarily discharged Globe, and that would have been an end to the matter; without more appearing, its action would be taken to rest on a permissible judgment by his superiors as to his fitness. But if it chooses expressly to bottom his discharge on a basis—like that of an automatic, unparticularized reaction to a plea of self-incrimination—which cannot by itself be sustained constitutionally, it cannot escape its constitutional obligations on the ground that as a general matter it could have effected his discharge with a minimum of formality. Cf. Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 972, 3 L.Ed.2d 1012.
21
For these reasons the judgment as to Globe should be reversed.
1
California Government Code, § 1028.1:
'It shall be the duty of any public employee who may be subpenaed or ordered by the governing body of the state or local agency by which such employee is employed, to appear before such governing body, or a committee or subcommittee thereof, or by a duly authorized committee of the Congress of the United States or of the Legislature of this State, or any subcommittee of any such
committee, to appear before such committee or subcommittee, and to answer under oath a question or questions propounded by such governing body, committee or subcommittee, or a member or counsel thereof, relating to:
'(a) Present personal advocacy by the employee of the forceful or violent overthrow of the Government of the United States or of any state.
'(b) Present knowing membership in any organization now advocating the forceful or violent overthrow of the Government of the United States or of any state.
'(c) Past knowing membership at any time since October 3, 1945, in any organization which, to the knowledge of such employee, during the time of the employee's membership advocated the forceful or violent overthrow of the Government of the United States or of any state.
'(d) Questions as to present knowing membership of such employee in the Communist Party or as to past knowing membership in the Communist Party at any time since October 3, 1945.
'(e) Present personal advocacy by the employee of the support of a foreign government against the Unites States in the event of hostilities between said foreign government and the United States.
'Any employee who fails or refuses to appear or to answer under oath on any ground whatsoever and such questions so propounded shall be guilty of insubordination and guilty of violating this section and shall be suspended and dismissed from his employment in the manner provided by law.'
2
This original order was the forerunner of § 1028.1 of the California Government Code, enacted in 1953, which with certain refinements embodied the requirements of the order into state law. It is against this section that petitioner levels his claims of unconstitutionality. See note 1, supra.
3
'19.07. Probationary Period Following First Appointment.
'An employee who has not yet completed his first probationary period may be discharged or reduced in accordance with Rule 19.09 by the appointing power by written notice, served on the employee and copy filed with the Commission, specifying the grounds and the particular facts on which the discharge or reduction is based. Such an employee shall be entitled to answer, explain, or deny the charges in writing within ten business days but shall not be entitled to a hearing, except in case of fraud or or discrimination because of political or religious opinions, racial extraction, or organized labor membership.'
'19.09. Consent of Commission.
'No consent need be secured to the discharge or reduction of a temporary or recurrent employee.'
4
It is noteworthy that the California statute requires such information to be given before both state and federal bodies.
5
Nor does petitioner make any attack on the failure of California's statute to afford temporary employees such as he an opportunity to explain his failure to answer questions. It will be noted that permanent employees are granted such a privilege.
1
The Court appears to treat the fact that the California statute is not in terms directed at the exercise of the privilege against self-incrimination, but rather covers all refusals to answer, as a factor militating in favor of its vailidity. The Court seems to view the privilege against self-incrimination as a somewhat strange and singular basis on which to decline to answer questions put in an investigation; or at most as an individual private soldier in a large army of reasons that might commonly be given for declining to respond. I am afraid I must view the matter more realistcally. But even if the statute were taken as wholeheartedly at face value as the Court does, the consequence would not be that it was more reasonable, but rather that it was more arbitrary. It hardly avoids the rationale of this Court's decision in the Slochower case if the State adds other constitutional privileges to the list, exercise of which results per se in discharge. Such a statute would be even the more undifferentiating and arbitrary in its basis for discharge than the one involved in Slochower. And of course the crowning extent of arbitrariness is exposed by the contention that the fact that discharge would have followed a refusal to answer predicated on no reason at all justifies discharge upon claim of a constitutional privilege. It would appear of the essence of arbitrariness for the State to lump together refusals to answer based on good reasons and those based on no reason at all, and make discharge automatically ensue on all. What was struck down in Slochower as unconstitutionally arbitrary—undifferentiating treatment merely among those pleading the self-incrimination privilege—seems almost reasonable by comparison.
2
In Slochower it was said, 'It is one thing for the city authorities themselves to inquire into Slochower's fitness, but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at 'the property, affairs, or government of the city, or * * * official conduct of city employees." 350 U.S. at page 558, 76 S.Ct. at page 641. This distinction was asserted in Beilan and Lerner. 357 U.S. at page 408, 78 S.Ct. at page 1323; 357 U.S. at page 477, 78 S.Ct. at page 1316.
3
The opinion in the New York Court of Appeals also makes it quite clear that Slochower was not being discharged as guilty of the matters inquired about. Daniman v. Board of Educations, 306 N.Y. 532, 538, 119 N.E.2d 373, 377.
| 23
|
362 U.S. 143
80 S.Ct. 527
4 L.Ed.2d 612
Calvin SUBLETTv.ADAMS, Warden.
No. 406 Misc.
March 7, 1960.
Calvin Sublett, pro se.
Messrs.
W. W. Barron, Atty. Gen. of West Virginia, and Fred H. Caplan, Asst. Atty. Gen., for respondent.
PER CURIAM.
1
The motion to proceed in forma pauperis and the petition for writ of certiorari are granted. Petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Appeals of West Virginia. Petitioner charged that he was being held in prison without lawful authority and in violation of due process of law under the Fourteenth Amendment. The West Virginia Supreme Court of Appeals refused the writ without either a hearing or a response from the State.
2
We hold that the facts alleged are such as to entitle petitioner to a hearing under Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126. The judgment is vacated and the case remanded to the Supreme Court of Appeals of West Virginia for proceedings not inconsistent with this opinion.
3
The CHIEF JUSTICE took no part in the consideration or decision of this case.
| 34
|
362 U.S. 60
80 S.Ct. 536
4 L.Ed.2d 559
Manuel D. TALLEY, Petitioner,v.STATE OF CALIFORNIA.
No. 154.
Argued Jan. 13, 14, 1960.
Decided March 7, 1960.
Mr. A. L. Wirin, Los Angeles, Cal., for the petitioner.
Mr. Philip E. Grey, Los Angeles, Cal., for the respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The question presented here is whether the provisions of a Los Angeles City ordinance restricting the distribution of handbills 'abridge the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment of the Constitution.'1 The ordinance, § 28.06 of the Municipal Code of the City of Los Angeles, provides:
2
'No person shall distribute any hand-bill in any place under any circumstances, which does not have printed on the cover, or the face thereof, the name and address of the following:
3
'(a) The person who printed, wrote, compiled or manufactured the same.
4
'(b) The person who caused the same to be distributed; provided, however, that in the case of a fictitious person or club, in addition to such fictitious name, the true names and addresses of the owners, managers or agents of the person sponsoring said hand-bill shall also appear thereon.'
5
The petitioner was arrested and tried in a Los Angeles Municipal Court for violating this ordinance. It was stipulated that the petitioner had distributed handbills in Los Angeles, and two of them were presented in evidence. Each had printed on it the following:
6
National Consumers Mobilization,
7
Box 6533,
8
Los Angeles 55, Calif.
9
PLeasant 9—1576.
10
The handbills urged readers to help the organization carry on a boycott against certain merchants and businessmen, whose names were given, on the ground that, as one set of handbills said, they carried products of 'manufacturers who will not offer equal employment opportunities to Negroes, Mexicans, and Orientals.' There also appeared a blank, which, if signed, would request enrollment of the signer as a 'member of National Consumers Mobilization,' and which was preceded by a statement that
11
'I believe that every man should have an equal opportunity for employment no matter what his race, religion, or place of birth.'
12
The Municipal Court held that the information printed on the handbills did not meet the requirements of the ordinance, found the petitioner guilty as charged, and fined him $10. The Appellate Department of the Superior Court of the County of Los Angeles affirmed the conviction, rejecting petitioner's contention, timely made in both state courts, that the ordinance invaded his freedom of speech and press in violation of the Fourteenth and First Amendments to the Federal Constitution.2 172 Cal.App.2d Supp. 797, 332 P.2d 447. Since this was the highest state court available to petitioner, we granted certiorari to consider this constitutional contention. 360 U.S. 928, 79 S.Ct. 1457, 3 L.Ed.2d 1543.
13
In Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, we held void on its face an ordinance that comprehensively forbade any distribution of literature at any time or place in Griffin, Georgia, without a license. Pamphlets and leaflects it was pointed out, 'have been historic weapons in the defense of liberty'3 and enforcement of the Griffin ordinance 'would restore the system of license and censorship in its baldest form.' Id., 303 U.S. at page 452, 58 S.Ct. at page 669. A year later we had before us four ordinances each forbidding distribution of leaflets—one in Irvington, New Jersey, one in Los Angeles, California, one in Milwaukee, Wisconsin, and one in Worcester, Massachusetts. Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155. Efforts were made to distinguish these four ordinances from the one held void in the Griffin case. The chief grounds urged for distinction were that the four ordinances had been passed to prevent either frauds, disorder, or littering, according to the records in these cases, and another ground urged was that two of the ordinances applied only to certain city areas. This Court refused to uphold the four ordinances on those grounds pointing out that there were other ways to accomplish these legitimate aims without abridging freedom of speech and press. Frauds, street littering and disorderly conduct could be denounced and punished as offenses, the Court said. Several years later we followed the Griffin and Schneider cases in striking down a Dallas, Texas, ordinance which was applied to prohibit the dissemination of information by the distribution of handbills. We said that although a city could punish any person for conduct on the streets if he violates a valid law, 'one who is rightfully on a street * * * carries with him there as elsewhere the constitutional right to express his views in an orderly fashion * * * by handbills and literature as well as by the spoken word.' Jamison v. State of Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 672, 87 L.Ed. 869.
14
The broad ordinance now before us, barring distribution of 'any hand-bill in any place under any circumstances,'4 falls precisely under the ban of our prior cases unless this ordinance is saved by the qualification that handbills can be distributed if they have printed on them the names and addresses of the persons who prepared, distributed or sponsored them. For, as in Griffin, the ordinance here is not limited to handbills whose content is 'obscene or offensive to public morals or that advocates unlawful conduct.'5 Counsel has urged that this ordinance is aimed at providing a way to identify those responsible for fraud, false advertising and libel. Yet the ordinance is in no manner so limited, nor have we been referred to any legislative history indicating such a purpose. Therefore we do not pass on the validity of an ordinance limited to prevent these or any other supposed evils. This ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires.
15
There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. 'Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.' Lovell v. City of Griffin, 303 U.S. at page 452, 58 S.Ct. at page 669.
16
Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books.6 Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day.7 Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.
17
We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412; N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face.
18
The judgment of the Appellate Department of the Superior Court of the State of California is reversed and the cause is remanded to it for further proceedings not inconsistent with this opinion.
19
It is so ordered.
20
Judgment reversed and cause remanded with directions.
21
Mr. Justice HARLAN, concurring.
22
In judging the validity of municipal action affecting rights of speech or association protected against invasion by the Fourteenth Amendment, I do not believe that we can escape, as Mr. Justice Roberts said in Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155, 'the delicate and difficult task' of weighing 'the circumstances' and appraising 'the substantiality of the reasons advanced in support of the regulation of the free enjoyment of' speech. More recently we have said that state action impinging on free speech and association will not be sustained unless the governmental interest asserted to support such impingement is compelling. See N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 463, 464, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488; Sweezy v. State of New Hampshire, 354 U.S. 234, 265, 77 S.Ct. 1203, 1219, 1 L.Ed.2d 1311 (concurring opinion); see also Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412.
23
Here the State says that this ordinance is aimed at the prevention of 'fraud, deceit, false advertising, negligent use of words, obscenity, and libel,' in that it will aid in the detection of those responsible for spreading material of that character. But the ordinance is not so limited, and I think it will not do for the State simply to say that the circulation of all anonymous handbills must be suppressed in order to identify the distributors of those that may be of an obnoxious character. In the absence of a more substantial showing as to Los Angeles' actual experience with the distribution of obnoxious handbills,* such a generality is for me too remote to furnish a constitutionally acceptable justification for the deterrent effect on free speech which this all-embracing ordinance is likely to have.
24
On these grounds I concur in the judgment of the Court.
25
Mr. Justice CLARK, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting.
26
To me, Los Angeles' ordinance cannot be read as being void on its face. Certainly a fair reading of it does not permit a conclusion that it prohibits the distribution of handbills 'of any kind at any time, at any place, and in any manner,' Lovell v. City of Griffin, 1938, 303 U.S. 444, 451, 58 S.Ct. 666, 669, 82 L.Ed. 949, as the Court seems to conclude. In Griffin, the ordinance completely prohibited the unlicensed distribution of any handbills. As I read it, the ordinance here merely prohibits the distribution of a handbill which does not carry the identification of the name of the person who 'printed, wrote, compiled * * * manufactured (or) * * * caused' the distribution of it. There could well be a compelling reason for such a requirement. The Court implies as much when it observes that Los Angeles has not 'referred to any legislative history indicating' that the ordinance was adopted for the purpose of preventing 'fraud, false advertising and libel.' But even as to its legislative background there is pertinent material which the Court overlooks. At oral argument, the City's chief law enforcement officer stated that the ordinance was originally suggested in 1931 by the Los Angeles Chamber of Commerce in a complaint to the City Council urging it to 'do something about these handbills and advertising matters which were false and misleading.' Upon inquiry by the Council, he said, the matter was referred to his office, and the Council was advised that such an ordinance as the present one would be valid. He further stated that this ordinance, relating to the original inquiry of the Chamber of Commerce, was thereafter drafted and submitted to the Council. It was adopted in 1932. In the face of this and the presumption of validity that the ordinance enjoys, the Court nevertheless strikes it down, stating that it 'falls precisely under the ban of our prior cases.' This cannot follow, for in each of the three cases cited, the ordinances either 'forbade any distribution of literature * * * without a license,' Lovell v. City of Griffin, supra, or forbade, without exception, any distribution of handbills on the streets, Jamison v. State of Texas, 1943, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869; or, as in Schneider v. State of New Jersey, 1939, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155, which covered different ordinances in four cities, they were either outright bans or prior restraints upon the distribution of handbills. I, therefore, cannot see how the Court can conclude that the Los Angeles ordinance here 'falls precisely' under any of these cases. On the contrary, to my mind, they neither control this case nor are apposite to it. In fact, in Schneider, depended upon by the Court, it was held, through Mr. Justice Roberts, that, 'In every case * * * where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation * * * weigh the circumstances and * * * appraise the substantiality of the reasons advanced * * *.' Id., 308 U.S. at page 161, 60 S.Ct. at page 151. The Court here, however, makes no appraisal of the circumstances, or the substantiality of the claims of the litigants, but strikes down the ordinance as being 'void on its face.' I cannot be a party to using such a device as an escape from the requirements of our cases, the latest of which was handed down only last month. Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412.1
27
Therefore, before passing upon the validity of the ordinance, I would weigh the interests of the public in its enforcement against the claimed right of Talley. The record is barren of any claim, much less proof, that he will suffer any injury whatever by identifying the handbill with his name. Unlike N.A.A.C.P. v. State of Alabama, 1958, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, which is relied upon, there is neither allegation nor proof that Talley or any group sponsoring him would suffer 'economic reprisal, loss of employment, threat of physical coercion (or) other manifestations of public hostility.' Id. 357 U.S. at page 462, 78 S.Ct. at page 1172. Talley makes no showing whatever to support his contention that a restraint upon his freedom of speech will result from the enforcement of the ordinance. The existence of such a restraint is necessary before we can strike the ordinance down.
28
But even if the State had this burden, which it does not, the substantiality of Los Angeles' interest in the enforcement of the ordinance sustains its validity. Its chief law enforcement officer says that the enforcement of the ordinance prevents 'fraud, deceit, false advertising, negligent use of words, obscenity, and libel,' and, as we have said, that such was its purpose. In the absence of any showing to the contrary by Talley, this appears to me entirely sufficient.
29
I stand second to none in supporting Talley's right of free speech—but not his freedom of anonymith. The Constitution say nothing about freedom of anonymous speech. In fact, this Court has approved laws requiring no less than Los Angeles' ordinance. I submit that they control this case and require its approval under the attack made here. First, Lewis Publishing Co. v. Morgan, 1913, 229 U.S. 288, 33 S.Ct. 867, 57 L.Ed. 1190, upheld an Act of Congress requiring any newspaper using the second-class mails to publish the names of its editor, publisher, owner, and stockholders. 39 U.S.C. § 233, 39 U.S.C.A. § 233. Second, in the Federal Regulation of Lobbying Act, 2 U.S.C. § 267, 2 U.S.C.A. § 267, Congress requires those engaged in lobbying to divulge their identities and give 'a modicum of information' to Congress. United States v. Harriss, 1954, 347 U.S. 612, 625, 74 S.Ct. 808, 816, 98 L.Ed. 989. Third, the several States have corrupt practices acts outlawing, inter alia, the distribution of anonymous publications with reference to political candidates.2 While these statutes are leveled at political campaign and election practices, the underlying ground sustaining their validity applies with equal force here.
30
No civil right has a greater claim to constitutional protection or calls for more rigorous safeguarding than voting rights. In this area the danger of coercion and reprisals—economic and otherwise—is a matter of common knowledge. Yet these statutes, disallowing anonymity in promoting one's views in election campaigns, have expressed the overwhelming public policy of the Nation. Nevertheless the Court is silent about this impressive authority relevant to the disposition of this case.
31
All three of the types of statutes mentioned are designed to prevent the same abuses—libel, slander, false accusations, etc. The fact that some of these statutes are aimed at elections, lobbying, and the mails makes their restraint no more palatable, nor the abuses they prevent less deleterious to the public interest, than the present ordinance.
32
All that Los Angeles requires is that one who exercises his right of free speech through writing or distributing handbills identify himself just as does one who speaks from the platform. The ordinance makes for the responsibility in writing that is present in public utterance. When and if the application of such an ordinance in a given case encroaches on First Amendment freedoms, then will be soom enough to strike that application down. But no such restraint has been shown here. After all, the public has some rights against which the enforcement of freedom of speech would be 'harsh and arbitrary in itself.' Kovacs v. Cooper, 1949, 336 U.S. 77, 88, 69 S.Ct. 448, 454, 93 L.Ed. 513. We have upheld complete proscription of uninvited door-to-door canvassing as an invasion of privacy. Breard v. City of Alexandria, 1951, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233. Is this less restrictive than complete freedom of distribution—regardless of content—of a signed handbill? And commercial handbills may be declared verboten, Valentine v. Chrestensen, 1942, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, regardless of content or identification. Is Talley's anonymous handbill, designed to destroy the business of a commercial establishment, passed out at its very front door, and attacking its then lawful commercial practices, more comportable with First Amendment freedoms? I think not. Before we may expect international responsibility among nations, might not it be well to require individual responsibility at home.? Los Angeles' ordinance does no more.
33
Contrary to petitioner's contention, the ordinance as applied does not arbitrarily deprive him of equal protection of the law. He complains that handbills are singled out, while other printed media—books, magazines, and newspapers—remain unrestrained. However, '(t)he problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. * * * Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. * * * The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. (I) cannot say that that point has been reached here.' Williamson v. Lee Optical, 1955, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563.
34
I dissent.
1
Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 154, 60 S.Ct. 146, 147, 84 L.Ed. 155. Cf. Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949.
2
Petitioner also argues here that the ordinance both on its face and as construed and applied 'arbitrarily denies petitioner equal protection of the laws in violation of the Due Process and Equal Protection' Clauses of the Fourteenth Amendment. This argument is based on the fact that the ordinance applies to handbills only, and does not include within its proscription books, magazines and newspapers. Our disposition of the case makes it unnecessary to consider this contention.
3
The Court's entire sentence was: 'These (pamphlets and leaflets) indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.' It has been noted that some of Thomas Paine's pamphlets were signed with pseudonyms. See Bleyer, Main Currents in the History of American Journalism (1927), 90—93. Illustrations of other anonymous and pseudonymous pamphlets and other writings used to discuss important public questions can be found in this same volume.
4
Section 28.00 of the Los Angeles Municipal Code defines 'hand-bill' as follows: "Hand-bill' shall mean any hand-bill, dodger, commercial advertising circular, folder, booklet, letter, card, pamphlet, sheet, poster, sticker, banner, notice or other written, printed or painted matter calculated to attract attention of the public.'
5
Lovell v. City of Griffin, 303 U.S. at page 451, 58 S.Ct. at page 668.
6
Penry was executed and Udal died as a result of his confinement. 1 Hallam, The Constitutional History of England (1855), 205—206, 232.
7
In one of the letters written May 28, 1770, the author asked the following question about the tea tax imposed on this country, a question which he could hardly have asked but for his anonymity:
'What is it then, but an odious, unprofitable exertion of a speculative right, and fixing a badge of slavery upon the Americans, without service to their masters?' 2 Letters of Junius (1821) 39.
*
On the oral argument the City Attorney stated:
'We were able to find out that prior to 1931 an effort was made by the local Chamber of Commerce, urging the City Council to do something about these handbills and advertising matters which were false and misleading—had no names of sponsors. They were particularly interested in the fictitious name. They said, 'Who are these people that are distributing; who are advertising; doing things of that sort?' The meager record that we were able to find indicates that a request from the Council to the City Attorney as to their legal opinion on this subject (sic). The City Attorney wrote back and formed the conclusion that distribution of handbills, pamphlets, or other matters, without the name of the fictitious firm or officers would be legal (sic). Thereafter in the early part of 1932 an ordinance was drafted, and submitted to the City Council, and approved by them, which related to the original subject—unlawful for any person, firm or association to distribute in the city of Los Angeles any advertisement or handbill—or any other matter which does not have the names of the sponsors of such literature.'
1
'When it is shown that state action threatens significantly to impinge upon constitutionally protected freedom it becomes the duty of this Court to determine whether the action bears a reasonable relationship to the achievement of the government purpose asserted as its justification.' 361 U.S. at page 525, 80 S.Ct. at page 417.
2
Thirty-six States have statutes prohibiting the anonymous distribution of materials relating to elections. E.g.: Kan.G.S.1949, § 25—1714; M.S.A. § 211.08; Page's Ohio R.C. § 3599.09; Purdon's Pa.Stat.Ann., Title 25, § 3546.
| 23
|
362 U.S. 99
80 S.Ct. 543
4 L.Ed.2d 584
FEDERAL POWER COMMISSION, Petitioner,v.TUSCARORA INDIAN NATION. POWER AUTHORITY OF STATE OF NEW YORK, Petitioner, v. TUSCARORA INDIAN NATION.
Nos. 63, 66.
Argued Dec. 7, 1959.
Decided March 7, 1960.
Rehearing Denied April 18, 1960.
See 362 U.S. 956, 80 S.Ct. 858.
J. Lee Rankin, Washington, D.C., Sol. Gen., for petitioner Federal power comm.
Mr. Thomas F. Moore, Jr., New York City, for petitioner Power Authority of New York.
Mr. Arthur Lazarus, Jr., Washington, D.C., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
The ultimate question presented by these cases is whether certain lands, purchased and owned in fee simply by the Tuscarora Indian Nation and lying adjacent to a natural power site on the Niagara River near the town of Lewiston, New York, may be taken for the storage reservoir of a hydroelectric power project, upon the payment of just compensation, by the Power Authority of the State of New York under a license issued to it by the Federal Power Commission as directed by Congress in Public Law 85—159, approved August 21, 1957, 71 Stat. 401, 16 U.S.C.A. §§ 836, 836a.
2
The Niagara River, an international boundary stream and a navigable waterway of the United States, flows from Lake Erie to Lake Ontario, a distance of 36 miles. Its mean flow is about 200,000 cubic feet per second. The river drops about 165 feet at Niagara Falls and an additional 140 feet in the rapids immediately above and below the falls. The 'head' created by these great falls, combined with the large and steady flow of the river, makes the Lewiston power site, located below the rapids, an extremely favorable one for hydroelectric development.
3
For the purpose of avoiding 'continuing waste of a great natural resource and to make it possible for the United States of America and Canada to develop, for the benefit of their respective peoples, equal shares of the waters of the Niagara River available for power purposes,' the United States and Canada entered into the Treaty of February 27, 1950,1 providing for a flow of 100,000 cubic feet per second over Niagara Falls during certain specified daytime and evening hours of the tourist season (April 1 to October 31) and of 50,000 cubic feet per second at other times, and authorizing the equal division by the United States and Canada of all excess waters for power purposes.2
4
In consenting to the 1950 Treaty, the Senate imposed the condition that 'no project for redevelopment of the United States' share of such waters shall be undertaken until it be specifically authorized by Act of Congress.' 1 U.S.T. 694, 699. To that end, a study was made and reported to Congress in 1951 by the United States Army Corps of Engineers respecting the most feasible plans for utilizing all of the waters available to the United States under the 1950 Treaty, and detailed plans embodying other studies were prepared and submitted to Congress prior to June 7, 1956, by the Bureau of Power of the Federal Power Commission, the Power Authority of New York, and the Niagara Mohawk Power Corporation.3 To enable utilization of all of the United States' share of the Niagara waters by avoiding waste of the nighttime and week-end flow that would not be needed at those times for the generation of power, all of the studies and plans provided for a pumping-generating plant to lift those waters at those times into a reservoir, and for a storage reservoir to contain them until released for use through the pumping-generating plant, when its motors (operating in reverse) would serve as generators—during the daytime hours when the demand for power would be highest and the diversion of waters from the river would be most restricted by the treaty. Estimates of dependable capacity of the several recommended projects varied from 1,240,000 to 1,723,000 kilowatts, and estimates of the needed reservoir capacity varied from 22,000 acre-feet covering 850 acres to 41,000 acre-feet covering 1,700 acres. The variations in these estimates were largely due to differing assumptions as to the length of the daily period of peak demand.
5
Although there was 'no controversy as to the most desirable engineering plan of development,'4 there was serious disagreement in Congress over whether the project should be publicly or privately developed and over marketing preferences and other matters of policy. That disagreement continued through eight sessions of Committee Hearings, during which more than 30 proposed bills were considered, in the Eighty-first to Eighty-fifth Congresses,5 and delayed congressional authorization of the project for seven years.
6
On June 7, 1956, a rock slide destroyed the Schoellkopf plant.6 This created a critical shortage of electric power in the Niagara community. It also required expansion of the plans for the Niagara project if the 20,000 cubic feet per second of water that had been reserved for the Schoellkopf plant was to be utilized. Accordingly, the Power Authority of New York prepared and submitted to Congress a major revision of the project plans. Those revised plans, designed to utilize all of the Niagara waters available to the United States under the 1950 Treaty, provided for an installed capacity of 2,190,000 kilowatts, of which 1,800,000 kilowatts would be dependable power for 17 hours per day, necessitating a storage reservoir of 60,000 acre-feet capacity covering about 2,800 acres.7
7
Confronted with the destruction of the Schoellkopf plant and the consequent critical need for electric power in the Niagara community, Congress speedily composed its differences in the manner and terms prescribed in Public Law 85—159. approved August 21, 1957. 71 Stat. 401. By § 1(a) of that Act, Congress 'expressly authorized and directed' the Federal Power Commission 'to issue a license to the Power Authority of the State of New York for the construction and operation of a power project with capacity to utilize all of the United States share of the water of the Niagara River permitted to be used by international agreement.' By § 1(b) of the Act the Federal Power Commission was directed to 'include among the licensing conditions, in addition to those deemed necessary and required under the terms of the Federal Power Act,' seven conditions which are of only collateral importance here.8 The concluding section of the Act, § 2, provides: 'The license issued under the terms of this Act shall be granted in conformance with Rules of Practice and Procedure of the Federal Power Commission, but in the event of any conflict, the provisions of this Act shall govern in respect of the project herein authorized.'
8
Thereafter, the Power Authority of the State of New York, a municipal corporation created under the laws of that State to develop the St. Lawrence and Niagara power projects, applied to the Federal Power Commission for the project license which Congress had thus directed the Commission to issue to it. Its application embraced the project plans that it had submitted to the Eighty-fifth Congress shortly before its approval of Public Law 85—159.9 The project was scheduled to be completed in 1963 at an estimated cost of $720,000,000.
9
Hearings were scheduled by the Commission, of which due notice was given to all interested parties, including the Tuscarora Indian Nation, inasmuch as the application contemplated the taking of some of its lands for the reservoir. The Tuscarora Indian Nation intervened and objected to the taking of any of its lands upon the ground 'that the applicant lacks authority to acquire them.' At the hearings, it was shown that the Tuscarora lands needed for the reservoir—then though to be about 1,000 acress—are part of a separate tract of 4,329 acres purchased in fee simple by the Tuscarora Indian Nation, with the assistance of Henry Dearborn, then Secretary of War, from the Holland Land Company on November 21, 1804, with the proceeds derived from the contemporaneous sale of their lands in North Carolina—from which they had removed in about the year 1775 to reside with the Oneidas in central New York.10
10
After concluding the hearings, the Commission, on January 30, 1958, issued its order granting the license. It found that a reservoir having a usable storage capacity of 60,000 acre-feet 'is required to properly utilize the water resources involved.' Although the Commission found that the Indian lands 'are almost entirely underveloped except for agricultural use,' it did not pass upon the Tuscaroras' objection to the taking of their lands because it then assumed that 'other lands are available for reservoir use if the Applicant is unable to acquire the Indian lands.' But the Commission did direct the licensee to revise its exhibit covering the reservoir, to more definitely show the area and acrease involved, and to resubmit it to the Commission for approval within a stated time.
11
In its application for rehearing, the Tuscarora Indian Nation contended, among other things, that the portion of its lands sought to be taken for the reservoir was part of a 'reservation,' as defined in § 3(2), and as used in § 4(e), of the Federal Power Act,11 and therefore could not lawfully be taken for reservoir purposes in the absence of a finding by the Commission 'that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired.' By its order of March 21, 1958, denying that application for rehearing, the Commission found that '(t)he best location of the reservoir would require approximately 1,000 acres of land owned by Intervener,' and it held that the Indian lands involved 'are not part of a 'reservation' referred to in Section 4(e) as defined in Section 3(2) of the (Federal Power) Act and the finding suggested by Intervener is not required.' On May 5, 1958, the Commission issued its order approving the licensee's revised exhibit which precisely delineated the location, area, and acreage to be embraced by the reservoir—which included 1,383 acres of the Tuscaroras' lands.
12
On May 16, 1958, the Tuscarora Indian Nation filed a petition for review in the Court of Appeals for the District of Columbia Circuit challenging the license issued by the Commission on January 30, 1958, insofar as it would authorize the taking of Tuscarora lands.12 By its opinion and interim judgment of November 14, 1958, the Court of Appeals held that the Tuscarora lands sought to be taken for the reservoir constitute a part of a 'reservation' within the meaning of §§ 3(2) and 4(e) of the Federal Power Act, and that the Commission may not include those lands in the license in the absence of a § 4(e) finding that their taking 'will not interfere or be inconsistent with the purpose for which such reservation was created or acquired,' and the court remanded the case to the Commission that it might 'explore the possibility of making that finding.' 105 U.S.App.D.C. 146, 265 F.2d 338, 343.
13
Upon remand, the Commission held extensive hearings, exploring not only the matter of the making of the finding held necessary by the Court of Appeals but also the possibility of locating the reservoir on other lands. In its order of February 2, 1959, the Commission found that the use of other lands for the reservoir would result in great delay, severe community disruption, and unreasonable expense; that a reservoir with usable storage capacity of 60,000 acre-feet is required to utilize all of the United States' share of the water of the Niagara River, as required by Public Law 85—159; that removal of the reservoir from the Tuscarora lands by reducing the area of the reservoir would reduce the usable storage capacity from 60,000 acre-feet to 30,000 acre-feet and result in a loss of about 300,000 kilowatts of dependable capacity. But it concluded that, although other lands contiguous to their reservation might be acquired by the Tuscaroras,13 the taking of the 1,383 acres of Tuscarora lands for the reservoir 'would interfere and would be inconsistent with the purpose for which the reservation was created or acquired.' That order was transmitted to the Court of Appeals which, on March 24, 1959, after considering various motions of the parties, entered its final judgment approving the license except insofar as it would authorize the taking of Tuscarora lands for the reservoir, and remanded the case to the Commission with instructions to amend the license 'to exclude specifically the power of the said Power Authority to condemn the said lands of the Tuscarora Indians for reservoir purposes.' 105 U.S.App.D.C., at page 152, 265 F.2d at page 344.
14
Because of conflict between the views of the court below and those of the Second Circuit, and of the general importance of the questions involved, we granted certiorari. 360 U.S. 915, 79 S.Ct. 1435, 3 L.Ed.2d 1532.
15
The parties have urged upon us a number of contentions, but we think these cases turn upon the answers to two questions, namely, (1) whether the Tuscarora lands covered by the Commission's license are part of a 'reservation' as defined and used in the Federal Power Act, 16 U.S.C. § 791a et seq., 16 U.S.C.A. §§ 791a et seq., and, if not, (2) whether, those lands may be condemned by the licensee, under the eminent domain powers conferred by § 21 of the Federal Power Act, 16 U.S.C. § 814, 16 U.S.C.A. § 814. We now turn to a consideration of those questions in the order stated.
I.
16
A Commission finding that 'the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired' is required by § 4(e) of the Federal Power Act, 16 U.S.C. § 797(e), 16 U.S.C.A. § 797(e), only if the lands involved are within a 'reservation' in the sense of that term as defined and used in that Act. That by generally accepted standards and common understanding these Tuscarora lands may be part of a 'reservation' is not at all decisive of whether they are such within the meaning of the Federal Power Act. Congress was free and competent artificially to define the term 'reservations' for the purposes it prescribed in the Act. And we are bound to give effect to its definition of that term, for it would be idle for Congress to define the sense in which it used it 'if we were free in despite of it to choose a meaning for ourselves.' Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 337, 79 L.Ed. 780. By § 3(2) of the Federal Power Act, 16 U.S.C. § 796(2), 16 U.S.C.A. § 796(2), Congress has provided:
17
's 3. The words defined in this section shall have the following meanings for purposes of this Act, to wit:
18
'(2) 'reservations' means national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from proviate appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks.' (Emphasis added.)
19
The plain words of this definition seem rather clearly to show that Congress intended the term 'reservations,' wherever used in the Act, to embrace only 'lands and interests in lands owned by the United States.'
20
Turning to the definition's legislative history, we find that it, too, strongly indicates that such was the congressional intention. In the original draft bill of the Federal Water Power Act of 1920, as proposed by the Administration and passed by the House in the Sixty-fifth and Sixty-sixth Congresses, the term was defined as follows:
21
"Reservations' means lands and interest in lands owned by the United States and withdrawn, reserved, or withheld from private appropriation and disposal under the publicland laws, and lands and interest in lands acquired and held for any public purpose.'14
22
It is difficult to perceive how congressional intention could be more clearly and definitely expressed. However, after the bill reached the Senate it inserted the words 'national monuments, national parks, national forests, tribal lands embraced within Indian reservations, military reservations, and other' (emphasis added) at the beginning of the definition.15 When the bill was returned to the House it was explained that the Senate's 'amendment recasts the House definition of 'reservations."16 The bill as enacted contained the definition as thus recast. It remains in that form, except for the deletion of the words 'national monuments, national parks,' which was occasioned by the Act of March 3, 1921 (41 Stat. 1353), 16 U.S.C.A. § 797 note, negating Commission authority to license any project works within 'national monuments or national parks,' and those words were finally deleted from the definition by amendment in 1935. 49 Stat. 838. It seems entirely clear that no change in substance was intended or effected by the Senate's amendment, and that its 'recasting' only specified, as illustrative, some of the 'reservations' on 'lands and interests in lands owned by the United States.'
23
Further evidence that Congress intended to limit 'reservations,' for the 'purpose of this Act' (§ 3), to those located on 'lands owned by the United States' or in which it owns an interest is furnished by its use of the term in the context of § 4(e) of the Act. By that section Congress, after authorizing the Commission to license projects in streams or other bodies of water over which it has jurisdiction under the Commerce Clause of the Constitution (Art. I, § 8, cl. 3), authorized the Commission to license projects 'upon any part of the public lands and reservations of the United States.' Congress must be deemed to have known, as this Court held in Federal Power Comm. v. State of Oregon, 349 U.S. 435, 443, 75 S.Ct. 832, 837, 99 L.Ed. 1215, that the licensing power, 'in relation to public lands and reservations of the United States springs from the Property Clause' of the Constitution—namely, the '* * * Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * * *.' Art. IV, § 3, cl. 2. In thus acting under the Property Clause of the Constitution, Congress must have intended to deal only with 'the Territory or other Property belonging to the United States.' Ibid.
24
Moreover, the Federal Power Act's plan of compensating for lands taken or used for licensed projects is explicable only if the term 'reservations' is confined, as Congress evidently intended, to those located on 'lands owned by the United States' or in which it owns a proprietary interest. By § 21, 16 U.S.C. § 814, 16 U.S.C.A. § 814, licensees are authorized to acquire 'the lands or property of others necessary to the' licensed project 'by the exercise of the right of eminent domain' in the federal or state courts, and, of course, upon the payment of just compensation. But, despite its general and all-inclusive terms, § 21 does not apply to nor authorize condemnation of lands or interests in lands owned by the United States, because § 10(e) of the Act, 16 U.S.C. 803(e), 16 U.S.C.A. § 803(e), expressly provides that 'the licensee shall pay to the United States reasonable annual charges * * * for recompensating it for the use, occupancy, and enjoyment of its lands or other property' (emphasis added) devoted to the licensed project. It therefore appears to be unmistakably clear that by the language of the first proviso of that section saying, in pertinent part, 'That when licenses are issued involving the use of Government dams or other structures owned by the United States or tribal lands embraced within Indian reservations (these italicized words being lifted straight from the § 3(2) definition of 'reservations') the Commission shall * * * fix a reasonable annual charge for the use thereof * * *,' Congress intended to treat and treated only with structures, lands and interests in lands owned by the United States, for, as stated, the section expressly requires the 'reasonable annual charges' to be paid to the United States for the use, occupancy, and enjoyment of 'its lands or other property.' (Emphasis added.)
25
This analysis of the plain words and legislative history of the Act's definition of 'reservations' and of the plan and provisions of the Act leaves us with no doubt that Congress, 'for purposes of this Act' (§ 3(2), intended to and did confine 'reservations,' including 'tribal lands embraced within Indian reservations' (§ 3(2), to those located on lands 'owned by the United States' (§ 3(2), or in which it owns a proprietary interest.
26
The Court of Appeals did not find to the contrary. Indeed, it found that the Act's definition of 'reservations' includes only those located on lands in which they United States 'has an interest.' But it thought that the national paternal relationship to the Indians and the Government's concern to protect them against improper alienation of their lands gave the United States the requisite 'interest' in the lands here involved, and that the result 'must be the same as if the phrase 'owned by the United States, (etc.)' were not construed as a limitation upon the term 'tribal lands (etc.)." 105 U.S.App.D.C. at page 150, 265 F.2d at page 342. We do not agree. The national 'interest' in Indian welfare and protection 'is not to be expressed in terms of property * * *.' Heckman v. United States, 224 U.S. 413, 437, 32 S.Ct. 424, 56 L.Ed. 820. The national 'paternal interest' in the welfare and protection of Indians is not the 'interests in lands owned by the United States' required, as an element of 'reservations,' by § 3(2) of the Federal Power Act. (Emphasis added.)
27
Inasmuch as the lands involved are owned in fee simple by the Tuscarora Indian Nation and no 'interest' in them is 'owned by the United States,' we hold that they are not within a 'reservation' as that term is defined and used in the Federal Power Act, and that a Commission finding under § 4(e) of that Act 'that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired' is not necessary to the issuance of a license embracing the Tuscarora lands needed for the project.
II.
28
We pass now to the question whether the portion of the Tuscarora lands here involved may be condemned by the licensee under the provisions and eminent domain powers of § 21 of the Federal Power Act. Petitioners contend that § 21 is a broad general statute authorizing condemnation of 'the lands or property of others necessary to the construction, maintenance, or operation of any' licensed project, and that lands owned by Indians in fee simple, not being excluded, may be taken by the licensee under the federal eminent domain powers delegated to it by that section. Parrying this contention, the Tuscarora Indian Nation argues that § 21, being only a general Act of Congress, does not apply to Indians or their lands.
29
The Tuscarora Indian Nation heavily relies upon Elk v. Wilkins, 112 U.S. 94, 5 S.Ct. 41, 28 L.Ed. 643. It is true that in that case the Court, dealing with the question whether a native-born American Indian was made a citizen of the United States by the Fourteenth Amendment of the Constitution, said: 'Under the constitution of the United States, as originally established * * * General acts of congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them.' 112 U.S. at pages 99—100, 5 S.Ct. at page 44. However that may have been, it is now well settled by many decisions of this Court that a general statute in terms applying to all persons includes Indians and their property interests. In Superintendent of Five Civilized Tribes v. Commissioner, 295 U.S. 418, 55 S.Ct. 820, 79 L.Ed. 1517, the funds of a restricted Creek Indian were held and invested for him by the Superintendent, and a question arose as to whether income from the investment was subject to federal income taxes. In an earlier case, Blackbird v. Commissioner, 38 F.2d 976, the Tenth Circuit had held such income to be exempt from federal income taxation. But in this case the Board of Tax Appeals sustained the tax, the Tenth Circuit affirmed, and the Superintendent brought the case here. This Court observed that in the Blackbird case the Tenth Circuit had said that to hold a general act of Congress to be applicable to restricted Indians would be contrary to the almost unbroken policy of Congress in dealing with its Indian wards and their affairs. Whenever they and their interests have been the subject affected by legislation they have been named and their interests specifically dealt with. That is precisely the argument now made here by the Tuscarora Indian Nation. But this Court, in affirming the judgment, said:
30
'This does not harmonize with what we said in Choteau v. Burnet (1931), 283 U.S. 691, 693, 696, 51 S.Ct. 598, 599, 600, 75 L.Ed. 1353:
31
"The language of (the Internal Revenue Act of 1918) subjects the income of 'every individual' to tax. Section 213(a) includes income 'from any source whatever.' The intent of Congress was to levy the tax with respect to all residents of the United States and upon all sorts of income. The act does not expressly exempt the sort of income here involved, nor a person having petitioner's status respecting such income, and we are not referred to any other statute which does. * * * The intent to exclude must be definitely expressed, where, as here, the general language of the act laying the tax is broad enough to include the subject matter.'
32
'The court below properly declined to follow its quoted pronouncement in Blackbird's Case. The terms of the 1928 Revenue Act are very broad, and nothing there indicates that Indians are to be excepted. See Irwin v. Gavit, 268 U.S. 161, 45 S.Ct. 475, 69 L.Ed. 897; Heiner v. Colonial Trust Co., 275 U.S. 232, 48 S.Ct. 65, 72 L.Ed. 256; Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 55 S.Ct. 50, 79 L.Ed. 211; Pitman v. Commissioner, 10 Cir., 64 F.2d 740. The purpose is sufficiently clear.' 295 U.S. at pages 419—420, 55 S.Ct. at page 821.
33
In Oklahoma Tax Comm. v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612, this Court, in holding that the estate of a restricted Oklahoma Indian was subject to state inheritance and estate taxes under general state statutes, said:
34
'The language of the statutes does not except either Indians or any other persons from their scope.' (319 U.S., at page 600, 63 S.Ct. at page 1285.) 'If Congress intends to prevent the State of Oklahoma from levying a general non-discriminatory estate tax applying alike to all its citizens, it should say so in plain words. Such a conclusion cannot rest on dubious inferences.' 319 U.S. at page 607, 63 S.Ct. at page 1288.
35
See, e.g., Shaw v. Gibson-Zahniser Oil Corporation, 276 U.S. 575, 581—582, 48 S.Ct. 333, 335—336, 72 L.Ed. 709; United States v. Ransom, 263 U.S. 691, 44 S.Ct. 230, 68 L.Ed. 508; Kennedy v. Becker, 241 U.S. 556, 563—564, 36 S.Ct. 705, 707—708, 60 L.Ed. 1166; Choate v. Trapp, 224 U.S. 665, 673, 32 S.Ct. 565, 568, 56 L.Ed. 941.
36
The Federal Power Act constitutes a complete and comprehensive plan for the development and improvement of navigation and for the development, transmission and utilization of electric power in any of the streams or other bodies of water over which Congress has jurisdiction under its commerce powers, and upon the public lands and reservations of the United States under its property powers. See § 4(e). It neither overlooks nor excludes Indians or lands owned or occupied by them. Instead, as has been shown, the Act specifically defines and treats with lands occupied by Indians—'tribal lands embraced within Indian reservations.' See §§ 3(2) and 10(e). The Act gives every indication that, within its comprehensive plan, Congress intended to include lands owned or occupied by any person or persons, including Indians. The Court of Appeals recognized that this is so. 105 U.S.App.D.C., at page 151, 265 F.2d at page 343. Section 21 of the Act, by broad general terms, authorizes the licensee to condemn 'the lands or property of others necessary to the construction, maintenance, or operation of any' licensed project. That section does not exclude lands or property owned by Indians, and, upon the authority of the cases cited, we must hold that it applies to these lands owned in fee simple by the Tuscarora Indian Nation.
37
The Tuscarora Indian Nation insists that even if its lands are embraced by the terms of § 21 of the Federal Power Act, they still may not be taken for public use 'without the express consent of Congress referring specifically to those lands,' because of the provisions of 25 U.S.C. § 177, 25 U.S.C.A. § 177.17 That section, in pertinent part, provides:
38
'No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. * * *'
39
The obvious purpose of that statute is to prevent unfair, improvident or improper disposition by Indians of lands owned or possessed by them to other parties, except the United States, without the consent of Congress, and to enable the Government, acting as parens patriae for the Indians, to vacate any disposition of their lands made without its consent. See, e.g., United States v. Hellard, 322 U.S. 363, 64 S.Ct. 985, 88 L.Ed. 1326; United States v. Candelaria, 271 U.S. 432, 441—442, 46 S.Ct. 561, 562-563, 70 L.Ed. 1023; Henkel v. United States, 237 U.S. 43, 51, 35 S.Ct. 536, 539, 59 L.Ed. 831; United States v. Sandoval, 231 U.S. 28, 46—48, 34 S.Ct. 1, 5—6, 58 L.Ed. 107. But there is no such requirement with respect to conveyances to or condemnations by the United States or its licensees; 'nor is it conceivable that it is necessary, for the Indians are subjected only to the same rule of law as are others in the State * * *.' United States v. Oklahoma Gas & Elec. Co., 318 U.S. 206, 211, 63 S.Ct. 534, 537, 87 L.Ed. 716.
40
As to the Tuscaroras' contention that § 177 prohibits the taking of any of their lands for the reservoir 'without the express and specific consent of Congress,' one thing is certain. It is certain that if § 177 is applicable to alienations effected by condemnation proceedings under § 21 of the Federal Power Act, the mere 'expressed consent' of Congress would be vain and idle. For § 177 at the very least contemplates the assent of the Indian nation or tribe. And inasmuch as the Tuscarora Indian Nation withholds such consent and refuses to convey to the licensee any of its lands, it follows that the mere consent of Congress, however express and specific, would avail nothing. Therefore, if § 177 is applicable to alienations effected by condemnation under § 21 of the Federal Power Act, the result would be that the Tuscarora lands, however imperative for the project, could not be taken at all.
41
But § 177 is not applicable to the sovereign United States nor, hence, to its licensees to whom Congress has delegated federal eminent domain powers under § 21 of the Federal Power Act. The law is now well settled that:
42
'A general statute imposing restrictions does not impose them upon the Government itself without a clear expression or implication to that effect.' United States v. Wittek, 337 U.S. 346, 358—359, 69 S.Ct. 1108, 1114, 93 L.Ed. 1406.
43
In United States v. United Mine Workers of America, 330 U.S. 258, 272—273, 67 S.Ct. 677, 686, 91 L.Ed. 884, the Court said:
44
'There is an old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign without express words to that effect.'
45
See, e.g., Leiter Minerals, Inc., v. United States, 352 U.S. 220, 224—225, 77 S.Ct. 287, 290, 1 L.Ed.2d 267; United States v. Wyoming, 331 U.S. 440, 449, 67 S.Ct. 1319, 1324, 91 L.Ed. 1590; United States v. Stevenson, 215 U.S. 190, 30 S.Ct. 35, 54 L.Ed. 153; United States v. American Bell Telephone Co., 159 U.S. 548, 553—555, 16 S.Ct. 69, 71—72, 40 L.Ed. 255; Lewis v. United States, 92 U.S. 618, 622, 23 L.Ed. 513; United States v. Herron, 20 Wall. 251, 263, 22 L.Ed. 275; Dollar Savings Bank v. United States, 19 Wall. 227, 239, 22 L.Ed. 80.
46
This Court has several times applied, in combination, the rules (1) that general Acts of Congress apply to Indians as well as to all others in the absence of a clear expression to the contrary, and (2) that general statutes imposing restrictions do not apply to the Government itself without a clear expression to that effect. It did so in Henkel v. United States, 237 U.S. 43, 35 S.Ct. 536 (sustaining the right of the United States to take Indian lands for reservoir purposes under the general Reclamation Act of June 17, 1902, 32 Stat. 388), in Spalding v. Chandler, 160 U.S. 394, 16 S.Ct. 360, 40 L.Ed. 469 (sustaining the power of the Government to convey a strip of land through a track owned by an Indian tribe to one Chandler for the use of the State of Michigan in constructing a canal, even though the conveyance was in derogation of a treaty with the Indian tribe), and in Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 10 S.Ct. 965, 34 L.Ed. 295. There, this Court sustained the right of a licensee of the Government to take so much of the undescribed fee lands of an Indian tribe as was necessary for the licensed project, though in derogation of the terms of a treaty between the United States and the Indian tribe,18 saying:
47
'It would be very strange if the national government, in the execution of its rightful authority, could exercise the power of eminent domain in the several states, and could not exercise the same power in a territory occupied by an Indian nation or tribe, the members of which were wards of the United States, and directly subject to its political control. The lands in the Cherokee territory, like the lands held by private owners everywhere within the geographical limits of the United States, are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it, provided only that they are not taken without just compensation being made to the owner.,' 135 U.S. at pages 656 657, 10 S.Ct. at page 971.
48
See also Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 221, 47 L.Ed. 299; Missouri, Kansas & Texas R. Co. v. Roberts, 152 U.S. 114, 117—118, 14 S.Ct. 496, 497, 38 L.Ed. 377; Beecher v. Wetherby, 95 U.S. 517, 24 L.Ed. 440; Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449.
49
In the light of these authorities we must hold that Congress, by the broad general terms of § 21 of the Federal Power Act, has authorized the Federal Power Commission's licensees to take lands owned by Indians, as well as those of all other citizens, when needed for a licensed project, upon the payment of just compensation; that the lands in question are not subject to any treaty between the United States and the Tuscaroras (see notes 10 and 18); and that 25 U.S.C. § 177, 25 U.S.C.A. § 177 does not apply to the United States itself nor prohibit it, or its licensees under the Federal Power Act, from taking such lands in the manner provided by § 21, upon the payment of just compensation.
50
All members of this Court—no one more than any other—adhere to the concept that agreements are made to be performed—no less by the Government than by others—but the federal eminent domain powers conferred by Congress upon the Commission's licensee, by § 21 of the Federal Power Act, to take such of the lands of the Tuscaroras as are needed for the Niagara project do not breach the faith of the United States, or any treaty or other contractual agreement of the United States with the Tuscarora Indian Nation in respect to these lands for the conclusive reason that there is none.
51
Reversed.
52
Mr. Justice BRENNAN concurs in the result.
53
Mr. Justice BLACK, whom the CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
54
The Court holds that the Federal Power Act1 authorizes the taking of 22% (1,388 acres) of the single tract which the Tuscarora Indian Nation has owned and occupied as its homeland for 150 years.2 Admittedly this taking of so large a part of the lands will interfere with the purpose for which this Indian reservation was created—a permanent home for the Tuscaroras. I not only believe that the Federal Power Act does not authorize this taking, but that the Act positively prohibits it. Moreover, I think the taking also violates the Nation's long-established policy of recognizing and preserving Indian reservations for tribal use, and that it constitutes a breach of Indian treaties recognized by Congress since at least 1794.
55
Whether the Federal Power Act permits this condemnation depends, in part, upon whether the Tuscarora Reservation is a 'reservation' within the meaning of the Act. For if it is, § 4(e) forbids the taking of any part of the lands except after a finding by the Federal Power Commission that the taking 'will not interfere or be inconsistent with the purpose for which such reservation was created or acquired * * *.'3 There is no such finding here. In fact, the Commission found that the inundation of so great a part of the Tuscarora Reservation by the waters of the proposed reservoir 'will interfere and will be inconsistent with the purpose for which such reservation was created or acquired.' 21 F.P.C. 146, 148. If these Tuscarora homelands are 'tribal lands embraced within' an Indian reservation as used in § 3(2)4 they constitute a 'reservation' for purposes of § 4(e), and therefore the taking here is unauthorized because the requisite finding could not be made.
56
I believe the plain meaning of the words used in the Act, taken alone, and their meaning in the light of the historical background against which they must be viewed, require the conclusion that these lands are a 'reservation' entitled to the protections of § 4(e) of the Act. 'Reservation,' as used in § 4(e), is defined by § 3(2), which provides:
57
"reservations' means national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but shall not include national monuments or national parks * * *.' (Emphasis supplied.)
58
The phrase 'tribal lands embraced within Indian reservations' surely includes these Tuscarora lands. They are tribal lands. They are embraced within the Tuscarora Indian Nation's reservation. The lands have been called a reservation for more than 150 years. They have been so described in treaties, Acts of Congress, court decisions, Indian agency reports, books, articles, and maps. In fact, so far as I can ascertain, they have never been called anything else, anywhere or at any time—until today. Even the Court of Appeals and the Federal Power Commission, and the briefs and record in this Court, quite naturally refer to this 10-square-mile tract of land as an Indian reservation. The Court itself seems to accept the fact that the Tuscarora Nation lives on a reservation according to (in its words) the 'generally accepted standards and common understanding' of that term.
59
The Court, however, decides that in the Federal Power Act Congress departed from the meaning universally given the phrase 'tribal lands embraced within Indian reservations' and defined the phrase, the Court says, 'artificially.' The Court believes that the words 'other lands * * * owned by the United States,' which follow, were intended by Congress to limit the phrase to include only those reservations to which the United States has technical legal title. By the Court's 'artificial' interpretation, the phrase turns out to mean 'tribal lands embraced within Indian reservations—except when 'the lands involved are owned in fee simple by the (Indians)."5
60
Creating such a wholly artificial and limited definition, so new and disruptive, imposes a heavy burden of justification upon the one who asserts it. We are told that many tribes own their reservation lands. The well-known Pueblos of New Mexico own some 700,000 acres of land in fee. All such reservation lands are put in jeopardy by the Court's strained interpretation. The Court suggests no plausible reason, or any reason at all for that matter, why Congress should or would have sought artificially to place those Indians who hold legal title to their reservation lands in such a less-favored position.6 The fact that the Tuscarora Nation holds technical legal title is fortuitous and an accidental circumstance probably attributable to the Indian land policy prevailing at the early date this reservation was established. Their lands, like all other Indian tribal lands, can be sold, leased or subjected to easements only with the consent of the United States Government. Congress and government agencies have always treated the Tuscarora Reservation the same as all others,7 and there is no reason even to suspect that Congress wanted to treat it differently when it passed the Federal Power Act.
61
It is necessary to add no more than a word about the legislative history of this section which the Court relies on. The Court points out that the House version of the 1920 Federal Water Power Act (now called the Federal Power Act) defined 'reservations' as meaning only 'lands and interests in lands owned by the United States.' In this definition of 'reservations' the Senate inserted new words which included the present phrase 'tribal lands embraced within Indian reservations.' If the only Indian lands Congress sought to cover by this section were those to which the United States had title, the Senate addition served no purpose. For the House bill covered all 'lands * * * owned by the United States.' The only reason for the Senate additions, it seems to me, was to cover lands, like those of the Tuscarora Nation here, title to which was not in the United States Government.
62
The Court also undertakes to support its 'artificial' definition of 'tribal lands embraced within Indian reservations' by saying that the Congress knew, by a prior decision of this Court, that it was acting under Art. IV, § 3, cl. 2, of the Constitution, which gives Congress power, as the Court says, 'to deal only with 'the Territory or other Property belonging to the United States." In the first place I do not understand how the Court can say with such assurance that the Congress was acting only under that clause, as there is no evidence whatsoever that Congress expressed itself on this matter. Moreover, it seems far more likely to me that in this phrase regulating Indian tribes Congress was acting under Art. I, § 8, cl. 3, which empowers Congress 'To regulate Commerce with * * * the Indian Tribes.'
63
Even accepting for a moment the Court's 'artificial' definition, I think the United States owns a sufficient 'interest' in these Tuscarora homelands to make them a 'reservation' within the meaning of the Act. Section 3(2) does not merely require a finding in order to take 'tribal lands embraced within Indian reservations'; the same finding is required in order to take 'other * * * interests in lands owned by the United States' whether tribal or not. Or, again accepting the Court's conception, if the phrase 'tribal lands embraced within Indian reservations' must be modified by the words which follow 'lands owned by the United States,' it must also be modified by the words 'interests in lands owned by the United States,' which also follow. Read this way, the section defines 'reservations' as tribal lands in which the United States owns 'interests.' Thus again a finding under § 4(e) is required even under the Court's own technical approach if the United States owns 'interests' in the lands. I think it does.
64
Certainly the words Congress used, 'interests in lands,' are not surplusage; they have some meaning and were intended to accomplish some purpose of their own. The United States undoubtedly controls (has 'interests in') many lands in this country that it does not own in fee simple. This is surely true as to all Indian tribal lands, even though the Indians own the fee simple title.8 Such lands cannot be sold or leased without the consent of the United States Government. The Secretary of the Interior took this position about this very reservation in 1912 when the Tuscaroras desired to lease a part of their lands to private individuals for limestone quarrying.9 And, of course, the long-accepted concept of a guardian-ward relationship between the United States and its Indians, with all the requirements of fair dealing and protection that this involves, means that the Indians are not free to treat their lands as wholly their own.10 Anyone doubting the extent of ownership interest in these lands by the United States would have that doubt rapidly removed should he take a deed from the Tuscarora Nation without the consent of the Government.11 I cannot agree, therefore, that this all but technical fee ownership which the United States has in these lands is inadequate to constitute the kind of 'interests in lands owned by the United States' which requires a § 4(e) finding before condemnation.
65
After the Court concludes that because of its interpretation of the definition of 'reservations' in § 3(2) a finding is not required by § 4(e) to take the Tuscarora lands, it goes on to find the necessary congressional authorization to take these lands in the general condemnation provisions of § 21. 16 U.S.C. § 814, 16 U.S.C.A. § 814. I believe that this is an incorrect interpretation of the general power to condemn under § 21, both because Congress specifically provided for the taking of all Indian reservation lands it wanted taken in other sections of the same Act, and because a taking under § 21 is contrary to the manner in which Congress has traditionally gone about the taking of Indian lands such as Congress here carefully prescribed in § 4(e). Congress has been consistent in generally exercising this power to take Indian lands only in accord with prior treaties, only when the Indians themselves consent to be moved, and only by Acts which either specifically refer to Indians or by their terms must include Indian lands. None of these conditions is satisfied here if § 21 is to be relied upon. The specific and detailed provisions of § 10(e), 16 U.S.C. § 803(e), 16 U.S.C.A. § 803(e), upon which the Court relies, only emphasize to me the kind of care Congress always takes to protect the just claims of Indians to reservations like this one.
66
The cases which the Court cites in its opinion do not justify the broad meaning read into § 21. Many of those cases deal with taxation—federal and state. The fact that Indians are sometimes taxed like other citizens does not even remotely indicate that Congress has weakened in any way its policy to preserve 'tribal lands embraced within Indian reservations.' Moreover, cases dealing with individuals who are not Indians are not applicable to tribal reservations. For example, Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575, 48 S.Ct. 333, 72 L.Ed. 709, cited by the Court, did not involve tribal lands. That case only held that a State may tax the production of an oil company even though it was derived from oil company lands leased from an Indian. The owner there was an individual Indian, not a tribe, and the lands were not and never had been a part of an Indian reservation, but rather had been purchased for this single Indian with the royalties he obtained from his own original restricted allotted lands. In Henkel v. United States, 237 U.S. 43, 35 S.Ct. 536, which involved the taking of Indian lands for the vast western reclamation project, the Court not only found that it had been 'well known to Congress' that Indian lands would have to be taken, 237 U.S. at page 50, 35 S.Ct. at page 539, but the treaty with the Indians involved in that case contained a specific consent by the Indians to such a taking. 29 Stat. 356, quoted 237 U.S. at 48, 49, 35 S.Ct. at 538. There was no provision even resembling this in the Treaty of 1794 with the Tuscaroras. Other cases relied on by the Court, such as Spalding v. Chandler, 160 U.S. 394, 16 S.Ct. 360, 40 L.Ed. 469, and Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 10 S.Ct. 965, all involved statutes that made it clear that Congress was well aware it was authorizing the taking of Indians' lands—unlike the history of § 21 of the Federal Power Act and the 1957 Niagara Power Act, 71 Stat. 401, 16 U.S.C. §§ 836, 836a, 16 U.S.C.A. §§ 836, 836a, involved here.
67
All that I have said so far relates to what the Court calls the 'plain words' of the statute. I interpret these 'plain words' differently than the Court. But there are other more fundamental and decisive reasons why I disagree with the Court's interpretation of the Federal Power Act as it relates to Indians. The provisions in § 4(e) which protect Indian reservations against destruction by condemnation cannot be properly construed unless considered as a part of a body of Indian laws built up throughout this Nation's history, and extending back even to the Articles of Confederation. It is necessary to summarize briefly a part of that history.
68
The experience of the Tuscarora Nation illustrates this history as well as that of any Indian tribe.12 When this country was discovered the Tuscaroras lived and owned their homelands in the area that later became North Carolina. Early settlers wanted their lands. The Tuscaroras did not want to give them up. Numerous conflicts arose because of this clash of desires. Finally, about 1710, there was a war between the Tuscaroras and the colonists in North and South Carolina. The Indians were routed. A majority of their warriors were killed. Hundreds of their men, women and children were captured and sold into slavery. Nearly all of the remainder of the tribe fled. They found a home in distant New York with the Iroquois Confederation of Nations. With their acceptance into the Confederation about 1720 it became known as the Six Nations. Historical accounts indicate that about 1780 those Tuscaroras who had supported America in the Revolution were compelled to leave their first residence in New York because of the hostility of Indians who had fought with the British against the Colonies.13 They migrated to the Village of Lewiston, New York, near Niagara Falls and settled in that area as their new home. They have remained there ever since—nearly 180 years. When their legal right to this land came into question about 1800 the Seneca Indians and the Holland Land Company both 'thought their claim so just'14 that they gave the Tuscarora Nation deeds to three square miles of the area they had been occupying for about 20 years. With the assistance of Presidents Washington and Jefferson and the Congress, the Tuscaroras were able, through the Secretary of War, to sell their vast North Carolina lands for $15,000. With this money, held by the Secretary of War as trustee, additional lands adjoining those received from the Seneca Indians and the Holland Land Company were obtained for the Tuscarora Nation and the title held in trust by the Secretary of War from 1804 to 1809. The Secretary supervised the payments to the Holland Land Company, from which the additional 4,329 acres were obtained, and when payments were completed he conveyed these lands to the Tuscarora Nation.15 The 1,383 acres of the Tuscarora Reservation involved today is a part of this purchase. Despite all this and the Government's continuing guardianship over these Indians and their lands throughout the years the Court attempts to justify this taking on the single ground that the Indians, not the United States Government, now own the fee simple title to this property.
69
In 1838 the Government made a treaty with the Tuscaroras under which they were to be removed to other parts of the United States.16 The removal was to be carried out under the authority of a Congressional Act of 1830, 4 Stat. 411, which provided a program for removing the Indians from the Eastern United States to the West. Section 3 of that Act provided authority 'for the President solemnly to assure the tribe or nation with which the exchange is made, that the United States will forever secure and guaranty to them, and their heirs or successors, the country so exchanged with them * * *.' The same Act also provided 'That nothing in this act contained shall be construed as authorizing or directing the violation of any existing treaty between the United States and any of the Indian tribes.' Id., § 7.
70
The Tuscarora Nation then had such a treaty with the United States, which had been in existence since 1764 and is still recognized by Congress today.17 The treaty was made with all the Six Nations, at a time when the Tuscarora Nation had been a member for over 70 years, and one of their representatives signed the treaty.18 In Article III of the Treaty the United States Government made this solemn promise:
71
'Now, the United States acknowledge all the land within the aforementioned boundaries, to be the property of the Seneka nation; and the United States will never claim the same, nor disturb the Seneka nation, nor any of the Six Nations, or of their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: but it shall remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase.'
72
This article of the 1794 Treaty substantially repeated the promise given the Tuscaroras in the prior 1784 Treaty, 7 Stat. 15, made before our Constitution was adopted, that 'The Oneida and Tuscarora nations shall be secured in the possession of the lands on which they are settled.'
73
Of course it is true that in 1794, when the Treaty was signed, the Tuscarora Nation did not yet have the technical legal title to that part of the reservation which the Government was later able to obtain for it. But the solemn pledge of the United States to its wards is not to be construed like a money-lender's mortgage. Up to this time it has always been the established rule that this Court would give treaties with the Indians an enlarged interpretation; one that would assure them beyond all doubt that this Government does not engage in sharp practices with its wards.19 This very principle of interpretation was applied in the case of The New York Indians, 5 Wall. 761, 768, 18 L.Ed. 708, where the Court said, about this treaty:
74
'It has already been shown that the United States have acknowledged the reservations to be the property of the Seneca nation—that they will never claim them nor disturb this nation in their free use and enjoyment, and that they shall remain theirs until they choose to sell them. These are the guarantees given by the United States, and which her faith is pledged to uphold.'
75
After the Treaty of 1838 was signed, in which the Tuscaroras agreed to go west, they decided not to do so, and the Government respected their objections and left them with their land. They have, since that time, held it as other Indians have throughout the Nation. This has been in accord with the settled general policy to preserve such reservations against any kind of taking, whether by private citizens or government, that might result in depriving Indian tribes of their homelands against their will.20 President Jackson, in 1835, explained the purpose of the removal and reservation program as meaning that, 'The pledge of the United States has been given by Congress that the country destined for the residence of this people shall be forever 'secured and guaranteed to them."21 This policy was so well settled that when the Missouri compromise bill was being discussed in Congress in 1854 Texas Senator Sam Houston used this picturesque language to describe the Government's promise to the Indians:
76
'As long as water flows, or grass grows upon the earth, or the sun rises to show your pathway, or you kindle your camp fires, so long shall you be protected by this Government, and never again removed from your present habitations.'22
77
It was to carry out these sacred promises made to protect the security of Indian reservations that Congress adopted § 4(e) which forbids the taking of an Indian reservation for a power project if it will 'interfere * * * with the purpose for which such reservation was created or acquired * * *.' But no such finding was made or could be made here.
78
There can be no doubt as to the importance of this power project. It will be one of the largest in this country and probably wil have cost over $700,000,000 when it is completed. It is true that it will undoubtedly cost more to build a proper reservoir without the Tuscarora lands, and that there has already been some delay by reason of this controversy. The use of lands other than those of the tribe will cause the abandonment of more homes and the removal of more people. If the decision in this case depended exclusively upon cost and inconvenience, the Authority undoubtedly would have been justified in using the Tuscarora lands. But the Federal Power Act requires far more than that to justify breaking up this Indian reservation.
79
These Indians have a way of life which this Government has seen fit to protect, if not actually to encourage. Cogent arguments can be made that it would be better for all concerned if Indians were to abandon their old customs and habits, and become incorporated in the communities where they reside. The fact remains, however, that they have not done this and that they have continued their tribal life with trust in a promise of security from this Government.
80
Of course, Congress has power to change this traditional policy when it sees fit. But when such changes have been made Congress has ordinarily been scrupulously careful to see that new conditions leave the Indians satisfied. Until Congress has a chance to express itself far more clearly than it has here the Tuscaroras are entitled to keep their reservation. It would be far better to let the Power Authority present the matter to Congress and request its consent to take these lands. It is not too late for it to do so now. If, as has been argued here, Congress has already impliedly authorized the taking, there can be no reason why it would not pass a measure at once confirming its authorization. It has been known to pass a Joint Resolution in one day where this Court interpreted an Act in a way it did not like. See Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 639—640, 69 S.Ct. 322, 326, 93 L.Ed. 288. Such action would simply put this question of authorization back into the hands of the Legislative Department of the Government where the Constitution wisely reposed it.23
81
It may be hard for us to understand why these Indians cling so tenaciously to their lands and traditional tribal way of life.24 The record does not leave the impression that the lands of their reservation are the most fertile, the landscape the most beautiful or their homes the most splendid specimens of architecture. But this is their home—their ancestral home. There, they, their children, and their forebears were born. They, too, have their memories and their loves. Some things are worth more than money and the costs of a new enterprise.
82
There may be instances in which Congress has broken faith with the Indians, although examples of such action have not been pointed out to us. Whether it has done so before now or not, however, I am not convinced that it has done so here. I regret that this Court is to be the governmental agency that breaks faith with this dependent people. Great nations, like great men, should keep their word.
1
1 U.S.T. 694.
2
The excess flow of water available for power purposes under the 1950 Treaty was estimated to fluctuate between 44,000 and 210,000 cubic feet per second, depending on the flow, the time of year, and the time of day. S.Rep. No. 539, 85th Cong., 1st Sess., p. 4.
The 1950 Treaty superseded the Boundary Waters Treaty of January 11, 1909 (Treaty Series 548, 36 Stat. 2448) which limited diversions of water by Canada to 36,000, and by the United States to 20,000, cubic feet per second. Beginning in 1921, the waters available to the United States under that treaty were utilized by Niagara Mohawk Power Corporation in its Schoellkopf hydroelectric plant, under a federal license expiring in 1971. The rated capacity of that plant was 360,000 kilowatts.
3
S.Rep. No. 539, 85th Cong., 1st Sess., pp. 5—6.
4
Ibid.
5
Hearings were held before the Senate Committee on Public Works, or its Subcommittee, in the Eighty-second, Eighty-third and Eighty-fourth Congresses, and in the first session of the Eighty-fifth Congress; before the House Committee on Public Works in the first sessions of the Eighty-first and Eighty-second Congresses, and in the first and second sessions of the Eighty-fourth Congress. Joint hearings were held by the House Committee and a Subcommittee of the Senate Committee in the Eighty-third Congress, first session. Reports on these bills were S.Rep. No. 2501, 83d Cong., 2d Sess.; H.R.Rep. No. 713, 83d Cong., 1st Sess.; S.Rep. No. 1408, 84th Cong., 2d Sess.; H.R.Rep. No. 2635, 84th Cong., 2d Sess. The Committee Reports on the bill which was finally enacted were S.Rep. No. 539, 85th Cong., 1st Sess.; H.R.Rep. No. 862, 85th Cong., 1st Sess.
6
See note 2.
7
The Report of the Senate Committee on Public Works of June 27, 1957, reporting out the bill that was finally adopted, contained the following statement:
'The proposals by the Power Authority of the State of New York at present contemplate a project with a total installed capacity of 2,190,000 kilowatts. Of this 1,800,000 will constitute firm power on a 17-hour-day basis. They anticipate that in order to achieve this amount of firm capacity pump-storage and pumping-generating facilities will be required.' S.Rep. No. 539, 85th Cong., 1st Sess., p. 5.
The Report of the House Committee on Public Works of July 23, 1957, contained the following statement:
'As a result of the (Schoellkopf) disaster, the redevelopment project will be enlarged so as to develop the water formerly utilized in the destroyed plant. The proposal now contemplates a project with a total installed capacity of 2,190,000 kilowatts. Of this 1,800,000 will constitute firm power on a 17-hour-day basis. It is anticipated that in order to achieve this amount of firm capacity, pump-storage and pumping-generating facilities will be required.' H.R.Rep. No. 862, 85th Cong., 1st Sess., p. 7, U.S.Code Cong. and Adm.News 1957, p. 1591.
8
Those seven conditions resolved the previously disputed issues which had so long delayed congressional authorization of the project. By those conditions, at least 50% of the project power must be made available to public bodies and nonprofit cooperatives 'at the lowest rates reasonably possible,' and 20% of that amount must be made available for use in neighboring States. Niagara Mohawk Power Corporation was given the right to purchase 445,000 kilowatts for a designated period to supply, and 'restore low power costs to,' the customers of its Schoellkopf plant, in exchange for relinquishment of its federal license. The Power Authority of New York was authorized to construct independent transmission lines to reach its preference customers and to control the resale rates to distributors purchasing power from it. The project was required to bear the United States' share of the cost of remedial works in the river, and, within a designated maximum sum, the cost of a scenic drive and a park.
9
The plans embraced by the application for the license consisted, in general, of (1) the main generating plant on the east bank of the river, (2) a pumping-generating plant, located a short distance east of the main generating plant, (3) a storage reservoir, adjacent to the pumping-generating plant, having a usable storage capacity of 60,000 acre-feet, and covering about 2,800 acres, (4) a water intake structure on the east bank of the river about three miles above the falls, and (5) a water conveyance system extending from the intake to a forebay at the pumping-generating plant, and from the latter to a forebay at the main generating plant.
10
Because the proceeds of the sale of the Tuscaroras' North Carolina lands ($15,000) were payable in three equal annual installments and were to be used, so far as necessary, for the payment of the purchase price of the New York lands ($13,752.80), which was also payable in three substantially equal annual installments, the latter lands were conveyed on November 21, 1804, by deed of the Holland Land Company (which acknowledged receipt of the first installment of the purchase price, and reserved a lien to secure the two unpaid installments of the purchase price) to Henry Dearborn 'in Trust' for the 'Tuscarora Nation of Indians and their Assigns forever . . . the said Henry Dearborn and his Heirs (to) grant and convey the same in Fee Simple or otherwise to such person or persons as the said Tuscarora Nation of Indians shall at any time hereafter direct and appoint.' After collection of the remaining installments of the purchase price of the Tuscaroras' North Carolina lands and, in turn, remitting to the Holland Land Company so much thereof as was necessary to pay the balance of the purchase price for the New York lands, Henry Dearborn conveyed the New York lands to the 'Tuscarora Nation of Indians and their Successors and Assigns for ever,' in fee simple free and clear of encumbrances, on January 2, 1809. The Tuscarora Indian Nation has ever since continued to own those lands under that conveyance.
In addition to the 4,329 acres purchased from the Holland Land Company in 1804, the Tuscaroras' reservation embraces two other contiguous tracts containing 1,920 acres. The first, a tract of 640 acres, was ceded to the Tuscaroras by the Holland Land Company in June 1798. The second, a tract of 1,280 acres, was ceded to them by the Holland Land Company in 1799. Those tracts are not involved in this case.
11
As amended, 49 Stat. 838, 16 U.S.C. §§ 796(2) and 797(e), 16 U.S.C.A. §§ 796(2), 797(e).
12
Meanwhile, on April 15, 1958, the Power Authority of New York commenced so-called 'appropriation' proceedings under § 30 of the New York State Highway Law, McKinney's Consol.Laws, c. 25, and also under Art. 5, Tit. 1, of the New York Public Authorities Law, McKinney's Consol.Laws, c. 43—A, to condemn the 1,383 acres of Tuscarora lands for reservoir use.
On April 18, 1958, the Tuscarora Indian Nation filed a complaint in the United States District Court for the Southern District of New York against the Power Authority and the Superintendent of Public Works of New York, seeking (1) a declaratory judgment that the Power Authority had no right or power to take any of its lands without the express and specific consent of the United States, and (2) a permanent injunction against the appropriation or condemnation of any of its lands. The court issued a temporary restraining order. The action, being a 'local' one, was then transferred to the District Court for the Western District of New York. After hearing, that court on June 24, 1958, denied the relief prayed, dissolved the restraining order, and dismissed the complaint on the merits. Tuscarora Nation of Indians v. Power Authority of the State of New York, D.C., 146 F.Supp. 107.
On appeal, the Second Circuit affirmed in part and reversed in part. It held that the Power Authority was authorized under Public Law 58—159 and the Federal Power Act and by the Commission's license thereunder of January 30, 1958, to take the part of the Tuscarora lands needed for the reservoir, but that they could be taken only by a condemnation action in a state or federal court in the district where the property is located under and in the manner provided by § 21 of the Federal Power Act (16 U.S.C. § 814, 16 U.S.C.A. § 814), and not by 'appropriation' proceedings under the New York laws referred to. Tuscarora Nation of Indians v. Power Authority of the State of New York, 2 Cir., 257 F.2d 885. The Tuscarora Indian Nation's petition to this Court for a writ of certiorari was denied on October 13, 1958. 358 U.S. 841, 79 S.Ct. 66, 3 L.Ed.2d 76. The Superintendent of Public Works of New York, a respondent in the Second Circuit proceedings, has appealed to this Court from so much of the judgment as denied a right to acquire the Tuscarora lands by appropriation proceedings under the New York laws. 362 U.S. 608, 80 S.Ct. 960.
13
In making the statement referred to in the text the Commission was doubtless alluding to the fact that in May 1958, the Power Authority offered the Tuscaroras $1,500,000 for the 1,383 acres, or in excess of $1,000 per acre, plus payment for, or removal to or replacing on other lands, the 37 houses located on these 1,383 acres and offered to construct for them a community center building, involving a total expenditure of about 2,400,000, which offer, the Commission says, has never been withdrawn.
The Tuscarora Indian Nation tells us in its brief that:
'What the Government unfortunately fails to point out is that the Power Authority's 'offer' was and still is an empty gesture since, as the court below and the Court of Appeals for the Second Circuit both ruled, the Tuscarora Nation is prohibited by law from selling its lands without the consent of the United States expressed in an act of Congress. 25 U.S.C. §§ 177, 233 (25 U.S.C.A. §§ 177, 233).'
14
See H.R.Rep. No. 715, 65th Cong., 2d Sess., p. 22; S.Rep. No. 180, 66th Cong., 1st Sess., p. 10.
15
See S.Rep. No. 180, 66th Cong., 1st Sess., p. 10; 59 Cong.Rec. 1103.
16
See H.R.Rep. No. 910, 66th Cong., 2d Sess., p. 7.
17
The Tuscaroras also rely upon 25 U.S.C. § 233, 25 U.S.C.A. § 233, which confers, subject to qualifications, jurisdiction upon the courts of New York over civil actions between Indians and also between them and other persons, and contains a pertinent proviso 'That nothing herein contained shall be construed as authorizing the alienation from any Indian nation, tribe, or band of Indians of any lands within any Indian reservation in the State of New York.'
18
The Tuscarora Indian Nation argues that its lands in question should be regarded as subject to and protected from condemnation by the Treaty of Fort Stanwix Of October 22, 1784 (7 Stat. 15), the unratified Treaty of Fort Harmar of January 9, 1789 (7 Stat. 33), and the Treaty of Canandaigua of November 11, 1794 (7 Stat. 44). But the record shows that the first two of these treaties related to other lands and, principally at least, to other Indian nations, and that the last treaty mentioned, though covering the lands in question, was with another Indian nation (the Senecas) which, pursuant to the Treaty of Big Tree of September 15, 1797 (7 Stat. 601) and with the approbation of the United States, sold its interest in these lands to Robert Morris and thus freed them from the effects of the Treaty of Canandaigua of 1794, Robert Morris, in turn, conveyed these lands to the Holland Land Company and it, in turn, conveyed the part in question to the Tuscarora Indian Nation, and its title rests upon that conveyance, free of any treaty.
It appears from the record that, as earlier stated (see note 10), the Tuscaroras, save for a few of them who remained on their lands 'on the Roanoke' in North Carolina, moved from their North Carolina lands to reside with the Oneidas in central New York—at a point about 200 miles east of the lands now owned by the Tuscaroras in Niagara County, New York—in 1775. The Tuscaroras had no proprietary interest in the Oneidas' lands in central New York but were there as 'guests' of the Oneidas or as 'tenants at will or by suffer-
ance.' Hough, Census of the State of New York, 1857, p. 510; New York Senate Document No. 24, 1846, p. 68. They came to be recognized, however, as members of the Five Nations which thereafter became known as the Six Nations (the others being the Oneidas, the Mohawks, the Onondagas, the Cayugas and the Senecas). The Senecas occupied a vast area in western New York, including the lands here in question. A few Tuscaroras fought with the Senecas on the side of the British and after their defeat at the battle of Elmira in 1779, they went to reside with the Senecas in the vicinity of Fort Niagara in about 1780. Other Tuscaroras then moved to that place. Just when they did so is not known with certainty and it appears that the most that can be said is that they were there prior to 1797. The Tuscaroras had the same kind of tenure, i.e., guests or tenants at will or by sufferance, with the Senecas as they had earlier had with the Oneidas in central New York. One of their chiefs described their situation as 'squatters upon the territory of another distinct nation.'
By the Treaty of Fort Stanwix of 1784 (7 Stat. 15) and the unratified Treaty or Fort Harmar of 1789 (7 Stat. 33) with the Six Nations, the United States promised to hold the Oneidas and the Tuscaroras secure in the lands upon which they then lived—which were the lands in central New York about 200 miles east of the lands in question. By the same treaties the United States promised to secure to the Six Nations a tract of land in western New York in the vicinity of the Niagara River. By the Treaty of Canandaigua of 1794 (7 Stat. 44) between the United States and the Six Nations, which superseded the prior treaties (except, by Article VI, the United States remained
bound to pay the Tuscaroras $4,500 per year for the purchase of clothing), it was recognized that the Senecas alone had possessory rights to the western New York area here involved and, as a result of that treaty, a large tract of western New York lands, including the lands now owned by the Tuscaroras, was secured to the Senecas.
Under the 1786 Hartford Compact between New York and Massachusetts, New York was recognized to have sovereignty over those lands and Massachusetts to own the underlying fee to those lands and the right to purchase the Senecas' interest in them. In 1794, Massachusetts sold the fee and the right to purchase the Senecas' right to occupy these western New York lands, including the lands now owned by the Tuscaroras, to Robert Morris, who, in turn, sold those lands and rights to the Holland Land Company with the covenant that be would buy out the Senecas' rights of occupancy for and on behalf of the Holland Land Company. And at the Treaty of Big Tree of 1797 (7 Stat. 601), Morris, with the approbation of the United States, purchased the Senecas' rights of occupancy in the lands here in question for the Holland Land Company. Thus the lands in question were entirely freed from the effects of all then existing treaties with the Indians, and the Tuscaroras' title to their present lands derives, as earlier stated, from the Holland Land Company (see note 10 for further details) and has never since been subject to any treaty between the United States and the Tuscaroras.
1
41 Stat. 1063, as amended, 16 U.S.C. §§ 791a—828c, 16 U.S.C.A. §§ 791a—828c.
2
While the petitioners have argued that Congress authorized this taking in the 1957 Niagara Power Act, 71 Stat. 401, 16 U.S.C. §§ 836, 836a, 16 U.S.C.A. §§ 836, 836a, the Court does not accept this argument. Neither do I. There is absolutely no evidence that Congress was in any way aware that these Tuscarora lands would be required by the Niagara Power Project. The petitioners have also argued that Congress impliedly authorized this taking in the 1957 Act because in fact the Tuscarora lands are indispensable to the Niagara Power Project. But the record shows that the reservation lands are not indispensable. The Federal Power Commission first found that 'other lands are available.' 19 F.P.C. 186, 188. And see 105 U.S.App.D.C. 146, 151, 265 F.2d 338, 343. On remand the Commission refused to find that the Indian lands were indispensable, although it did find that use of other lands would be much more expensive. 21 F.P.C. 146. And see 21 F.P.C. 273, 275. That other lands are more expensive is hardly proof that the Tuscarora lands are indispensable to this $700,000,000 project.
3
Section 4(e) contains the general grant of power for the Federal Power Commission to issue licenses for federal power projects. The part that is of crucial significance here reads:
'(l)icenses shall be issued within any reservation only after a finding by the commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservations * * *.'
Title 16 U.S.C. § 797(e), 16 U.S.C.A. § 797(e), enacted as § 4(d) in the Federal Water Power Act of 1920, 41 Stat. 1063, was re-enacted in the 1935 amendments, 49 Stat. 838, as § 4(e) and is referred to as such throughout.
4
Section 3, 16 U.S.C. § 796, 16 U.S.C.A. § 796, is the general definitions section of the Federal Power Act, and was first enacted in the Federal Water Power Act of 1920, 41 Stat. 1063. Section 3(2) defines the term 'reservations.'
5
The Court's opinion states: 'Inasmuch as the lands involved are owned in fee simple by the Tuscarora Indian Nation * * * we hold that they are not within a 'reservation' * * *.'
6
In United States v. Candelaria, 271 U.S. 432, 440, 46 S.Ct. 561, 562, 70 L.Ed. 1023, and United States v. Sandoval, 231 U.S. 28, 39, 34 S.Ct. 1, 3, 58 L.Ed. 107, this Court has held that the Pueblos' fee simple ownership of their lands has no effect whatsoever on the United States' rights and responsibilities towards these Indians and their lands. See The New York Indians, 5 Wall. 761, 767, 18 L.Ed. 708, for a similar holding as to Seneca Indian lands in New York governed by the same treaty under which the Tuscaroras assert their rights in this case. And see also United States v. Hellard, 322 U.S. 363, 366, 64 S.Ct. 985, 987, 88 L.Ed. 1326 ('The governmental interest * * * is as clear as it would be if the fee were in the United States'); State of Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235; Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 56 L.Ed. 820.
7
See, e.g., Report of the Commissioner of Indian Affairs, H.R.Exec.Doc. No. 1, Pt. 5, Vol. I, 45th Cong., 2d Sess. 397, 558 564 (1877). See also 64 Stat. 845, 25 U.S.C. § 233, 25 U.S.C.A. § 233, which specifically subjects all New York tribes to Rev.Stat. § 2116 (1875), 25 U.S.C. § 177, 25 U.S.C.A. § 177, which bans alienation of their lands without the consent of Congress. And see generally notes 6, supra, 9, 11, 16, 17, 20, infra.
8
The Court of Appeals held the United States had an adequate § 3(2) 'interest in' the Tuscarora Reservation to require a § 4(e) finding. 105 U.S.App.D.C. 146, 150, 265 F.2d 338, 342. See notes 6, supra, and 16, infra.
9
See 51 Cong.Rec. 11659—11660, 14561—14562. And see note 16, infra.
10
See, e.g., Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 657, 10 S.Ct. 965, 971, 34 L.Ed. 295; Elk v. Wilkins, 112 U.S. 94, 99, 5 S.Ct. 41, 44, 28 L.Ed. 643; Ex parte Crow Dog, 109 U.S. 556, 569, 3 S.Ct. 396, 27 L.Ed. 1030; Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L.Ed. 25. See also United States v. Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561, 563, where this Court pointed out that the same concept had applied under Spanish and Mexican law. And see also United States v. Kagama, 118 U.S. 375, 384, 6 S.Ct. 1109, 1114, 30 L.Ed. 228 ('duty of protection'), and Chief Justice Marshall's leading opinion in Johnson v. M'Intosh, 8 Wheat. 543, 591, 5 L.Ed. 681 ('Indians (are) to be protected * * * in the possession of their lands').
11
In United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, for example, this Court held that the United States could set aside a deed from the Pueblos of lands to which the Indians had fee simple title, even though the issue in the case had been settled by otherwise applicable principles of res judicata in prior litigation to which the Indians, but not the United States, had been a party. See note 9, supra.
12
For general discussions of the Tuscaroras' history see Hodge (editor), Handbook of American Indians (1910), Pt. 2, 842 853, Smithsonian Institution Bureau of American Ethnology, Bulletin 30, H.R.Doc. No. 926, Part 2, 59th Cong., 1st Sess.; Cohen, Handbook of Federal Indian Law (1941), 423; Morgan, League of the Iroquois (1904), I, 23, 42, 93, II, 77, 187, 305; Cusick, Ancient History of the Six Nations (1848), 31—35; H.R.Doc. No. 1590, 63d Cong., 3d Sess. 7, 11—15 (1915); H.R.Exec.Doc. No. 1, Pt. 5, Vol. I, 45th Cong., 2d Sess. 562—563 (1877). And see statements in New York Indians v. United States, 30 Ct.Cl. 413 (1895); Tuscarora Nation of Indians v. Power Authority of New York, D.C.W.D.N.Y. 1958, 164 F.Supp. 107; People ex rel. Cusick v. Daly, 1914, 212 N.Y. 183, 190, 105 N.E. 1048, 1050.
13
See Handbook of American Indians, op. cit., supra, note 12, at 848; Wilson, Apologies to the Iroquois (1960), 135.
14
Letter from Theophile Cazenove to Joseph Ellicott, May 10, 1798, 1 Bingham (editor), Holland Land Company's Papers: Reports of Joseph Ellicott (Buffalo Hist. Soc. Pub. Vol. 32, 1937) 21, 23.
15
In addition to the general histories cited, note 12, supra, this particular transaction is described in various letters and speeches of the Tuscaroras and the Secretary of War. See Letters Sent by the Secretary of War Relating to Indian Affairs (National Archives, Record Group 75, Interior Branch), Vol. A, 18 19, 22—23, 113—114, 117—119, 147—148, 402, 425—426, 438—439, Vol. B, 29, 274, 421; 6 Buffalo Hist. Soc. Pub. 221; and letter from Erastus Granger to Secretary of War Henry Dearborn, July 20, 1804, in Buffalo Hist. Soc. manuscript files. The deeds are recorded in the Niagara County Clerk's Office, Lockport, New York, Nov. 21, 1804, Liber B, pp. 2—7; Jan. 2, 1809, Liber A, p. 5. '(I)n 1804 Congress authorized the Secretary of War to purchase additional land for these Indians.' From a Department of Interior letter, H.R.Doc. No. 1590, 63d Cong., 3d Sess. 7. And see the Court's note 10, and Fellows v. Blacksmith, 19 How. 366, 15 L.Ed. 684.
16
Treaty of January 15, 1838, 7 Stat. 550, 554 (Article 14, 'Special Provisions For The Tuscaroras').
The interest of the government in Indian lands was a part of the law of Spain, Mexico, Great Britain and other European powers during pre-Colonial days. United States v. Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561, 563; United States v. Kagama, 118 U.S. 375, 381, 6 S.Ct. 1109, 30 L.Ed. 228; Worcester v. Georgia, 6 Pet. 515, 551—552, 8 L.Ed. 483; Cherokee Nation v. State of Georgia, 5 Pet. 1, 17—18, 8 L.Ed. 25. The original Articles of Confederation provided for congressional control of Indian affairs in Article 9. A similar provision is in the Commerce Clause of the present Constitution. One of the first Acts of the new Congress was the so-called Non-Intercourse Act of July 22, 1790, 1 Stat. 137, which provided, in § 4, 'That no sale of lands made by any Indians * * * shall be valid * * * unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.' The similar provision is presently found in 25 U.S.C. § 177, 25 U.S.C.A. § 177, as modified by § 2079, Rev.Stat. 25 U.S.C. § 71, 25 U.S.C.A. § 71.
17
Treaty of November 11, 1794, 7 Stat. 44. Article VI of that Treaty provides:
'(B)ecause the United States desire, with humanity and kindness, to contribute to their comfortable support * * * the United States will add the sum of three thousand dollars to the one thousand five hundred dollars, heretofore allowed them by an article ratified by the President (April 23, 1792); making in the whole, four thousand five hundred dollars; which shall be expended yearly forever, in purchasing cloathing (etc.) * * *.'
Every Congress until the 81st indicated that their $4,500 annual appropriation rested upon 'article 6, treaty of November 11, 1794.' E.g., 62 Stat. 1120, 80th Cong., 2d Sess. Subsequent Congresses simply appropriated a total amount for Indian treaty obligations including 'treaties with Senecas and Six Nations of New York * * *.' E.g., 63 Stat. 774, 81st Cong., 1st Sess. In 1951 the 82d Cong., 1st Sess., appropriated simply 'such amounts as may be necessary after June 30, 1951' for this purpose. 65 Stat. 254. At the hearings it was explained that this provision 'would have the effect of being permanent law insofar as making the funds available without having to be included in each annual appropriation act. * * * (I)t is a treaty obligation and has always been paid by the Government in full. * * * These treaties have been in existence for many, many years.' Director D. Otis Beasley, Division of Budget and Finance, Department of the Interior, Hearings on Interior Department Appropriations for 1952, before the Subcommittee on Interior Department of the House Committee on Appropriations, 82d Cong., 1st Sess., Pt. 2, 1747, 1764.
18
'Kanatsoyh, alias Nicholas Kusik,' signed the 1764 Treaty as a Tuscarora, but is not so identified there. However, he also signed the Treaties of December 2, 1794, 7 Stat. 47, and January 15, 1838, 7 Stat. 550, for the Tuscarora Nation and is listed there as a 'Tuscarora.' It has never even been hinted, until the Court's note 18 today, that the Tuscarora Nation is for some reason not included in this November 11, 1794, Six Nations' Treaty.
19
The Kansas Indians, 5 Wall. 737, 760, 18 L.Ed. 667 ('enlarged rules of construction are adopted in reference to Indian treaties'); Worcester v. State of Georgia, 6 Pet. 515, 582, 8 L.Ed. 483 ('The language used in treaties with the Indians should never be construed to their prejudice. * * * How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction') (concurring opinion); Tulee v. State of Washington, 315 U.S. 681, 684—685, 62 S.Ct. 862, 864, 86 L.Ed. 1115 ('in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people'). And see Spalding v. Chandler, 160 U.S. 394, 405, 16 S.Ct. 360, 364, 40 L.Ed. 469; Elk v. Wilkins, 112 U.S. 94, 100, 5 S.Ct. 41, 44, 28 L.Ed. 643; Ex parte Crow Dog. 109 U.S. 556, 572, 3 S.Ct. 396, 406, 27 L.Ed. 1030; United States v. Rogers, 4 How. 567, 572, 11 L.Ed. 1105.
20
The origins of this policy extend into pre-Colonial British history. As Chief Justice Marshall said in Worcester v. State of Georgia, 6 Pet. 515, 547, 8 L.Ed. 483, in speaking of the Indian land policy,
'The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them.'
Chief Justice Marshall quoted at the same place similar language from a speech made to the American Indians by the British Superintendent of Indian affairs in 1763. This principle has been consistently recognized by this Government and this Court. Spalding v. Chandler, 160 U.S. 394, 403, 16 S.Ct. 360, 364, 40 L.Ed. 469; United States v. Forty-three Gallons of Whiskey, 93 U.S. 188, 197, 23 L.Ed. 846; The New York Indians, 5 Wall. 761, 768, 18 L.Ed. 708; Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L.Ed. 25; Johnson v. M'Intosh, 8 Wheat. 543, 5 L.Ed. 681. And see 48 Stat. 987, 25 U.S.C. § 476, 25 U.S.C.A. § 476; 25 U.S.C. §§ 311 328, 25 U.S.C.A. §§ 311—328 and 25 CFR § 161.3(a).
The age and scope of this doctrine of guardianship and fairness to the Indians is well illustrated in a statement made by President Washington, December 29, 1790, responding to an address by the chiefs and councilors of the Seneca Nation:
'I am not uninformed, that the Six Nations have been led into some difficulties, with respect to the sale of their since the peace. But I must inform you that these evils arose before the present Government of the United States was established, when the separate States, and individuals under their authority, undertook to treat with the Indian tribes respecting the sale of their lands. But the case is now entirely altered; the General Government, only, has the power to treat with the Indian nations, and any treaty formed, and held without its authority, will not be binding.
'Here, then, is the security for the remainder of your lands. No State, nor person, can purchase your lands, unless at some public treaty, held under the authority of the United States. The General Government will never consent to your being defrauded, but it will protect you in all your just rights.' 4 American State Papers (Indian Affairs, Vol. I, 1832) 142; 31 Washington, Writings (United States George Washington Bicentennial Comm'n ed. 1939) 179, 180.
21
Seventh Annual Message, Dec. 7, 1835, 3 Richardson, Messages and Papers of the Presidents 1789—1897, 147, 172.
22
Cong.Globe, 33d Cong., 1st Sess., App. 202. See 1 Morison and Commager, The Growth of the American Republic (1950), 621.
23
See, e.g., United States v. Hellard, 322 U.S. 363, 367, 64 S.Ct. 985, 988, 88 L.Ed. 1326 ('the power of Congress over Indian affairs is plenary'); United States v. Sandoval, 231 U.S. 28, 45—46, 34 S.Ct. 1, 5, 58 L.Ed. 107; Tiger v. Western Investment Co., 221 U.S. 286, 315, 31 S.Ct. 578, 586, 55 L.Ed. 738 ('It is for that body (Congress), and not the courts'); Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 221, 47 L.Ed. 299 ('Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning * * * not * * * the judicial department of the government'); United States v. Rogers, 4 How. 567, 572, 11 L.Ed. 1105.
24
'As we understand the position of the tribe, they do not complain so much of a possible lease or license for the use of the lands as they complain of a possible permanent loss of part of their homelands.' Letter from Under Secretary of the Interior Bennett to Federal Power Commission Chairman Kuykendall, December 19, 1958, relating to the taking of these Tuscarora lands for the Niagara Power Project.
| 78
|
362 U.S. 73
80 S.Ct. 568
4 L.Ed.2d 568
FLORIDA LIME AND AVOCADO GROWERS, INC., et al., Appellants,v.JACOBSEN, Director of the Department of Agriculture of the State of California, et al.
No. 49.
Argued Dec. 9, 10, 1959.
Decided March 7, 1960.
Mr. Isaac E. Ferguson, North Hollywood, Cal., for appellants.
Mr. John Fourt, Sacramento, Cal., for appellees.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Appellants, engaged in the business of growing, packing, and marketing in commerce, Florida avocados, brought this action in the District Court of the United States for the Northern District of California to enjoin respondents, state officers of California, from enforcing § 792 of the California Agricultural Code.1
2
Section 792 prohibits, among other things, the importation into or sale in California of avocados containing 'less than 8 per cent of oil, by weight of the avocado excluding the skin and seed.' The complaint alleged, inter alia, that the varieties of avocados grown in Florida do not normally, or at least not uniformly, contain at maturity as much as 8% of oil by weight; that in each year since 1954 appellants have shipped in interstate commerce, in full compliance with the Federal Agricultural Marketing Agreement Act of 19372 and Florida Avocado Order No. 69 issued under that Act by the Secretary of Agriculture on June 11, 1954, Florida avocados into the State of California and have attempted to sell them there; that appellees, or their agents, have consistently barred the sale of appellants' avocados in California for failure uniformly to contain not less than 8% of oil by weight, resulting in denial to appellants of access to the California market, and forcing reshipment of the avocados to and their sale in other States, to the injury of appellants, all in violation of the Commerce and Equal Protection Clauses of the United States Constitution, art. 1, § 8, cl. 3; Amend. 14, as well as of the Federal Agricultural Marketing Agreement Act of 1937 and Florida Avocado Order No. 69 issued thereunder.
3
Inasmuch as the complaint alleged federal unconstitutionality of the California statute, appellants requested the convening of, and there was convened, a three-judge District Court pursuant to 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, to hear the case. After hearing, the court concluded that, because appellants had not contested the validity of § 792 nor sought abatement of appellees, condemnation of the avocados in the California state courts, the case presented 'no more than a mere prospect of interference posed by the bare existence of the law in question,' and that it had 'no authority to take jurisdiction (and was) left with no course other than to dismiss the action,' which it did. D.C., 169 F.Supp. 774, 776. Appellants brought the case here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, and we postponed the question of our jurisdiction to the hearing on the merits. 360 U.S. 915, 79 S.Ct. 1432, 3 L.Ed.2d 1532.
4
The first and principal question presented is whether this action is one required by § 2281 to be heard by a District Court of three judges and, hence, whether we have jurisdiction of this direct appeal under § 1253.
5
Section 2281 provides3 that an injunction restraining the enforcement of a state statute may not be granted upon the ground of unconstitutionality of such statute 'unless the application therefor is heard and determined by a district court of three judges * * *,' and § 1253 provides4 that any order, granting or denying an injunction in any civil action required by any Act of Congress to be heard and determined by a District Court of three judges, may be appealed directly to this Court.
6
Appellees concede that if the complaint had attacked § 792 solely on the ground of conflict with the United States Constitution, the action would have been one required by § 2281 to be heard and determined by a District Court of three judges. But appellees contend that because the complaint also attacks § 792 on the ground of conflict with the Federal Agricultural Marketing Agreement Act of 1937 and the Secretary's Florida Avocado Order No. 69, it is possible that the action could be determined on the statutory rather than the constitutional ground, and, therefore, the action was not required to be heard by a District Court of three judges under § 2281 and, hence, a direct appeal does not lie to this Court under § 1253.
7
Section 2281 seems rather plainly to indicate a congressional intention to require an application for an injunction to be heard and determined by a court of three judges in any case in which the injunction may be granted on grounds of federal unconstitutionality. The reason for this is quite clear. The impetus behind the first three-judge court statute was the decision in Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, in which it was held that a federal court could enjoin a state officer from enforcing a state statute alleged to be unconstitutional, despite the prohibition of the Eleventh Amendment concerning suits against a State. Debate was immediately launched in the Senate with regard to cushioning the impact of the Young case, the principal concern being with the power thus activated in one federal judge to enjoin the operation or enforcement of state legislation on grounds of federal unconstitutionality.5
8
The result of the debates on this subject was passage of a three-judge-court statute in 1910, 36 Stat. 557, which was codified as § 266 of the Judicial Code, 36 Stat. 1162.6 This statute prohibited the granting of an interlocutory injunction against a state statute upon grounds of federal unconstitutionality unless the application for injunction was heard and determined by a court of three judges. The statute also contained its own provision for direct appeal to this Court from an order granting or denying an interlocutory injunction. The objective of § 266 was clearly articulated by Mr. Chief Justice Taft in Cumberland Telephone & Telegraph Co. v. Louisiana Public Service Commission, 260 U.S. 212, 43 S.Ct. 75, 67 L.Ed. 217:
9
'The legislation was enacted for the manifest purpose of taking away the power of a single United States Judge, whether District Judge, Circuit Judge, or Circuit Justice holding a District Court of the United States, to issue an interlocutory injunction against the execution of a state statute by a state officer or of an order of an administrative board of the state pursuant to a state statute, on the ground of the federal unconstitutionality of the statute. Pending the application for an interlocutory injunction, a single judge may grant a restraining order to be in force until the hearing of the application, but thereafter, so far as enjoining the state officers, his power is exhausted. The wording of the section leaves no doubt that Congress was by provisions ex industria seeking to make interference by interlocutory injunction from a federal court with the enforcement of state legislation regularly enacted and in course of execution, a matter of the adequate hearing and the full deliberation which the presence of three judges, one of whom should be a Circuit Justice or Judge, was likely to secure. It was to prevent the improvident granting of such injunctions by a single judge, and the possible unnecessary conflict between federal and state authority always to be deprecated.' 260 U.S. at page 216, 43 S.Ct. at page 76.
10
In 1925, § 266 was amended to require a three-judge court for issuance of a permanent as well as an interlocutory injunction, and § 238 of the Judicial Code (a broad statute governing direct appeals to this Court from District Courts) was amended, so far as here pertinent, to incorporate the provision for direct appeals to this Court from the orders of three-judge courts granting or denying an injunction in a § 266 case. 43 Stat. 938. Such is the present scheme of §§ 2281 and 1253.
11
With this background, it seems entirely clear that the central concern of Congress in 1910 was to prevent one federal judge from granting an interlocutory injunction against state legislation on grounds of federal unconstitutionality. And the 1925 amendment requiring a court of three judges for issuance of a permanent as well as an interlocutory injunction 'was designed to end the anomalous situation in which a single judge might reconsider and decide questions already passed upon by three judges on the application for an interlocutory injunction.' Stratton v. St. Louis Southwestern R. Co., 282 U.S. 10, 14, 51 S.Ct. 8, 10, 75 L.Ed. 135. Section 2281, read in the light of this background, seems clearly to require that when, in any action to enjoin enforcement of a state statute, the injunctive decree may issue on the ground of federal unconstitutionality of the state statute, the convening of a three-judge court is necessary; and the joining in the complaint of a nonconstitutional attack along with the constitutional one does not dispense with the necessity to convene such a court. To hold to the contrary would be to permit one federal district judge to enjoin enforcement of a state statute on the ground of federal unconstitutionality whenever a nonconstitutional ground of attack was also alleged, and this might well defeat the purpose of § 2281.
12
Cases in this Court since Louisville & Nashville R. Co. v. Garrett, 1913, 231 U.S. 298, 34 S.Ct. 48, 58 L.Ed. 229, have consistently adhered to the view that, in an injunction action challenging a state statute on substantial federal constitutional grounds, a three-judge court is required to be convened and has just as we have on a direct appeal from its action—jurisdiction over all claims raised against the statute.7 These cases represent an unmistakable recognition of the congressional policy to provide for a three-judge court whenever a state statute is sought to be enjoined on grounds of federal unconstitutionality, and this consideration must be controlling.8
13
Appellees place some reliance on Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, and Lemke v. Farmers Grain Co. of Embden, N.D., 258 U.S. 50 (Lemke I), 42 S.Ct. 244, 66 L.Ed. 458, in support of their position. Buder held merely that a claim of conflict between a state statute and a federal statute was not a constitutional claim requiring the convening of a three-judge court under § 266, and thus there could be no direct appeal here. Buder did not, however, require that a constitutional claim be the sole claim before the three-judge court. Lemke I held that it was permissible to appeal to the Court of Appeals rather than directly to this Court from the final order of a single district judge in a case in which a state statute was attacked on the grounds that it was both unconstitutional and in conflict with a federal statute. The case was decided under § 238, which, until 1925, was a broad statute calling for a direct appeal to this Court from the action of a District Court 'in any case that involves the construction or application of the Constitution of the United States * * * and in any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States.' The breadth of § 238 had led the Court on several occasions to construe this provision to mean that a direct appeal to this Court was required only when the sole ground of District Court jurisdiction was the federal constitutional claim involved, Union & Planters' Bank of Memphis v. City of Memphis, 189 U.S. 71, 73, 23 S.Ct. 604, 605, 47 L.Ed. 712; Carolina Glass Co. v. State of South Carolina, 240 U.S. 305, 318, 36 S.Ct. 293, 298, 60 L.Ed. 658, but if jurisdiction was based both on a constitutional ground and some other federal ground the appeal might properly be taken either to this Court or to the Court of Appeals. Spreckels Sugar Refining Co. v. McClain, 192 U.S. 397, 407—408, 24 S.Ct. 376, 378 379, 48 L.Ed. 496; Macfadden v. United States, 213 U.S. 288, 293, 29 S.Ct. 490, 491, 53 L.Ed. 801. Lemke I, decided in 1922, merely followed this line of decisions, and was not in any way concerned with a direct appeal to this Court under § 266 from the order of a three-judge court—the question now before us.
14
The distinction between the scope of our direct appellate jurisdiction under § 238 and § 266 prior to 1925 was effectively illustrated by the differing course of events in Lemke I and Lemke v. Homer Farmers Elevator Co., 258 U.S. 65 (Lemke II), 42 S.Ct. 250, 66 L.Ed. 467. Both cases involved an attack on a state statute on grounds of federal unconstitutionality and conflict with a federal statute. In both, interlocutory injunctions were sought before three-judge courts, and the injunctions were granted. Lemke I, however, also sought a permanent injunction before a single district judge, and, from his order denying the injunction, the case was appealed to the Court of Appeals before coming here. Lemke II, on the other hand, was directly appealed to this Court under § 266 from the interlocutory order of the three-judge court. As indicated, this Court held that the final order of the single judge in Lemke I was properly appealed to the Court of Appeals under § 238 because of the additional nonconstitutional basis for District Court jurisdiction. But in Lemke II this Court took jurisdiction over all issues presented in the direct appeal under § 266 from the interlocutory order of the three-judge court. See also Shafer v. Farmers Grain Co. of Embden, 268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909, a case virtually identical with Lemke II, in which this Court also took jurisdiction over all questions in a § 266 direct appeal from an interlocutory injunction granted by a three-judge court.
15
The problem was greatly simplified in 1925 when § 266 was amended to require three-judge courts for the granting of both interlocutory and permanent injunctions on grounds of federal unconstitutionality, and § 238, while substantially amended to reduce the scope of our general appellate jurisdiction, so far as here pertinent, merely incorporated the provision for direct appeals to this Court from injunctions granted or denied under § 266. We do not find in these amendments any intention to curtail either the jurisdiction of three-judge courts or our jurisdiction on direct appeal from their orders. Indeed, the cases since 1925 have continued to maintain the view that if the constitutional claim against the state statute is substantial, a three-judge court is required to be convened and has jurisdiction, as do we on direct appeal, over all grounds of attack against the statute. E.g., Sterling v. Constantin, 287 U.S. 378, 393—394, 53 S.Ct. 190, 193—194, 77 L.Ed. 375; Railroad Commission of State of California v. Pacific Gas & Electric Co., 302 U.S. 388, 391, 58 S.Ct. 334, 336, 82 L.Ed. 319; Public Service Commission of State of Missouri v. Brashear Freight Lines, 312 U.S. 621, 625, note 5, 61 S.Ct. 784, 786, 85 L.Ed. 1083.
16
To hold that only one judge may hear and decide an action to enjoin the enforcement of a state statute on both constitutional and nonconstitutional grounds would be to ignore the explicit language and manifest purpose of § 2281, which is to provide for a three-judge court whenever an injunction sought against a state statute may be granted on federal constitutional grounds. Where a complaint seeks to enjoin a state statute on substantial grounds of federal unconstitutionality, then even though nonconstitutional grounds of attack are also alleged, we think the case is one that is required by * * * Act of Congress to be heard and determined by a district court of three judges.' 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. (Emphasis added.) We, therefore, hold that we have jurisdiction of this direct appeal.
17
We turn now to the merits. The Court is of the view that the District Court was in error in holding that, because appellants had not contested the validity of § 792 nor sought abatement of appellees' condemnation of their avocados, there was no 'existing dispute as to present legal rights,' but only 'a mere prospect of interference posed by the bare existence of the law in question (§ 792).' and in accordingly dismissing the action for want of jurisdiction. (169 F.Supp. 776) As earlier stated, the complaint alleges that, since the issuance of the Secretary's Florida Avocado Order No. 69 in 1954, appellants have made more than a score of shipments in interstate commerce of Florida avocados to and for sale in California, and appellees, or their agents, have in effect consistently condemned those avocados for failure to contain 8% or more of oil by weight, thus requiring appellants—to prevent destruction and complete loss of their shipments—to reship the avocados to and sell them in other States, all in violation of the Commerce and Equal Protection Clauses of the United States Constitution as well as the Marketing Agreement Act of 1937. It is therefore evident that there is an existing dispute between the parties as to present legal rights amounting to a justiciable controversy which appellants are entitled to have determined on the merits. In these circumstances, the fact that appellants did not contest the validity of § 792 nor seek abatement of appellees' condemnation of the avocados in the California state courts—which, because of the time period necessarily involved, would have resulted in the complete spoilage and loss of the product—does not constitute an impediment to their right to seek an injunction in the federal court against enforcement of § 792 on the ground that it violates both the Constitution of the United States and the Federal Agricultural Marketing Agreement Act of 1937.
18
The judgment is therefore reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.
19
Reversed and remanded.
20
Mr. Justice DOUGLAS joins in the part of the opinion that passes on the merits, the Court having held, contrary to his view, that the case is properly here on direct appeal from a three-judge court.
21
Mr. Justice FRANKFURTER, whom Mr. Justice DOUGLAS joins, dissenting.
22
The statute providing for three-judge Federal District Courts, with direct appeal to this Court, in cases seeking interlocutory injunctions against the operation of state statutes on constitutional grounds, was enacted in 1910. 36 Stat. 557. It was amended in 1925 to apply to applications for final as well as interlocutory injunctive relief. 43 Stat. 938. Since that time this Court has taken jurisdiction by way of direct appeal in several cases like the present one, where a state statute was sought to be enjoined both on federal constitutional and non-constitutional grounds. See Herkness v. Irion, 278 U.S. 92, 49 S.Ct. 40, 73 L.Ed. 198; Sterling v. Constantin, 287 U.S. 378, 393, 53 S.Ct. 190, 193, 77 L.Ed. 375 (limited in Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322; Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315.1 In none of these cases, however, was our jurisdiction challenged by the litigants because non-constitutional as well as constitutional relief was sought, nor did the Court notice the existence of a question as to our jurisdiction on that score. We should therefore feel free to apply Mr. Chief Justice Marshall's approach in a similar situation to unconsidered assumptions of jurisdiction: 'No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case.' United States v. More, 3 Cranch 159, 172, 2 L.Ed. 397. See also Mr. Chief Justice Marshall in Durousseau v. United States, 6 Cranch 307, 3 L.Ed. 232, and Mr. Justice Brandeis dissenting in King Mfg. Co. v. City Council of Augusta, 277 U.S. 100, 135, note 21, 48 S.Ct. 489, 501, 72 L.Ed. 801: 'It is well settled that the exercise of jurisdiction under such circumstances (where counsel did not question our jurisdiction) is not to be deemed a precedent when the question is finally brought before us for determination.'2 I therefore approach the question of our jurisdiction in the present case as open, calling for a thorough canvass of the relevant jurisdictional factors. The Court does not undertake such a canvass, but relies instead upon the cases cited and upon what it deems explicit statutory language and plainly manifested congressional intent. Consideration of what are to me the relevant factors leads me to dissent from the Court's conclusion that we have direct appellate jurisdiction in this case.
23
Appellants' complaint seeks injunction against the operation of § 792 of the California Agricultural Code on the grounds that it is in conflict with the Federal Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 601 et seq., 7 U.S.C.A. § 601 et seq., and the Commerce and Equal Protection Clauses of the United States Constitution. The complaint requested the convening of a three-judge District Court to adjudicate these claims. A three-judge court was convened and, after hearing, it entered a judgment dismissing the action on the ground that no justiciable controversy existed. D.C., 169 F.Supp. 774. A direct appeal was taken to this Court pursuant to 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. The Court now holds that three judges were required to adjudicate appellants' claims below and that we therefore have jurisdiction to decide this appeal on its merits.
24
The statute governing our direct appellate jurisdiction from decisions of three-judge District Courts is 28 U.S.C. § 1253, 28 U.S.C.A. § 1253:
25
'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.'
26
Whether the present case was a 'proceeding required * * * to be heard and determined by a district court of three judges,' and therefore within our direct appellate jurisdiction, depends upon the meaning to be given to 28 U.S.C. § 2281, 28 U.S.C.A. § 2281:
27
'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.'
28
I start with the proposition, as I understand the Court to do, that whether a case is one directly appealable here under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, depends upon the complaint, and not upon the result in the District Court. If three judges are required to hear the claims which are made, then we have direct appellate jurisdiction to review their decision, even though it be on non-constitutional grounds. If three judges are not required in view of the complaint, and the case is determinable by a single judge, we have no jurisdiction by way of direct appeal under § 1253, even though the decision be a constitutional one.
29
In this case the complaint did not attack the California statute solely on the ground of its conflict with the Commerce and Equal Protection Clauses of the Constitution. It also attacked it because of its asserted conflict with the Federal Agricultural Marketing Agreement Act of 1937, a claim which in the first instance requires construction of both the Federal Act and the California statute, and which for purposes relevant to our issue is not a constitutional claim. Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036. The question thus presented is whether three judges are to be required, with a consequent direct appeal to this Court, merely because a constitutional claim is made, although it is joined with claims that may dispose of the case on essentially statutory and perchance local statutory grounds. The Court decided that three judges are required in such a case. I would hold that there are required to be three judges and a direct appeal to this Court only when the exclusive ground of attack upon a state statute is direct and immediate collision with the Constitution, thus seeking a constitutional decision in order that relief be granted.
30
Neither my position nor the Court's is entirely satisfactory. My view would leave it open for a single district judge to enjoin a state statute on the ground of its unconstitutionality if the complaint also contains non-constitutional grounds for relief. As the Court points out, such a result would conflict with the superficial literal sense of 28 U.S.C. § 2281, 28 U.S.C.A. § 2281, that an 'injunction restraining the enforcement * * * of any State statute * * * shall not be granted by any district court * * * UPON THE GROUND OF THE UNCONSTITUTIONALITY of such statute unless the application therefor is heard and determined by a district court of three judges * * *.' The effect of the Court's decision, on the other hand, is to require the convening of a three-judge court, with the corollary right of direct appeal of its decision to this Court, in cases where, as a consequence of the presence of a substantial non-constitutional ground for relief, the constitutionality of a state statute will play no part in the decision, either in the District Court or in this Court. There can be expected to be many such cases. For an example of one of them see Herkness v. Irion, 278 U.S. 92, 49 S.Ct. 40, 73 L.Ed. 198. It can fairly be stated, and with this I understand the Court fully to agree, that in devising the three-judge District Court scheme relating to state legislation Congress was concerned with providing appropriate safeguards against the invalidation of state legislation on constitutional grounds. I am therefore put to a choice between holding this three-judge procedure applicable to a large class of non-constitutional cases, where the unusual demands which that procedure makes upon the federal judicial system were never thought justifiable by Congress, and departing from the strictly literal sense of § 2281 in order to restrict the scope of this three-judge procedure with a view to preventing its operation outside of its proper constitutional sphere. I am led to choose the latter by considerations which are to me controlling, namely, considerations bearing on the efficient operation of the federal judicial system. For I do not find myself compelled to disregard these considerations either by ironclad statutory language or by any unambiguous evidence of congressional purpose to the contrary.
31
What jurisdictional result in a case like this is most likely to comport best with the operation of the federal judicial system is to be determined with regard to two general and conflicting considerations, both of which are directly relevant to a construction of the provisions respecting three-judge District Courts in the context of the present situation. On the one hand is the policy which gave rise to the creation of the three-judge requirement in these cases: protection against the improvident invalidation of state regulatory legislation was sought to be achieved by resting the fate of such legislation in the first instance in the hands of three judges, one of whom must be a circuit judge (or, originally, a Justice of this Court), rather than in a single district judge. See Pogue, State Determination of State Law, 41 Harv.L.Rev. 623; Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795. And direct appeal to this Court was provided, instead of the usual route from District Court to Court of Appeals, not only to avoid the incongruity of three judges reviewing three judges, but also to hasten ultimate determination of the validity of the legislation and to avoid the delay and waste of time during which the operation of legislation eventually held to be valid might be restrained on constitutional grounds by injunction.
32
Were only these considerations claiming judgment in construing inert language it would plainly follow, as the Court has concluded, that three judges are required to hear the complaint in this case, for constitutional claims are made and it is not precluded that injunctive relief may be granted on an obvious conflict with specific constitutional provisions. But so to rule here is in my view to fail to give due regard to countervailing considerations of farreaching consequences to the federal judicial system, affecting the functioning of district and circuit courts, as well as of this Court. Specifically, the convening of a three-judge trial court makes for dislocation of the normal structure and functioning of the lower federal courts, particularly in the vast non-metropolitan regions; and direct review of District Court judgments by this Court not only expands this Court's obligatory jurisdiction but contradicts the dominant principle of having this Court review decisions only after they have gone through two judicial sieves, or, in the case of federal regulatory legislation, through the administrative tribunal and a Court of Appeals. Also, where issues of local law have to be adjudicated before reaching questions under the United States Constitution, the desirability of having the appropriate Court of Appeals adjudicate such local issues becomes operative.
33
I deem regard for these demands which the three-judge requirement makes upon the federal judiciary to be the jurisdictional consideration of principal importance in a case such as this where a claim is seriously urged which necessarily involves, certainly in the first instance, construction of local or federal statutes, thus making potentially available a non-constitutional ground on which the case may be disposed of. It is more important that the ordinary operation of our judicial system not be needlessly disrupted by such a case than it is to insure that every case which may turn out to be constitutional be heard by three judges. I am led therefore to construe strictly the statutes providing the three-judge procedure relevant to this case so as to permit their invocation only when the claim is solely constitutional, thus tending to insure that the three-judge procedure will not be extended to non-constitutional cases not within its proper sphere.
34
My adherence to such confining construction of the necessity both for convening three judges and for this Court to be the first appellate tribunal is consistent with the approach this Court has taken when it has in the past refused to apply this legislation. See Moore v. Fidelity & Deposit Co., 272 U.S. 317, 47 S.Ct. 105, 71 L.Ed. 273; Smith v. Wilson, 273 U.S. 388, 47 S.Ct. 385, 71 L.Ed. 699; Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990; Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U.S. 386, 54 S.Ct. 732, 78 L.Ed. 1318; Ex parte Williams, 277 U.S. 267, 48 S.Ct. 523, 72 L.Ed. 877; Ex parte Public National Bank of New York, 278 U.S. 101, 49 S.Ct. 43, 73 L.Ed. 202; Rorick v. Board of Commissioners of Everglades Drainage Dist., 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242; Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249; Wilentz v. Sovereign Camp, W.O.W., 306 U.S. 573, 59 S.Ct. 709, 83 L.Ed. 994; Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800; Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741. As we stressed in Phillips v. United States, supra, these cases approach this three-judge statute as a procedural technicality and not as the embodiment of a more or less broadly phrased social policy the enforcement of which requires a generous regard for some underlying social purpose. In Stainback v. Mo Hock Ke Lok Po, supra, we continued to refer to 'the long-established rule of strict construction' of this provision for three judges, 336 U.S., at page 378, 69 S.Ct. at page 612, and refused to find it applicable to the Territory of Hawaii. These cases recognize what the Court today in my view does not—that in giving scope to the three-judge requirement due regard should be given to the consequences to the effective functioning of the federal judiciary as a totality, especially to the fact that an expansive construction of the three-judge requirement increases the scope of this Court's direct review and thereby is at cross purposes with the Act of February 13, 1925, 43 Stat. 936, the primary aim of which was to keep our appellate docket within narrow confines. See Moore v. Fidelity & Deposit Co., 272 U.S. 317, 321, 47 S.Ct. 105, 106, 71 L.Ed. 273.
35
As against the result to which I am led by these important considerations bearing on the proper functioning of the federal judicial system, which I do not understand the Court to dispute, I cannot be persuaded, as apparently the Court is, by arguments stemming from 'the explicit language,' the literal sense, of 28 U.S.C. § 2281, 28 U.S.C.A. § 2281. Jurisdictional provisions are not to be read in isolation with mutilating literalness, but as harmonizing parts of the comprehensive, reticulated judicial system. For an instance of this Court's express refusal to give the surface literal meaning to a jurisdictional provision on the ground that to do so would not be consistent with the 'sense of the thing' and would confer upon this Court a jurisdiction beyond what 'naturally and properly belongs to it,' see American Security & Trust Co. v. Commissioners of District of Columbia, 224 U.S. 491, 495, 32 S.Ct. 553, 554, 56 L.Ed. 856. And see Ex parte Collins, 277 U.S. 565, 568, 48 S.Ct. 585, 586, 72 L.Ed. 990, where '(d)espite the generality of the language' of this three-judge provision, it was held that a suit was not one to restrain the operation of a state statute when 'the defendants are local officers and the suit involves matters of interest only to the particular municipality or district involved.' Reliance upon literalism in construing a jurisdictional statute constitutes slavish adherence to words, as though they were symbols having single, absolute meanings, and reflects indifference to the significance of jurisdictional legislation as a vehicle for judicial administration.
36
Nor am I persuaded that I must decide contrary to what are to me the considerations of proper judicial administration by what seems chiefly to have persuaded the Court, namely, that § 2281 'plainly * * * indicate(s) a congressional intention to require an application for an injunction to be heard and determined by a court of three judges in any case in which the injunction may be granted on grounds of federal unconstitutionality.' 362 U.S. at page 76, 80 S.Ct. at page 571. I can find no such plain congressional intention with regard to the problem presented by the present case. When the three-judge statute was first passed by Congress in 1910 it applied only to applications for interlocutory injunctions. Jurisdiction remained in a single judge to hear an application for a final injunction against the operation of a state statute on grounds of unconstitutionality, and a single judge had the power to grant such an injunction. Thus it is impossible to attribute to Congress at that time an intention that any case involving an injunction of a state statute on constitutional grounds be heard and determined by three judges. The concern was only with improvident interlocutory relief. And in 1925, when the three-judge statute was extended to include applications for final as well as interlocutory relief, the only evident concern of Congress was, as the Court agrees, 'to end the anomalous situation in which a single judge might reconsider and decide questions already passed upon by three judges on the application for an interlocutory injunction.' Stratton v. St. Louis Southwestern R. Co., 282 U.S. 10, 14, 51 S.Ct. 8, 10, 75 L.Ed. 135. It is, of course, common knowledge that Congress' central concern in enacting the Jurisdictional Act of 1925 was to restrict the obligatory appellate jurisdiction of this Court. Thus, although the result of the 1910 and 1925 Acts is language which on its face appears to prohibit one judge from ever enjoining a state statute on constitutional grounds, I do not think it fair to say that there was ever a deliberate accompanying purpose in Congress to achieve such a sweeping inflexible result. In the absence of any manifestations of such a purpose, I do not see why we should attribute to Congress, as the Court does, an intention to achieve a result which to me is plainly out of harmony with the best operation of the federal judicial system.3
37
And if we are to look to our prior decisions for guidance with regard to the proper approach to statutes conferring upon this Court direct appellate jurisdiction over decisions in constitutional cases. I find much more relevant than the decisions relied upon by the Court, which reached the Court's result without consideration of the jurisdictional problems now presented, our decisions in Ex parte Buder, 271 U.S. 461, 46 S.Ct. 557, 70 L.Ed. 1036, and in Lemke v. Farmers Grain Co of Embden, N.D., 258 U.S. 50 (Lemke I), 42 S.Ct. 244, 66 L.Ed. 458. Buder arose under the three-judge statute involved in the present case, and Lemke I arose under § 238 of the old Judicial Code which, no less literally than the statute in the present case, gave this Court direct appellate jurisdiction in cases in which a state law was 'claimed to be in contravention of the Constitution of the United States.' In both of these cases the jurisdictional problem was expressly considered, and the jurisdictional legislation was read so as not to require this Court's direct appellate jurisdiction in cases where non-constitutional claims were made, even though constitutional factors were also implicated and decision might ultimately have turned on constitutional grounds.
38
Legislating is for Congress. Applying what Congress has enacted requires oftener than not construction. That is a judicial function. This is particularly true of judiciary legislation which is mainly concerned with the distribution of judicial power through deployment of the judicial force and the effective exercise of appellate review. It is also true to state that Congress seldom concerns itself with this Court's decisions construing judiciary legislation unless some dramatic result arouses its interest. We do not have to go further for an illustration of this generalization than to notice the indifference of Congress, in the sense that no legislative changes have been proposed one way or the other, with regard to the Act involved in this case, or the Criminal Appeals Act of 1907. Because these things are true I am convinced that it would in no wise show a disregard for any legislative purpose in the enactment of the three-judge device, or for any kind of legislative attitude toward the series of cases in which this Court has since then applied that legislation, if now upon full consideration we were to construe this legislation in light of the demands of the federal system as a totality to restrict it to what was plainly the central concern of Congress, to wit, to those cases where state legislation is challenged simpliciter as directly offensive to some specific provision of the Constitution and where the claim is not entangled with other claims, usually turning upon the construction of local or federal statutes, which necessarily must be passed upon before the constitutional question is reached. I therefore dissent from the decision of the Court that we have jurisdiction in this case.
1
Deering's Agricultural Code of the State of California, 1950; c. 2, Div. 5, of West's Ann.California Agricultural Code.
2
50 Stat. 246, 7 U.S.C. § 601 et seq., 7 U.S.C.A. § 601 et seq.
3
28 U.S.C. § 2281, 28 U.S.C.A. § 2281, provides:
'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.'
4
28 U.S.C. § 1253, 28 U.S.C.A. § 1253, provides:
'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard dna determined by a district court of three judges.'
5
In the Senate debates Senator Overman of North Carolina commented as follows:
'This measure proposes that whenever a petition is presented the circuit judge before whom it is presented shall, before granting the injunction, call in one circuit judge and one district judge or another circuit court judge, making three judges who shall pass upon the question of the injunction.
'We think, sir, that if this could be done it would allay much intense feeling in the States. As was said by Mr. Justice Harlan, in his dissenting opinion in the Minnesota case (Ex parte Young), we have come to a sad day when one subordinate Federal judge can enjoin the officer of a sovereign State from proceeding to enforce the laws of the State passed by the legislature of his own State, and thereby suspending for a time the laws of the State. * * * That being so, there being great feeling among the people of the States by reason of the fact that one Federal judge has tied the hands of a sovereign State and enjoined in this manner the great officer who is charged with the enforcement of the laws of the State, causing almost a revolution, as it did in my State, and in order to allay this feeling, if this substitute is adopted and three judges have to pass upon the question of the constitutionality of a State statute and three great judges say that the statute is unconstitutional, the officers of the State will be less inclined to resist the orders and decrees of our Federal courts. The people and the courts of the State are more inclined to abide by the decision of three judges than they would of one subordinante inferior Federal judge who simply upon petition or upon a hearing should tie the hands of a State officer from proceeding with the enforcement of the laws of his sovereign State. * * *' 42 Cong.Rec. 4847.
And Senator Bacon of Georgia remarked:
'The purpose of the bill is to throw additional safeguards around the exercise of the enormous powers claimed for the subordinate Federal courts. If these courts are to exercise the power of stopping the operation of the laws of a State and of punishing the officers of a State, then at least let it be done on notice and not hastily, and let there be the judgment of three judges to decide such questions, and not permit such dangerous power to one man.
'The necessity for this legislation is a very grave one. It is a most serious trouble which now exists—that by the action of one judge the machinery of State laws can be arrested. * * *' 42 Cong.Rec. 4853.
6
Section 266 of the Judicial Code originally provided in pertinent part:
'No interlocutory injunctions suspending or restraining the enforcement, operation, or execution of any statute of a State by restraining the action of any officer of such State in the enforcement or execution of such statute, shall be issued or granted by any justice of the Supreme Court, or by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, upon the ground of the unconstitutionality of such statute, unless the application for the same shall be presented to a justice of the Supreme Court of the United States, or to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court, or a circuit judge, and the other two may be either circuit or district judges, and unless a majority of said three judges shall concur in granting such application. * * * An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying, after notice and hearing, an interlocutory injunction in such case.' 36 Stat. 1162.
7
See, e.g., Van Dyke v. Geary, 244 U.S. 39, 37 S.Ct. 483, 61 L.Ed. 973; Cavanaugh v. Looney, 248 U.S. 453, 39 S.Ct. 142, 63 L.Ed. 354; Lemke v. Homer Farmers Elevator Co., 258 U.S. 65 (Lemke II), 42 S.Ct. 250, 66 L.Ed. 467; Chicago, Great Western R. Co. v. Kendall, 266 U.S. 94, 45 S.Ct. 55, 69 L.Ed. 183; Shafer v. Farmers Grain Co. of Embden, 268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909; Herkness v. Irion, 278 U.S. 92, 49 S.Ct. 40, 73 L.Ed. 198; Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322; Railroad Commission of State of California v. Pacific Gas & Electric Co., 302 U.S. 388, 58 S.Ct. 334, 82 L.Ed. 319; Public Service Commission of State of Missouri v. Brashear Freight Lines, 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083; Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315.
In the Garrett case, the following observations were made by Mr. Justice Hughes:
'Because of the Federal questions raised by the bill the circuit (District) court had jurisdiction and was authorized to determine all the questions in the case, local as well as Federal. Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 191, 29 S.Ct. 451, 53 L.Ed. 753. A similar rule must be deemed to govern the application for preliminary injunction under the statute which requires a hearing before three judges, and authorizes an appeal to this court. 36 Stat. 557. This statute applies to cases in which the preliminary injunction is sought in order to restrain the enforcement of a state enactment upon the ground of its 'unconstitutionality.' The reference, undoubtedly, is to an asserted conflict with the Federal Constitution, and the question of unconstitutionality, in this sense, mut be a substantial one. But, where such a question is presented, the application is within the provision, and this being so, it cannot be supposed that it was the intention of Congress to compel the exclusion of other grounds, and thus to require a separate motion for preliminary injunction, and a separate hearing and appeal, with respect to the local questions which are involved in the case, and would properly be the subject of consideration in determining the propriety of granting an injunction pending suit. The local questions arising under the state Constitution and statutes were therefore before the circuit (District) court and the appeal brings them here.' 231 U.S. at pages 303—304, 34 S.Ct. at page 50.
8
In Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375, for example, certain state administrative orders were sought to be enjoined on the ground that they violated both the State and Federal Constitutions. The
Governor of the State had declared martial law in an effort to enforce the orders, and his action was also challenged on the ground that any statute purporting to confer such authority on him was in violation of the State and Federal Constitutions. With regard to the jurisdiction of the three-judge court which had been convened for the purpose of considering an application for injunction, Mr. Chief Justice Hughes said:
'As the validity of provisions of the state Constitution and statutes, if they could be deemed to authorize the action of the Governor, was challenged, the application for injunction was properly heard by three judges, Stratton v. St. Louis Southwestern R. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135. The jurisdiction of the District Court so constituted, and of this Court upon appeal, extends to every question involved, whether of state or federal law, and enables the court to rest its judgment on the decision of such of the questions as in its opinion effectively dispose of the case.' 287 U.S. at pages 393—394, 53 S.Ct. at page 193.
In Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800, it was held that a suit by the United States to enjoin the action of a Governor in interfering with the construction of a state power project using federal funds was not within § 266 because the validity of a state statute or order had not been challenged. Sterling v. Constantin was distinguished on the ground that it involved an attempt to restrain the action of a Governor as part of a main objective to enjoin execution of certain administrative orders as violative of the State and Federal Constitutions. As such, Sterling was said to have been 'indubitably within § 266.' 312 U.S. at page 253, 61 S.Ct. at page 484.
1
Prior to the 1925 extension of this three-judge-court statute to cover applications for final injunctions, there were also cases like the present one, where non-constitutional as well as constitutional claims were made, in which the Court accepted jurisdiction. See Louisville & Nashville R. Co. v. Garrett, 231 U.S. 298, 34 S.Ct. 48, 58 L.Ed. 229; Lemke v. Homer Farmers Elevator Co., 258 U.S. 65 (Lemke II), 42 S.Ct. 250, 66 L.Ed. 467; Cavanaugh v. Looney, 248 U.S. 453, 39 S.Ct. 142, 63 L.Ed. 354; Shafer v. Farmers Grain Co. of Embden, 268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909. Of these cases, only Louisville & Nashville R. Co. v. Garrett gave any attention whatsoever to jurisdictional considerations, and in that case there was no direct challenge to this Court's jurisdiction of the whole case under the three-judge statute on the ground that non-constitutional as well as constitutional claims were made. But there is an even more fundamental reason for discounting these pre-1925 cases as authority regarding the jurisdictional problem in the present case. As Garrett and these other cases were decided prior to the 1925 Jurisdictional Act, which drastically shrunk this Court's jurisdiction on appeal, they arose at a time when the scope of direct appellate jurisdiction here over decisions of ordinary one-judge District Courts was much broader than it now is, and in fact applied under § 238 of the Judicial Code to all constitutional cases, including cases like the present one involving federal statutory grounds for relief in addition to constitutional grounds. See Spreckels Sugar Refining Co. v. McClain, 192 U.S. 397, 407—408, 24 S.Ct. 376, 378—379, 48 L.Ed. 496; Macfadden v. United States, 213 U.S. 288, 29 S.Ct. 490, 53 L.Ed. 801. Thus the results in these pre-1925 cases, permitting the same scope of direct appeal to this Court in three-judge cases as § 238 then permitted in one-judge cases, were not as obviously out of harmony with the scheme of the federal judicial system in their day as I believe is the decision which the Court makes today.
2
The Court's Rules 15, subd. 1(c)(1) and 23, subd. 1(c), 28 U.S.C.A., emphasize the doctrine that a sub silentio exercise of jurisdiction is not controlling as precedent: 'Only the questions set forth in the jurisdictional statement (or petition) or fairly comprised therein will be considered by the court.'
3
It is interesting to note that while the Judicial Code also contains provision requiring three judges to hear cases seeking injunctions against federal statutes on constitutional grounds (28 U.S.C. § 2282, 28 U.S.C.A. § 2282), Congress has left no room for doubt that in litigation attacking federal statutes if in fact (where the United States or one of its agents is a party) a federal statute is declared unconstitutional, the case is to be directly reviewed here. 28 U.S.C. § 1252, 28 U.S.C.A. § 1252, so provides.
| 89
|
362 U.S. 199
80 S.Ct. 624
4 L.Ed.2d 654
Sam THOMPSON, Petitioner,v.CITY OF LOUISVILLE et al.
No. 59.
Argued Jan. 11, 12, 1960.
Decided March 21, 1960.
Mr. Louis Lusky, Louisville, Ky. (Messrs, Marvin H. Morse, Louisville, Ky., Harold Leventhal and Eugene Gressman, Washington, D.C.) on the brief, for petitioner.
Mr. Herman E. Frick, Louisville, Ky., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
Petitioner was found guilty in the Police Court of Louisville, Kentucky, of two offenses—loitering and disorderly conduct. The ultimate question presented to us is whether the charges against petitioner were so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all.
2
The facts as shown by the record are short and simple. Petitioner, a longtime resident of the Louisville area, went into the Liberty End Cafe about 6:20 on Saturday evening, January 24, 1959. In addition to selling food the cafe was licensed to sell beer to the public and some 12 to 30 patrons were present during the time petitioner was there. When petitioner had been in the cafe about half an hour, two Louisville police officers came in on a 'routine check.' Upon on seeing petitioner 'out there on the floor dancing by himself,' one of the officers, according to his testimony, went up to the manager who was sitting on a stool nearby and asked him how long petitioner had been in there and if he had bought anything. The officer testified that upon being told by the manager that petitioner had been there 'a little over a half-hour and that he had not bought anything,' he accosted Thompson and 'asked him what was his reason for being in there and he said he was waiting on a bus.' The officer then informed petitioner that he was under arrest and took him outside. This was the arrest for loitering. After going outside, the officer testified, petitioner 'was very argumentative—he argued with us back and forth and so then we placed a disorderly conduct charge on him.' Admittedly the disorderly conduct conviction rests solely on this one sentence description of petitioner's conduct after he left the cafe.
3
The foregoing evidence includes all that the city offered against him, except a record purportedly showing a total of 54 previous arrests of petitioner. Before putting on his defense, petitioner moved for a dismissal of the charges against him on the ground that a judgment of conviction on this record would deprive him of property and liberty1 without due process of law under the Fourteenth Amendment in that (1) there was no evidence to support findings of guilt and (2) the two arrests and prosecutions were reprisals against him because petitioner had employed counsel and demanded a judicial hearing to defend himself against prior and allegedly baseless charges by the police.2 This motion was denied.
4
Petitioner then put in evidence on his own behalf, none of which in any way strengthened the city's case. He testified that he bought, and one of the cafe employees served him, a dish of macaroni and a glass of beer and that he remained in the cafe waiting for a bus to go home.3 Further evidence showed without dispute that at the time of his arrest petitioner gave the officers his home address; that he had money with him, and a bus schedule showing that a bus to his home would stop within half a block of the cafe at about 7:30; that he owned two unimproved lots of land; that in addition to work he had done for others, he had regularly worked one day or more a week for the same family for 30 years; that he paid no rent in the home where he lived and that his meager income was sufficient to meet his needs. The cafe manager testified that petitioner had frequently patronized the cafe, and that he had never told petitioner that he was unwelcome there. The manager further testified that on this very occasion he saw petitioner 'standing there in the middle of the floor and patting his foot,' and that he did not at any time during petitioner's stay there object to anything he was doing. There is no evidence that anyone else in the cafe objected to petitioner's shuffing his feet in rhythm with the music of the jukebox or that his conduct was boisterous or offensive to anyone present. At the close of his evidence, petitioner repeated his motion for dismissal of the charges on the ground that a conviction on the foregoing evidence would deprive him of liberty and property without due process under the Fourteenth Amendment. The court denied the motion, convicted him of both offenses, and fined him $10 on each charge. A motion for new trial, on the same grounds, also was denied, which exhausted petitioner's remedies in the police court.
5
Since police court fines of less than $20 on a single charge are not appealable or otherwise reviewable in any other Kentucky court,4 petitioner asked the police court to stay the judgments so that he might have an opportunity to apply for certiorari to this Court (before his case became moot)5 to review the due process contentions he raised. The police court suspended judgment for 24 hours during which time petitioner sought a longer stay from the Kentucky Circuit Court. That court, after examining the police court's judgment and transcript, granted a stay concluding that 'there appears to be merit' in the contention that 'there is no evidence upon which conviction and sentence by the Police Court could be based' and that petitioner's Federal Sonstitutional claims are substantial and not frivolous.'6 On appeal by the city, the Kentucky Court of Appeals held that the Circuit Court lacked the power to grant the stay it did, but nevertheless went on to take the extraordinary step of granting its own stay, even though petitioner had made no original application to that court for such a stay.7 Explaining its reason, the Court of Appeals took occasion to agree with the Circuit Court that petitioner's 'federal constitutional claims are substantial and not frivolous.'8 The Court of Appeals then went on to say that petitioner
6
'appears to have a real question as to whether he has been denied due process under the Fourteenth Amendment of the Federal Constitution, yet this substantive right cannot be tested unless we grant him a stay of execution because his fines are not appealable and will be satisfied by being served in jail before he can prepare and file his petition for certiorari. Appellee's substantive right of due process is of no avail to him unless this court grants him the ancillary right whereby he may test same in the Supreme Court.'9
7
Our examination of the record presented in the petition for certiorari convinced us that although the fines here are small, the due process questions presented are substantial and we therefore granted certiorari to review the police court's judgments. 360 U.S. 916, 79 S.Ct. 1433, 3 L.Ed.2d 1532. Compare Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (San Francisco Police Judges Court judgment imposing a $10 fine, upheld by state appellate court, held invalid as in contravention of the Fourteenth Amendment).
8
The city correctly assumes here that if there is no support for these convictions in the record they are void as denials of due process.10 The pertinent portion of the city ordinance under which petitioner was convicted of loitering reads as follows:
9
'It shall be unlawful for any person * * *, without visible means of support, or who cannot give a satisfactory account of himself, * * * to sleep, lie, loaf, or trespass in or about any premises, building, or other structure in the City of Louisville, without first having obtained the consent of the owner or controller of said premises, structure, or building; * * *' § 85—12, Ordinances of the City of Louisville.11
10
In addition to the fact that petitioner proved he had 'visible means of support,' the prosecutor at trial said 'This is a loitering charge here. There is no charge of no visible means of support.' Moreover, there is no suggestion that petitioner was sleeping, lying or trespassing in or about this cafe. Accordingly he could only have been convicted for being unable to give a satisfactory account of himself while loitering in the cafe, without the consent of the manager. Under the words of the ordinance itself, if the evidence fails to prove all three elements of this loitering charge, the conviction is not supported by evidence, in which event it does not comport with due process of law. The record is entirely lacking in evidence to support any of the charges.
11
Here, petitioner spent about half an hour on a Saturday evening in January in a public cafe which sold food and beer to the public. When asked to account for his presence there, he said he was waiting for a bus. The city concedes that there is no law making it an offense for a person in such a cafe to 'dance,' 'shuffle' or 'pat' his feet in time to music. The undisputed testimony of the manager, who did not know whether petitioner had bought macaroni and beer or not but who did see the patting, shuffling or dancing, was that petitioner was welcome there. The manager testified that he did not at any time during petitioner's stay in the cafe object to anything petitioner was doing and that he never saw petitioner do anything that would cause any objection. Surely this is implied consent, which the city admitted in oral argument satisfies the ordinance. The arresting officer admitted that there was nothing in any way 'valgar' about what he called petitioner's 'ordinary dance,' whatever relevance, if any, vulgarity might have to a charge of loitering. There simply is no semblance of evidence from which any person could reasonably infer that petitioner could not give a satisfactory account of himself or that he was loitering or loafing there (in the ordinary sense of the words) without 'the consent of the owner or controller' of the cafe.
12
Petitioner's conviction for disorderly conduct was under § 85 8 of the city ordinance which, without definition, provides that '(w)hoever shall be found guilty of disorderly conduct in the City of Louisville shall be fined * * *.' etc. The only evidence of 'disorderly conduct' was the single statement of the policeman that after petitioner was arrested and taken out of the cafe he was very argumentative. There is no testimony that petitioner raised his voice, used offensive language, resisted the officers or engaged in any conduct of any kind likely in any way to adversely affect the good order and tranquillity of the City of Louisville. The only information the record contains on what the petitioner was 'argumentative' about is his statement that he asked the officers 'what they arrested me for.' We assume, for we are justified in assuming, that merely 'arguing' with a policeman is not, because it could not be, 'disorderly conduct' as a matter of the substantive law of Kentucky. See Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. Moreover, Kentucky law itself seems to provide that if a man wrongfully arrested fails to object to the arresting officer, he waives any right to complain later that the arrest was unlawful. Nickell v. Commonwealth, Ky., 285 S.W.2d 495, 496.
13
Thus we find no evidence whatever in the record to support these convictions. Just as 'Conviction upon a charge not made would be sheer denial of due process,'12 so is it a violation of due process to convict and punish a man without evidence of his guilt.13
14
The judgments are reversed and the cause is remanded to the Police Court of the City of Louisville for proceedings not inconsistent with this opinion.
15
Reversed and remanded.
1
Upon conviction and sentence under §§ 85—8, 85—12 and 85 13 of the ordinances of the City of Louisville, petitioner would be subject to imprisonment, fine or confinement in the workhouse upon default of payment of a fine.
2
Petitioner added that the effect of convictions here would be to deny him redress for the prior alleged arbitrary and unlawful arrests. This was based on the fact that, under Kentucky law, conviction bars suits for malicious prosecution and even for false imprisonment. Thus, petitioner says, he is subject to arbitrary and continued arrests neither reviewable by regular appellate procedures nor subject to challenge in independent civil actions.
3
The officer's previous testimony that petitioner had bought no food or drink is seriously undermined, if not contradicted, by the manager's testimony at trial. There the manager stated that the officer 'asked me I had (sic) sold him any thing to eat and I said no and he said any beer and I said no * * *.' (Emphasis supplied.) And the manager acknowledged that petitioner might have bought something and been served by a waiter or waitress without the manager noticing it. Whether there was a purchase or not, however, is of no significance to the issue bere.
4
Ky.Rev.Stat. § 26.080; and see § 26.010. Both the Jefferson Circuit Court and the Kentucky Court of Appeals held that further review either by direct appeal or by collateral proceeding was foreclosed to petitioner. Thompson v. Taustine, No. 40175, Jefferson (Kentucky) Circuit Court, Common Pleas Branch, Fifth Division (Per Grauman, J.) (1959), unreported; Taustine v. Thompson, Ky. 1959, 322 S.W.2d 100.
5
Without a stay and bail pending application for review petitioner would have served out his fines in prison in 10 days at the rate of $2 a day. Taustine v. Thompson, Ky.1959, 322 S.W.2d 100.
6
Thompson v. Taustine, No. 40175, Jefferson (Kentucky) Circuit Court, Common Pleas Branch, Fifth Division (per Grauman, J.) (1959), unreported.
7
Taustine v. Thompson, Ky.1959, 322 S.W.2d 100.
8
Id., 322 S.W.2d at page 101.
9
Id., 322 S.W.2d at page 102.
10
For illustration, the city's brief in this Court states that the questions presented are '1. Whether the evidence was sufficient to support the convictions, and therefore meets the requirements of the due process clause of the Fourteenth Amendment. * * *'
11
Section 85—13 provides penalties for violation of § 85 12.
12
De Jonge v. State of Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278. See also Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644.
13
See Schware v. Board of Bar Examiners of State of N.M., 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; United States ex rel. Vajtauer v. Commissioner of Immigration of Port of New York, 273 U.S. 103, 106, 47 S.Ct. 302, 303, 71 L.Ed. 560; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. Cf. Akins v. State of Texas, 325 U.S. 398, 402, 65 S.Ct. 1276, 1278, 89 L.Ed. 1692; Tot v. United States, 319 U.S. 463, 473, 63 S.Ct. 1241, 1247, 87 L.Ed. 1519 (concurring opinion); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791.
| 34
|
362 U.S. 214
80 S.Ct. 629
4 L.Ed.2d 666
Clarence Duke McGANN, Petitioner,v.UNITED STATES.
No. 153.
Argued March 3, 1960.
Decided March 21, 1960.
Mr. Thomas Homer Davis, Austin, Tex., for petitioner.
Mr. Theodore G. Gilinsky, Washington, D.C., for respondent.
PER CURIAM.
1
The writ of certiorari was improvidently granted and must be dismissed. When the case was brought here, on the meager documentation which so often is all that is presented by indigent prisoners seeking review on their own behalf, we assumed that a question involving the construction of 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, called for adjudication. After argument, it became clear that the question of construction is not appropriately presented by the record because petitioner's claim upon the merits was fully considered and decided below, and we find his challenge of that action to be so insubstantial as not to have warranted bringing the case here.
2
Writ dismissed.
| 89
|
362 U.S. 216
80 S.Ct. 667
4 L.Ed.2d 667
George WILLISv.UNITED STATES.
No. 546, Misc.
Supreme Court of the United States
March 21, 1960
George Willis, pro se.
Solicitor General Rankin, for the United States.
On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis is granted. Upon the suggestion of the Solicitor General that the case be remanded to the Court of Appeals in light of what we are informed is the present practice of that court 'to appoint an attorney in all cases in direct appeal where the trial judge's certificate of bad faith is attacked' the petition for writ of certiorari is granted. The judgment of the Court of Appeals for the District of Columbia Circuit is vacated and the case is remanded to that court for further proceedings.
| 12
|
362 U.S. 145
80 S.Ct. 630
4 L.Ed.2d 623
Walter W. FLORA, Petitioner,v.UNITED STATES of America.
No. 492.
Reargued Nov. 12, 1959.
Decided March 21, 1960.
Mr. Randolph W. Thrower, Atlanta, Ga., for petitioner.
Mr. Charles K. Rice, Washington, D.C., for the respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The question presented is whether a Federal District Court has jurisdiction under 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1), of a suit by a taxpayer for the refund of income tax payments which did not discharge the entire amount of his assessment.
2
This is our second consideration of the case. In the 1957 Term, we decided that full payment of the assessment is a jurisdictional prerequisite to suit, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165. Subsequently the Court granted a petition for rehearing. 360 U.S. 922, 79 S.Ct. 1430, 3 L.Ed.2d 1538. The case has been exhaustively briefed and ably argued. After giving the problem our most careful attention, we have concluded that our original disposition of the case was correct.
3
Under such circumstances, normally a brief epilogue to the prior opinion would be sufficient to account for our decision. However, because petitioner in reargument has placed somewhat greater emphasis upon certain contentions than he had previously, and because our dissenting colleagues have elaborated upon the reasons for their disagreement, we deem it advisable to set forth our reasoning in some detail, even though this necessitates repeating much of what we have already said.
4
The Facts.
5
The relevant facts are undisputed and uncomplicated. This litigation had its source in a dispute between petitioner and the Commissioner of Internal Revenue concerning the proper characterization of certain losses which petitioner suffered during 1950. Petitioner reported them as ordinary losses, but the Commissioner treated them as capital losses and levied a deficiency assessment in the amount of $28,908.60, including interest. Petitioner paid $5,058.54 and then filed with the Commissioner a claim for refund of that amount. After the claim was disallowed, petitioner sued for refund in a District Court. The Government moved to dismiss, and the judge decided that the petitioner 'should not maintain' the action because he had not paid the full amount of the assessment. But since there was a conflict among the Courts of Appeals on this jurisdictional question, and since the Tenth Circuit had not yet passed upon it, the judge believed it desirable to determine the merits of the claim. He thereupon concluded that the losses were capital in nature and entered judgment in favor of the Government. 142 F.Supp. 602. The Court of Appeals for the Tenth Circuit agreed with the district judge upon the jurisdictional issue, and consequently remanded with directions to vacate the judgment and dismiss the complaint. 246 F.2d 929. We granted certiorari because the Courts of Appeals were in conflict with respect to a question which is of considerable importance in the administration of the tax laws.1
The Statute.
6
The question raised in this case has not only raised a conflict in the federal decisions, but has also in recent years provoked controversy among legal commentators.2 In view of this divergence of expert opinion, it would be surprising if the words of the statute inexorably dictated but a single reasonable conclusion. Nevertheless, one of the arguments which has been most strenuously urged is that the plain language of the statute precludes, or at the very least strongly militates against, a decision that full payment of the income tax assessment is a jurisdictional condition precedent to maintenance of a refund suit in a District Court. If this were true, presumably we could but recite the statute and enter judgment for petitioner—though we might be pardoned some perplexity as to how such a simple matter could have caused so much confusion. Regrettably, this facile an approach will not serve.
7
Section 1346(a)(1) provides that the District Courts shall have jurisdiction, concurrent with the Court of Claims, of
8
'(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws * * *.' (Emphasis added.)
9
It is clear enough that the phrase 'any internal-revenue tax' can readily be construed to refer to payment of the entire amount of an assessment. Such an interpretation is suggested by the nature of the income tax, which is 'A tax * * * imposed for each taxable year,' with the 'amount of the tax' determined in accordance with prescribed schedules.3 (Emphasis added.) But it is argued that this reading of the statute is foreclosed by the presence in § 1346(a)(1) of the phrase 'any sum.' This contention appears to be based upon the notion that 'any sum' is a catchall which confers jurisdiction to adjudicate suits for refund of part of a tax. A catchall the phrase surely is; but to say this is not to define what it catches. The sweeping role which petitioner assigns these words is based upon a conjunctive reading of 'any internal-revenue tax,' any penalty,' and 'any sum.' But we believe that the statute more readily lends itself to the disjunctive reading which is suggested by the connective 'or.' That is, 'any sum,' instead of being related to 'any internal-revenue tax' and 'any penalty,' may refer to amounts which are neither taxes nor penalties. Under this interpretation, the function of the phrase is to permit suit for recovery of items which might not be designated as either 'taxes' or 'penalties' by Congress or the courts. One obvious example of such a 'sum' is interest. And it is significant that many old tax statutes described the amount which was to be assessed under certain circumstances as a 'sum' to be added to the tax, simply as a 'sum,' as a 'percentum,' or as 'costs.'4 Such a rendition of the statute, which is supported by precedent,5 frees the phrase 'any internal-revenue tax' from the qualifications imposed upon it by petitioner and permits it to be given what we regard as its more natural reading—the full tax. Moreover, this construction, under which each phrase is assigned a distinct meaning, imputes to Congress a surer grammatical touch than does the alternative interpretation, under which the 'any sum' phrase completely assimilates the other two. Surely a much clearer statute could have been written to authorize suits for refund of any part of a tax merely by use of the phrase 'a tax or any portion thereof,' or simply 'any sum paid under the internal revenue laws.' This Court naturally does not review congressional enactments as a panel of grammarians; but neither do we regard ordinary principles of English prose as irrelevant to a construction of those enactments. Cf. Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 80 S.Ct. 144, 4 L.Ed.2d 127.
10
We conclude that the language of § 1346(a)(1) can be more readily construed to require payment of the full tax before suit than to permit suit for recovery of a part payment. But, as we recognized in the prior opinion, the statutory language is not absolutely controlling, and consequently resort must be had to whatever other materials might be relevant.6
11
Legislative History and Historical Background.
12
Although frequently the legislative history of a statute is the most fruitful source of instruction as to its proper interpretation, in this case that history is barren of any clue to congressional intent.
13
The precursor of § 1346(a)(1) was § 1310(c) of the Revenue Act of 1921,7 in which the language with which we are here concerned appeared for the first time in a jurisdictional statute. Section 1310(c) had an overt purpose unrelated to the question whether full payment of an assessed tax was a jurisdictional prerequisite to a suit for refund. Prior to 1921, tax refund suits against the United States could be maintained in the District Courts under the authority of the Tucker Act, which had been passed in 1887.8 Where the claim exceeded $10,000, however, such a suit could not be brought, and in such a situation the taxpayer's remedy in District Court was against the Collector. But because the Collector had to be sued personally, no District Court action was available if he was deceased.9 The 1921 provision, which was an amendment to the Tucker Act, was explicitly designed to permit taxpayers to sue the United States in the District Courts for sums exceeding $10,000 where the Collector had died.10
14
The ancestry of the language of § 1346(a)(1) is no more enlightening than is the legislative history of the 1921 provision. This language, which, as we have stated, appeared in substantially its present form in the 1921 amendment, was apparently taken from R.S. § 3226 (1878). But § 3226 was not a jurisdictional statute at all; it simply specified that suits for recovery of taxes, penalties, or sums could not be maintained until after a claim for refund had been submitted to the Commissioner.11
15
Thus there is presented a vexing situation—statutory language which is inconclusive and legislative history which is irrelevant. This, of course, does not necessarily mean that § 1346(a)(1) expresses no congressional intent with respect to the issue before the Court; but it does make that intent uncommonly difficult to divine.
16
It is argued, however, that the puzzle may be solved through consideration of the historical basis of a suit to recover a tax illegally assessed. The argument proceeds as follows: A suit to recover taxes could, before the Tucker Act, be brought only against the Collector. Such a suit was based upon the common-law count of assumpsit for money had and received, and the nature of that count requires the inference that a suit for recovery of part payment of a tax could have been maintained. Neither the Tucker Act nor the 1921 amendment indicates an intent to change the nature of the refund action in any pertinent respect. Consequently, there is no warrant for importing into § 1346(a)(1) a full-payment requirement.
17
For reasons which will appear later, we believe that the conclusion would not follow even if the premises were clearly sound. But in addition we have substantial doubt about the validity of the premises. As we have already indicated, the language of the 1921 amendment does in fact tend to indicate a congressional purpose to require full payment as a jurisdictional prerequisite to suit for refund. Moreover, we are not satisfied that the suit against the collector was identical to the common-law action of assumpsit for money had and received. One difficulty is that, because of the Act of February 26, 1845, c. 22, 5 Stat. 727, which restored the right of action against the Collector after this Court had held that it had been implicitly eliminated by other legislation,12 the Court no longer regarded the suit as a common-law action, but rather as a statutory remedy which 'in its nature (was) a remedy against the Government.' Curtis's Administratrix v. Fiedler, 2 Black 461, 479, 17 L.Ed. 273. On the other hand, it is true that none of the statutes relating to this type of suit clearly indicate a congressional intention to require full payment of the assessed tax before suit.13 Nevertheless, the opinion of this Court in Cheatham v. United States, 92 U.S. 85, 23 L.Ed. 561, prevents us from accepting the analogy between the statutory action against the Collector and the common-law count. In this 1875 opinion, the Court described the remedies available to taxpayers as follows:
18
'So also, in the internal-revenue department, the statute which we have copied allows appeals from the assessor to the commissioner of internal revenue; and, if dissatisfied with his decision, on paying the tax the party can sue the collector; and, if the money was wrongfully exacted, the courts will give him relief by a judgment, which the United States pledges herself to pay.
19
'* * * While a free course of remonstrance and appeal is allowed within the departments before the money is finally exacted, the general government has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. * * * If the compliance with this condition (that appeal must be made to the Commissioner and suit brought within six months of his decision) requires the party aggrieved to pay the money, he must do it. He cannot, after the decision is rendered against him, protract the time within which he can contest that decision in the courts by his own delay in paying the money. It is essential to the honor and orderly conduct of the government that its taxes should be promptly paid, and drawbacks speedily adjusted; and the rule prescribed in this class of cases is neither arbitrary nor unreasonable. * * *
20
'The objecting party can take his appeal. He can, if the decision is delayed beyond twelve months, rest his case on that decision; or he can pay the amount claimed, and commence his suit at any time within that period. So, after the decision, he can pay at once, and commence suit within the six months * * *.' 92 U.S. at pages 88—89, 23 L.Ed. 561. (Emphasis added.)
21
Reargument has not changed our view that this language reflects an understanding that full payment of the tax was a prerequisite to suit. Of course, as stated in our prior opinion, the Cheatham statement is dictum; but we reiterate that it appears to us to be 'carefully considered dictum.' 357 U.S. at page 68, 78 S.Ct. at page 1083. Equally important is the fact that the Court was construing the claim-for-refund statute from which, as amended, the language of § 1346(a)(1) was presumably taken.14 Thus it seems that in Cheatham the Supreme Court interpreted this language not only to specify which claims for refund must first be presented for administrative reconsideration, but also to constitute an additional qualfication upon the statutory right to sue the Collector. It is true that the version of the provision involved in Cheatham contained only the phrase 'any tax.' But the phrase 'any penalty' and 'any sum' were added well before the decision in Cheatham;15 the history of these amendments makes it quite clear that they were not designed to effect any change relevant to the Cheatham rule;16 language in opinions of this Court after Cheatham is consistent with the Cheatham statement;17 and in any event, as we have indicated, we can see nothing in these additional words which would negate the full-payment requirement.
22
If this were all the material relevant to a construction of § 1346(a)(1), determination of the issue at bar would be inordinately difficult. Favoring petitioner would be the theory that, in the early nineteenth century, a suit for recovery of part payment of an assessment could be maintained against the Collector, together with the absence of any conclusive evidence that Congress has ever intended to inaugurate a new rule; favoring respondent would be the Cheatham statement and the language of the 1921 statute. There are, however, additional factors which are dispositive.
23
We are not here concerned with a single sentence in an isolated statute, but rather with a jurisdictional provision which is a keystone in a carefully articulated and quite complicated structure of tax laws. From these related statutes, all of which were passed after 1921, it is apparent that Congress has several times acted upon the assumption that § 1346(a)(1) requires full payment before suit. Of course, if the clear purpose of Congress at any time had been to permit suit to recover a part payment, this subsequent legislation would have to be disregarded. But, as we have stated, the evidence pertaining to this intent is extremely weak, and we are convinced that it is entirely too insubstantial to justify destroying the existing harmony of the tax statutes. The laws which we consider especially pertinent are the statute establishing the Board of Tax Appeals (now the Tax Court), the Declaratory Judgment Act, 28 U.S.C.A. § 2201 et seq., and § 7422(e) of the Internal Revenue Code of 1954.
24
The Board of Tax Appeals.
25
The Board of Tax Appeals was established by Congress in 1924 to permit taxpayers to secure a determination of tax liability before payment of the deficiency.18 The Government argues that the Congress which passed this 1924 legislation thought full payment of the tax assessed was a condition for bringing suit in a District Court; that Congress believed this sometimes caused hardship; and that Congress set up the Board to alleviate that hardship. Petitioner denies this, and contends that Congress' sole purpose was to enable taxpayers to prevent the Government from collecting taxes by exercise of its power of distraint.19
26
We believe that the legislative history surrounding both the creation of the Board and the subsequent revisions of the basic statute supports the Government. The House Committee Report, for example, explained the purpose of the bill as follows:
27
'The committee recommends the establishment of a Board of Tax Appeals to which a taxpayer may appeal prior to the payment of an additional assessment of income, excess-profits, war-profits, or estate taxes. Although a taxpayer may, after payment of his tax, bring suit for the recovery thereof and thus secure a judicial determination on the questions involved, he can not, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in nonliquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment.'20 (Emphasis added.)
28
Moreover, throughout the congressional debates are to be found frequent expressions of the principle that payment of the full tax was a precondition to suit: 'pay his tax * * * then * * * file a claim for refund'; 'pay the tax and then sue'; 'a review in the courts after payment of the tax'; 'he may still seek court review, but he must first pay the tax assessed'; 'in order to go to court he must pay his assessment'; 'he must pay it (his assessment) before he can have a trial in court'; 'pay the taxes adjudicated against him, and then commence a suit in a court'; 'pay the tax * * * (t)hen * * * sue to get it back'; 'paying his tax and bringing his suit'; 'first pay his tax and then sue to get it back'; 'take his case to the district court—conditioned, of course, upon his paying the assessment.'21
29
Petitioner's argument falls under the weight of this evidence. It is true, of course, that the Board of Tax Appeals procedure has the effect of staying collection,22 and it may well be that Congress so provided in order to alleviate hardships caused by the long-standing bar against suits to enjoin the collection of taxes. But it is a considerable leap to the further conclusion that amelioration of the hardship of prelitigation payment as a jurisdictional requirement was not another important motivation for Congress' action.23 To reconcile the legislative history with this conclusion seems to require the presumption that all the Congressmen who spoke of payment of the assessment before suit as a hardship understood—without saying—that suit could be brought for whatever part of the assessment had been paid, but believed that, as a practical matter, hardship would nonetheless arise because the Government would require payment of the balance of the tax by exercising its power of distraint. But if this was in fact the view of these legislators, it is indeed extraordinary that they did not say so.24 Moreover, if Congress' only concern was to prevent distraint, it is somewhat difficult to understand why Congress did not simply authorize injunction suits. It is interesting to note in this connection that bills to permit the same type of prepayment litigation in the District Courts as is possible in the Tax Court have been introduced several times, but none has ever been adopted.25
30
In sum, even assuming that one purpose of Congress in establishing the Board was to permit taxpayers to avoid distraint, it seems evident that another purpose was to furnish a forum where full payment of the assessment would not be a condition precedent to suit. The result is a system in which there is one tribunal for prepayment litigation and another for post-payment litigation, with no room contemplated for a hybrid of the type proposed by petitioner.
The Declaratory Judgment Act.
31
The Federal Declaratory Judgment Act of 193426 was amended by § 405 of the Revenue Act of 1935 expressly to except disputes 'with respect to Federal taxes.'27 The Senate Report explained the purpose of the amendment as follows:
32
'Your committee has added an amendment making it clear that the Federal Declaratory Judgments Act of June 14, 1934, has no application to Federal taxes. The application of the Declaratory Judgments Act to taxes would constitute a radical departure from the long-continued policy of Congress (as expressed in Rev.Stat. 3224 and other provisions) with respect to the determination, assessment, and collection of Federal taxes. Your committee believes that the orderly and prompt determination and collection of Federal taxes should not be interfered with by a procedure disigned to facilitate the settlement of private controversies, and that existing procedure both in the Board of Tax Appeals and the courts affords ample remedies for the correction of tax errors.'28 (Emphasis added.)
33
It is clear enough that one 'radical departure' which was averted by the amendment was the potential circumvention of the 'pay first and litigate later' rule by way of suits for declaratory judgments in tax cases.29 Petitioner would have us give this Court's imprimatur to precisely the same type of 'radical departure,' since a suit for recovery of but a part of an assessment would determine the legality of the balance by operation of the principle of collateral estoppel. With respect to this unpaid portion, the taxpayer would be securing what is in effect—even though not technically—a declaratory judgment. The frustration of congressional intent which petitioner asks us to endorse could hardly be more glaring, for he has conceded that his argument leads logically to the conclusion that payment of even $1 on a large assessment entitles the taxpayer to sue—a concession amply warranted by the obvious impracticality of any judicially created jurisdictional standard midway between full payment and any payment.
Section 7422(e) of the 1954 Code.
34
One distinct possibility which would emerge from a decision in favor of petitioner would be that a taxpayer might be able to split his cause of action, bringing suit for refund of part of the tax in a Federal District Court and litigating in the Tax Court with respect to the remainder. In such a situation the first decision would, of course, control. Thus if for any reason a litigant would prefer a District Court adjudication,30 he might sue for a small portion of the tax in that tribunal while at the same time protecting the balance from distraint by invoking the protection of the Tax Court procedure. On the other hand, different questions would arise if this device were not employed. For example, would the Government be required to file a compulsory counterclaim for the unpaid balance in District Court under Rule 13 of the Federal Rules of Civil Procedure, 28 U.S.C.A.? If so, which party would have the burden of proof?31
35
Section 7422(e) of the 1954 Internal Revenue Code makes it apparent that Congress has assumed these problems are nonexistent except in the rare case where the taxpayer brings suit in a District Court and the Commissioner then notifies him of an additional deficiency. Under § 7422(e) such a claimant is given the option of pursuing his suit in the District Court or in the Tax Court, but he cannot litigate in both. Moreover, if he decides to remain in the District Court, the Government may—but seemingly is not required to—bring a counterclaim; and if it does, the taxpayer has the burden of proof.32 If we were to overturn the assumption upon which Congress has acted, we would generate upon a broad scale the very problems Congress believed it had solved.33
36
These, then, are the basic reasons for our decision, and our views would be unaffected by the constancy or inconstancy of administrative practice. However, because the petition for rehearing in this case focused almost exclusively upon a single clause in the prior opinion—'there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due,' 357 U.S. at page 69, 78 S.Ct. at page 1083—we feel obliged to comment upon the material introduced upon reargument. The reargument has, if anything, strengthened, rather than weakened, the substance of this statement, which was directed to the question whether there has been a consistent understanding of the 'pay first and litigate later' principle by the interested government agencies and by the bar.
37
So far as appears, Suhr v. United States, 18 F.2d 81, decided by the Third Circuit in 1927, is the earliest case in which a taxpayer in a refund action sought to contest an assessment without having paid the full amount then due.34 In holding that the District Court had no jurisdiction of the action, the Court of Appeals said:
38
'None of the various tax acts provide for recourse to the courts by a taxpayer until he has failed to get relief from the proper administrative body or has paid all the taxes assessed against him. The payment of a part does not confer jurisdiction upon the courts. * * * There is no provision for refund to the taxpayer of any excess payment of any installment or part of his tax, if the whole tax for the year has not been paid.' Id., at page 83.
39
Although the statement by the court might have been dictum,35 it was in accord with substantially contemporaneous statements by Secretary of the Treasury A. W. Mellon, by Under Secretary of the Treasury Garrard B. Winston, by the first Chairman of the Board of Tax Appeals, Charles D. Hamel, and by legal commentators.36
40
There is strong circumstantial evidence that this view of the jurisdiction of the courts was shared by the bar at least until 1940, when the Second Circuit Court of Appeals rejected the Government's position in Coates v. United States, 111 F.2d 609. Out of the many thousands of refund cases litigated in the pre-1940 period—the Govern-
of the National Tax Association on Taxation which contained the following remark: 'Prior to the enactment of the Act of 1924 * * * (i)f the decision on the appeal (to the Commissioner) was in favor of the government, the taxpayer, only after payment of the tax, had the right to protest the correctness of the decision in the courts * * *.' Proceedings 277—278.
One of the clearest statements of the rule by a commentator is to be found in Bickford, Court Procedure in Federal Tax Cases (Rev. ed. 1929) 3, 7—8, 9, 119.
'There are, however, certain other conditions which must be complied with before a suit is maintainable under this section. Briefly stated, these are as follows:
'1. The tax must have been paid.
'2. After payment, the taxpayer must have filed with the Commissioner * * * a sufficient claim for the refund of the taxes sued for.
'The first requirement is obvious. We have, in the preceding portions of this volume, found that a proceeding commenced in the Board of Tax Appeals is the only exception to the rule that no review by the courts is permissible at common law or under the statutes, until the tax has been paid and the Government assured of its revenue.' Id., at 119.
See also Hamel, The United States Board of Tax Appeals (1926), 10; Klein, Federal Income Taxation (1929), 1372, 1642, 1643; Mellon, Taxation: The People's Business (1924), 62—63; Ballantine, Federal Income Tax Procedure, Lectures on Taxation, Columbia University Symposium (1932), 179, 192—193; Caspers, Assessment of Additional Income Taxes for Prior Years, 1 Nat. Income Tax Mag. (Oct. 1923), 12; Graupner, The Operation of the Board of Tax Appeals, 3 Nat. Income Tax Mag. (1925), 295. But see Smith, National Taxes, Their Collection, and Rights and Remedies of the Taxpayer, 8 Geo.L.J. 1, 3 (Apr. 1920).
See also Beaman, When Not to Go to the Tax Court: Advantages and Procedures in Going to the District Court, 7 J.Tax. (1957), 356 ment reports that there have been approximately 40,000 such suits in the past 40 years—exhaustive research has uncovered only nine suits in which the issue was present, in six of which the Government contested jurisdiction on part-payment grounds.37 The Government's failure to system at the time permitted installment payment (see note 34, supra), because the unpaid portion had not yet been assessed, or for some other reason. Although the statute may not support any distinction based on facts of this nature, it is quite understandable that a taxpayer might have predicated a suit upon the theory that the distinction was meaningful and that the Government might not have contested it, whether because it agreed or for tactical reasons.
In the light of these considerations, we regard the following pre-1941 cases as immaterial: Baldwin v. Higgins, 2 Cir., 1938, 100 F.2d 405 (petitioner concedes); Sampson v. Welch, D.C.S.D.Cal.1938, 23 F.Supp. 271 (same); Charleston Lumber Co. v. United States, D.C.S.D.W.Va.1937, 20 F.Supp. 83 (same); Sterling v. Ham, D.C.Me.1933, 3 F.Supp. 386 (same); Farmers' Loan & Trust Co. v. Bowers, D.C.S.D.N.Y.1926, 15 F.2d 706, modified D.C.1927, 22 F.2d 464, reversed 2 Cir., 1928, 29 F.2d 14 (same); Heinemann Chemical Co. v. Heiner, 36—4 CCH Fed.Tax Serv. 9302 (D.C.W.D.Pa.1936), reversed 3 Cir., 1937, 92 F.2d 344 (only interest unpaid); Welch v. Hassett, D.C.Mass.1936, 15 F.Supp. 692, reversed 1 Cir., 1937, 90 F.2d 833, affirmed 1938, 303 U.S. 303 58 S.Ct. 559, 82 L.Ed. 858 (full assessment paid); Leavitt v. Hendricksen, 37—4 CCH Fed.Tax Serv. 9312 (D.C.W.D.Wash.1937) (no unpaid assessment); Bowers v. Kerbaugh-Empire Co., 1926, 271 U.S. 170, 46 S.Ct. 449, 70 L.Ed. 886 (all due installments paid); Cook v. Tait, 1924, 265 U.S. 47, 44 S.Ct. 444, 68 L.Ed. 895 (same).
Four pre-1941 cases remain. Of these, only two are clearly cases in which the jurisdictional issue was present and not raised by the Government. Tsivoglou v. United States, 1 Cir., 1929, 31 F.2d 706; Thomas v. United States, 1937, 18 F.Supp. 942, 85 Ct.Cl. 313; McFadden v. United States, D.C.E.D.Pa.1937, 20 F.Supp. 625, is in the 'doubtful' category. There the Commissioner had granted the taxpayer an extension of time for payment of 80% of his assessment and the suit was for the remaining 20%, which had been paid. The relevant facts of the last case, Peerless Paper Box Mfg. Co. v. Routzahn, D.C.N.D.Ohio 1927, 22 F.2d 459, are so unclear that the case means nothing. The Government had applied an admitted 1918 overpayment to a 1917 deficiency, but the deficiency was greater than the overpayment. The taxpayer sued to recover this overpayment, and whether there had been full payment at the time of suit depends upon whether the suit is regarded as one for refund of 1917 or 1918 taxes.
Nor can we agree entirely with petitioner's evaluation of a second group of pre-1941 cases—those in which the issue allegedly was present and the Government did raise it but lost. Five of these cases involved primarily the troublesome concurrent jurisdiction problem that arose before passage of § 7422(e) of the 1954 Code when a taxpayer both appealed to the Tax Court and brought suit in a Federal District Court. Brampton Woolen Co. v. Field, D.C.N.H.1931, 55 F.2d 325, reversed 1 Cir., 1932, 56 F.2d 23, certiorari denied 287 U.S. 608, 53 S.Ct. 12, 77 L.Ed. 529; Camp v. United States, 4 Cir., 1930, 44 F.2d 126; Emery v. United States, D.C.W.D.Pa.1928, 27 F.2d 992; Old Colony R. Co. v. United States, D.C.Mass.1928, 27 F.2d 994; Ohio Steel Foundry Co. v. United States, 1930, 38 F.2d 144, 69 Ct.Cl. 158. In all of these cases except Camp, it appears that the Government did raise the part-payment question. It is true that the contention did not prevail, but this is not very meaningful. In the first place, this question was quite subordinate to the major issue, concurrent jurisdiction. In the second place, the Government won in Brampton on another jurisdictional ground. And finally, in contrast to Flora, in both Camp and Ohio Steel Foundry the full assessment had been paid at the time suit was brought; it was only later that an additional deficiency was asserted by the Commissioner.
To these cases should be added Riverside Hospital v. Larson, 38—4 CCH Fed.Tax Serv. 9542 (D.C.S.D.Fla.1938), where the Government raised the fullpayment question and won, and Suhr v. United States, D.C.W.D.Pa.1926, 14 F.2d 227, affirmed 3 Cir., 1927, 18 F.2d 81, another concurrent jurisdiction case where the Government raised the issue and won, although the grounds for the decision are not entirely clear.
This, then, is how we see the pre-1941 situation: Of 14 cases originally cited as being cases in which the jurisdictional issue was present but not raised by the Government, five have been conceded by petitioner not to be in point; six, and possibly seven, are distinguishable for various reasons; and only two, or possibly three, remain. Of five cases cited as being cases in which the jurisdictional issue was raised by the Government, only one, Coates v. United States, 2 Cir., 1940, 111 F.2d 609, or at most three, really involved the Flora question. When to these are added Riverside, where the Government won, suhr, where it may have won, and Bramptpon Woolen Co., where it won in the Court of Appeals on another jurisdictional ground, the box score is as follows: two or three cases in which the Government failed to raise the issue; one, or possibly three, cases in which the Government argued the question and lost; one case in which it argued the question and won; one case in which it argued the question and may have won; and one case in which it raised the issue and prevailed on another jurisdictional defense—a total of nine cases at most in which the issue was presented, out of which the Government contested jurisdiction in six. Of course, this calculation may not be precise; but, in view of the many thousands of tax refund suits which have been brought during the decades in question, it is an accurate enough approximation to reflect a general understanding of the jurisdictional significance of 'pay first, litigate later.'
It would be bootless to consider each of the post-1940 cases cited by petitioner or to list the multitude of cases cited by the Government in which the jurisdictional issue has been raised. As we have stated, we believe these cases have no significance whatsoever. However, perhaps it is worth noting that all but a handful of the cases which petitioner, in the petition for rehearing, asserted to be ones in which the Government failed to raise the jurisdictional issue would be immaterial even if they were pre-Coates. Thus, for example, petitioner has conceded error with respect to three cases. Dickstein v. McDonald, D.C.M.D.Pa.1957, 149 F.Supp. 580, affirmed 3 Cir., 1958, 255 F.2d 640; O'Connor v. United States, D.C.S.D.N.Y.1948, 76 F.Supp. 962; Terrell v. United States, D.C.E.D.La.1946, 64 F.Supp. 418. A number of the cases involved excise taxes. E.g., Griffiths Dairy v. Squire, 9 Cir., 1943, 138 F.2d 758; Auricchio v. United States, D.C.E.D.N.Y.1943, 49 F.Supp. 184. In some of the cases only interest remained unpaid. Raymond v. United States, 58—1 U.S.T.C. 9397 (D.C.E.D.Mich.1958); Hogg v. Allen, D.C.M.D.Ga.1952, 105 F.Supp. 12. And some of the cases arose in the Third Circuit after a decision adverse to the Government in Sirian Lamp Co. v. Manning, 3 Cir., 1941, 123 F.2d 776, 138 A.L.R. 1423. Gallagher v. Smith, 3 Cir., 1955, 223 F.2d 218; Peters v. Smith, D.C.E.D.Pa.1954, 123 F.Supp. 711, reversed 3 Cir., 1955, 221 F.2d 721. It might be noted also that Jones v. Fox, D.C.Md.1957, 162 F.Supp. 449, cited as a case in which the Government argued the jurisdictional question and lost, was an excise tax case in which the court distinguished our prior decision in flora because of the divisibility of the excise tax. Another such decision during the pre-1941 period was Friebele v. United States, D.C.N.J.1937, 20 F.Supp. 492. raise the issue in the other three is obviously entirely without significance. Considerations of litigation strategy may have been thought to militate against resting upon such a defense in those cases. Moreover, where only nine lawsuits involving a particular issue arise over a period of many decades, the policy of the Executive Department on that issue can hardly be expected to become familiar to every government attorney. But most important, the number of cases before 1940 in which the issue was present is simply so inconsequential that it reinforces the conclusion of the prior opinion with respect to the uniformity of the pre-1940 belief that full payment had to precede suit.
A word should also be said about the argument that requiring taxpayers to pay the full assessments before bringing suits will subject some of them to great hardship. This contention seems to ignore entirely the right of the taxpayer to appeal the deficiency to the Tax Court without paying a cent.38 If he permits his time for filing such an appeal to expire, he can hardly complain that he has been unjustly treated, for he is in precisely the same position as any other person who is barred by a statute of limitations. On the other hand, the Government has a substantial interest in protecting the public purse, an interest which would be substantially impaired if a taxpayer could sue in a District Court without paying his tax in full. It is instructive to note that, as of June 30, 1959, tax cases pending in the Tax Court involved $920,046,748, and refund suits in other courts involved $446,673,640.39 It is quite true that the filing of an appeal to the Tax Court normally precludes the Government from requiring payment of the tax,40 but a decision in petitioner's favor could be expected to throw a great portion of the Tax Court litigation into the District Courts.41 Of course, the Government can collect the tax from a District Court suitor by exercising its power of distraint if he does not split his cause of action—but we cannot believe that compelling resort to this extraordinary procedure is either wise or in accord with congressional intent. Our system of taxation is based upon voluntary assessment and payment, not upon distraint.42 A full-payment requirement will promote the smooth functioning of this system; a part-payment rule would work at cross-purposes with it.43
In sum, if we were to accept petitioner's argument, we would sacrifice the harmony of our carefully structured twentieth century system of tax litigation, and all that would be achieved would be a supposed harmony of § 1346(a)(1) with what might have been the nineteenth century law had the issue ever been raised. Reargument has but fortified our view that § 1346(a)(1), correctly construed, requires full payment of the assessment before an income tax refund suit can be maintained in a Federal District Court.
Affirmed.
Mr. Justice FRANKFURTER.
I should like to append a word to my Brother WHITTAKER'S opinion, with which I entirely agree.
While Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, is no longer law, the opinion of the much lamented Mr. Justice Jackson, based as it was on his great experience in tax litigation, has not lost its force insofar as it laid bare the complexities and perplexities for judicial construction of tax legislation. For one not a specialist in this field to examine every tax question that comes before the Court independently would involve in most cases an inquiry into the course of tax legislation and litigation far beyond the facts of the immediate case. Such an inquiry entails weeks of study and reflection. Therefore, in construing a tax law it has been my rule to follow almost blindly accepted understanding of the meaning of tax legislation, when that is manifested by long-continued, uniform practice, unless a statute leaves no admissible opening for administrative construction.
Therefore, when advised in connection with the disposition of this case after its first argument that 'there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due,' (357 U.S. 63, at page 69, 78 S.Ct. 1079, at page 1083), I deemed such a long-continued, unbroken practical construction of the statute controlling as to the meaning of the Revenue Act of 1921, now 28 U.S.C. § 1346(a)(1), 28 U.S.C.A. § 1346(a)(1). Once the basis which for me governed the disposition of the case was no longer available, I was thrown back to an independent inquiry of the course of tax legislation and litigation for more than a hundred years, for all of that was relevant to a true understanding of the problem presented by this case. This involved many weeks of study during what is called the summer vacation. Such a study led to the conclusion set forth in detail in the opinion of my Brother WHITTAKER.
Mr. Justice WHITTAKER, with whom Mr. Justice FRANKFURTER, Mr. Justice HARLAN, and Mr. Justice STEWART join, dissenting.
A deep and abiding conviction that the Court today departs from the plain direction of Congress expressed in 28 U.S.C. § 1346(a), 28 U.S.C.A. § 1346(a), defeats its beneficent purpose, and repudiates many soundly reasoned opinions of the federal courts on the question presented, compels me to express and explain my disagreement in detail.
In his income tax return for the year 1950, petitioner deducted in full, as ordinary in character, the losses he had suffered in commodity transactions in that year, but the Commissioner viewed those losses as capital in, character and proposed, by his 90-day letter, the assessment of a deficiency in the amount of $27,251.13, plus interest. Petitioner did not petition the Tax Court for a redetermination of the proposed deficiency and the Commissioner assessed it on March 27, 1953. In April and June 1953, petitioner paid to the Commissioner a total of $5,058.54 upon the assessment and timely thereafter filed a claim for refund of that sum. The claim was rejected on July 13, 1955, and, on August 3, 1956, petitioner brought this action against the United States in the District Court for Wyoming to recover the amount paid, alleging, inter alia, that said sum 'has been illegally and unlawfully collected' from him, and he prayed judgment therefor with interest from the date of payment.
At the trial, the Government prevailed on the merits, D.C., 142 F.Supp. 602, but the Court of Appeals, without reaching the merits, remanded with directions to dismiss, holding that because the petitioner had not paid the entire amount of the assessment the District Court had no jurisdiction of the action. 10 Cir., 246 F.2d 929. We granted certiorari and, after hearing, affirmed the judgment of the Court of Appeals. 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165. On June 22, 1959, we granted a petition for rehearing and restored the case to the docket. 360 U.S. 922, 79 S.Ct. 1430, 3 L.Ed.2d 1538. It has since been rebriefed, reargued and again submitted.
The case is now presented in a very different posture than before, as certain vital contentions that were previously made are now conceded to have been erroneous.
The question presented is whether a Federal District Court has jurisdiction of an action by a taxpayer against the United States to recover payments made to the Commissioner upon, but which discharged less than the entire amount of, an illegal assessment.
The answer to that question depends upon whether the United States has waived its sovereign immunity to, and has consented to, such a suit in a District Court. The applicable jurisdictional statute is 28 U.S.C. § 1346(a), 28 U.S.C.A. § 1346(a). It provides:
'The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
'(1) Any civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.' (Emphasis added.)
In its former opinion the Court recognized that the words of the statute might 'be termed a clear authorization to sue for the refund of 'any sum," 357 U.S. at page 65, 78 S.Ct. at page 1081, but it concluded that Congress had left room in the statute for an implication that the waiver of immunity and grant of jurisdiction applied only to refund suits in which the entire amounts of assessments had been paid. Advocating the existence of that implication, the Government contended and urged that, from the time of the decision in Cheatham v. United States, 92 U.S. 85, 23 L.Ed. 561, in 1875 until the decision in Coates v. United States, 2 Cir., 111 F.2d 609, in 1940, there was an unquestioned understanding and uniform practice that full payment of an assessment was a condition upon the right to sue for refund; and, finding what it then accepted as adequate support for that contention, the Court was persuaded that, since no subsequent statute had pruported to change it, such unquestioned understanding so long and uniformly applied was still effective.
Support for that asserted unquestioned understanding and uniform practice was principally derived from two sources. First, statements in Cheatham v. United States, supra, were thought to have enunciated a full-payment doctrine1 which seemed never to have been directly questioned. Second, the contention was accepted that 'there does not appear to be a single case before 1940 in which a taxpayer attempted a suit for refund of income taxes without paying the full amount the Government alleged to be due.' 357 U.S. at page 69, 78 S.Ct. at page 1083.
The Government now concedes that the second contention was erroneous. There were, for example, two cases in this Court (Cook v. Tait, 1924, 265 U.S. 47, 44 S.Ct. 444, 68 L.Ed. 895; Bowers v. Kerbaugh-Empire Co., 1926, 271 U.S. 170, 64 S.Ct. 449, 70 L.Ed. 886), in which taxpayers had sued for refunds after having paid only portions (in one case $298.34 of an assessment of $1,193.38, in the other $5,198.77 of an assessment of $10,320.14) of the amounts assessed against them. It was not contended by the Government in either of those cases that there was any want of jurisdiction, and this Court considered and decided both upon the merits.2 Petitioner has now cited many other tax refund cases, decided in the lower courts prior to 1940, in which taxpayers had paid, and sued to recover, less than the whole of assessments alleged to have been illegal, and in which cases the Government did not question jurisdiction.3 The Government concedes that in at least two of these (Thomas v. United States, 1937, 18 F.Supp. 942, 85 Ct.Cl. 313; Tsivoglou v. United States, 1 Cir., 1929, 31 F.2d 706, affirming D.C.Mass.1928, 27 F.2d 564) taxpayers had paid, and sued to recover, less than the whole of deficiency assessments and that the Government did not question jurisdiction in either of them. Prior to the decision in the present case there were two decisions in the Courts of Appeals that fully treated with the precise question here presented. Both held that District Courts have jurisdiction over actions to recover partial payments upon assessments alleged to have been illegal. Coates v. United States, 2 Cir., 1940, 111 F.2d 609; Bushmiaer v. United States, 8 Cir., 1956, 230 F.2d 146.4 Certainly, the cited cases and the Government's concession preclude a conclusion that there ever was an unquestioned understanding and uniform practice that full payment of an assessed deficiency was a condition upon the jurisdiction of a District Court to entertain a suit for refund.
In the light of the foregoing, it is clear that nothing in Cheatham v. United States, supra, fairly may be said to hold that full payment of an illegally assessed deficiency is a condition upon the jurisdiction of a District Court to entertain a suit for refund. No such issue was involved in that case. There the assessment had been fully paid and the only issue was whether a proper claim for refund was a condition precedent to the maintenance of a suit to recover the amount alleged to have been illegally collected. Not only were the statements there made respecting 'payment of the tax' pure dictum, but even the language there used did not embrace, and certainly was not directed to, the question whether full payment of an assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund.
I pass, then, to an examination of the history of the present jurisdictional provision, § 1346(a), and the scheme of the present tax law to determine whether there is any real support for the Government's contention that a proper reading of the language of § 1346(a) requires an implied qualification to its obvious self-explanatory meaning, so that full payment of an assessment, alleged to have been illegal, is made a condition upon the jurisdiction of a District Court to entertain a suit for refund.
Judicial proceedings for refund of United States taxes in federal courts originated, without express statutory authority, by suits against Collectors (now District Directors), before the United States had made itself amenable to suit. Elliott v. Swartwout, 1836, 10 Pet. 137, 9 L.Ed. 373, recognized the existence of a right of action against a Collector of Customs for refund of duties illegally assessed and paid under protest.5 The doctrine of the action, based upon the common-law count of assumpsit for money had and received, was thus formulated: '(W)here money is illegally demanded and received by an agent, he cannot exonerate himself from personal responsibility by paying it over to his principal; if he has had notice not to pay it over.' 10 Pet., at page 158. As a result of that case, Collectors of Customs who collected monies, paid under protest, resorted to the practice of withholding such amounts from the Government as indemnity against loss should a refund suit against them be successful. See Plumb, Tax Refund Suits Against Collectors of Internal Revenue, 60 Harv.L.Rev. 685, 688—689. That practice led to abuses and facilitated peculation under the guise of self-protection. Because of the wholesale frauds of Swartwout, the New York Collector (see Swartwout, 18 Dictionary of American Biography (1936), 238—239), Congress, in 1839, expressly prohibited such withholdings by Customs Collectors pending the possibility, or the result, of litigation against them. Act of March 3, 1839, c. 82, § 2, 5 Stat. 348. Six years later, in 1845, this Court held that this Act, by reducing the Collector to 'the mere bearer of those sums (duties) to the Treasury,' terminated the right of action against the Collector for refund, for, being deprived of the right to withhold payment to his principal, he was no longer under an implied promise to refund illegally collected duties to the taxpayer. Cary v. Curtis, 1845, 3 How. 236, 241, 11 L.Ed. 576.
This created the intolerable condition of denying to taxpayers any remedy whatever in the District Courts to recover amounts illegally assessed and collected, and—doubtless also influenced by the vigorous dissents of Mr. Justice Story and Mr. Justice McLean in that case—induced Congress to pass the Act of Feb. 26, 1845, c. 22, 5 Stat. 727,6 which was the first statute expressly giving taxpayers the right to sue for refund of taxes illegally collected. That Act, in substance, provided that nothing contained in the Act of March 3, 1839 (c. 82, § 2, 5 Stat. 348), should be construed to take away or impair the right of any person who had paid duties under protest to any Collector of Customs, which were not lawfully 'payable in part or in whole,' to maintain an action at law against the Collector to recover such amounts. It is evident that Congress, by that statute, was merely concerned to reverse the consequences of Cary v. Curtis, supra, and to restore the right of action against Collectors which had originally been sustained in Elliott v. Swartwout, supra. Neither the terms of that statute nor such knowledge as is available of its history7 reveals any limiting purpose except that the protest be made in writing before or at the time of the payment.
While that statute, the Act of Feb. 26, 1845, referred only to refunds of customs duties, this Court held in City of Philadelphia v. The Collector (Diehl) 1866, 5 Wall. 720, 730—733, 18 L.Ed. 614, that taxpayers had the same right of action against Collectors to recover illegally collected internal revenue taxes.8
The United States was first made directly suable in District Courts for tax refunds by the Act of March 3, 1887, c. 359, 24 Stat. 505, commonly known as the Tucker Act, which conferred jurisdiction on the District Courts over 'All claims (against the United States, not exceeding $1,000) founded upon the Constitution of the United States or any law of Congress, * * * or upon any contract, expressed or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable.' This jurisdictional grant was held, in United States v. Emery, Bird, Thayer Realty Co., 1915, 237 U.S. 28, 35 S.Ct. 499, 59 L.Ed. 825, to have included jurisdiction over suits for tax refunds, as claims 'founded upon' the internal revenue laws. The general language of that Act, the Tucker Act, was most evidently not intended to, and did not, impose any new conditions upon the pre-existing right to sue (the Collector) for the refund of taxes illegally collected, save for a monetary limit of $1,000, which was increased to $10,000 in 1911.9
The gist of § 1346(a),10 with which we are now concerned, first appeared in the jurisdictional statute in 1921, as part of the Revenue Act of 1921, c. 136, § 1310(c), 42 Stat. 311. The reason for its appearance is entirely unrelated to the question whether full payment of an assessment is a condition precedent to a suit for refund. Under the Tucker Act, as it stood in 1921, the United States could not be sued in a District Court for a tax refund of more than $10,000. Taxpayers with larger claims could pursue either their old remedy—which continued to be available and is today—against the Collector in the District Courts or their remedy against the United States in the Court of Claims. But, the right of suit against the Collector was impaired in 1921 by the decision in Smietanka v. Indiana Steel Co., 1921, 257 U.S. 1, 42 S.Ct. 1, 66 L.Ed. 99. It held that such actions against the Collector were personal in character and not maintainable against his successor in office. Hence, if the Collector had died or ceased to be in office, a taxpayer with a refund claim of more than $10,000 had no remedy in a District Court. The portion of the Revenue Act of 1921 that is now embodied in § 1346(a) was an amendment of the Tucker Act and was designed to preserve to taxpayers with claims of more than $10,000 a District Court remedy, even where the Collector had died or was out of office, by suit against the United States. The legislative history makes this purpose plain.11
The relevant portion of the 1921 Amendment to the Tucker Act part of the Revenue Act of 1921 (c. 136, § 1310(c), 42 Stat. 311)12—was apparently taken from a provision in Revised Statutes § 3226 (1875) that 'No suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of (the) Internal Revenue.'13 In that context it is clear that the language 'any tax,' 'any penalty' or 'any sum' had no reference to what payments were required to precede a suit for refund. Quite evidently, its function was only to describe, in broadest terms, the claims for refund which were required to be submitted to the Commissioner before suit might be brought thereon. What reasonable basis is there for ascribing to Congress, by reason of its insertion of this language into the Tucker Act, an intent to require full payment of an illegal assessment as a condition upon the jurisdiction of a District Court to entertain a suit for refund? The change was a jurisdictional one in a jurisdictional statute, and the language, it is almost necessary to assume, was chosen because, in another statute, it referred to all of the actions which could be brought for refund of internal revenue taxes.
The Government heavily relies on statements made in Congress pertaining to the establishment in 1924 of the Board of Tax Appeals (since 1942 designated the Tax Court) and its reorganization in 1926. It asserts that these statements demonstrate a congressional understanding that the broad language in § 1346(a) excludes jurisdiction of District Courts to entertain suits to recover only partial payments of assessments alleged to be illegal. It is true that those statements, some of which are reproduced in the margin,14 are consistent with the Government's interpretation of that section. But, as with the statements in Cheatham v. United States, supra, they are not directed to the question we have here and are too imprecise for the drawing of such a far-reaching inference, involving, as it does, the interpolation of a drastic qualification into the otherwise plain, clear and unlimited provisions of the statute.
The Tax Court was created to alleviate hardships occasioned by the fact that the collection of assessments, however illegal, could not be enjoined. And the Government argues that the hardships which motivated Congress to establish the Tax Court would not have existed if a taxpayer could, as the petitioner did here, pay only part of a deficiency assessment and then, by way of a suit for refund, litigate the legality of the assessment in a District Court. But that procedure would not then, nor today, afford any sure relief to taxpayers from the hardships which troubled Congress in 1924, for it is undisputed that the institution of a suit for refund of a partial payment of an assessment does not stay the Commissioner's power of collection15 by distraint or otherwise, and a taxpayer with the property or means to pay the balance of the assessment cannot avoid its payment, except through the Commissioner's acquiescence and failure to exercise his power of distraint.16
The Government argues, with some force, that our tax legislation as a whole contemplates the Tax Court as the forum for adjudication of deficiencies, and the District Courts and Court of Claims as the forums for adjudication of refund suits. This, in general, is true, and it is also true that to hold that full payment of assessments is not a condition upon the jurisdiction of District Courts to entertain suits for refund is to sanction what may be called a 'hybrid' remedy in the District Courts, for the suit of the taxpayer who has paid only part of an assessment and has sued for refund will, under application of the principles of collateral estoppel, determine the legality of the remainder of the deficiency as well as his right to refund of the amount paid. But such dual determinations are possible under the present law17 and it is difficult to conceive how they may create sufficient disharmony to justify such a strained interpretation of the plain words of § 1346(a) as the Government's contention would require.18
Nor is the argument sound that to hold that full payment of an illegal assessment is not a condition upon the jurisdiction of District Courts to entertain suits for refund would unduly hamper the collection of taxes, by encouraging taxpayers to withhold payment of large portions of assessments while prosecuting litigation for the refund of the part already paid. Not only is it true that the institution of a suit for refund does not stay collection,19 but, since the creation of the Tax Court, any taxpayer has a method of withholding payment, immune from distraint,20 until the legality of the assessment is finally determined. Any delay in collection which might be caused by holding that full payment of an assessment is not a condition upon the jurisdiction of a District Court to entertain a suit for refund would be of the same order as the delay incident to adjudication by the Tax Court, and would not create so incongruous a result as to justify giving an otherwise clear and unlimited statute a strained and unnatural meaning.
Petitioner, on the other hand, suggests that if it be held that full payment of illegal assessments is a condition upon the jurisdiction of District Courts in refund suits, not only will the words of § 1346(a) be disregarded, but great hardships upon taxpayers will result, and that such an intention should not lightly be implied. Where a taxpayer has paid, upon a normal or a 'jeopardy' assessment, either voluntarily or under compulsion of distraint, a part only of an illegal assessment and is unable to pay the balance within the two-year period of limitations,21 he would be deprived of any means of establishing the invalidity of the assessment and of recovering the amount illegally collected from him, unless it be held, as it seems to me Congress plainly provided in § 1346(a), that full payment is not a condition upon the jurisdiction of District Courts to entertain suits for refund.22 Likewise, taxpayers who pay assessments in installments would be without remedy to recover early installments that were wrongfully collected should the period of limitations run before the last installment is paid.
No one has suggested that Congress could not constitutionally confer jurisdiction upon District Courts to entertain suits against the United States to recover sums wrongfully collected under, but which did not discharge the whole of, illegal assessments. Nor can it be denied that Congress has provided in § 1346(a) that:
'The district courts shall have original jurisdiction * * * of * * * Any civil action against the United States for the recovery of * * * any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.' (Emphasis added.)
English words more clearly expressive of the grant of jurisdiction to Federal District Courts over such cases than those used by Congress do not readily occur to me.
It must, therefore, be concluded that there is no sound reason for implying into § 1346(a) a limitation that full payment of an illegal assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund. Inasmuch as no contradiction or absurdity is created by so doing, I think it is our duty to rely upon the words of § 1346(a) rather than upon unarticulated implications or exceptions. Particularly is this so in dealing with legislation in an area such as internal revenue, where countless rules and exceptions are the subjects of frequent revisions and precise refinements.
By § 1346(a) Congress expressed its purpose to waive sovereign immunity to suits, and to grant jurisdiction to District Courts over suits, to recover 'any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.' Surely these words do not limit the waiver of immunity or the grant of jurisdiction to actions in which the entire amounts of illegal assessments have been paid. Even if the words 'any internal-revenue tax' or 'any penalty,' when read in isolation and most restrictively, could be thought to contemplate only the entire amount of an illegal assessment, the concluding phrase—'or any sum alleged to have been excessive or in any manner wrongfully collected'—leaves no room or basis for any such construction of the statute as a whole. Judged by its text and its history in relation to other provisions of the tax laws, as must be done, I cannot doubt that Congress plainly expressed its intention to waive sovereign immunity to suits, and to grant jurisdiction to District Courts over suits, against the United States to recover 'any sum' alleged to have been wrongfully collected. Petitioner's complaint here alleged that the $5,058.54 which he had paid to the Commissioner upon the questioned assessment 'has been illegally and unlawfully collected' from him. The complaint, therefore, stated a cause of action within the jurisdiction of the District Court.
But the Court does not so see it. The majority now hold, despite the statute, that full payment of an illegal assessment is a condition upon the jurisdiction of a District Court to entertain a suit for refund. It, therefore, seems appropriate, in order eventually to avoid the harsh injustice of permitting the Government unlawfully to collect and retain taxes that are not owing, to express the hope that Congress will try again.
1
The decision of the Court of Appeals in Flora conflicted with Bushmiaer v. United States, 8 Cir., 230 F.2d 146. Cf. Coates v. United States, 2 Cir., 111 F.2d 609; Sirian Lamp Co. v. Manning, 3 Cir., 123 F.2d 776, 138 A.L.R. 1423; Suhr v. United States, 3 Cir., 18 F.2d 81, semble.
2
As will appear later, prior to 1940 the general view was that full payment was a jurisdictional prerequisite. But a substantial difference of opinion arose after 1940, when the Court of Appeals for the Second Circuit decided Coates v. United States, 111 F.2d 609, against the Government. See Riordan, Must You Pay Full Tax Assessment Before Suing in the District Court? 8 J.Tax. 179; Beaman, When Not to Go to the Tax Court: Advantages and Procedures in Going to the District Court, 7 J.Tex. 356; Rudick and Wender, Federal Income Taxation, 32 N.Y.U.L.Rev. 751, 777—778; Note, 44 Calif.L.Rev. 956; Note, 2 How.L.J. 290.
3
See I.R.C. (1954), §§ 1(a), 1(b)(1), 68A Stat. 5, 6, 26 U.S.C.A. § 1(a), (b)(1). The same general pattern has existed for many years. See, e.g., §§ 116, 117, of the Act of June 30, 1864, c. 173, 13 Stat. 281—282.
4
Revenue Act of 1924, c. 234, § 275(a), 43 Stat. 298, 26 U.S.C.A. § 293; Revenue Act of 1918, c. 18, § 250(e), 40 Stat. 1084; Act of June 6, 1872, c. 315, § 21, 17 Stat. 246; Act of June 30, 1864, c. 173, § 119, 13 Stat. 283. See also Helvering v. Mitchell, 303 U.S. 391, 405, 58 S.Ct. 630, 636, 82 L.Ed. 917.
5
Lower courts have given this construction to the same three phrases in certain claim-for-refund and limitations provisions in prior tax statutes. United States v. Magoon, 9 Cir., 77 F.2d 804; Union Trust Co. of Rochester v. United States, D.C., 5 F.Supp. 259, 261 ('The natural definition of 'tax' comprehends one 'assessment' or one tax in the entire amount of liability'), affirmed 2 Cir., 70 F.2d 629, 630 ('We agree with the District Court that 'tax,' 'penalty,' and 'sum' refer to distinct categories of illegal collections and 'tax' includes the entire tax liability as assessed by the Commissioner'); United States v. Clarke, 3 Cir., 69 F.2d 748, 94 A.L.R. 975; Hills v. United States, 50 F.2d 302, 73 Ct.Cl. 128; 55 F.2d 1001, 73 Ct.Cl. 128; cf. Blair v. United States ex rel. Birkenstock, 271 U.S. 348, 46 S.Ct. 506, 70 L.Ed. 983.
6
In the prior opinion we stated that, were it not for certain countervailing considerations, the statutory language 'might * * * be termed a clear authorization' to sue for the refund of part payment of an assessment. 357 U.S. at page 65, 78 S.Ct. at page 1081. It is quite obvious that we did not regard the language as clear enough to preclude deciding the case on other grounds. Moreover, it could at that time be assumed that the terms of the statute favored the taxpayer, because eight members of the Court considered the extrinsic evidence alone sufficient to decide the case against him. Although we are still of that opinion, we now state our views with regard to the bare words of the statute because the argument that these words are decisively against the Government has been urged so strenuously.
7
42 Stat. 311.
8
24 Stat. 505, as amended, 28 U.S.C. §§ 1346, 1491, 28 U.S.C.A. §§ 1346, 1491. See United States v. Emery, Bird, Thayer Realty Co., 237 U.S. 28, 35 S.Ct. 499, 59 L.Ed. 825.
9
Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 66 L.Ed. 99.
10
See H.R.Conf.Rep. No. 486, 67th Cong., 1st Sess. 57; remarks of Senator Jones, 61 Cong.Rec. 7506—7507. Another amendment was added in 1925 giving the right to bring refund suits against the United States where the Collector was out of office. 43 Stat. 972. And in 1954, both the $10,000 limitation and the limitation with respect to the Collector being dead or out of office were eliminated. 68 Stat. 589.
11
The text of R.S. § 3226 is set forth in note 16, infra, together with a more detailed account of the origin and development of the pertinent statutory language. The successor of R.S. § 3226 is I.R.C. (1954), § 7422(a), 68A Stat. 876, 26 U.S.C.A. § 7422(a).
12
See Cary v. Curtis, 3 How, 236, 11 L.Ed. 576.
13
E.g., Act of Feb. 26, 1845, c. 22, 5 Stat. 727; Act of Mar. 3, 1863, c. 74, 12 Stat. 729; Act of June 30, 1864, c. 173, § 44, 13 Stat. 239—240.
14
See note 16, infra.
15
Cheatham was decided in O.T.1875, while the phrases in question were added to the statute on June 6, 1872. See note 16, infra, for a discussion of the statute involved in Cheatham and its amendment.
16
Section 19 of the Act of July 13, 1866, c. 184, 14 Stat. 152, was involved in Cheatham. That section provided:
'Sec. 19. * * * (N)o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue * * *.'
The phrases 'any penalty' and 'any sum' were first introduced into the statute in § 44 of the Act of June 6, 1872, c. 315, 17 Stat. 257—258, which read as follows:
'Sec. 44. That all suits and proceedings for the recovery of any internal tax alleged to have been erroneously assessed or collected, or any penalty claimed to have been collected without authority, or for any sum which it is alleged was excessive, or in any manner wrongfully collected, shall be brought within two years next after the cause of action accrued and not after; and all claims for the refunding of any internal tax or penalty shall be presented to the commissioner of internal revenue within two years next after the cause of action accrued and not after * * *.' (Emphasis added.)
A careful reading of this statute discloses the absurd result which would flow from construing the addition of the 'any sum' language to affect the fullpayment rule, which, under this argument, would be based upon the 'any tax' phrase in the 1866 statute. That is, since the 'any sum' phrase occurs only in the statute of limitations portion of the 1872 statute, and not in the claim-for-refund provision, a person would be able to bring a suit for part payment without filing a claim for refund.
There were no material changes in R.S. § 3226, which provided:
'Sec. 3226. No suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of * * * Internal Revenue * * *.'
It is no doubt true, as petitioner says, that these various amendments were designed to require submission of all litigable claims to the Commissioner; but, as we have explained, this indicates no more than an intent to cover taxes, penalties, and sums which might, strictly speaking, be neither taxes nor penalties.
17
Kings County Savings Institution v. Blair, 1886, 116 U.S. 200, 205, 6 S.Ct. 353, 356, 29 L.Ed. 657 ('No claim for the refunding of taxes can be made according to law and the regulations until after the taxes have been paid. * * * (N)o suit can be maintained for taxes illegally collected, unless a claim therefor has been made within the time prescribed by the law'); Pollock v. Farmers' Loan & Trust Co., 1895, 157 U.S. 429, 609, 15 S.Ct. 673, 700, 39 L.Ed. 759 (dissenting opinion) ('The same authorities (including the Cheatham case) have established the rule that the proper course, in a case of illegal taxation, is to pay the tax under protest or with notice of suit, and then bring an action against the officer who collected it'); Bailey v. George, 1922, 259 U.S. 16, 20, 42 S.Ct. 419, 66 L.Ed. 816 ('They might have paid the amount assessed under protest and then brought suit against the collector * * *.'). This view of Cheatham also corresponds to that of the Court of Appeals in this case. 246 F.2d at page 930. See also Bushmiaer v. United States, 8 Cir., 230 F.2d 146, 152—155 (dissenting opinion).
18
43 Stat. 336.
19
I.R.C. (1954), § 6331, 68A Stat. 783, 26 U.S.C.A. § 6331. The Government has possessed the power of distraint for almost 170 years. See Act of Mar. 3, 1791, c. 15, § 23, 1 Stat. 204.
20
H.R.Rep. No. 179, 68th Cong., 1st Sess. 7. The Senate Committee on Finance filed a similar report. S.Rep. No. 398, 68th Cong., 1st Sess. 8.
The reference to R.S. § 3224 in the House Report clearly was meant simply to demonstrate that a determination prior to payment be way of an injunction suit was not possible because of the statutory bar to such a suit. This anti-injunction provision has been law for many decades. See Act of Mar. 2, 1867, c. 169, § 10, 14 Stat. 475. It is now § 7421 of the Internal Revenue Code of 1954, 68A Stat. 876, 26 U.S.C.A. § 7421.
21
See 65 Cong.Rec. 2621, 2684, 8110; 67 Cong.Rec. 525, 1144, 3529, 3755.
As we have indicated, some of these remarks were made during debates over proposed changes in the Board of Tax Appeals legislation during the middle of the 1920's, but they all reflect Congress' understanding of the pre-1924 procedure and of the changes which were made by establishment of the Board. For example, shortly after the Board legislation was passed, Congress considered and rejected a proposal to make appeal to the Board and then to a Circuit Court of Appeals the taxpayer's sole remedy. In the course of the debate, a number of Senators discussed at length the taxpayer's right to bring a refund action in court. Some of the cited quotations are taken from that debate. The following remark of Senator Fletcher is also illuminating:
'Mr. Fletcher. * * * I think the most important right that is preserved here * * * is the right to go into the district court by the taxpayer upon the payment of the tax. I do not think that we ought to allow him to do that unless he does pay the tax; but when he pays the tax his right to go into the district court is preserved.' 67 Cong.Rec. 3529. (Emphasis added.)
See also the materials quoted in note 24, infra.
22
See I.R.C. (1954), § 6213(a), 68A Stat. 771, 26 U.S.C.A. § 6213(a). For the pertinent 1924 legislation, see Revenue Act of 1924, c. 234, § 274, 43 Stat. 297.
23
In Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 721, 49 S.Ct. 499, 501, 73 L.Ed. 918, this Court expressed the view that the Board 'was created by Congress to provide taxpayers an opportunity to secure an independent review * * * in advance of their paying the tax found by the Commissioner to be due. Before the act of 1924, the taxpayer could only contest the Commissioner's determination of the amount of the tax after its payment.'
24
There are a few interchanges among Senators which might be construed to indicate that they were thinking in terms of preventing distraint, but the same passages demonstrate even more clearly that these Senators also intended to eliminate the necessity of full payment as a prerequisite to suit. For example, the following debate occurred when Senator Reed, who was a member of the Committee on Finance, proposed an amendment which would have a permitted a taxpayer to refuse to pay the deficiency even after the Board had ruled against him and which would have required the Government to sue in a District Court.
'Mr. Reed of Missouri. * * *
'The practice, as I understand it, has been to require the taxpayer to pay in the amount of the increased assessment, and then to allow him to get it back if he can. In addition to this, distraints frequently have been issued seizing the property of the citizen * * *.
'Mr. Swanson. What are the processes by which a citizen who has overpaid can get back his money under the existing law?
'Mr. Reed of Missouri. As I understand it, he pays his tax. Then he makes an application for a return of it. That is heard
through the long, troublesome processes which exist. * * * When the Treasury is satisfied * * * the taxpayer can go into court at that time. In the meantime, however, he has had to pay his money.
'Mr. Swanson. Does the Senator mean that if there is a dispute, the tax is not assessed permanently against him until the board reaches its final decision?
'Mr. Smoot. Until the board of appeals finally passes upon it, and after that if he wants to go to court he can do so, but in order to go to court he must pay his assessment.
'Mr. Reed of Missouri. He must pay it before he can have a trial in court.
'Mr. Walsh of Montana. Mr. President, the hardships * * * in connection with the collection of these taxes is a very real one. * * * At least two or three instances have come under my notice, and my assistance has been asked in cases where the assessing officers have * * * assessed against the (taxpayer) dilinquent taxes of such an amount that he found it impossible to pay in advance and secure redress through the ordinary proceeding in a court of law, simply because it would bankrupt him to endeavor to raise the money. He was therefore obliged to suffer a distraint. * * *
'* * * After the board of review determines the matter, it seems to me, that is as far as the Government ought to be interrupted in the matter of the collection of its revenues. Then the taxpayer would be obliged to pay the tax and take his ordinary action at law to recover whatever he claims was exacted of him illegally.' 65 Cong.Rec. 8109—8114.
A somewhat similar exchange occurred during the 1926 debate over a proposal to prohibit refund suits where an appeal had been taken to the Board.
'Mr. Reed of Missouri. * * * Now just one further question:
'Why is it that a taxpayer can not be given his day in court by direct action, without first requiring him to pay the tax that is assessed? I know I shall be met with the statement that it would
mean interminable delay to the Government; but it frequently happens that the tax that is assessed is ruinous, and that the taxpayer can not raise the money. * * *
'In my own personal experience I have had two clients who were absolutely ruined by assessments that were unjust and that could not have stood up in a court of justice. * * * (A)nd it was no protection to them to say, 'Pay your taxes and then go into court,' because they did not have the money to pay the taxes and could not raise the money to pay the taxes and be out of the money two or three years.
'* * * I think the bill needs just one more amendment in this particular, and that is a provision that any citizen can go into court without paying any tax and resist the payment. In the meantime I agree that the Government for its own protection ought to be allowed, perhaps, in such a case as that to issue a distraint. But the idea that a man must first pay his money and then sue to get it back is anomaly in the law.' 67 Cong.Rec. 3530 3533.
Senator Reed later proposed that the appeal from the Board be to the District Court instead of to the Circuit Court of Appeals, and Senator Wadsworth, a member of the Finance Committee Asked:
'Does the Senator not think that other provision in the bill which permits the taxpayer to take his case to the district court conditioned, of course, upon his paying the assessment—meets the situation?' 67 Cong.Rec. 3755.
25
S. 1569, 81st Cong., 1st Sess.; S. 384, 82d Cong., 1st Sess.; H.R. 150 and H.R. 246, 83d Cong., 1st Sess.
26
48 Stat. 955, as amended, 28 U.S.C. §§ 2201, 2202, 28 U.S.C.A. §§ 2201, 2202.
27
49 Stat. 1027.
28
S.Rep. No. 1240, 74th Cong., 1st Sess. 11
29
'Should the Declaratory Judgment Act be held to apply to tax cases it will mean a complete reversal of our present scheme of taxation. The principle of 'pay first and litigate later' will be changed to 'litigate first and pay later.' This principle has never before been departed from.' Wideman, Application of the Declaratory Judgment Act to Tax Suits, 13 Taxes 539, 540.
30
For some practitioners' views on the desirability of litigating tax cases in Federal District Courts, see Dockery, Refund Suits in District Courts, 31 Taxes 523; Yeatman, Tax Controversies, 10 Tex.B.J. 9.
31
These problems have already occurred to the bar. See Riordan, Must You Pay Full Tax Assessment Before Suing in the District Court? 8 J.Tax. 179, 181.
32
'Sec. 7422. Civil actions for refund.
'(e) Stay of Proceedings.—If the Secretary or his delegate prior to the hearing of a suit brought by a taxpayer in a district court or the Court of Claims for the recovery of any income tax, estate tax, or gift tax (or any penalty relating to such taxes) mails to the taxpayer a notice that a deficiency has been determined in respect of the tax which is the subject matter of taxpayer's suit, the proceedings in taxpayer's suit shall be stayed during the period of time in which the taxpayer may file a petition with the Tax Court for a redetermination of the asserted deficiency, and for 60 days thereafter. If the taxpayer files a petition with the Tax Court, the district court or the Court of Claims, as the case may be, shall lose jurisdiction of taxpayer's suit to whatever extent jurisdiction is acquired by the Tax Court of the subject matter of taxpayer's suit for refund. If the taxpayer does not file a petition with the Tax Court for a redetermination of the asserted deficiency, the United States may counterclaim in the taxpayer's suit, or intervene in the event of a suit as described in subsection (c) (relating to suits against officers or employees of the United States), within the period of the stay of proceedings notwithstanding that the time for such pleading may have otherwise expired. The taxpayer shall have the burden of proof with respect to the issues raised by such counterclaim or intervention of the United States except as to the issue of whether the taxpayer has been guilty of fraud with intent to evade tax. This subsection shall not apply to a suit by a taxpayer which, prior to the date of enactment of this title, is commenced, instituted, or pending in a district court or the Court of Claims for the recovery of any income tax, estate tax, or gift tax (or any penalty relating to such taxes).' 68A Stat. 877.
The possibility of dual jurisdiction in this type of situation was confirmed by cases such as Camp v. United States, 4 Cir., 44 F.2d 126, and Ohio Steel Foundary Co. v. United States, 38 F.2d 144, 69 Ct.Cl. 158. See H.R.Rep. No. 1337, 83d Cong., 2d Sess. 109, A431; S.Rep. No. 1662, 83d Cong., 2d Sess. 148, 610.
33
For additional evidence of recent congressional understanding of the jurisdictional requirement of § 1346(a)(1), see the House Report which explained the 1954 amendment abolishing the $10,000 limitation on tax suits against the United States, 68 Stat. 589. After explaining the taxpayer's right to contest a deficiency in the Tax Court, the report states: 'The taxpayer may, however, elect to pay his tax and thereafter bring suit to recover the amount claimed to have been illegally exacted.' H.R.Rep. No. 659, 83d Cong., 1st Sess. 2.
34
Petitioner cites two earlier cases in which the Government failed to raise the jurisdictional issue. Bowers v. Kerbaugh-Empire Co., 1926, 271 U.S. 170, 46 S.Ct. 449, 70 L.Ed. 886; Cook v. Tait, 1924, 265 U.S. 47, 44 S.Ct. 444, 68 L.Ed. 895. The Government distinguishes these cases on the ground that, although the total tax for the year had not been paid, the full amount due at the time of suit had been paid. This situation occurred because under § 250(a) of the Revenue Act of 1921, c. 136, 42 Stat. 264, the tax was paid in four installments, and the plaintiffs in Cook and Bowers apparently had paid the due installments. While we do not suggest that the statute will support this type of distinction, adoption of it by the Government or by the bar would not in any way impair the substantial consistency of the view that full payment has for many decades been a prerequisite to suit in District Court. An error as to the applicability of a principle to a unique factual situation does not mean that the principle itself has been rejected.
35
The ground for the decision may have been that the District Court had no jurisdiction because the taxpayer was contesting the legality of the balance of the assessment before the Board of Tax Appeals.
36
In welcoming the members of the Board of Tax Appeals on July 16, 1924, Under Secretary Winston described the difficulties which had arisen in the past.
'* * * Under the law a tax once assessed had to be paid by the taxpayer and then his remedy was to sue for its recovery. He must first find the cash for a liability for which he may not have provided. * * * The first interest of all of the people is, of course, that the Government continue to function, and to do this it must have the means of prompt collection of the necessary supplies to keep it going, that is, taxes. The method was, therefore, the determination by the Commissioner of the amount of tax due, its collection and suit to recover. * * * (T)he tax as assessed had to be paid and the taxpayer was left to his remedy in the courts. The payment of the tax was often a great hardship on the taxpayer, meaning in general that he had to raise the cash for an unexpected liability which might not be lawfully due.' Treas. Dept. Press Release, July 16, 1924. See also remarks by Under Secretary Winston in addressing the Seventeenth Annual Conference of the National Tax Association in September 1924, Proceedings of Seventeenth National Conference 271.
In commenting upon the Board of Tax Appeals legislation, which contemplated leaving the taxpayer to his District Court remedy if the decision of the Board was adverse, Secretary of the Treasury Mellon stated: 'The taxpayer, in the event that decision (of the Board) is against him, will have to pay the tax according to the assessment and have recourse to the courts * * *.' 67 Cong.Rec. 552.
On September 17, 1924, the first Chairman of the Board, Charles D. Hamel, read a paper before the Seventeenth Annual Conference
('(T)he Bushmiaer case (permitting suit for part of the tax) * * * runs counter to a long tradition of administrative practice and interpretation * * *.'); Rudick and Wender, Federal Income Taxation, 32 N.Y.U.L.Rev. (1957), 751, 777—778 ('It is generally said that a taxpayer has two remedies if he disagrees with a determination of the Commissioner. He may pay the deficiency, file a claim for refund, and sue for the tax in the district court * * *. Alternatively, the taxpayer may petition the Tax Court for review of a deficiency prior to payment. The recent Bushmiaer case is a third alternative. * * * (T)he Bushmiaer case conflicts with more than thirty years of experience in the administration and collection of taxes.'). (Footnote omitted.)
37
Petitioner cites a number of cases in support of his argument that neither the bar nor the Government has ever assumed that full payment of the tax is a jurisdictional prerequisite to suit for recovery. The following factors rob these cases of the significance attributed to them by the petitioner:
(a) A number of them, although cited by petitioner in his petition for rehearing, were later conceded by him, after his examination of government files, not to be in point.
(b) A number of the cited cases involved excise taxes. The Government suggests—and we agree—that excise tax deficiencies may be divisible into a tax on each transaction or event, and therefore present an entirely different problem with respect to the full-payment rule.
(c) The cases arising after 1940 are insignificant. Once the Second Circuit Court of Appeals had ruled against the Government in Coates, taxpayers would naturally be much more inclined to sue before full payment, and the Government might well decide not to raise the objection in a particular case for reasons relating to litigation strategy.
(d) In some of the cases the only amount remaining unpaid at the time of suit was interest. As we have indicated, the statute lends itself to a construction which would permit suit for the tax after full payment thereof without payment of any part of the interest.
(e) In some of the cases the Government was not legally entitled to collect the unpaid tax at the time of suit, either because the tax
38
Petitioner points out that the Tax Court has no jurisdiction over excise tax cases. See 9 Mertens, Law of Federal Income Taxation (Zimet Rev.1958), § 50.08. But this fact provides no policy support for his position, since, as we have noted, excise tax assessments may be divisible into a tax on each transaction or event, so that the full-payment rule would probably require no more than payment of a small amount. See note 37, supra.
39
Of this $446,673,640, District Court suits involved $222,177,920; Court of Claims suits, $220,247,436; and state court suits, $4,248,284.
40
See note 22, supra.
41
The practical effects which might result from acceptance of petitioner's argument are sketched in Lowitz, Federal Tax Refund Suits and Partial Payments, 9 The Decalogue J. 9, 10:
'Permitting refund suits after partial payment of the tax assessment would benefit many taxpayers. Such a law would be open to wide abuse and would probably seriously impair the government's ability to collect taxes. Many taxpayers, without legitimate grounds for contesting an assessment, would make a token payment and sue for refund, hoping at least to reduce the amount they would ultimately have to pay. In jurisdictions where the District Court is considered to be a 'taxpayer's court' most taxpayers would use that forum instead of the Tax Court. Conceivably such legislation could cause the chaotic tax collection situations which exist in some European countries, since there would be strong impetus to a policy of paying a little and trying to settle the balance.'
42
See Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917; Treas.Regs. on Procedural Rules (1954 Code) § 601.103(a).
43
See Riordan, Must You Pay Full Tax Assessment Before Suing in the District Court? 8 J.Tax. 179, 181:
'1. If the Government is forced to use these remedies (distraint) on a large scale, it will affect adversely taxpayers' willingness to perform under our voluntary assessment system.
'2. It will put the burden on the Government to seek out for seizure the property of every taxpayer who chooses to sue for the refund of a partial payment. Often, the Government will not be able to do this without extraordinary and costly effort and in some cases it may not be able to do it at all.
'3. The use of the drastic-collection remedies would often cause inconvenience and perhaps hardship to the creditors, debtors, employers, employees, banks and other persons doing business with the taxpayer.'
1
The language of Cheatham relied upon by this Court in its first opinion was the following:
'So also, in the internal-revenue department, the statute which we have copied allows appeals from the assessor to the commissioner of internal revenue; and, if dissatisfied with his decision, on paying the tax the party can sue the collector; and, if the money was wrongfully exacted, the courts will give him relief by a judgment, which the United States pledges herself to pay.
'* * * While a free course of remonstrance and appeal is allowed within the departments before the money is finally exacted, the general government has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. * * * If the compliance with this condition (that suit must be brought within six months of the Commissioner's decision) requires the party aggrieved to pay the money, he must do it. He cannot, after the decision is rendered against him, protract the time within which he can contest that decision in the courts by his own delay in paying the money. It is essential to the honor and orderly conduct of the government that its taxes should be promptly paid, and drawbacks speedily adjusted; and the rule prescribed in this class of cases is neither arbitrary nor unreasonable. * * *
'The objecting party can take his appeal. He can, if the decision is delayed beyond twelve months, rest his case on that decision; or he can pay the amount claimed, and commence his suit at any time within that period. So, after the decision, he can pay at once, and commence suit within the six months * * *.' 92 U.S. at pages 88—89.
2
The Government now seeks to distinguish these two cases because they arose under the Revenue Act of 1921, Act of Nov. 23, 1921, c. 136, 42 Stat. 227, and because § 250(a) of which permitted the taxpayer, at his option, to pay the tax in four trimonthly installments, rather than all at once. The taxpayers in both Cook v. Tait and Bowers v. Kerbaugh-Empire Co. did choose to pay in installments, and the Government points to the fact that, at the time the suits were brought, all installments due had been paid, although the full assessment had not. The Government therefore would seem to take the position that the whole tax need not be paid, so long as the taxpayer, when he initiates the suit, has paid 'all that the taxpayer was at that time legally obligated to pay, and all (in the absence of a so-called jeopardy assessment) that the Commissioner was at that time legally empowered to collect.' (It should be pointed out that in Cook v. Tait and Bowers v. Kerbaugh-Empire Co. installments fell due immediately after suit was begun, and before hearing or adjudication; these installments were not paid as they came due.) It seems almost unnecessary to say that the words of the jurisdictional statute simply will not support this fine distinction urged by the Government; nor is there the least support for it (there is, if anything, contradiction) in the material the Government cites to establish an understanding of the full-payment requirement.
3
The lower courts' decisions cited by petitioner, that were rendered prior to 1940, in which taxpayers had paid, and sued to recover, less than the whole of assessments alleged to have been illegal, and in which the Government did not question jurisdiction, are: Tsivoglou v. United States, 1 Cir., 1929, 31 F.2d 706; Heinemann Chemi-
cal Co. v. Heiner, 3 Cir., 1937, 92 F.2d 344; Thomas v. United States, 1937, 18 F.Supp. 942, 85 Ct.Cl. 313; Peerless Paper Box Mfg. Co. v. Routzahn, D.C.N.D.Ohio 1927, 22 F.2d 459; Welch v. Hassett, D.C.Mass.1936, 15 F.Supp. 692; McFadden v. United States, D.C.E.D.Pa.1937, 20 F.Supp. 625; Leavitt v. Hendricksen, 37—2 U.S.T.C., 9312 (D.C.W.D.Wash.1937).
In justice to counsel for both parties it seems appropriate to observe—what every lawyer knows—that cases, such as these, in which there 'lurked in the record' questions that were not raised or decided are not discoverable by any ordinary means of reference. Without doubt, this fact accounts for the failure of counsel to take account of or to cite, and of this Court to find, those cases on the first hearing.
Petitioner has cited a number of other cases decided by the lower courts prior to and during 1940, that sought recovery of partial payments upon assessments, and in each of which the Government did challenge, but unsuccessfully, the jurisdiction of the courts, namely, Coates v. United States, 2 Cir., 1940, 111 F.2d 609; Camp v. United States, 4 Cir., 1930, 44 F.2d 126; Ohio Steel Foundry Co. v. United States, 1930, 38 F.2d 144, 69 Ct.Cl. 158, 168; Emery v. United States, D.C.W.D.Pa.1928, 27 F.2d 992; Old Colony R. Co. v. United States, D.C.Mass.1928, 27 F.2d 994.
Petitioner has also cited 22 similar cases, decided by the lower courts since 1940. In 17 of them (Kavanagh v. First National Bank, 6 Cir., 1943, 139 F.2d 309; Griffiths Dairy, Inc., v. Squire, 9 Cir., 1943, 138 F.2d 758; United States v. Pfister, 8 Cir., 1953, 205 F.2d 538; Gallagher v. Smith, 3 Cir., 1955, 223 F.2d 218; Perry v. Allen, 5 Cir., 1956, 239 F.2d 107; Auricchio v. United States, D.C.E.D.N.Y.1973, 49 F.Supp. 184; Professional Golf Co. v. Nashville Trust Co., D.C.M.D.Tenn.1945, 60 F.Supp. 398; Jack Little Foundation v. Jones, D.C.W.D.Okl. 1951, 102 F.Supp. 326; Hogg v. Allen, D.C.M.D.Ga.1952, 105 F.Supp. 12; Snyder v. Westover, D.C.S.D.Cal.1952, 107
F.Supp. 363; Wheeler v. Holland, D.C.N.D.Ga.1954, 120 F.Supp. 383; Peters v. Smith, D.C.E.D.Pa.1954, 123 F.Supp. 711; Zukin v. Riddell, 55—2 U.S.T.C., 9688 (D.C.S.D.Cal.1955); Lewis v. Scofield, 57—1 U.S.T.C., 9251 (D.C.W.D.Tex.1956); McFarland v. United States, 57—2 U.S.T.C., 9733 (D.C.M.D.Tenn.1957); Raymond v. United States, 58—1 U.S.T.C., 9397 (D.C.E.D.Mich.1958); Freeman v. United States, 58—1 U.S.T.C., 9309 (D.C.S.D.Cal.1958)) the Government did not question the jurisdiction of the courts, and in the other five cases (Bushmiaer v. United States, 8 Cir., 1956, 230 F.2d 146; Sirian Lamp Co. v. Manning, 3 Cir., 1941, 123 F.2d 776, 138 A.L.R. 1423; Jones v. Fox, 57—2 U.S.T.C., 9876, D.C.Md.1957, 162 F.Supp. 449; Hanchett v. Shaughnessy, D.C.N.D.N.Y.1954, 126 F.Supp. 769; Rogers v. United States, D.C.E.D.N.Y.1957, 155 F.Supp. 409) the Government did challenge the jurisdiction of the courts, but prevailed upon the point only in the last-mentioned case.
4
Sirian Lamp Co. v. Manning, 3 Cir., 1941, 123 F.2d 776 was a suit against the Collector and, therefore, did not come under the jurisdictional provision here in issue, which is applicable only to suits against the United States. But it held expressly that a suit for refund may be maintained to recover a partial payment of an assessment. No one has suggested that the jurisdictional requirement of the amount of the assessed tax that must be paid as a prerequisite to a suit for refund is different when the suit is against the Collector, with regard to which suits there is no specific jurisdictional provision, rather than against the United States.
5
See also Bend v. Hoyt, 1839, 13 Pet. 263, 267, 10 L.Ed. 154. Elliott v. Swartwout seems to have been the first case in this country expressly to recognize the right.
6
The Act of Feb. 26, 1845, c. 22, 5 Stat. 727, in pertinent part, provides:
'(N)othing contained in (the Act of March 3, 1839, c. 82, § 2) * * * shall take away, or be construed to take away or impair, the right of any person or persons who have paid or shall hereafter pay money, as and for duties, under protest, to any collector of the customs * * * which duties are not authorized or payable in part or in whole by law, to maintain any action at law against such collector * * * to ascertain any try the legality and validity of such demand and payment of duties * * *; nor shall any action be maintained against any collector, to recover the amount of duties so paid under protest, unless the said protest was made in writing, and signed by the claimant, at or before the payment of said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.'
7
The only statements with regard to the purpose of the bill in Congress which have been found are the remarks of Senators Huntington and Woodbury, Cong. Globe, 28th Cong., 2d Sess. 195 (1845). See also 5 Stat. 349, n. (a): '(Congress being in session when the decision of the court in the case of Carey v. Curtis, 3 How. 236, 11 L.Ed. 576, was made, the following act (the Act of Feb. 26, 1845) was passed.)'
8
The Court recognized that internal revenue collectors, like customs collectors, were required to pay daily into the Treasury all sums collected under the internal revenue laws. Act of March 3, 1865, c. 78, § 3, 13 Stat. 483. In refusing to reach the same result as had been reached in Cary v. Curtis, without an express saving statute such as the Act of Feb. 26, 1845, the Court relied upon the provisions in the internal revenue laws that the Commissioner shall pay all judgments for refunds recovered against Collectors. Act of March 3, 1863, c. 74, § 31, 12 Stat. 729; Act of June 30, 1864, c. 173, § 44, 13 Stat. 239; Act of July 13, 1866, c. 184, § 9, 14 Stat. 101, 111. 'Clear implication of the several provisions is, that a judgment against the collector in such a case (a refund suit) is in the nature of a recovery against the United States, and that the amount recovered is regarded as a proper charge against the revenue collected from that source.' City of Philadelphia v. The Collector, 5 Wall. at page 733.
9
Act of March 3, 1911, c. 231, § 24, 36 Stat. 1093. The monetary limitation was entirely eliminated in 1954. Act of July 30, 1954, c. 648, § 1, 68 Stat. 589.
10
The gist of § 1346(a) provides: 'for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws.' 28 U.S.C. § 1346(a), 28 U.S.C.A. § 1346(a).
11
See 61 Cong.Rec. 7506—7507 (1921); H.R.Conf.Rep. No. 486, 67th Cong., 1st Sess. 57 (1921).
12
See note 10.
13
This language was in turn preceded by § 19 of the Revenue Act of July 13, 1866, c. 184, 14 Stat. 152, which did not include any reference to 'penalties' or 'sums': '(N)o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue * * *.' It is important to note that this was the 'claim for refund' statute in effect at the time of, and that was applicable to, Cheatham v. United States, supra. Quite unlike § 1346(a), it made no reference to 'any sum.'
14
'The committee (on Ways and Means) recommends the establishment of a Board of Tax Appeals to which a taxpayer may appeal prior to the payment of an additional assessment of income, excessprofits, war-profits, or estate taxes. Although a taxpayer may, after payment of his tax, bring suit for the recovery thereof and thus secure a judicial determination on the questions involved, he can not, in view of section 3224 of the Revised Statutes, which prohibits suits to enjoin the collection of taxes, secure such a determination prior to the payment of the tax. The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt, been either wiped out by subsequent losses, invested in nonliquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship
and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment.' H.R.Rep. No. 179, 68th Cong., 1st Sess. 7 (1924).
'Now, it is true that under the present law it is possible to get a judicial review, but it is very slow and expensive. In order to get a judicial review under the law as it exists to-day a man must pay his tax and pay it under protest; then he must file a claim for refund; then the Government has six months within which to accept or reject it; then after that he must begin an action in the courts.' Remarks of Representative Young, 65 Cong.Rec. 2621 (1924).
'The practice, as I understand it, has been to require the taxpayer to pay in the amount of the increased assessment, and then to allow him to get it back if he can. In addition to this, distraints frequently have been issued seizing the property of the citizen, so that the man whose taxes may have been raised unjustly may find himself forced to raise a large sum of money at once or have his property seized.' Remarks of Senator Reed of Missouri, 65 Cong.Rec. 8109 (1924).
'One of the chief arguments presented in the reports of the committees of both Houses (upon the creation of the Board of Tax Appeals) was to relieve the taxpayer of the hardship of being forced to go out and pay his tax before he could have a judicial consideration of the problems involved in his case. The taxpayer who was faced with, say, $100,000 of additional tax, and who was forced to pay that money, very frequently had his credit destroyed, and sometimes he was forced into bankruptcy in order to meet that payment. It was a real hardship. The man who had already paid the tax had gone through the suffering, had filed his claim for refund, and had his remedy. He has the remedy that he had prior to the creation of the board.' Statement of Charles D. Hamel, first Chairman of the Board of Tax Appeals, Hearings before the House Committee on Ways and Means on the Revenue Revision, 1925, Oct. 19 to Nov. 3, 1925, pp. 922, 923.
15
'Except as provided in sections 6212(a) and (c), and 6213(a) (giving a right to petition the Tax Court), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.' Int.Rev.Code, 1954, § 7421, 26 U.S.C.A. § 7421. Such a provision has been in the law since the Act of Mar. 2, 1867, c. 169, § 10, 14 Stat. 475.
16
Indeed there does not seem to be any way of restraining the Commissioner from collecting the remainder of a deficiency even after the taxpayer who has paid part has won a suit for refund, the Commissioner thus forcing the taxpayer to bring another action for refund.
17
See §§ 7422(e) and 6512 of the Internal Revenue Code of 1954, 26 U.S.C.A. §§ 7422(e), 6512, giving, respectively, the District Courts and the Tax Court jurisdiction over suits involving both deficiencies and claims for refund.
18
The Government suggests that if this Court permits the petitioner to maintain his action for refund it will, as a consequence, sanction the practice of a taxpayer making only 'token payment,' and then, by a suit for refund, adjudicating the legality of the entire assessment. We are not here concerned with such a totally different question. Petitioner's payment of $5,058.54 on an assessment of $27,251.13 certainly was not a 'token payment'; nor could the suit to recover the amount paid be said to be one for a declaratory judgment—not permitted 'with respect to Federal taxes'—under 28 U.S.C. § 2201, 28 U.S.C.A. § 2201.
19
See note 15.
20
Except for the provision made for a 'jeopardy assessment.' Int.Rev.Code, 1954, § 6861, 26 U.S.C.A. § 6861.
21
See Int.Rev.Code, 1954, §§ 6511, 6532, 26 U.S.C. §§ 6511, 6532, 26 U.S.C.A. §§ 6511, 6532.
22
The grossly unfair and, to me, shockingly inequitable result of today's holding may be laid bare by assuming a commonplace set of facts: Two brothers, doing business as partners one having a 60% and the other a 40% interest in the partnership failed in their business which was then liquidated in bankruptcy. Thereafter, based upon the partnership's transactions, the Commissioner proposed deficiency assessments in income taxes—one against the major partner of $6,000 and another against the minor one of $4,000. Be-
ing without funds to employ counsel to prepare, file in Washington, and prosecute a petition for redetermination in the Tax Court, none was filed by either of the taxpayers, and the Commissioner made the assessments as proposed. One year later, their father died intestate, and thereupon the family homestead vested equally in his two sons (the taxpayers) under the State's laws of descent. The tax liens were, of course, instantly impressed upon their respective interests, and, under warrants of distraint, the Commissioner sold the homestead. It brought a total of $8,500 ($4,250 for the interest of each of the taxpayers). This, of course, satisfied the assessment and accrued interest against the minor partner, but left unpaid about $2,000 of the assessment and accrued interest against the major partner. Both filed claims for refund, which were denied. The taxpayers then filed separate suits, presenting identical issues, in the same Federal District Court to recover the taxes and interest thus collected by the Commissioner. The cases were consolidated for trial. The Court found that the assessments were illegal and the taxes wrongfully collected. The proceeds of the sale of the minor taxpayer's interest being sufficient to discharge the illegal assessment and accrued interest against him, the court rendered judgment in his favor for the sum thus wrongfully collected. But, inasmuch as the proceeds of the sale were not sufficient to discharge the illegal assessment against the major partner, and he was financially unable to pay the balance of it, the Court held that it lacked jurisdiction to allow his recovery of the $4,250 thus found to have been wrongfully collected from him under the internal revenue laws. Is this fair? Is it not shocking? More to the point, is not that result plainly proscribed by Congress' words in § 1346(a) that: 'The district courts shall have original jurisdiction * * * of * * * Any civil action against the United States for the recovery of * * * any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws'? (Emphasis added.)
| 1112
|
362 U.S. 207
80 S.Ct. 619
4 L.Ed.2d 660
SCRIPTO, INC., Etc., Appellant,v.Dale CARSON, as Sheriff of Duval County, Florida, et al.
No. 80.
Argued Feb. 24, 1960.
Decided March 21, 1960.
Mr. George B. Haley, Jr., Atlanta, Ga., for appellant.
Mr. Joseph C. Jacobs, Tallahassee, Fla., for appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
Florida, by statute,1 required appellant, a Georgia corporation, to be responsible for the collection of a use tax on certain mechanical writing instruments which appellant sells and ships from its place of business in Atlanta to residents of Florida for use and enjoyment there. Upon Scripto's failure to collect the tax, the appellee Comptroller levied a use tax liability of $5,150.66 against it. Appellant then brought this suit to test the validity of the imposition, contending that the requirement of Florida's statute places a burden on interstate commerce and violates the Due Process Clause of the Fourteenth Amendment to the Constitution. It claimed, in effect, that the nature of its operations in Florida does not form a sufficient nexus to subject it to the statute's exactions. Both the trial court and the Supreme Court of Florida held that appellant does have sufficient jurisdictional contacts in Florida and, therefore, must register as a dealer under the statute and collect and remit to the State the use tax imposed on its aforesaid sales. 105 So.2d 775. We noted probable jurisdiction. 361 U.S. 806, 80 S.Ct. 52, 4 L.Ed.2d 54. We agree with the result reached by Florida's courts.
2
Appellant operates in Atlanta an advertising speciality division trading under the name of Adgif Company. Through it, appellant is engaged in the business of selling mechanical writing instruments which are adapted to advertising purposes by the placing of printed material thereon. In its Adgif operation, appellant does not (1) own, lease, or maintain any office distributing house, warehouse or other place of business in Florida, or (2) have any regular employee or agent there.2 Nor does it own or maintain any bank account or stock of merchandise in the State. Orders for its products are solicited by advertising specialty brokers or, as the Supreme Court of Florida called them, wholesalers or jobbers, who are residents of Florida. At the time of suit, there were 10 such brokers—each having a written contract and a specific territory. The somewhat detailed contract provides, inter alia, that all compensation is to be on a commission basis on the sales made, provided they are accepted by appellant; repeat orders, even if not solicited, also carry a commission if the salesman has not become inactive through failure to secure acceptable orders during the previous 60 days. The contract specifically provides that it is the intention of the parties 'to create the relationship * * * of independent contractor.' Each order is to be signed by the solicitor as a 'salesman'; however, he has no authority to make collections or incur debts involving appellant. Each salesman is furnished catalogs, samples, and advertising material, and is actively engaged in Florida as a representative 'of Scripto for the purpose of attracting, soliciting and obtaining Florida customers' for its mechanical advertising specialties. Orders for such products are sent by these salesmen directly to the Atlanta office for acceptance or refusal. If accepted, the sale is consummated there and the salesman is paid his commission directly. No money passes between the purchaser and the salesman although the latter does occasionally accept a check payable to the appellant, in which event he is required to forward it to appellant with the order.
3
As construed by Florida's highest court, the impost levied by the statute is a tax 'on the privilege of using personal property * * * which has come to rest * * * and has become a part of the mass of property' within the State. 105 So.2d at page 781. It is not a sales tax, but 'was developed as a device to complement (such a tax) in order to prevent evasion * * * by the completion of purchases in a non-taxing state and shipment by interstate commerce into a taxing forum.' Id., at page 779. The tax is collectible from 'dealers' and is to be added to the purchase price of the merchandise 'as far as practicable.' In the event that a dealer fails to collect the tax, he himself is liable for its payment. The statute has the customary use tax provisions 'against duplication of the tax, an allowance to the dealer for making the collection, and a reciprocal credit arrangement which credits against the Florida tax any amount up to the amount of the Florida tax which might have been paid to another state.' Id., at page 782. Florida held appellant to be a dealer under its statute. 'The application by that Court of its local laws and the facts on which it founded its judgment are of course controlling here.' General Trading Co. v. State Tax Comm., 1944, 322 U.S. 335, 337, 64 S.Ct. 1028, 1029, 88 L.Ed. 1309.
4
The question remaining is whether Florida, in the light of appellant's operations there, may collect the State's use tax from it on the basis of property bought from appellant and shipped from its home office to purchasers in Florida for use there.
5
Florida has well stated the course of this Court's decisions governing such levies, and we need but drive home its clear understanding. There must be, as our Brother Jackson stated in Miller Bros. Co. v. State of Maryland, 1954, 347 U.S. 340, 344 345, 74 S.Ct. 535, 539, 98 L.Ed. 744, 'some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.' We believe that such a nexus is present here. First, the tax is a nondiscriminatory exaction levied for the use and enjoyment of property which has been purchased by Florida residents and which has actually entered into and become a part of the mass of property in that State. The burden of the tax is placed on the ultimate purchaser in Florida and it is he who enjoys the use of the property, regardless of its source. We note that the appellant is charged with no tax—save when, as here, he fails or refuses to collect it from the Florida customer. Next, as Florida points out, appellant has 10 wholesalers, jobbers, or 'salesmen' conducting continuous local solicitation in Florida and forwarding the resulting orders from that State to Atlanta for shipment of the ordered goods. The only incidence of this sales transaction that is nonlocal is the acceptance of the order. True, the 'salesmen' are not regular employees of appellant devoting full time to its service, but we conclude that such a fine distinction is without constitutional significance. The formal shift in the contractual tagging of the salesman as 'independent' neither results in changing his local function of solicitation nor bears upon its effectiveness in securing a substantial flow of goods into Florida. This is evidenced by the amount assessed against appellant on the statute's 3% basis over a period of but four years. To permit such formal 'contractual shifts' to make a constitutional difference would open the gates to a stampede of tax avoidance. See Thomas Reed Powell, Sales and Use Taxes: Collection from Absentee Vendors, 57 Harv.L.Rev. 1086, 1090. Moreover, we cannot see, from a constitutional standpoint, 'that it was important that the agent worked for several principals.' Chief Judge Learned Hand, in Bomze v. Nardis Sportswear, 2 Cir., 165 F.2d 33, 36. The test is simply the nature and extent of the activities of the appellant in Florida. In short, we conclude that this case is controlled by General Trading Co., supra. As was said there, 'All these differentiations are without constitutional significance. Of course, no State can tax the privilege of doing interstate business. See Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823. That is within the protection of the Commerce Clause and subject to the power of Congress. On the other hand, the mere fact that property is used for interstate commerce or has come into an owner's possession as a result of interstate commerce does not diminish the protection which he may draw from a State to the upkeep of which he may be asked to bear his fair share.' 322 U.S. at page 338, 64 S.Ct. at page 1029.
6
Nor do we believe that Florida's requirement that appellant be its tax collector on such orders from its residents changes the situation. As was pointed out in General Trading Co., this is 'a familiar and sanctioned device.' Ibid. Moreover, we note that Florida reimburses appellant for its service in this regard.
7
Appellant earnestly contends that Miller Bros. Co. v. State of Maryland, supra, is to the contrary. We think not. Miller had no solicitors in Maryland; there was no 'exploitation of the consumer market'; no regular, systematic displaying of its products by catalogs, samples or the like. But, on the contrary, the goods on which Maryland sought to force Miller to collect its tax were sold to residents of Maryland when personally present at Miller's store in Delaware. True, there was an 'occasional' delivery of such purchases by Miller into Maryland, and it did occasionally mail notices of special sales to former customers; but Marylanders went to Delaware to make purchases—Miller did not go to Maryland for sales. Moreover, it was impossible for Miller to determine that goods sold for cash to a customer over the counter at its store in Delaware were to be used and enjoyed in Maryland. This led the Court to conclude that Miller would be made 'more vulnerable to liability for another's tax than to a tax on itself.' 347 U.S. at page 346, 74 S.Ct. at page 539. In view of these considerations, we conclude that the 'minimum connections' not present in Miller are more than sufficient here.
8
The judgment is therefore affirmed.
9
Affirmed.
10
Mr. Justice FRANKFURTER, deeming this case to be nearer to General Trading Co. v. State Tax Commission, 322 U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309, than it is to Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744, concurs in the result.
11
Mr. Justice WHITTAKER, believing that Florida's action denies to appellant due process of law and also directly burdens interstate commerce as held in Miller Bros. Co. v. State of Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744, and in McLeod v. J. E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304, and adhering to his views expressed in Northwestern States Portland Cement Co. v. State of Minnesota, 358 U.S. 450, 477, 79 S.Ct. 357, 368, 3 L.Ed.2d 421, would reverse the judgment.
1
The pertinent provisions of this statute are:
'212.06 Same; collectible from dealers; dealers defined; dealers to collect from purchasers; legislative intent as to scope of tax
'(1) The aforesaid tax at the rate of three per cent of the retail sales price, as of the moment of sale, or three per cent of the cost price, as of the moment of purchase, as the case may be, shall be collectible from all dealers as herein defined on the sale at retail, the use, the consumption, the distribution and the storage for use or consumption in this state, of tangible personal property.
'(2) * * * (g) 'Dealer' also means and includes every person who solicits business either by representatives or by the distribution of catalogs or other advertising matter and by reason thereof receives and accepts orders from consumers in the state, and such dealer shall collect the tax imposed by this chapter from the purchaser and no action either in law or in equity on a sale or transaction as provided by the terms of this chapter may be had in this state by any such dealer unless it be affirmatively shown that the provisions of this chapter have been fully complied with.'
2
Appellant Scripto does employ one salesman but he handles its regular line of products and has no connection with Adgif. The Florida courts found that his presence was not relevant to the determination of whether appellant was included within the terms of the statute.
| 78
|
362 U.S. 274
80 S.Ct. 706
4 L.Ed.2d 710
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.
DRIVERS, CHAUFFEURS, HELPERS, LOCAL UNION NO. 639, Etc.
No. 34.
Argued Jan. 14, 1960.
Decided March 28, 1960.
Mr. Dominick L. Manoli, Washington, D.C., for petitioner.
Mr. Herbert S. Thatcher, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question in this case is whether peaceful picketing by a union, which does not represent a majority of the employees, to compel immediate recognition as the employees' exclusive bargaining agent, is conduct of the union 'to restrain or coerce' the employees in the exercise of rights guaranteed in § 7,1 and thus an unfair labor practice under § 8(b)(1)(A) of the National Labor Relations Act, as amended by the Taft-Hartley Act.2
2
Curtis Bros., Inc., has a retail store and a warehouse in Washington, D.C., in which it carries on a moving, warehousing and retail furniture business. In 1953 respondent Teamsters Local 639 was certified by the National Labor Relations Board, following a Board-conducted election, to be the exclusive representative of the Company's drivers, helpers, warehousemen and furniture finishers. However, when the Local called a strike over contract terms in February 1954 only nine of 21 employees in the unit left their jobs and Curtis Bros. replaced the nine with new employees. The strike continued but the Local gradually lost membership, and when after a year Curtis Bros. petitioned the Board to conduct another election, the Local wrote the Board that it did not claim to represent a majority of the employees. The Board nevertheless ordered another election, 114 N.L.R.B. 116, which was held in October 1955, and the then employees of the unit voted 28 to one in favor of 'no union.'3
3
A month after the election, in November 1955, the Local withdrew a picket line which had been maintained before the employees' entrance to the warehouse during the period from February 1954. However, picketing at the customers' entrance to the retail store was continued, but limited to not more than two pickets at any time. The pickets were orderly at all times and made no attempt to prevent anyone from entering the store. They simply patrolled before the entrance carrying signs reading on one side, 'Curtis Bros. employs nonunion drivers, helpers, warehousemen and etc. Unfair to Teamsters Union No. 639 AFL,' and on the other side, 'Teamsters Union No. 639 AFL wants employes of Curtis Bros. to join them to gain union wages, hours, and working conditions.'
4
After this picketing continued for about six months, Curtis Bros. made it the subject of an unfair labor practice charge against the Local for alleged violation of § 8(b)(1)(A). A complaint issued which alleged, in substance, that the picketing was activity to 'restrain or coerce' the employees in the exercise of § 7 rights, and thus an unfair labor practice under § 8(b)(1)(A), because it was 'recognitional' picketing, that is, picketing designed to induce Curtis Bros. to recognize the Local as the exclusive bargaining agent for the employees, although the union did not represent a majority of the employees.
5
The Trial Examiner recommended that the complaint be dismissed on the ground that the Local's peaceful picketing, even if 'recognitional,' was not conduct to 'restrain or coerce.' The Board, one member dissenting, disagreed and entered a cease-and-desist order, 119 N.L.R.B. 232. On review at the instance of the Local, the United States Court of Appeals for the District of Columbia Circuit, by a divided court, set aside the Board's order, holding that § 8(b) (1)(A) 'is inapplicable to peaceful picketing, whether 'organizational' or 'recognitional' in nature * * *.' 107 U.S.App.D.C. 42, 43, 274 F.2d 551, 552.4 Because of the importance of the question in the administration of the Act, we granted certiorari. 359 U.S. 965, 79 S.Ct. 876, 3 L.Ed.2d 833.
6
After we granted certiorari, the Congress enacted the Labor-Management Reporting and Disclosure Act of 1959, which, among other things, adds a new § 8(b)(7) to the National Labor Relations Act.5 It was stated by the Board on oral argument that if this case arose under the 1959 Act, the Board might have proceeded against the Local under § 8(b)(7). This does not, however, relegate this litigation to the status of an unimportant controversy over the meaning of a statute which has been significantly changed. For the Board contends that new § 8(b)(7) does not displace § 8(b)(1)(A) but merely 'supplements the power already conferred by Section 8(b)(1)(A).'6 It argues that the Board may proceed against peaceful 'recognitional' picketing conducted by a minority union in more situations than are specified in § 8(b)(7) and without regard to the limitations of § 8(b)(7)(C).7
7
Basic to the right guaranteed to employees in § 7 to form, join or assist labor organizations, is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection. Indeed, even before the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C.A. § 101 et seq., and the Wagner Act, 49 Stat. 449, this Court recognized a right in unions to 'use all lawful propaganda to enlarge their membership.' American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189. However, the Taft-Hartley Act added another right of employees also guaranteed protection, namely, the right to refrain from joining a union, except as that right might be affected by an agreement authorized in § 8(a) (3). Thus tension exists between the two rights of employees protected by § 7—their right to form, join or assist labor organizations, and their right to refrain from doing so. This tension is necessarily quite real when a union employs economic weapons to organize employees who do not want to join the union. The Board held here that peaceful picketing is not lawfully employed as an economic weapon to further self-organization if its objective is 'recognitional.' The Board stated: 'Because the object of the Union's picketing in this case was to force the Company to commit an act prohibited by the statute itself (that is, to recognize and contract with the Local although it was not the chosen representative of a majority of the Curtis Bros. employees) and directly to deprive the employees of a right expressly guaranteed to them by the same Act, there is no occasion here to balance conflicting interests or rights.' 119 N.L.R.B. 232, 238.8 It therefore found no justification for the threat to the employees' job security which was thought to be inherent in the economic pressure directed against the employer by the picketing. It was this threat which was said to taint peaceful picketing as unlawful conduct to 'restrain or coerce' which the Board might forbid.
8
We first consider § 8(b)(1)(A) in the light of § 13, as amended, which provides, in substance, that the Taft-Hartley Act shall not be taken as restricting or expanding either the right to strike or the limitations or qualifications on that right, as these were understood prior to 1947, unless 'specifically provided for' in the Act itself.9 The Wagner Act conferred upon the Board wide authority to protect strikers from employer retaliation. However, the Court and the Board fashioned the doctrine that the Board should deny reinstatement to strikers who engaged in strikes which were conducted in an unlawful manner or for an unlawful objective. See for example Southern S.S. Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246; National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627; National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; and American News Co., 55 N.L.R.B. 1302. These are the 'limitations or qualifications' on the right to strike referred to in § 13. See S.Rep. No. 105, 80th Cong., 1st Sess. 28. The Board makes no claim that prior to 1947 it was authorized, because of any 'limitation' or 'qualification,' to issue a cease-and-desist order against peaceful 'recognitional' picketing; indeed the full protections of the Norris-LaGuardia Act extended to peaceful picketing by minority unions for recognition. See Fur Workers Union No. 21238 v. Fur Workers Union, Local No. 72, 308 U.S. 522, 60 S.Ct. 292, 84 L.Ed. 443, per curiam affirming 70 App.D.C. 122, 105 F.2d 1; Lauf v. E. G. Shinner & Co., 303 U.S. 323, 58 S.Ct. 578, 82 L.Ed. 872. Therefore, since the Board's order in this case against peaceful picketing would obviously 'impede' the right to strike, it can only be sustained if such power is 'specifically provided for' in § 8(b)(1)(A), as added by the Taft-Hartley Act. To be sure, § 13 does not require that the authority for the Board action be spelled out in so many words. Rather, since the Board does not contend that § 8(b)(1)(A) embodies one of the 'limitations or qualifications' on the right to strike, § 13 declares a rule of construction which cautions against an expansive reading of that section which would adversely affect the right to strike, unless the congressional purpose to give it that meaning persuasively appears either from the structure or history of the statute. Therefore, § 13 is a command of Congress to the courts to resolve doubts and ambiguities in favor of an interpretation of § 8(b)(1)(A) which safeguards the right to strike as understood prior to the passage of the Taft-Hartley Act.
9
The Board asserts that the very general standard in § 8(b)(1)(A) vests power in the Board to sit in judgment upon, and to condemn, a minority union's resort to a specific economic weapon, here peaceful picketing. The structure of § 8(b), which defines unfair labor practices, hardly supports the Board's claims. Earlier this Term we pointed out that 'Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions.' National Labor Relations Board v. Insurance Agents' International Union, 361 U.S. 477, 498, 80 S.Ct. 419, 432. We referred to § 8(b)(4) as illustrative of the congressional practice.10 In the context of a union's striking to promote enlarged membership, Congress there explicitly prohibited a union's resort to the secondary boycott, to the strike to force employers or self-employed persons to join unions, and, very pertinent here, to the 'recognitional' strike where another union is certified. Plainly if the Board's interpretation is sustained, § 8(b)(1)(A) largely overlaps at least this last-mentioned prohibition, namely § 8(b)(4)(C), to the extent of making it almost redundant.11 But the Court has rejected an argument that a provision of § 8(b)(4) is a repetition of the prohibitions of § 8(b)(1)(A). In International Brotherhood of Electrical Workers, Local 501, A.F. of L. v. National Labor Relations Board, 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299, the Court, in holding that a peaceful strike to promote self-organization was proscribed by § 8(b)(4)(A) if its objective was to 'induce or encourage' a secondary boycott, contrasted the language of the two subsections and labeled the words 'restrain or coerce' in § 8(b)(1)(A) a 'restricted phrase' to be equated with 'threat of reprisal or force or promise of benefit.' Id., 341 U.S. at pages 701—703, 71 S.Ct. at pages 958—959.
10
In the sensitive area of peaceful picketing Congress has dealt explicitly with isolated evils which experience has established flow from such picketing. Therefore, unless there is the clearest indication in the legislative history of § 8(b)(1)(A) supporting the Board's claim of power under that section, we cannot sustain the Board's order here. We now turn to an examination of the legislative history.
11
In the comprehensive review of union practices, leading up to the enactment of the Taft-Hartley Act, picketing practices were subjected to intensive inquiry by both House and Senate Labor Committees. The Senate bill, as brought to the floor by the Senate Labor Committee regulated organizational activity in specified situations. Proposed § 8(b)(4)(3), now § 8(b)(4)(C) of the law, made 'recognitional' picketing of a primary employer unlawful only where 'another labor organization has been certified as the representative' of his employees. Section 8(b)(4)(2), now § 8(b)(4)(B), prohibited attempts to force recognition through secondary pressure.
12
However, five members of the Senate Labor Committee, including Senators Taft and Ball, believed that the Senate bill did not go far enough in the regulation of practices employed by unions for organizational purposes. These Senators introduced on the floor a proposed amendment to the Committee bill. The amendment as originally phrased was the counterpart of § 8(a)(1) applicable to employers; it would have made it an unfair labor practice for a labor organization 'to interfere with' as well as 'to restrain or coerce * * * employees in the exercise of the rights guaranteed in section 7 * * *.' The words 'interfere with' were dropped during the debate, but except for this change, the amendment became § 8(b)(1)(A).
13
The report of supplemental views which announced the five Senators' intention to propose the amendment identifies the abuses which the section was designed to reach. That report states: 'The committee heard many instances of union coercion of employees such as that brought about by threats of reprisal against employees and their families in the course of organizing campaigns; also direct interference by mass picketing and other violence. Some of these acts are illegal under State law, but we see no reason why they should not also constitute unfair labor practices to be investigated by the National Labor Relations Board, and at least deprive the violators of any protection furnished by the Wagner Act.' S.Rep. No. 105, 80th Cong., 1st Sess. 50. Similar expressions pervaded the Senate debates on the amendment. The note repeatedly sounded is as to the necessity for protecting individual workers from union organizational tactics tinged with violence, duress or reprisal. Senator Ball cited numerous examples of organizing drives characterized by threats against unorganized workers of violence, job reprisals and such repressive assertions as that double initiation fees would be charged those who delayed joining the union. 93 Cong.Rec. 4016—4017. When Senator Ives objected to the words 'interfere with' as too broad, Senator Taft insisted that even those words would have a limited application and would reach 'reprehensible' practices but not methods of peaceful persuasion. He continued:
14
'Why should a union be able to go to an employee and threaten violence if he does not join the union? Why should a union be able to say to an employee, 'If you do not join this union we will see that you cannot work in the plant'? * * * We know that such things have actually occurred. We know that men have been threatened. There have been many cases in which unions have threatened men or their wives. They have called on them on the telephone and insisted that they sign bargaining cards. They have said to them, 'Sooner or later we are going to organize this plant with a closed shop, and you will be out.' * * *.' 93 Cong.Rec. 4021.
15
It is true that here and there in the record of the debates there are isolated references to instances of conduct which might suggest a broader reach of the amendment. See for example 93 Cong.Rec. 4023—4024.12 But they appear more as asides in a debate, the central theme of which was not the curtailment of the right peacefully to strike, except as provided in § 8(b)(4), but the elimination of the use of repressive tactics bordering on violence or involving particularized threats of economic reprisal. The plainest indication negating an intention to restrict the use by unions of methods of peaceful persuasion, including peaceful picketing, is seen in the comments of Senator Taft near the close of the debate. He said:
16
'It seems to me very clear that so long as a union-organizing drive is conducted by persuasion, by propaganda, so long as it has every legitimate purpose, the Board cannot in any way interfere with it. * * *' 93 Cong.Rec. 4434.
17
'The effect of the pending amendment is that the Board may call the union before them, exactly as it has called the employer, and say, 'Here are the rules of the game. You must cease and desist from coercing and restraining the employees who want to work from going to work and earning the money which they are entitled to earn.' The Board may say. 'You can persuade them; you can put up signs; you can conduct any form of propaganda you want to in order to persuade them, but you cannot, by threat of force or threat of economic reprisal, prevent them from exercising their right to work.' As I see it, that is the effect of the amendment.' 93 Cong.Rec. 4436.
18
'The Senator says it will slow up organizational drives. It will slow up organizational drives only if they are accompanied by threats and coercion. The cease-and-desist order will be directed against the use of threats and coercion. It will not be directed against the use of propaganda or the use of persuasion, or against the use of any of the other peaceful methods of organizing employees.
19
'Mr. President, I can see nothing in the pending measure which, as suggested by the Senator from Oregon, would in some way outlaw strikes. It would outlaw threats against employees. It would not outlaw anybody striking who wanted to strike. It would not prevent anyone using the strike in a legitimate way, conducting peaceful picketing, or employing persuasion. All it would do would be to outlaw such restraint and coercion as would prevent people from going to work if they wished to go to work.' Ibid.
20
This approach in the Senate is in sharp contrast to the House view, which was that picketing should be strictly circumscribed. The House passed a bill imposing drastic limitations upon the right to picket. Section 12(a)(1) of that bill dealt specifically with the use of force and threats of force, but especially pertinent here are §§ 12(a)(2) and 12(a)(3)(C) which went far beyond this. The former would have outlawed all picketing of 'an employer's premises for the purpose of leading persons to believe that there exists a labor dispute involving such employer, in any case in which the employees are not involved in a labor dispute with their employer.' And the latter would have banned picketing 'an object of which (was) (i) to compel an employer to recognize for collective bargaining a representative not certified under section 9 * * * or (iii) to compel an employer to violate any law * * *.' H.R. 3020, 80th Cong., 1st Sess. 47—49. Plainly the Local' conduct in the instant case would have been prohibited if the House bill had become law.
21
But the House conferees abandoned the House bill in conference and accepted the Senate proposal. H.R.Conf.Rep. No. 510 on H.R. 3020, 80th Cong., 1st Sess. 42.13 They joined in a Conference Report which stated that 'the primary strike for recognition (without a Board certification) was not prohibited.' Id., at 43.
22
This history makes pertinent what the Court said in Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board, 357 U.S. 93, 99—100, 78 S.Ct. 1011, 1016, 2 L.Ed.2d 1186: 'It is relevant to recall that the Taft-Hartley Act was, to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor in the free economic life of the National and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests. This is relevant in that it counsels wariness in finding by construction a broad policy * * * as such when, from the words of the statute itself, it is clear that those interested in just such a condemnation were unable to secure its embodiment in enacted law.' Certainly due regard for this admonition quite apart from the caveat in § 13 requires caution against finding in the nonspecific, indeed vague, words, 'restrain or coerce' that Congress intended the broad sweep for which the Board contends.
23
We conclude that the Board's interpretation of § 8(b)(1)(A) finds support neither in the way Congress structured § 8(b) nor in the legislative history of § 8(b)(1)(A). Rather it seems clear, and we hold, that Congress in the Taft-Hartley Act authorized the Board to regulate peaceful 'recognitional' picketing only when it is employed to accomplish objectives specified in § 8(b) (4); and that § 8(b)(1)(A) is a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof—conduct involving more than the general pressures upon persons employed by the affected employers implicit in economic strikes.
24
The Board's own interpretation for nearly a decade after the passage of the Taft-Hartley Act gave § 8(b)(1)(A) this limited application. See, e.g., National Maritime Union, 78 N.L.R.B. 971, enforcement granted 2 Cir., 175 F.2d 686; Local 74, United Brotherhood of Carpenters (Watson's Specialty Store), 80 N.L.R.B. 533, enforcement granted 6 Cir., 181 F.2d 126, affirmed 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309; Perry Norvell Co., 80 N.L.R.B. 225; Miami Copper Co., 92 N.L.R.B. 322; Medford Building & Construction Trades Council (Kogap Lumber Industries), 96 N.L.R.B. 165; District 50, United Mine Workers (Tungsten Mining Corp.), 106 N.L.R.B. 903. In Perry Norvell, supra, at 239, the Board declared:
25
'By Section 8(b)(1)(A), Congress sought to fix the rules of game, to insure that strikes and other organizational activities of the employees were conducted peaceably by persuasion and propaganda and not by physical force, or threats of force, or of economic reprisal. In that Section, Congress was aiming at means, not at ends.'
26
The Board dismisses these cases as 'dubious precedent.' 119 N.L.R.B., at 246. We think they gave a sounder construction to § 8(b)(1)(A) than the Board's construction in the present case.
27
We are confirmed in our view by the action of Congress in passing the Labor-Management Reporting and Disclosure Act of 1959. That Act goes beyond the Taft-Hartley Act to legislate a comprehensive code governing organizational strikes and picketing and draws no distinction between 'organizational' and 'recognitional' picketing. While proscribing peaceful organizational strikes in many situations, it also establishes safeguards against the Board's interference with legitimate picketing activity. See § 8(b)(7)(C).14 Were § 8(b)(1)(A) to have the sweep contended for by the Board, the Board might proceed against peaceful picketing in disregard of these safeguards. To be sure, what Congress did in 1959 does not establish what it meant in 1947. However, as another major step in an evolving pattern of regulation of union conduct, the 1959 Act is a relevant consideration. Courts may properly take into account the later Act when asked to extend the reach of the earlier Act's vague language to the limits which, read literally, the words might permit. We avoid the incongruous result implicit in the Board's construction by reading § 8(b)(1)(A), which is only one of many interwoven sections in complex Act, mindful of the manifest purpose of the Congress to fashion a coherent national labor policy.
28
Affirmed.
29
Memorandum of Mr. Justice STEWART, with whom Mr. Justice FRANKRURTER and Mr. Justice WHITTAKER join.
30
At the time the writ of certiorari was granted in this case it clearly appeared that there was involved an 'important question of federal law which has not been, but should be, settled by this court.' See Rule 19, of the Revised Rules of the Supreme Court of the United States, 28 U.S.C.A. Subsequently, however, Congress enacted the Labor-Management Reporting and Disclosure Act of 1959. Section 704(c) of that statute added to the National Labor Relations Act a new provision, § 8(b)(7), which bans picketing for recognition or organizational purposes where: (A) the employer is lawfully recognizing another labor organization and a question concerning representation may not appropriately be raised under § 9; (B) within the preceding 12 months a valid election has been conducted; or (C) the picketing has been going on for an unreasonable period of time without a representation petition having been filed. See, 362 U.S. 277, 80 S.Ct. 708, note 5.
31
This new statutory provision seems squarely to cover the type of conduct involved here, and I would remand this case to the Board for reconsideration in the light of the 1959 legislation, as suggested by the Solicitor General.1
1
Section 7, as amended by the Taft-Hartley Act, provides:
'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).' 49 Stat. 452, as amended, 61 Stat. 140, 29 U.S.C. § 157, 29 U.S.C.A. § 157.
2
Section 8(b)(1)(A) provides in pertinent part:
'It shall be an unfair labor practice for a labor organization or its agents—
'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 * * *.' 61 Stat. 141, 29 U.S.C. § 158(b)(1)(A), 29 U.S.C.A. § 158(b)(1)(A).
3
The nine strikers who had been replaced were not permitted to vote in the election. Cf. § 9(c)(3), as amended by § 702 of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542, 29 U.S.C.A. § 159(c)(3), which permits striking employees who have been replaced to vote under certain circumstances.
4
Accord: National Labor Relations Board v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 182, 2 Cir., 272 F.2d 85. Contra: National Labor Relations Board v. United Rubber, Cork, Linoleum and Plastic Workers, 4 Cir., 269 F.2d 694, cert. granted and judgment reversed, 362 U.S. 329, 80 S.Ct. 759.
5
New § 8(b)(7) provides:
'It shall be an unfair labor practice for a labor organization or its agents—
'(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:
'(A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act,
'(B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted, or
'(C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9(c)(1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.
'Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this section 8(b).' 73 Stat. 544.
6
The Solicitor General stated in a memorandum filed in this Court on October 21, 1959, in another case—Rubber Workers v. Labor Board, 362 U.S. 329, 80 S.Ct. 759—with reference to the several cases raising the 'so-called Curtis issue,' that the passage of the 1959 Act injected 'additional considerations (which) may, in the Court's view, warrant remand * * * to the Board for further examination in the light of' the 1959 Act. However, remand of this case would serve no purpose. After the Solicitor General made the suggestion the Board, on November 17, 1959, considered a case which arose prior to the 1959 Act. The Board, with four of its five members sitting, examined its position as to the scope of § 8(b)(1)(A) in the light of the 1959 Act and by a vote of three to one decided that the doctrine announced in this, the Curtis Bros., case was in no way affected by the 1959 Act, stating that '(C)ontrary to our dissenting colleague, we believe that the new provisions concerning recognition and/or organizational picketing merely amplify the * * * Section 8(b) proscriptions. * * *' Local 208, International Brotherhood of Teamsters (Sierra Furniture Co.), 125 N.L.R.B. 159, 162, n. 6.
7
The Board does not rely, as support for its order here under § 8(b)(1)(A), upon the fact that the Local picketed after the election. In Local 208, International Brotherhood of Teamsters (Sierra Furniture Co.), 125 N.L.R.B. 159, a like order was issued against peaceful 'recognitional' picketing although no election had been held. We agree with the Board that if § 8(b)(1) (A) confers power on the Board to proceed against such picketing, Congress did not limit its application to picketing following the conduct of an election at which the employees reject the union as their representative.
8
The Board does not say, however, that a union which does not represent a majority of the employees will always violate § 8(b)(1)(A) if it peacefully pickets an employer to organize his employees, even, as here, if the picketing is carried on after the union has been rejected by the employees in a Board-conducted election. The Board says in its brief that the picketing is 'organizational' and not 'recognitional' if its purpose is 'merely to organize the employees, with a view to demanding recognition in the future should majority support be acquired.' The Board's view is that, if the picketing is 'organizational,' a different question may be presented under § 8(b)(1)(A)—that in such case its function to balance the competing rights of the union and the employees under § 7 may be invoked, and the picketing found to be privileged because the balance may be struck in favor of 'a competing interest which the Act (§ 7) recognizes,' namely, the right to form, join or assist labor organizations.
'If § 8(b)(1)(A) empowers the Board to proceed against peaceful picketing in any circumstances, the validity of a distinction in coverage between peaceful 'organizational' and 'recognitional' picketing has been challenged. See Cox, Some Current Problems in Labor Law: An Appraisal, 35 L.R.R.M. 48, 53 57; Bornstein, Organizational Picketing in American Law, 46 Ky.L.J. 25; Isaacson, Organizational Picketing: What is the Law? Ought the Law to be Changed? 8 Buffalo L.R. 345. New § 8(b)(7) does not make the distinction.
9
Section 13 provides:
'Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.' 61 Stat. 151, 29 U.S.C. § 163, 29 U.S.C.A. § 163.
Picketing has been equated with striking for the purposes of § 13. See, e.g., National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1277. Cf. International Brotherhood of Teamsters, Local No. 807 (Schultz Refrigerated Service, Inc.), 87 N.L.R.B. 502.
10
Section 8(b)(4) provides:
'It shall be an unfair labor practice for a labor organization or its agents—
'(4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; (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 under the provisions of section 9; (C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 9; (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work: Provided, That nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this Act.'
11
If peaceful 'recognitional' picketing by a minority union may be prohibited under § 8(b)(1)(A) whenever it occurs, the only independent coverage of § 8(b)(4)(C) would be when a majority union pickets for recognition in the face of another union's being certified. Although § 8(b)(4)(C) may cover such a situation, a question which we do not have to decide, any suggestion that it was placed in the statute primarily because of a solicitude for a minority union whose certification is formally unrevoked is without any support in the legislative history. See S.Rep. No. 105, 80th Cong., 1st Sess. 22; H.R.Conf.Rep. No. 510 on H.R. 3020, 80th Cong., 1st Sess. 44, U.S.Code Cong.Service 1947, p. 1135, 93 Cong.Rec. 3838.
12
It is not at all clear that these references support the suggested inference. The context in which they appear is that early in the debate Senator Pepper had urged that employees do not need protection from union leaders because these leaders can be controlled through union elections. Senator Taft denied this, and gave one example in which a union which represented some employees in the plant seeking to organize other unwilling employees, 'coerced them' by threats to 'close down' the plant in which they worked thereby depriving them of their jobs.
'The dockmen in that case were not striking for any particular benefit for themselves, but they were striking to coerce the other employees to leave the union of which they were members, and to join the other union—clearly an improper course of action, and clearly a matter which should be restrained by the National Labor Relations Board.' 93 Cong.Rec. 4023.
Again, replying to Senator Pepper, Senator Taft cited an instance in which picketing closed a plant for several months. Senator Taft observed, '(C) oercion is not merely against union members; it may be against all employees.' 93 Cong.Rec. 4024.
13
The Conference Report states that § 8(b)(1)(A) of the Senate version covers 'all of the activities which were proscribed in section 12(a)(1) of the House bill as unlawful concerted activities and some of the activities which were proscribed in the other paragraphs of section 12(a).'
14
See note 5, supra.
1
The single sentence in a footnote to an opinion joined by but three members of the Board, referred to in note 6 of the Court's opinion, 362 U.S. 279, 80 S.Ct. 709, hardly reflects the kind of reconsideration which I have in mind, and certainly does not stand in the way of a more thorough reexamination by the Board.CS SUP CT 80-57
| 67
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362 U.S. 217
80 S.Ct. 683
4 L.Ed.2d 668
Rudolf Ivanovich ABEL, also known as 'Mark' and also known as Martin Collins and Emil R. Goldfus, Petitioner,v.UNITED STATES of America.
No. 2.
Argued Nov. 9, 1959.
Decided March 28, 1960.
Mr. James B. Donovan, New York City, for petitioner.
Mr. J. Lee Rankin, Sol. Gen., Washington, D.C., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
The question in this case is whether seven items were properly admitted into evidence at the petitioner's trial for conspiracy to commit espionage. All seven items were seized by officers of the Government without a search warrant. The seizures did not occur in connection with the exertion of the criminal process against petitioner. They arose out of his administrative arrest by the United States Immigration and Naturalization Service as a preliminary to his deportation. A motion to suppress these items as evidence, duly made in the District Court, was denied after a full hearing. 155 F.Supp. 8. Petitioner was tried, convicted and sentenced to thirty years' imprisonment and to the payment of a fine of $3,000. The Court of Appeals affirmed, 2 Cir., 258 F.2d 485. We granted certiorari, 358 U.S. 813, 79 S.Ct. 59, 3 L.Ed.2d 56, limiting the grant to the following two questions:
2
'1. Whether the Fourth and Fifth Amendments to the Constitution of the United States are violated by a search and the seizure of evidence without a search warrant, after an alien suspected and officially accused of espionage has been taken into custody for deportation, pursuant to an administrative Immigration Service warrant, but has not been arrested for the commission of a crime?
3
'2. Whether the Fourth and Fifth Amendments to the Constitution of the United States are violated when articles so seized are unrelated to the Immigration Service warrant and, together with other articles obtained from such leads, are introduced as evidence in a prosecution for espionage?'
4
Argument was first heard at October Term, 1958. The case having been set down for reargument at this Term, 359 U.S. 940, 79 S.Ct. 720, 3 L.Ed.2d 674, counsel were asked to discuss a series of additional questions, set out in the margin.*
5
We have considered the case on the assumption that the conviction must be reversed should we find challenged items of evidence to have been seized in violation of the Constitution and therefore improperly admitted into evidence. We find, however, that the admission of these items was free from any infirmity and we affirm the judgment. (Of course the nature of the case, the fact that it was a prosecution for espionage, has no bearing whatever upon the legal considerations relevant to the admissibility of evidence.)
6
The seven items, all in petitioner's possession at the time of his administrative arrest, the admissibility of which is in question were the following:
7
(1) a piece of graph paper, carrying groups of numbers arranged in rows, allegedly a coded message;
8
(2) a forged birth certificate, certifying the birth of 'Martin Collins' In New York County in 1897;
9
(3) a birth certificate, certifying the birth of 'Emil Goldfus' in New York in 1902 (Emil Goldfus died in 1903);
10
(4) an international certificate of vaccination, issued in New York to 'Martin Collins' in 1957;
11
(5) a bank book of the East River Savings Bank containing the account of 'Emil Goldfus';
12
(6) a hollowed-out pencil containing 18 microfilms; and
13
(7) a block of wood, wrapped in sandpaper, and containing within it a small booklet with a series of numbers on each page, a so-called 'cipher pad.'
14
Items (2), (3), (4) and (5) were relevant to the issues of the indictment for which petitioner was on trial in that they corroborated petitioner's use of false identities. Items (1), (6) and (7) were incriminatory as useful means for one engaged in espionage.
15
The main claims which petitioner pressed upon the Court may be thus summarized: (1) the administrative arrest was used by the Government in bad faith; (2) administrative arrests as preliminaries to deportation are unconstitutional; and (3) regardless of the validity of the administrative arrest here, the searches and seizures through which the challenged items came into the Government's possession were not lawful ancillaries to such an arrest. These claims cannot be judged apart from the circumstances leading up to the arrest and the nature of the searches and seizures. It becomes necessary to relate these matters in considerable detail.
16
Petitioner was arrested by officers of the Immigration and Naturalization Service (hereafter abbreviated as I.N.S.) on June 21, 1957, in a single room in the Hotel Latham in New York City, his then abode. The attention of the I.N.S. had first been drawn to petitioner several days earlier when Noto, a Deputy Assistant Commissioner of the I.N.S., was told by a liaison officer of the Federal Bureau of Investigation (hereafter abbreviated as F.B.I.) that petitioner was believed by the F.B.I. to be an alien residing illegally in the United States. Noto was told of the F.B.I.'s interest in petitioner in connection with espionage.
17
An uncontested affidavit before the District Court asserted the following with regard to the events leading up to the F.B.I.'s communication with Noto about petitioner. About one month before the F.B.I. communicated with Noto, petitioner had been mentioned by Hayhanen, a recently defected Russian spy, as one with whom Hayhanen had for several years cooperated in attempting to commit espionage. The F.B.I. had thereupon placed petitioner under investigation. At the time the F.B.I. communicated with the I.N.S. regarding petitioner, the case against him rested chiefly upon Hayhanen's story, and Hayhanen, although he was later to be the Government's principal witness at the trial, at that time insisted that he would refuse to testify should petitioner be brought to trial, although he would fully cooperate with the Government in secret. The Department of Justice concluded that without Hayhanen's testimony the evidence was insufficient to justify petitioner's arrest and indictment on espionage charges. The decision was thereupon made to bring petitioner to the attention of the I.N.S., with a view to commencing deportation proceedings against him.
18
Upon being notified of the F.B.I.'s belief that petitioner was residing illegally in this country, Noto asked the F.B.I. to supply the I.N.S. with further information regarding petitioner's status as an alien. The F.B.I. did this within a week. The I.N.S. concluded that if petitioner were, as suspected, an alien, he would be subject to deportation in that he had failed to comply with the legal duty of aliens to notify the Attorney General every January of their address in the United States. 8 U.S.C. § 1305, 8 U.S.C.A. § 1305. Noto then determined on petitioner's administrative arrest as a preliminary to his deportation. The F.B.I. was so informed. On June 20, two I.N.S. officers, Schoenenberger and Kanzler, were dispatched by Noto to New York to supervise the arrest. These officers carried with them a warrant for petitioner's arrest and an order addressed to petitioner directing him to show cause why he should not be deported. They met in New York with the District Director of the I.N.S. who, after the information in the possession of the I.N.S. regarding petitioner was put before him, signed the warrant and the order. Following this, Schoenenberger and Kanzler went to F.B.I. headquarters in New York where, by prearrangement with the F.B.I. in Washington, they were met by several F.B.I. officers. These agreed to conduct agents of the I.N.S. to petitioner's hotel so that the I.N.S. might accomplish his arrest. The F.B.I. officer in charge asked whether, before the petitioner was arrested, the F.B.I. might 'interview' him in an attempt to persuade him to 'cooperate' with regard to his espionage. To this Schoenenberger agreed.
19
At 7 o'clock the next morning, June 21, two officers of the I.N.S. and several F.B.I. men gathered in the corridor outside petitioner's room at the Hotel Latham. All but two F.B.I. agents, Gamber and Blasco, went into the room next to petitioner's, which the F.B.I. had occupied in the course of its investigation of petitioner. Gamber and Blasco were charged with confronting petitioner and soliciting his cooperation with the F.B.I. They had no warrant either to arrest or to search. If petitioner proved cooperative their instructions were to telephone to their superior for further instructions. If petitioner failed to cooperate they were to summon the waiting I.N.S. agents to execute their warrant for his arrest.
20
Gamber rapped on petitioner's door. When petitioner released the catch, Gamber pushed open the door and walked into the room, followed by Blasco. The door was left ajar and a third F.B.I. agent came into the room a few minutes later. Petitioner, who was nude, was told to put on a pair of undershorts and to sit on the bed, which he did. The F.B.I. agents remained in the room questioning petitioner for about twenty minutes. Although petitioner answered some of their questions, he did not 'cooperate' regarding his alleged espionage. A signal was thereupon given to the two agents of the I.N.S. waiting in the next room. These came into petitioner's room and served petitioner with the warrant for his arrest and with the order to show cause. Shortly thereafter Schoenenberger and Kanzler, who had been waiting outside the hotel, also entered petitioner's room. These four agents of the I.N.S. remained with petitioner in his room for about an hour. For part of this time an F.B.I. agent was also in the room and during all of it another F.B.I. agent stood outside the open door of the room, where he could observe the interior.
21
After placing petitioner under arrest, the four I.N.S. agents undertook a search of his person and of all of his belongings in the room, and the adjoining bathroom, which lasted for from fifteen to twenty minutes. Petitioner did not give consent to this search; his consent was not sought. The F.B.I. agents observed this search but took no part in it. It was Schoenenberger's testimony to the District Court that the purpose of this search was to discover weapons and documentary evidence of petitioner's 'alienage'—that is, documents to substantiate the information regarding petitioner's status as an alien which the I.N.S. had received from the F.B.I. During this search one of the challenged items of evidence, the one we have designated (2), a birth certificate for 'Martin Collins,' was seized. Weapons were not found, nor was any other evidence regarding petitioner's 'alienage.'
22
When the search was completed, petitioner was told to dress himself, to assemble his things and to choose what he wished to take with him. With the help of the I.N.S. agents almost everything in the room was packed into petitioner's baggage. A few things petitioner deliberately left on a window sill, indicating that he did not want to take them, and several other things which he chose not to pack up into his luggage he put into the room's wastepaper basket. When everything had been assembled, petitioner asked and received permission to repack one of his suitcases. While petitioner was doing so, Schoenenberger noticed him slipping some papers into the sleeve of his coat. Schoenenberger seized these. One of them was the challenged item of evidence which we have designated (1), a piece of graph paper containing a coded message.
23
When petitioner's belongings had been completely packed, petitioner agreed to check out of the hotel. One of the F.B.I. agents obtained his bill from the hotel and petitioner paid it. Petitioner was then handcuffed and taken, along with his baggage, to a waiting automobile and thence to the headquarters of the I.N.S. in New York. At I.N.S. headquarters, the property petitioner had taken with him was searched more thoroughly than it had been in his hotel room, and three more of the challenged items were discovered and seized. These were the ones we have designated (3), (4) and (5), the 'Emil Goldfus' birth certificate, the international vaccination certificate, and the bank book.
24
As soon as petitioner had been taken from the hotel an F.B.I. agent, Kehoe, who had been in the room adjoining petitioner's during the arrest and search and who, like the I.N.S. agents, had no search warrant, received permission from the hotel management to search the room just vacated by petitioner. Although the bill which petitioner had paid entitled him to occupy the room until 3 p.m. of that day, the hotel's practice was to consider a room vacated whenever a guest removed his baggage and turned in his key. Kehoe conducted a search of petitioner's room which lasted for about three hours. Among other things, he seized the contents of the wastepaper basket into which petitioner had put some things while packing his belongings. Two of the items thus seized were the challenged items of evidence we have designated (6) and (7): a hollow pencil containing microfilm and a block of wood containing a 'cipher pad.'
25
Later in the day of his arrest, petitioner was taken by airplane to a detention center for aliens in Texas. He remained there for several weeks until arrested upon the charge of conspiracy to commit espionage for which he was brought to trial and convicted in the Eastern District of New York.
I.
26
The underlying basis of petitioner's attack upon the admissibility of the challenged items of evidence concerns the motive of the Government in its use of the administrative arrest. We are asked to find that the Government resorted to a subterfuge, that the Immigration and Naturalization Service warrant here was a pretense and sham, was not what it purported to be. According to petitioner, it was not the Government's true purpose in arresting him under this warrant to take him into custody pending a determination of his deportability. The Government's real aims, the argument runs, were (1) to place petitioner in custody so that pressure might be brought to bear upon him to confess his espionage and cooperate with the F.B.I., and (2) to permit the Government to search through his belongings for evidence of his espionage to be used in a designed criminal prosecution against him. The claim is, in short, that the Government used this administrative warrant for entirely illegitimate purposes and that articles seized as a consequence of its use ought to have been suppressed.
27
Were this claim justified by the record, it would indeed reveal a serious misconduct by law-enforcing officers. The deliberate use by the Government of an administrative warrant for the purpose of gathering evidence in a criminal case must meet stern resistance by the courts. The preliminary stages of a criminal prosecution must be pursued in strict obedience to the safeguards and restrictions of the Constitution and laws of the United States. A finding of bad faith is, however, not open to us on this record. What the motive was of the I.N.S. officials who determined to arrest petitioner, and whether the I.N.S. in doing so was not exercising its powers in the lawful discharge of its own responsibilities but was serving as a tool for the F.B.I. in building a criminal prosecution against petitioner, were issues fully canvassed in both courts below. The crucial facts were found against the petitioner.
28
On this phase of the case the district judge, having permitted full scope to the elucidation of petitioner's claim, having seen and heard witnesses, in addition to testimony by way of affidavits, and after extensive argument, made these findings:
29
'(T)he evidence is persuasive that the action taken by the officials of the Immigration and Naturalization Service is found to have been in entire good faith.
30
The testimony of Schoenenberger and Noto leaves no doubt that while the first information that came to them concerning the (petitioner) * * * was furnished by the F.B.I.—which cannot be an unusual happening—the proceedings taken by the Department differed in no respect from what would have been done in the case of an individual concerning whom no such information was known to exist.
31
'The defendant argues that the testimony establishes that the arrest was made under the direction and supervision of the F.B.I., but the evidence is to the contrary, and it is so found.
32
'No good reason has been suggested why these two branches of the Department of Justice should not cooperate, and that is the extent of the showing made on the part of the defendant.' D.C., 155 F.Supp. 8, 11.
33
The opinion of the Court of Appeals, after careful consideration of the matter, held that the answer 'must clearly be in the affirmative' to the question 'whether the evidence in the record supports the finding of good faith made by the court below.' 2 Cir., 258 F.2d 485, 494.
34
Among the statements in evidence relied upon by the lower courts in making these findings was testimony by Noto that the interest of the I.N.S. in petitioner was confined to petitioner's illegal status in the United States; that in informing the I.N.S. about petitioner's presence in the United States the F.B.I. did not indicate what action it wanted the I.N.S. to take; that Noto himself made the decision to arrest petitioner and to commence deportation proceedings against him; that the F.B.I. made no request of him to search for evidence of espionage at the time of the arrest; and that it was 'usual and mandatory' for the F.B.I. and I.N.S. to work together in the manner they did. There was also the testimony of Schoenenberger, regarding the purpose of the search he made of petitioner's belongings, that the motive was to look for weapons and documentary evidence of alienage. To be sure, the record is not barren of evidence supporting an inference opposed to the conclusion to which the two lower courts were led by the record as a whole: for example, the facts that the I.N.S. held off its arrest of petitioner while the F.B.I. solicited his cooperation, and that the F.B.I. held itself ready to search petitioner's room as soon as it was vacated. These elements, however, did not, and were not required to, persuade the two courts below in the face of ample evidence of good faith to the contrary, especially the human evidence of those involved in the episode. We are not free to overturn the conclusion of the courts below when justified by such solid proof.
35
Petitioner's basic contention comes down to this: even without a showing of bad faith, the F.B.I. and I.N.S. must be held to have cooperated to an impermissible extent in this case, the case being one where the alien arrested by the I.N.S. for deportation was also suspected by the F.B.I. of crime. At the worst, it may be said that the circumstances of this case reveal an opportunity for abuse of the administrative arrest. But to hold illegitimate, in the absence of bad faith, the cooperation between I.N.S. and F.B.I. would be to ignore the scope of rightful cooperation between two branches of a single Department of Justice concerned with enforcement of different arges of law under the common authority of the Attorney General.
36
The facts are that the F.B.I. suspected petitioner both of espionage and illegal residence in the United States as an alien. That agency surely acted not only with propriety but in discharge of its duty in bringing petitioner's illegal status to the attention of the I.N.S., particularly after it found itself unable to proceed with petitioner's prosecution for espionage. Only the I.N.S. is authorized to initiate deportation proceedings, and certainly the F.B.I. is not to be required to remain mute regarding one they have reason to believe to be a deportable alien, merely because he is also suspected of one of the gravest of crimes and the F.B.I. entertains the hope that criminal proceedings may eventually be brought against him. The I.N.S., just as certainly, would not have performed its responsibilities had it been deterred from instituting deportation proceedings solely because it became aware of petitioner through the F.B.I., and had knowledge that the F.B.I. suspected petitioner of espionage. The Government has available two ways of dealing with a criminally suspect deportable alien. It would make no sense to say that branches of the Department of Justice may not cooperate in pursuing one course of action or the other, once it is honestly decided what course is to be preferred. For the same reasons this cooperation may properly extend to the extent and in the manner in which the F.B.I. and I.N.S. cooperated in effecting petitioner's administrative arrest. Nor does it taint the administrative arrest that the F.B.I. solicited petitioner's cooperation before it took place, stood by while it did, and searched the vacated room after the arrest. The F.B.I. was not barred from continuing its investigation in the hope that it might result in a prosecution for espionage because the I.N.S., in the discharge of its duties, had embarked upon an independent decision to initiate proceedings for deportation.
37
The Constitution does not require that honest law enforcement should be put to such an irrevocable choice between two recourses of the Government. For a contrast to the proper cooperation between two branches of a single Department of Justice as revealed in this case, see the story told in Colyer v. Skeffington, D.C., 265 F. 17. That case sets forth in detail the improper use of immigration authorities by the Bureau of Investigation of the Department of Justice when the immigration service was a branch of the Department of Labor and was acting not within its lawful authority but as the cat's pay of another, unrelated branch of the Government.
38
We emphasize again that our view of the matter would be totally different had the evidence established, or were the courts below not justified in not finding, that the administrative warrant was here employed as an instrument of criminal law enforcement to circumvent the latter's legal restrictions, rather than as a bona fide preliminary step in a deportation proceeding. The test is whether the decision to proceed administratively toward deportation was influenced by, and was carried out for, a purpose of amassing evidence in the prosecution for crime. The record precludes such a finding by this Court.
II.
39
The claim that the administrative warrant by which petitioner was arrested was invalid, because it did not satisfy the requirements for 'warrants' under the Fourth Amendment, is not entitled to our consideration in the circumstances before us. It was not made below; indeed, it was expressly disavowed. Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time. It would emphasize the disregard for the presumptive respect the Court owes to the validity of Acts of Congress, especially when confirmed by uncontested historical legitimacy, to bring into question for the first time such a long-sanctioned practice of government at the behest of a party who not only did not challenge the exercise of authority below, but expressly acknowledged its validity.
40
The grounds relied on in the trial court and the Court of Appeals by petitioner were solely (in addition to the insufficiency of the evidence, a contention not here for review) (1) the bad faith of the Government's use of the administrative arrest warrant and (2) the lack of a power incidental to the execution of an administrative warrant to search and seize articles for use as evidence in a later criminal prosecution. At no time did petitioner question the legality of the administrative arrest procedure either as unauthorized or as unconstitutional. Such challenges were, to repeat, disclaimed. At the hearing on the motion to suppress, petitioner's counsel was questioned by the court regarding the theory of relief relied upon:
41
'The Court: They (the Government) were not at liberty to arrest him (petitioner)?
42
'Mr. Fraiman: No, your Honor.
43
'They were perfectly proper in arresting him.
44
'We don't contend that at all.
45
'As a matter of fact, we contend it was their duty to arrest this man as they did.
46
'I think it should show or rather, it showed admirable thinking on the part of the F.B.I. and the Immigration Service.
47
'We don't find any fault with that.
48
'Our contention is that although they were permitted to arrest this man, and in fact, had a duty to arrest this man in a manner in which they did, they did not have a right to search his premises for the material which related to espionage.
49
'* * * He was charged with no criminal offense in this warrant.
50
'The Court: He was suspected of being illegally in the country, wasn't he?
51
'Mr. Fraiman: Yes, your Honor.
52
'The Court: He was properly arrested.
53
'Mr. Fraiman: He was properly arrested, we concede that, your Honor.' Counsel further made it plain that the arrest warrant whose validity he was conceding was 'one of these Immigration warrants which is obtained without any background material at all.' Affirmative acceptance of what is now sought to be questioned could not be plainer.
54
The present form of the legislation giving authority to the Attorney General or his delegate to arrest aliens pending deportation proceedings under an administrative warrant, not a judicial warrant within the scope of the Fourth Amendment, is § 242(a) of the Immigration and Nationality Act of 1952. 8 U.S.C. § 1252(a), 8 U.S.C.A. § 1252(a). The regulations under this Act delegate the authority to issue these administrative warrants to the District Directors of the I.N.S. '(a)t the commencement of any proceeding (to deport) * * * or at any time thereafter * * * whenever, in (their) * * * discretion, it appears that the arrest of the respondent is necessary or desirable.' 8 CFR § 242.2(a). Also, according to these regulations, proceedings to deport are commenced by orders to show cause issued by the District Directors or others; and the 'Operating Instructions' of the I.N.S. direct that the application for an order to show cause should be based upon a showing of a prima facie case of deportability. The warrant of arrest for petitioner was issued by the New York District Director of the I.N.S. at the same time as he signed an order to show cause. Schoenenberger testified that, before the warrant and order were issued, he and Kanzler related to the District Director what they had learned from the F.B.I. regarding petitioner's status as an alien, and the order to show cause recited that petitioner had failed to register, as aliens must. Since petitioner was a suspected spy, who had never acknowledged his residence in the United States to the Government or openly admitted his presence here, there was ample reason to believe that his arrest pending deportation was 'necessary or desirable.' The arrest procedure followed in the present case fully complied with the statute and regulations.
55
Statutes providing for deportation have ordinarily authorized the arrest of deportable aliens by order of an executive official. The first of these was in 1798. Act of June 25, 1798, c. 58, § 2, 1 Stat. 571. And see, since that time, and before the present Act, Act of Oct. 19, 1888, c. 1210, 25 Stat. 566; Act of Mar. 3, 1903, c. 1012, § 21, 32 Stat. 1218; Act of Feb. 20, 1907, c. 1134, § 20, 34 Stat. 904; Act of Feb. 5, 1917, c. 29, § 19, 39 Stat. 889; Act of Oct. 16, 1918, c. 186, § 2, 40 Stat. 1012; Act of May 10, 1920, c. 174, 41 Stat. 593; Internal Security Act of 1950, c. 1024, Title I, § 22, 64 Stat. 1008, 8 U.S.C.A. § 1182(a)(28). To be sure, some of these statutes, namely the Acts of 1888, 1903 and 1907, dealt only with aliens who had landed illegally in the United States, and not with aliens sought to be deported by reason of some act or failure to act since entering. Even apart from these, there remains overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens such as petitioner.
56
The constitutional validity of this long-standing administrative arrest procedure in deportation cases has never been directly challenged in reported litigation. Two lower court cases involved oblique challenges, which were summarily rejected. Podolski v. Baird, D.C., 94 F.Supp. 294; Ex parte Avakian, D.C., 188 F. 688, 692. See also the discussion in Colyer v. Skeffington, D.C., 265 F. 17, reversed on other grounds sub nom. Skeffington v. Katzeff, 1 Cir., 277 F. 129, where the District Court made an exhaustive examination of the fairness of a group of deportation proceedings initiated by administrative arrests, but nowhere brought into question the validity of the administrative arrest procedure as such. This Court seems never expressly to have directed its attention to the particular question of the constitutional validity of administrative deportation warrants. It has frequently, however, upheld administrative deportation proceedings shown by the Court's opinion to have been begun by arrests pursuant to such warrants. See Kaoru Yamataya v. Fisher, The Japanese Immigrant Case, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; Zakonaite v. Wolf, 226 U.S. 272, 33 S.Ct. 31, 57 L.Ed. 218; United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221; Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547. In Carlson v. Landon, the validity of the arrest was necessarily implicated, for the Court there sustained discretion in the Attorney General to deny bail to alien Communists held pending deportation on administrative arrest warrants. In the presence of this impressive historical evidence of acceptance of the validity of statutes providing for administrative deportation arrest from almost the beginning of the Nation, petitioner's disavowal of the issue below calls for no further consideration.
III.
57
Since petitioner's arrest was valid, we reach the question whether the seven challenged items, all seized during searches which were a direct consequence of that arrest, were properly admitted into evidence. This issue raises three questions: (1) Were the searches which produced these items proper searches for the Government to have made? If they were not, then whatever the nature of the seized articles, and however proper it would have been to seize them during a valid search, they should have been suppressed as the fruits of activity in violation of the Fourth Amendment. E.g., Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344, 58 L.Ed. 652. (2) Were the articles seized properly subject to seizure, even during a lawful search? We have held in this regard that not every item may be seized which is properly inspectible by the Government in the course of a legal search; for example, private papers desired by the Government merely for use as evidence may not be seized, no matter how lawful the search which discovers them, Gouled v. United States, 255 U.S. 298, 310, 41 S.Ct. 261, 265, 65 L.Ed. 647, nor may the Government seize, wholesale, the contents of a house it might have searched, Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876. (3) Was the Government free to use the articles, even if properly seized, as evidence in a criminal case, the seizures having been made in the course of a separate administrative proceeding?
58
The most fundamental of the issues involved and seizures made in petitioner's room and seizures made in petitioner's room in the Hotel Latham. The ground of objection is that a search may not be conducted as an incident to a lawful administrative arrest.
59
We take as a starting point the cases in this Court dealing with the extent of the search which may properly be made without a warrant following a lawful arrest for crime. The several cases on this subject in this Court cannot be satisfactorily reconciled. This problem has, as is well-known, provoked strong and fluctuating differences of view on the Court. This is not the occasion to attempt to reconcile all the decisions, or to re-examine them. Compare Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, with Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374, and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, compare Go-Bart, supra, and Lefkowitz, supra, with Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, and United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; compare also Harris, supra, with Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, and Trupiano with Rabinowitz, supra (overruling Trupiano). Of these cases, Harris and Rabinowitz set by far the most permissive limits upon searches incidental to lawful arrests. In view of their judicial context, the trial judge and the Government justifiably relied upon these cases for guidance at the trial; and the petitioner himself accepted the Harris case on the motion to suppress, nor does he ask this Court to reconsider Harris and Rabinowitz. It would, under these circumstances, be unjustifiable retrospective lawmaking for the Court in this case to reject the authority of these decisions.
60
Are there to be permitted incidental to valid administrative arrests, searches as broad in physical area as, and analogous in purpose to, those permitted by the applicable precedents as incidents to lawful arrests for crime? Specifically, were the officers of the I.N.S. acting lawfully in this case when, after his arrest, they searched through petitioner's belongings in his hotel room looking for weapons and documents to evidence his 'alienage'? There can be no doubt that a search for weapons has as much justification here as it has in the case of an arrest for crime, where it has been recognized as proper. E.g., Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145. It § no less important for government officers, acting under established procedure to effect a deportation arrest rather than one for crime, to protect themselves and to insure that their prisoner retains no means by which to accomplish an escape.
61
Nor is there any constitutional reason to limit the search for materials proving the deportability of an alien, when validly arrested, more severely than we limit the search for materials probative of crime when a valid criminal arrest is made. The need for the proof is as great in one case as in the other, for deportation can be accomplished only after a hearing at which deportability is established. Since a deportation arrest warrant is not a judicial warrant, a search incidental to a deportation arrest is without the authority of a judge or commissioner. But so is a search incidental to a criminal arrest made upon probable cause without a warrant, and under Rabinowitz, 339 U.S. at page 60, 70 S.Ct. at page 432, such a search does not require a judicial warrant for its validity. It is to be remembered that an I.N.S. officer may not arrest and search on his own. Application for a warrant must be made to an independent responsible officer, the District Director of the I.N.S., to whom a prima facie case of deportability must be shown. The differences between the procedural protections governing criminal and deportation arrests are not of a quality or magnitude to warrant the deduction of a constitutional difference regarding the right of incidental search. If anything, we ought to be more vigilant, not less, to protect individuals and their property from warrantless searches made for the purpose of turning up proof to convict than we are to protect them from searches for matter bearing on deportability. According to the uniform decisions of this Court deportation proceedings are not subject to the constitutional safeguards for criminal prosecutions. Searches for evidence of crime present situations demanding the greatest, not the least, restraint upon the Government's intrusion into privacy; although its protection is not limited to them, it was at these searches which the Fourth Amendment was primarily directed. We conclude, therefore, that government officers who effect a deportation arrest have a right of incidental search analogous to the search permitted criminal law-enforcement officers.
62
Judged by the prevailing doctrine, the search of petitioner's hotel room was justified. Its physical scope, being confined to the petitioner's room and the adjoining bathroom, was far less extensive than the search in Harris. The search here was less intensive than were the deliberately exhaustive quests in Harris and Rabinowitz, and its purpose not less justifiable. The only things sought here, in addition to weapons, were documents connected with petitioner's status as an alien. These may well be considered as instruments or means for accomplishing his illegal status, and thus proper objects of search under Harris, supra, 331 U.S. at page 154, 67 S.Ct. at page 1103.
63
Two of the challenged items were seized during this search of petitioner's property at his hotel room. The first was item (2), a forged New York birth certificate for 'Martin Collins,' one of the false identities which petitioner assumed in this country in order to keep his presence here undetected. This item was seizable when found during a proper search, not only as a forged official document by which petitioner sought to evade his obligation to register as an alien, but also as a document which petitioner was using as an aid in the commission of espionage for his undetected presence in this country was vital to his work as a spy. Documents used as a means to commit crime are the proper subjects of search warrants, Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, and are seizable when discovered in the course of a lawful search, Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231.
64
The other item seized in the course of the search of petitioner's hotel room was item (1), a piece of graph paper containing a coded message. This was seized by Schoenenberger as petitioner, while packing his suitcase, was seeking to hide it in his sleeve. An arresting officer is free to take hold of articles which he sees the accused deliberately trying to hide. This power derives from the dangers that a weapon will be concealed, or that relevant evidence will be destroyed. Once this piece of graph paper came into Schoenenberger's hands, it was not necessary for him to return it, as it was an instrumentality for the commission of espionage. This is so even though Schoenenberger was not only not looking for items connected with espionage but could not properly have been searching for the purpose of finding such items. When an article subject to lawful seizure properly comes into an officer's possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for. See Harris, supra, 331 U.S. at pages 154—155, 67 S.Ct. at page 1103.
65
Items (3), (4), and (5), a birth certificate for 'Emil Goldfus' who died in 1903, a certificate of vaccination for 'Martin Collins,' and a bank book for 'Emil Goldfus' were seized, not in petitioner's hotel room, but in a more careful search at I.N.S. headquarters of the belongings petitioner chose to take with him when arrested. This search was a proper one. The property taken by petitioner to I.N.S. headquarters was all property which, under Harris, was subject to search at the place of arrest. We do not think it significantly different, when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention has additional justifications, similar to those which justify a search of the person of one who is arrested. It is to be noted that this is not a case, like Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, where the entire contents of the place where the arrest was made were seized. Such a mass seizure is illegal. The Government here did not seize the contents of petitioner's hotel room. Petitioner took with him only what he wished. He chose to leave some things behind in his room, which he voluntarily relinquished. And items (3), (4), and (5) were articles subject to seizure when found during a lawful search. They were all capable of being used to establish and maintain a false identity for petitioner, just as the forged 'Martin Collins' birth certificate, and were seizable for the same reasons.
66
Items (1)—(5) having come into the Government's possession through lawful searches and seizures connected with an arrest pending deportation, was the Government free to use them as evidence in a criminal prosecution to which they related? We hold that it was. Good reason must be shown for prohibiting the Government from using relevant, otherwise admissible, evidence. There is excellent reason for disallowing its use in the case of evidence, though relevant, which is seized by the Government in violation of the Fourth Amendment to the Constitution. 'If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.' Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344, 58 L.Ed. 652.
67
These considerations are here absent, since items (1)—(5) were seized as a consequence of wholly lawful conduct. That being so, we can see no rational basis for excluding these relevant items from trial: no wrongdoing police officer would thereby be indirectly condemned, for there were no such wrongdoers; the Fourth Amendment would not thereby be enforced, for no illegal search or seizure was made; the Court would be lending its aid to no lawless government action, for none occurred. Of course cooperation between the branch of the Department of Justice dealing with criminal law enforcement and the branch dealing with the immigration laws would be less effective if evidence lawfully seized by the one could not be used by the other. Only to the extent that it would be to the public interest to deter and prevent such cooperation, would an exclusionary rule in a case like the present be desirable. Surely no consideration of civil liberties commends discouragement of such cooperation between these two branches when undertaken in good faith. When undertaken in bad faith to avoid constitutional restraints upon criminal law enforcement the evidence must be suppressed. That is not, as we have seen, this case. Individual cases of bad faith cooperation should be dealt with by findings to that effect in the cases as they arise, not by an exclusionary rule preventing effective cooperation when undertaken in entirely good faith.
68
We have left to the last the admissibility of items (6) and (7), the hollowed-out pencil and the block of wood containing a 'cipher pad,' because their admissibility is founded upon an entirely different set of considerations. These two items were found by an agent of the F.B.I. in the course of a search he undertook of petitioner's hotel room, immediately after petitioner had paid his bill and vacated the room. They were found in the room's wastepaper basket, where petitioner had put them while packing his belongings and preparing to leave. No pretense is made that this search by the F.B.I. was for any purpose other than to gather evidence of crime, that is, evidence of petitioner's espionage. As such, however, it was entirely lawful, although undertaken without a warrant. This is so for the reason that at the time of the search petitioner had vacated the room. The hotel then had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made. Nor was it unlawful to seize the entire contents of the wastepaper basket, even though some of its contents had no connection with crime. So far as the record shows, petitioner had abandoned these articles. He had thrown them away. So far as he was concerned, they were bona vacantia. There can be nothing unlawful in the Government's appropriation of such abandoned property. See Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 446, 68 L.Ed. 898. The two items which were eventually introduced in evidence were assertedly means for the commission of espionage and were themselves seizable as such. These two items having been lawfully seized by the Government in connection with an investigation of crime, we encounter no basis for discussing further their admissibility as evidence.
69
Affirmed.
70
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
71
Cases of notorious criminals—like cases of small, miserable ones—are apt to make bad law. When guilt permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by constitutional procedures. That practice, in certain periods of our history and in certain courts, has lowered our standards of law administration. The harm in the given case may seem excusable. But the practices generated by the precedent have far-reaching consequences that are harmful and injurious beyond measurement. The present decision is an excellent example.
72
The opening wedge that broadened the power of administrative officers—as distinguished from police—to enter and search peoples' homes was Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877. That case allowed a health inspector to enter a home without a warrant, even though he had ample time to get one. The officials of the Immigration and Naturalization Service (I.N.S.) are now added to the preferred list. They are preferred because their duties, being strictly administrative, put them in a separate category from those who enforce the criminal law. They need not go to magistrates, the Court says, for warrants of arrest. Their warrants are issued within the hierarchy of the agency itself.1 Yet, as I attempted to show in my dissent in the Frank case, the Fourth Amendment in origin had to do as much with ferreting out heretics and collecting taxes as with enforcement of the criminal laws. 359 U.S., at pages 376—379, 79 S.Ct., at pages 813—815.
73
Moreover, the administrative officer who invades the privacy of the home may be only a front for the police who are thus saved the nuisance of getting a warrant. We need not go far to find examples. In Maryland v. Pettiford, Sup. Bench Balt. City, The Daily Record, Dec. 16, 1959, the police used the mask of a health inspector to make the Frank case serve as an easy way to get a search without a warrant. Happily, they were rebuked.2 But that case shows the kind of problems the Frank doctrine generates. The present case is another example of the same kind, although here the police are not rebuked. The administrative official with an administrative warrant, over which no judicial official exercises any supervision and which by statute may be used only for deportation, performs a new role. The police wear his mask to do police work. That, in my view, may not be done, even though we assume that the administrative warrant issued by an administrative rather than a judicial officer is valid for an arrest for the purpose of deportation. We take liberties with an Act of Congress, as well as the Constitution, when we permit this to be done. The statute permits the arrest of an alien on an administrative warrant '(p)ending a determination of deportability.'3 The Court now reads the Act as if it read 'Pending an investigation of criminal conduct.' Such was the nature of the arrest.
74
With due deference to the two lower courts, I think the record plainly shows that F.B.I. agents were the moving force behind this arrest and search. For at least a month they investigated the espionage activities of petitioner. They were tipped off concerning this man and his role in May; the arrest and search were made on June 21. The F.B.I. had plenty of time to get a search warrant, as much if not more time than they had in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, and Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, where the Court held warrantless searches illegal. But the F.B.I. did not go to a magistrate for a search warrant. They went instead to the I.N.S. and briefed the officials of that agency on what they had discovered. On the basis of this data a report was made to John Murff, Acting District Director of the I.N.S., who issued the warrant of arrest.
75
No effort was made by the F.B.I. to obtain a search warrant from any judicial officer, though, as I said, there was plenty of time for such an application. The administrative warrant of arrest was chosen with care and calculation as the vehicle through which the arrest and search were to be made. The F.B.I. had an agreement with the officials of I.N.S. that this warrant of arrest would not be served at least until petitioner refused to 'cooperate.' The F.B.I. agents went with agents of the I.N.S. to apprehend petitioner in his hotel room. Again, it was the F.B.I. agents who were first. They were the ones who entered petitioner's room and who interrogated him to see if he would 'cooperate'; and when they were unable to get him to 'cooperate' by threatening him with arrest, they signaled agents of the I.N.S. who had waited outside to come in and make the arrest. The search was made both by the F.B.I. agents and by officers of the I.N.S. And when petitioner was flown 1,000 miles to a special detention camp and held for three weeks, the agents of the F.B.I. as well as I.N.S. interrogated him.4
76
Thus the F.B.I. used an administrative warrant to make an arrest for criminal investigation both in violation of § 242(a) of the Immigration and Nationality Act5 and in violation of the Bill of Rights.
77
The issue is not whether these F.B.I. agents acted in bad faith. Of course they did not. The question is how far zeal may be permitted to carry officials bent on law enforcement. As Mr. Justice Brandeis once said, 'Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent.' Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944 (dissenting opinion). The facts seem to me clearly to establish that the F.B.I. agents wore the mask of I.N.S. to do what otherwise they could not have done. They did what they could do only if they had gone to a judicial officer pursuant to the requirements of the Fourth Amendment, disclosed their evidence, and obtained the necessary warrant for the searches which they made.
78
If the F.B.I. agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to 'particularly' describe 'the place to be searched' and the 'things to be seized.' How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment! What a hindrance it is to work laboriously through constitutional procedures! How much easier to go to another official in the same department! The administrative officer can give a warrant good for unlimited search. No more showing of probable cause to a magistrate! No more limitations on what may be searched and when!
79
In Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 294, 100 L.Ed. 233, federal police officers, who obtained evidence in violation of federal law governing searches and seizures and so lost their case in the federal court, repaired to a state court and proposed to use it there in a state criminal prosecution. The Court held that the Federal District Court could properly enjoin the federal official from using the illegal search and seizure as basis for testifying in the state court. The federal rules governing searches and seizures, we held, are 'designed as standards for federal agents' no more to be defeated by devious than by direct methods. The present case is even more palpably vulnerable. No state agency is involved. Federal police seek to do what immigration officials can do to deport a person but what our rules, statutes, and Constitution forbid the police from doing to prosecute him for a crime.
80
The tragedy in our approval of these short cuts is that the protection afforded by the Fourth Amendment is removed from an important segment of our life. We today forget what the Court said in Johnson v. United States, supra, 333 U.S. at page 14, 68 S.Ct. at page 369, that the Fourth Amendment provision for 'probable cause' requires that those inferences 'be drawn by a neutral and detached magistrate' not 'by the officer engaged in the often competitive enterprise of ferreting out crime.' This is a protection given not only to citizens but to aliens as well, as the opinion of the Court by implication holds. The right 'of the people' covered by the Fourth Amendment certainly gives security to aliens in the same degree that 'person' in the Fifth and 'the accused' in the Sixth Amendments also protects them. See Wong Wing v. United States, 163 U.S. 228, 242, 16 S.Ct. 977, 982, 411 L.Ed. 140. Here the F.B.I. works exclusively through an administrative agency—the I.N.S.—to accomplish what the Fourth Amendment says can be done only by a judicial officer. A procedure designed to serve administrative ends—deportation—is cleverly adapted to serve other ends—criminal prosecution. We have had like examples of this same trend in recent times. Lifting the requirements of the Fourth Amendment for the benefit of health inspectors was accomplished by Frank v. State of Maryland, as I have said. Allowing the Department of Justice rather than judicial officers to determine whether aliens will be entitled to release on bail pending deportation hearings is another. See Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547.
81
Some things in our protective scheme of civil rights are entrusted to the judiciary. Those controls are not always congenial to the police. Yet if we are to preserve our system of checks and balances and keep the police from being all-powerful, these judicial controls should be meticulously respected. When we read them out of the Bill of Rights by allowing short cuts as we do today and as the Court did in the Frank and Carlson cases, police and administrative officials in the Executive Branch acquire powers incompatible with the Bill of Rights.
82
The F.B.I. agents stalked petitioner for weeks and had plenty of time to obtain judicial warrants for searching the premises he occupied. I would require them to adhere to the command of the Fourth Amendment and not evade it by the simple device of wearing the masks of immigration officials while in fact they are preparing a case for criminal prosecution.
83
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
84
This is a notorious case, with a notorious defendant. Yet we must take care to enforce the Constitution without regard to the nature of the crime or the nature of the criminal. The Fourth Amendment protects 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' This right is a basic one of all the people, without exception; and this Court ruled in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, that the fruits of governmental violation of this guarantee could not be used in a criminal prosecution. The Amendment's protection is thus made effective for everyone only by upholding it when invoked by the worst of men.
85
The opinion of the Court makes it plain that the seizure of certain of the items of petitioner taken from his room at the Hotel Latham and used in evidence against him must depend upon the existence of a broad power, without a warrant, to search the premises of one arrested, in connection with and 'incidental' to his arrest. This power is of the sort recognized by Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, and later asserted even where the arresting officers, as here, had ample time and opportunity to secure a search warrant. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, overruling Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663. The leading early cases do not recognize any such power to make a search generally through premises attendant upon an arrest. See Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877.1
86
The general question has been extensively canvassed here, in the general context of an arrest for crime, in the Harris, Trupiano and Rabinowitz cases. Whether Harris and Rabinowitz should now be followed on their own facts is a question with which the Court is not now faced. Rather the question is whether the doctrine of those cases should be extended to a new and different set of facts—facts which present a search made under circumstances much less consistent with the Fourth Amendment's prohibition against unreasonable searches than any which this Court has hitherto approved. Factual differences weigh heavily in this area: 'There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.' Go-Bart Importing Co. v. United States, supra, 282 U.S. at page 357, 51 S.Ct. at page 158. In Harris and Rabinowitz, the broad search was performed as an incident to an arrest for crime under warrants lawfully issued. 331 U.S. at page 148, 67 S.Ct. at page 1100; 339 U.S. at page 58, 70 S.Ct. at page 431. The issuance of these warrants is by no means automatic—it is controlled by a constitutionally prescribed standard. It thus could be held that sufficient protection was given the individual without the execution of a second warrant for the search. Cf. Clark, J., dissenting in United States v. Rabinowitz, 2 Cir., 176 F.2d 732, 736, reversed 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. And while a search generally through premises 'incident' to an arrest for crime without a warrant has been sanctioned only inferentially here,2 even if such a search be deemed permissible under the Fourth Amendment, it would not go so far as the result here. Such an arrest may constitutionally be made only upon probable cause, the existence of which is subject to judicial examination, see Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 169, 4 L.Ed.2d 134, and such an arrest demands the prompt bringing of the person arrested before a judicial officer, where the existence of probable cause is to be inquired into. Fed.Rules Crim.Proc., 5(a) and (c), 18 U.S.C.A. This Court has been astute to fashion methods of ensuring the due observance of these safeguards. Henry v. United States, supra; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.
87
Even assuming that the power of Congress over aliens may be as great as was said in Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, and that deportation may be styled 'civil,' Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586, it does not follow that Congress may strip aliens of the protections of the Fourth Amendment and authorize unreasonable searches of their premises, books and papers. Even if Congress could make the exclusionary sanction of the Amendment inapplicable in deportation proceedings, the fruits of the search here were used in a prosecution whose criminal character no dialectic can conceal. Clearly the consequence of the Fourth Amendment in such a trial is that the fruits of such a search may not be given in evidence, under the rule declared in Weeks v. United States, supra. We need not, in my view, inquire as to whether the sort of 'administrative' arrest made here is constitutionally valid as to permit the officers to hold petitioner's person for deportation proceedings. With the Court, this issue may be treated as not properly before us for our consideration, and the arrest may be treated for the purposes of this case as lawful in itself. But even with Harris and Rabinowitz, that does not conclude the matter as to the search. It is patent that the sort of search permitted by those cases, and necessary to sustain the seizures here, goes beyond what is reasonably related to the mechanics of the arrest itself—ensuring the safety of the arresting officers and the security of the arrest against the prisoner's escape. Since it does, I think it plain that before it can be concluded here that the search was not an unreasonable one, there must be some inquiry into the over-all protection given the individual by the totality of the processes necessary to the arrest and the seizure. Here the arrest, while had on what is called a warrant, was made totally without the intervention of an independent magistrate; it was made on the authorization of one administrative official to another. And after the petitioner was taken into custody, there was no obligation upon the administrative officials who arrested him to take him before any independent officer, sitting under the conditions of publicity that characterize our judicial institutions, and justify what had been done.3 Concretely, what happened instead was this: petitioner, upon his arrest, was taken to a local administrative headquarters and then flown in a special aircraft to a special detention camp over 1,000 miles away. He was incarcerated in solitary confinement there. As far as the world knew, he had vanished. He was questioned daily at the place of incarceration for over three weeks. An executive procedure as to his deportability was had, at the camp, after a few days, but there was never any independent inquiry or judicial control over the circumstances of the arrest and the seizure till over five weeks after his arrest, when, at the detention camp, he was served with a bench warrant for his arrest on criminal charges, upon an indictment.
88
The Fourth Amendment imposes substantive standards for searches and seizures; but with them one of the important safeguards it establishes is a procedure; and central to this procedure is an independent control over the actions of officers effecting searches of private premises. 'Indeed, the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests.' United State v. Lefkowitz, supra, 285 U.S. at page 464, 52 S.Ct. at page 423. 'Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.' McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 193, 93 L.Ed. 153. It is one thing to say that an adequate substitude for this sort of intervention by a magistrate can be found in the strict protections with which federal criminal procedure surrounds the making of a criminal arrest—where the action of the officers must receive an antecedent or immediately subsequent independent scrutiny. It goes much further to say that such a substitute can be found in the executive processes employed here. The question is not whether they are constitutionally adequate in their own terms—whether they are a proper means of taking into custody one not charged with crime. The question is rather whether they furnish a context in which a search generally through premises can be said to be a reasonable one under the Fourth Amendment. These arrest procedures, as exemplified here, differ as night from day from the processes of an arrest for crime. When the power to make a broad, warrantless search is added to them, we create a complete concentration of power in executive officers over the person and effects of the individual. We completely remove any independent control over the powers of executive officers to make searches. They may take any man they think to be a deportable alien into their own custody, hold him without arraignment or bond, and, having been careful to apprehend him at home, make a search generally through his premises. I cannot see how this can be said to be consistent with the Fourth Amendment's command; it was, rather, against such a concentration of executive power over the privacy of the individual that the Fourth Amendment was raised. I do not think the Harris and Rabinowitz cases have taken us to this point.
89
If the search here were of the sort the Fourth Amendment contemplated, there would be no need for the elaborate, if somewhat pointless, inquiry the Court makes into the 'good faith' of the arrest. Once it is established that a simple executive arrest of one as a deportable alien gives the arresting offices the power to search his premises, what precise state of mind on the part of the officers will make the arrest a 'subterfuge' for the start of criminal proceedings, and render the search unreasonable? We are not, I fear, given any workable answer, and of course the practical problems relative to the trial of such a matter hardly need elaboration; but the Court verbalizes the issue as 'whether the decision to proceed administratively toward deportation was influenced by, and was carried out for, a purpose of amassing evidence in the prosecution for crime.' But under today's ruling, every administrative arrest offers this possibility of a facile search, theoretically for things connected with unlawful presence in the country, that may turn up evidence of crime; and this possibility will be well known to arresting officers. Perhaps the question is how much basis the officers had to suspect the person of crime; but it would appear a strange test as to whether a search which turns up criminal evidence is unreasonable, that the search is the more justifiable the less there was antecedent probable cause to suspect the defendant of crime. If the search were made on a valid warrant, there would be no such issue even if it turned up matter relevant to another crime. See Gouled v. United States, 255 U.S. 298, 311—312, 41 S.Ct. 261, 265—266, 65 L.Ed. 647. External procedural control in accord with the basic demands of the Fourth Amendment removes the grounds for abuse; but the Court's attitude here must be based on a recognition of the great possibilities of abuse its decision leaves in the present situation. These possibilities have been recognized before, in a case posing less danger: 'Arrest under a warrant for a minor or a trumped-up charge has been familiar practice in the past, is a commonplace in the police state of today, and too well-known in this country. * * * The progress is too easy from police action unscrutinized by judicial authorization to the police state.' United States v. Rabinowitz, supra, 339 U.S. at page 82, 70 S.Ct. at page 442, 94 L.Ed. 653 (dissenting opinion). Where a species of arrest is available that is subject to no judicial control, the possibilities become more and more serious. The remedy is not to invite fruitless litigation into the purity of official motives, or the specific direction of official purposes. One may always assume that the officers are zealous to perform their duty. The remedy is rather to recognize that the power to perform a search generally throughout premises upon a purely executive arrest is so unconfined by any safeguards that it cannot be countenanced as consistent with the Fourth Amendment.
90
One more word. We are told that the governmental power to make a warrantless search might be greater where the object of the search is not related to crime but to some other 'civil' proceeding—such as matter bearing on the issue whether a man should forcibly be sent from the country. The distinction is rather hollow here, where the proofs that turn up are in fact given in evidence in a criminal prosecution. And the distinction, again, invites a trial of the officers' purposes. But in any event, I think it perverts the Amendment to make this distinction. The Amendment states its own purpose, the protection of the privacy of the individual and of his property against the incursions of officials: the 'right of the people to be secure in their persons, houses, papers, and effects.' See Boyd v. United States, 116 U.S. 616, 627, 6 S.Ct. 524, 530, 538, 29 L.Ed. 746. Like most of the Bill of Rights it was not designed to be a shelter for criminals, but a basic protection for everyone; to be sure, it must be upheld when asserted by criminals, in order that it may be at all effective, but it 'reaches all alike, whether accused of crime or not.' Weeks v. United States, supra, 232 U.S. at page 392, 34 S.Ct. at page 344, 58 L.Ed. 652. It is the individual's interest in privacy which the Amendment protects, and that would not appear to fluctuate with the 'intent' of the invading officers. It is true that the greatest and most effective preventive against unlawful searches that has been devised is the exclusion of their fruits from criminal evidence, see Weeks v. United States, supra; Boyd v. United States, supra; but it is strange reasoning to infer from this that the central thrust of the guarantee is to protect against a search for such evidence. The argument that it is seems no more convincing to me now than when it was made by the Court in Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877. To be sure, the Court in Boyd v. United States, supra, and in subsequent cases4 has commented upon the intimate relationship between the privilege against unlawful searches and seizures and that against self-incrimination. This has been said to be erroneous history;5 if it was, it was even less than a harmless error; it was part of the process through which the Fourth Amendment, by means of the exclusionary rule, has become more than a dead letter in the federal courts. Certainly this putative relationship between the guarantees is not to be used as a basis of a stinting construction of either—it was the Boyd case itself6 which set what might have been hoped to be the spirit of later construction of these Amendments by declaring that the start of abuse can 'only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed.' 116 U.S. at page 635, 6 S.Ct. at page 535.
91
Since evidence was introduced against petitioner which had been obtained in violation of his constitutional guarantees as embodied in the Fourth Amendment, I would reverse his conviction for a new trial on the evidence not subject to this objection.
*
'1. Whether under the laws and Constitution of the United States (a) the administrative warrant of the New York Acting District Director of the Immigration and Naturalization Service was validly issued, (b) such administrative warrant constituted a valid basis for arresting petitioner or taking him into custody, and (c) such warrant furnished a valid basis for the searches and seizures affecting his person, luggage, and the room occupied by him at the Hotel Latham.
'2. Whether, independently of such administrative warrant, petitioner's arrest, and the searches and seizures affecting his person, luggage, and the room occupied by him at the Hotel Latham, were valid under the laws and Constitution of the United States.
'3. Whether on the record before us the issues involved in Questions '1(a),' '1(b),' and '2' are properly before the Court.'
1
Section 242(a) of the Immigration and Nationality Act of 1952, 66 Stat. 208, 8 U.S.C. § 1252(a), 8 U.S.C.A. § 1252(a), provides 'Pending a determination of deportability in the case of any alien * * * such alien may, upon warrant of the Attorney General, be arrested and taken into custody.'
2
In the Pettiford case it appears that a police officer assigned to the Sanitation Division gained entrance into a home without a warrant and discovered that the defendant who occupied the premises was engaged in lottery activities. He then signaled to a policeman in charge of gambling activities who was waiting outside in accordance with a prior agreement. Lottery slips were seized and over the defendant's objection were received in evidence in a criminal trial. A motion for a new trial was granted. The Supreme Bench of Baltimore City said in its opinion:
'Section 120 of Article 12, of the Baltimore City Code provides that if the Commissioner of Health has cause to suspect that a nuisance exists in any home, he may demand entry therein in the daytime and the owner or occupier is subject to a fine if entry is denied. A conviction under this Section by the Criminal Court of Baltimore City was sustained by the Supreme Court of the United States in a five to four decision. Frank vs. (State of) Maryland (359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877). * * *
'In this case, it is evident that a principal, if not the chief purpose of the entry of the police officer assigned to the sanitation division was to endeavor to secure evidence of a lottery violation for his colleague. 'The security of one's privacy against arbitrary intrusion by the police * * * is basic to a free society.' Wolf vs. (People of State of) Colorado, 338 U.S. 25, 27 (69 S.Ct. 1359, 1361, 93 L.Ed. 1782). An exception to that security, upheld because indispensible for the maintenance of the community health, is not to be used to cover searches without warrants inconsistent with the conceptions of human rights (embodied) in our State and Federal Constitutions.'
3
Note 1, supra.
4
Immigration officials (who often claim that their actions have an administrative finality beyond the reach of courts, see Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881; Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242) have no authority to detain suspects for secret interrogation. See United States v. Minker, 350 U.S. 179, 76 S.Ct. 281, 100 L.Ed. 185.
5
Note 1, supra.
1
Earlier expressions looking the other way, Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145; Marron v. United States, 275 U.S. 192, 198—199, 48 S.Ct. 74, 76 77, 72 L.Ed. 231, were put in proper perspective by their author in Go-Bart and Lefkowitz. See 282 U.S. at page 358, 51 S.Ct. at page 158; 285 U.S. at page 465, 52 S.Ct. at page 423.
2
See United States v. Rabinowitz, supra, 339 U.S. at page 60, 70 S.Ct. at page 432.
3
This procedure is statutorily based on § 242(a) of the Immigration and Nationality Act of 1952, 66 Stat. 208, 8 U.S.C. § 1252(a), 8 U.S.C.A. § 1252(a).
4
See, e.g., Gouled v. United States, supra, 255 U.S. at page 306, 41 S.Ct. at page 263; United States v. Lefkowitz, supra, 285 U.S. at pages 466—467, 52 S.Ct. at pages 423—424, 76 L.Ed. 877. The Weeks case itself, though drawing great support from Boyd, appears to rest most heavily on the Fourth Amendment itself.
5
The famous attack on the Boyd case's historical basis is, of course, to be found in 8 Wigmore, Evidence (3d ed. 1940), §§ 2184, 2264. The attack is incident to Wigmore's strictures on the exclusionary rule. Id., §§ 2183—2184.
6
It is not without interest to note, too, that the Boyd case itself involved a search not in connection with a prosecution to impose fine or imprisonment, but simply with an action to forfeit 35 cases of plate glass said to have been imported into the country under a false customs declaration.
| 01
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362 U.S. 293
80 S.Ct. 717
4 L.Ed.2d 724
FEDERAL TRADE COMMISSION, Petitioner,v.TRAVELERS HEALTH ASSOCIATION.
No. 51.
Argued Dec. 10, 1959.
Decided March 28, 1960.
Mr. Charles H. Weston, Washington, D.C., for petitioner.
Mr. C. C. Fraizer, Lincoln, Neb., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
Section 2(b) of the McCarran-Ferguson Act provides that '(T)he Federal Trade Commission Act, * * * shall be applicable to the business of insurance to the extent that such business is not regulated by State law.'1 The State in which the respondent is incorporated prohibits unfair or deceptive practices in the insurance business there or 'in any other state.' The question presented is whether the respondent's interstate mail order insurance business is thereby 'regulated by State law' so as to insulate its practices in commerce from the regulative authority of the Federal Trade Commission.
2
The respondent, a Nebraska corporation, is engaged in the business of selling health insurance. Licensed only in the States of Nebraska and Virginia, the respondent sells no policies through agents, but from its office in Omaha transacts business by mail with residents of every State. It solicits business by mailing circular letters to prospective buyers recommended by existing policyholders. All business is carried on by direct mail from the Omaha office; it is from there that policies are issued, and there that premiums are paid and claims filed.
3
A Nebraska statute provides: 'No person shall engage in this state in unfair methods of competition or in unfair or deceptive acts and practices in the conduct of the business of insurance. No person domiciled in or resident of this state shall engage in unfair methods of competition or in unfair or deceptive acts and practices in the conduct of the business of insurance in any other state, territory, possession, province, country, or district.'2
4
The Court of Appeals set aside a cease-and-desist order of the Federal Trade Commission prohibiting the respondent from making certain statements and representations in its circular letters found by the Commission to be misleading and deceptive in violation of the Federal Trade Commission Act. 15 U.S.C. § 45, 15 U.S.C.A. § 45. The court concluded that '(w)ith every activity of the (respondent), in the conduct of its business, subject to the supervision and control of the Director of Insurance of Nebraska, we think that the (respondent's) practices in the solicitation of insurance by mail in Nebraska or elsewhere reasonably and realistically cannot be held to be unregulated by State law.' The court accordingly decided that the Commission was 'without authority to regulate the practices of the (respondent) in soliciting insurance.' 262 F.2d 241, 244. Judge Vogel dissented, stating his belief that it was 'impractical and ineffective' to 'force the citizens of other states to rely upon Nebraska's regulation of the long distance advertising practices of the (respondent) in the promotion and sale by mail or otherwise of insurance outside the State of Nebraska.' It was his view that Nebraska's regulation of deceptive practices 'in any other state' is not 'the kind of regulation by state law Congress had in mind' in enacting the McCarran-Ferguson Act. 262 F.2d 241, 245. Certiorari was granted 359 U.S. 988, 79 S.Ct. 1122, 3 L.Ed.2d 978, to resolve an important question left undecided in Federal Trade Comm. v. National Casualty Co., 357 U.S. 560, 78 S.Ct. 1260, 2 L.Ed.2d 1540.
5
In that case the issue involved the effect of state laws regulating the advertising practices of insurance companies which were licensed to do business within the States and which were engaged in advertising programs requiring distribution of material by local agents. In those circumstances the Court found there was 'no question but that the States possess ample means to regulate this advertising within their respective boundaries.' 357 U.S. at page 564, 78 S.Ct. at page 1262. It was held that § 2(b) of the McCarran-Ferguson Act 'withdrew from the Federal Trade Commission the authority to regulate respondents' advertising practices in those States which are regulating those practices under their own laws.' 357 U.S. at page 563, 78 S.Ct. at page 1261. The Court expressed no view as to 'the intent of Congress with regard to interstate insurance practices which the States cannot for constitutional reasons regulate effectively * * *.' 357 U.S. at page 564, 78 S.Ct. at page 1262.
6
The question here is thus quite different from that presented in National Casualty. In this case the state regulation relied on to displace the federal law is not the protective legislation of the States whose citizens are the targets of the advertising practices in question. Rather, we are asked to hold that the McCarran-Ferguson Act operates to oust the Commission of jurisdiction by reason of a single State's attempted regulation of its domiciliary's extraterritorial activities.3 But we cannot believe that this kind of law of a single State takes from the residents of every other State the protection of the Federal Trade Commission Act.4 In our opinion the state regulation which Congress provided should operate to displace this federal law means regulation by the State in which the deception is practiced and has its impact.
7
The McCarran-Ferguson Act was passed in 1945. Its basic purpose was to allay doubts, thought to have been raised by this Court's decision of the previous year in United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440, as to the continuing power of the States to tax and regulate the business of insurance.5 See Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 429—433, 66 S.Ct. 1142, 1154—1156, 90 L.Ed. 1342; Maryland Casualty Co. v. Cushing, 347 U.S. 409, 413, 74 S.Ct. 608, 610, 98 L.Ed. 806; Securities & Exchange Comm. v. Variable Annuity Life Ins. Co., 359 U.S. 65, 99, 79 S.Ct. 618, 636, 3 L.Ed.2d 640 (dissenting opinion). The original bills as passed by both the Senate and the House would have made the Federal Trade Commission Act completely inapplicable to the insurance business. S. 340, 79th Cong., 1st Sess., 91 Cong.Rec. 478—488, 1085, 1093—1094. During the debate in the House, however, several members objected to the provision exempting the business of insurance from this federal statute (91 Cong.Rec. 1027—1028, 1086, 1089, 1092—1093), and Representative Sumners, Chairman of the House Judiciary Committee, stated that in conference he would support an amendment which would make the Federal Trade Commission Act applicable to the same extent as the Sherman and Clayton Acts, 15 U.S.C.A. § 1 et seq., 12 et seq., 91 Cong.Rec. 1093. Thus it was that § 2(b) in the form finally enacted first appeared as a recommendation of the Conference Committee of the two Houses. H.R.Conf.Rep. No. 213, 79th Cong., 1st Sess.
8
Since the House accepted the Conference Report without debate, 91 Cong.Rec. 1396, the only discussion of § 2(b) in its present form occurred in the Senate. Yet, from that somewhat limited debate, as well as the earlier debate in both Houses as to the effect of the Sherman and Clayton Acts, it is clear that Congress viewed state regulation of insurance solely in terms of regulation by the law of the State where occurred the activity sought to be regulated. There was no indication of any thought that a State could regulate activities carried on beyond its own borders.
9
Thus the report on the original House bill stated: 'It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case. Briefly, your committee is of the opinion that we should provide for the continued regulation and taxation of insurance by the States, subject always, however, to the limitations set out in the controlling decisions of the United States Supreme Court, as, for instance, in Allgeyer v. (State of) Louisiana (165 U.S. 578 (17 S.Ct. 427, 41 L.Ed. 832)), St. Louis Cotton Compress Co. v. (State of) Arkansas (260 U.S. 346 (43 S.Ct. 125, 67 L.Ed. 297)), and Connecticut General (Life) Insurance Co. v. Johnson (303 U.S. 77 (58 S.Ct. 436, 82 L.Ed. 673)), which hold, inter alia, that a State does not have power to tax contracts of insurance or reinsurance entered into outside its jurisdiction by individuals or corporations resident or domiciled therein covering risks within the State or to regulate such transactions in any way.' (H.R.Rep. No. 143, 79th Cong., 1st Sess. 3.)
10
Significantly, when Senator McCarran presented to the Senate the bill agreed to in conference, he began by reading most of the foregoing quotation from the original House Report as part of his explanation of the bill. 91 Cong.Rec. 1442. The ensuing Senate debate centered around § 2(b). The three Senate conferees, Senators McCarran, O'Mahoney, and Ferguson, repeatedly emphasized that the provision did not authorize state regulation of extraterritorial activities. See, e.g., 91 Cong.Rec. 1481, 1483, 1484. Typical is the following statement by Senator O'Mahoney: 'When the moratorium period passes, the Sherman Act, the Clayton Act, and the Federal Trade Commission Act come to life again in the field of interstate commerce, and in the field of interstate regulation. Nothing in the proposed law would authorize a State to try to regulate for other States, or authorize any private group or association to regulate in the field of interstate commerce.' 91 Cong.Rec. 1483.
11
Not only this specific legislative history, but also a basic motivating policy behind the legislative movement that culminated in the enactment of the McCarran-Ferguson Act serve to confirm the conclusion that when Congress provided that the Federal Trade Commission Act would be displaced to the extent that the insurance business was 'regulated' by state law, it referred only to regulation by the State where the business activities have their operative force. One of the major arguments advanced by proponents of leaving regulation to the States was that the States were in close proximity to the people affected by the insurance business and, therefore, were in a better position to regulate that business than the Federal Government. See, e.g., 91 Cong.Rec. 1087; 90 Cong.Rec. 6532. Joint Hearings before the Subcommittees of the Committees on the Judiciary on S. 1362, H.R. 3269, H.R. 3270, 78th Cong., 1st Sess. 17, 37, 117, 238—239, 242—243, 244, 252. Such a purpose would hardly be served by delegating to any one State sole legislative and administrative control of the practices of an insurance business affecting the residents of every other State in the Union. This Court has referred before to the 'unwisdom, unfairness and injustice of permitting policyholders to seek redress only in some distant state where the insurer is incorporated.' Travelers Health Ass's v. Com. of Virginia, 339 U.S. 643, 649, 70 S.Ct. 927, 930, 94 L.Ed. 1154.
12
Because of our view as to the meaning of § 2(b) of the McCarran-Ferguson Act, we do not need to consider the constitutional questions that might arise as to the applicability of the Nebraska statute to misrepresentations made to residents of other States. Compare Alaska Packers Ass'n v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Western Union Telegraph Co. v. Brown, 234 U.S. 542, 34 S.Ct. 955, 58 L.Ed. 1457; Sligh v. Kirkwood, 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835. Suffice it to note that the impediments, contingencies, and doubts which constitutional limitations might create as to Nebraska's power to regulate any given aspect of extraterritorial activity serve only to confirm the reading we have given to § 2(b) of the Act.
13
It follows that the judgment of the Court of Appeals must be vacated, and the case remanded to that court for further proceedings consistent with the views expressed in this opinion.
14
Vacated and remanded.
15
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice WHITTAKER join, dissenting.
16
This case marks the second time within a year that the Court has made inroads upon the policy of the McCarran-Ferguson Act by which Congress pervasively restored to the States the regulation of the business of insurance, a function which until this Curt's decision in United States v. South-Eastern Underwriters Association, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440, traditionally had been considered to be exclusively theirs. Last Term the Court held variable annuity policies, sold across state lines, subject to regulation by the Securities and Exchange Commission. See Securities & Exchange Comm. v. Variable Annuity Life Ins. Co., 359 U.S. 65, 93—101, 79 S.Ct. 618, 633—637, 3 L.Ed.2d 640 (dissenting opinion). Today it holds that advertising materials mailed into other States by a health insurance company, already regulated under the laws of its own State with respect to the out-of-state transmission of such materials, are subject also to regulation by the Federal Trade Commission, at least to the extent that such advertising matter is unregulated by the laws of the State into which it is sent.
17
The Court's holding is based upon its conclusion 'that when Congress provided (in § 2(b) of the McCarran-Ferguson Act) that the Federal Trade Commission Act would be displaced to the extent that the insurance business was 'regulated' by state law, it referred only to regulation by the State where the business activities have their operative force.' I think the data on which the Court relies is much too meagre to justify this conclusion, and believe, as the Court of Appeals did, that Nebraska's regulation of these activities of the respondent foreclosed Federal Trade Commission jurisdiction.
18
What is referred to in the majority opinion as 'specific legislative history' on the issue before us seems to me to fall far short of being persuasive towards the Court's view of the statute. The report on the original House bill, on which so much store is placed, was directed, as I read it, not to differentiating between the kinds of state insurance regulation which would, after the moratorium period provided in the statute had ended,1 exempt from federal regulation and control the business of insurance in all but limited aspects,2 but to the general proposition that the new statute would not enlarge or narrow state regulatory power as it had existed before this Court's decision in the South-Eastern Underwriters case, supra. That no more than this can be got out of the report on the original House bill is made manifest by Senator McCarran's explanation of the conference bill when he presented it to the Senate—an episode to which the Court refers. Quoting from the report, the Senator said: 'That expression (meaning the report) should be made a part of this explanation. In other words, we give to the States no more powers than those they previously had and we take none from them.'3 91 Cong.Rec. 1442.
19
I believe that the fragments from the ensuing Senate debate, on which the Court further relies, indicate no more than does the report.4 The same is true, in my opinion, of expressions made during the debate relating to the desirability of leaving insurance regulation to local authorities because they were, so to speak, on the ground, expressions which, the Court correctly observes, reflected 'a basic motivating policy behind the legislative movement that culminated in the enactment of the McCarran-Ferguson Act.' And since the Court very gingerly throws out possible constitutional questions, I think it appropriate to say that the right of Nebraska to police its own insurance company domiciliaries, with respect to their advertising sent from Nebraska into other States, is not seriously open to constitutional doubt. See Hammond Packing Co. v. State of Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530; Sligh v. Kirkwood, 237 U.S. 52, 35 S.Ct. 501, 59 L.Ed. 835. There is certainly nothing in Alaska Packers Ass'n v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044, which points to the contrary.
20
The temptation is strong, no doubt, to ask the Court to innovate with respect to the McCarran-Ferguson Act when state regulation may be thought to have fallen short. Two years ago we declined to do so when invited by the Federal Trade Commission in the National Casualty case, supra, 357 U.S. at pages 564—565, 78 S.Ct. at page 1262. I think it unwise for us now to yield to this encore on the part of the Commission. One innovation with the Act is apt to lead to another, and may ultimately result in a hybrid scheme of insurance regulation, bringing about uncertainties and possible duplications which should be avoided.
21
'Obviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance. This was done in two ways. One was by removing obstructions which might be thought to flow from its own power, whether dormant or exercised, except as otherwise expressly provided in the Act itself or in future legislation. The other was by declaring expressly and affirmatively that continued state regulation and taxation of this business is in the public interest and that the business and all who engage in it 'shall be subject to' the laws of the several states in these respects.
22
'Moreover, in taking this action Congress must have had full knowledge of the nation-wide existence of state systems of regulation and taxation; of the fact that they differ greatly in the scope and character of the regulations imposed and of the taxes exacted; and of the further fact that many, if not all, include features which, to some extent, have not been applied generally to other interstate business. Congress could not have been unacquainted with these facts and its purpose was evidently to throw the whole weight of its power behind the state systems, notwithstanding these variations.' Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 429—430, 66 S.Ct. 1142, 1155, 90 L.Ed. 1342.
23
See also Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 318—321; 75 S.Ct. 368, 372—374, 99 L.Ed. 337; Securities & Exchange Comm. v. Variable Annuity Life Ins. Co., supra, 359 U.S. at pages 68—69, and dissenting opinion at 93 et seq., 79 S.Ct. at pages 620—621, 633.
24
If innovations in the policy of the McCarran-Ferguson Act are thought desirable, they should be made by Congress, not by us.
25
I would affirm.
1
The here pertinent portions of the McCarran-Ferguson Act are as follows: 'That the Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.
'Sec. 2(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
'(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, * * * the Sherman Act, * * * the Clayton Act, and * * * the Federal Trade Commission Act, * * * shall be applicable to the business of insurance to the extent that such business is not regulated by State law. * * *' 59 Stat. 33, as amended, 61 Stat. 448, 15 U.S.C.A. § 1012(a, b).
2
Section 44—1503 of Reissue Revised Statutes of Nebraska, 1943 as amended by the Emergency Act of May 14, 1957, Laws of Nebraska, 1957, c. 191, § 2. This provision is part of the Nebraska 'Unfair Competition and Trade Practices' Act of 1947, as amended (§§ 44—1501 to 44—1521, Reissue Revised Statutes of Nebraska, 1943, 1957 Cumulative Supplement, Laws of Nebraska, 1957, c. 191.) Other provisions of the Act empower the Director of Insurance (1) to prefer charges against any such insurer if he has reason to believe that it has, in Nebraska or elsewhere, engaged 'in any unfair or deceptive act or practices in the conduct of such business,' and to give the insurer notice of a hearing on the charges (§ 44—1506); (2) to take evidence at the hearing (§ 44 1507); and (3) to issue a cease-and-desist order if he determines that the insurer has engaged in the wrongful acts and practices with which it is charged (§ 44—1509).
3
This basic difference was effectively emphasized in Commissioner Gwynne's sepaate opinion concurring in the Commission's action in the present proceeding. He pointed out that he had dissented from the Commission's assumption of jurisdiction in the American Hospital proceeding, where the 'insurance company operated exclusively through agents in various states, in which it was duly licensed under the respective state laws,' where 'every such state had adopted the Model Code, or equivalent legislation,' and where the 'advertising practice complained of involved bundles of advertising matter mailed from the home office to the company's agents in the several states and disseminated there by such agents.' 53 F.T.C. 548, 558—559. (Commissioner Gwynne's view as to the Commission's lack of jurisdiction in the American Hospital proceeding was ultimately upheld here in Federal Trade Comm. v. National Casualty Co., 357 U.S. 560, 78 S.Ct. 1260, which disposed of both the order against National Casualty Company and the order against American Hospital & Life Insurance Company.) In the present case, by contrast, Commissioner Gwynne pointed out that the respondent was making representations to induce sales of insurance in States where it was not licensed and had no agents. He concluded that 'this type of law (that is, a law purporting to protect the people of another state from deceptive advertising) can hardly be said to be the type of law referred to in Section 2(b) of the McCarran Act. Section 2(b) makes the Federal Trade Commission Act applicable to the business of insurance to the extent that such business is not regulated by state law. I think this refers to the laws of the state whose citizens are being affected by the advertising and not to laws of some other state operating extraterritorially.' 53 F.T.C. 548, 563. Commissioner Gwynne, as a member of Congress, participated in the debates leading to the passage of the McCarran-Ferguson Act, 91 Cong.Rec. 1089, 1090. See also 90 Cong.Rec. 6534—6536.
4
The respondent has argued in this Court that the Federal Trade Commission lacked jurisdiction because the respondent's advertising practices are regulated not only by Nebraska, but also by 'all other states' in which the respondent conducts its mail order business. To this the petitioner replies that (1) the respondent did not raise this argument before the Commission and, therefore, has waived it; (2) the statutes of the 'other' States do not purport to apply to misrepresentations mailed to their residents by unlicensed, nonresident insurance companies having no local agents; and (3) even if these state statutes purported to be applicable to misrepresentations by such insurers, there still would not be regulation by state law within the meaning of the § 2(b) proviso because the statutes could not be effectively enforced against the respondent. The Court of Appeals gave no consideration to the effect of 'regulation' by any State other than Nebraska. In accord with accepted principles, we decline to consider these issues on the present record, leaving them 'to be considered for what they are worth by the court below, if duly presented and relied upon * * *.' Marconi Wireless Tel. Co. of America v. Simon, 246 U.S. 46, 57, 38 S.Ct. 275, 277, 62 L.Ed. 568. See Tunstall v. Brotherhood, 323 U.S. 210, 214, 65 S.Ct. 235, 237, 89 L.Ed. 187; United States v. Beach, 324 U.S. 193, 196, 65 S.Ct. 602, 603, 89 L.Ed. 865; Federal Communications Comm. v. WJR, 337 U.S. 265, 285, 69 S.Ct. 1097, 1108, 93 L.Ed. 1353.
5
While the appeal in South-Eastern Underwriters was pending here, there had been abortive attempts in the Seventy-eighth Congress to immunize the business of insurance from the federal antitrust laws. See H.R. 3270, S. 1362, 78th Cong., 1st Sess.; H.R.R.ep. No. 873, 78th Cong., 1st Sess.; 89 Cong.Rec. 7686, 10532, 10659—10664.
1
In addition to § 2(b) set forth in note 1 of the Court's opinion, 362 U.S. at page 295, 80 S.Ct. at page 718, § 3(a) of the Act, 15 U.S.C.A. § 1013(a) provides: 'Until June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, and the Act of June 19, 1936, known as the Robinson-Patman Anti-discrimination Act, shall not apply to the business of insurance or to acts in the conduct thereof.'
2
Section 3(b) of the Act provides: 'Nothing contained in this Act shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate or act of boycott, coercion, or intimidation.'
3
Senator McCarran's reading of the report on the original House bill stopped short of the last clause (following the citation of cases) quoted in the Court's opinion. 362 U.S. at page 301, 80 S.Ct. at page 721.
4
It is worth observing that one of the hypothetical questions put to Senator Ferguson by Senator Pepper of Florida, an opponent of the bill, related to whether the bill would permit Florida, in disregard of the federal antitrust laws, to authorize the sale in Florida of insurance at rates fixed by an out-of-state insurance rating bureau, and that Senator Ferguson replied in the affirmative. 91 Cong.Rec. 1481. Yet the Court now finds it offensive to the concept of the statute to consider that other States may be content to rely on Nebraska's regulation of advertising material mailed to their citizens by Nebraska insurance companies. The Court reserves 'for what they are worth' the questions that would arise were such other States to legislate against the out-of-state mailing of insurance advertising into their jurisdictions. Yet even if such legislation proved abortive as a practical matter, because of a foreign insurance company having no office, agents, or assets within the State so legislating, such legislation would nonetheless presumably exclude Federal Trade Commission jurisdiction, unless we were to depart from our holding in Federal Trade Comm. v. National Casualty Co., 357 U.S. 560, 78 S.Ct. 1260, 2 L.Ed.2d 1540, to the effect that it is the existence of state regulatory legislation, and not the effectiveness of such regulation, that is the controlling factor. The distinction between such a case as that, and the one before us, seems to me to be one without a difference.
| 78
|
362 U.S. 309
80 S.Ct. 725
4 L.Ed.2d 734
Clarence Duke McGANNv.UNITED STATES.
No. 488, Misc.
Decided March 28, 1960.
Clarence Duke McGann, pro se.
Solicitor General Rankin, for the United States.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. Upon the suggestion of the Solicitor General that inasmuch as the petitioner had been granted leave to proceed in forma pauperis by the District Court, the application to the Court of Appeals was unnecessary, the judgment of the Court of Appeals is vacated and the case is remanded to that Court for further proceedings.
| 89
|
362 U.S. 257
80 S.Ct. 725
4 L.Ed.2d 697
Cecil JONES, Petitioner,v.UNITED STATES of America.
No. 69.
Argued Jan. 21, 1960.
Decided March 28, 1960.
Mr. Louis Henkin, Philadelphia, Pa., for petitioner.
Mr. James W. Knapp, Washington, D.C., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This is a prosecution for violation of federal narcotics laws. In the first count of a two-count indictment petitioner was charged with having 'purchased, sold, dispensed and distributed' narcotics in violation of 26 U.S.C. § 4704(a), 26 U.S.C.A. § 4704(a), that is, not in or from the 'original stamped package.' In the second count petitioner was charged under 21 U.S.C. § 174, 21 U.S.C.A. § 174, with having 'facilitated the concealment and sale of' the same narcotics, knowing them to have been imported illegally into the United States. Petitioner was found guilty on both counts and sentenced to seven years' imprisonment. The Court of Appeals, one judge dissenting, affirmed the conviction. 104 U.S.App.D.C. 345, 262 F.2d 234. Since the case presented important questions in the administration of criminal justice, more particularly a defendant's standing to challenge the legality of a search in the circumstances of this case, as well as the legality of the particular search should standing be established, we granted certiorari. 359 U.S. 988, 79 S.Ct. 1125, 3 L.Ed.2d 978.
2
Both statutory provisions under which petitioner was prosecuted permit conviction upon proof of the defendant's possession of narcotics, and in the case of 26 U.S.C. § 4704(a), 26 U.S.C.A. § 4704(a), of the absence of the appropriate stamps. Possession was the basis of the Government's case against petitioner. The evidence against him may be briefly summarized. He was arrested in an apartment in the District of Columbia by federal narcotics officers, who were executing warrant to search for narcotics. Those officers found narcotics, without appropriate stamps, and narcotics paraphernalia in a bird's nest in an awning just outside a window in the apartment. Another officer, stationed outside the building, had a short time before seen petitioner put his hand on the awning. Upon the discovery of the narcotics and the paraphernalia petitioner had admitted to the officers that some of these were his and that he was living in the apartment.
3
Prior to trial petitioner duly moved to suppress the evidence obtained through the execution of the search warrant on the ground that the warrant had been issued without a showing of probable cause. The Government challenged petitioner's standing to make this motion because petitioner alleged neither ownership of the seized articles nor an interest in the apartment greater than that of an 'invitee or guest.' The District Court agreed to take evidence on the issue of petitioner's standing. Only petitioner gave evidence. On direct examination he testified that the apartment belonged to a friend, Evans, who had given him the use of it, and a key, with which petitioner had admitted himself on the day of the arrest. On cross-examination petitioner testified that he had a suit and shirt at the apartment, that his home was elsewhere, that he paid nothing for the use of the apartment, that Evans had let him use it 'as a friend,' that he had slept there 'maybe a night,' and that at the time of the search Evans had been away in Philadelphia for about five days.
4
Solely on the basis of petitioner's lack of standing to make it, the district judge denied petitioner's motion to suppress. When the case came on for trial before a different judge, the motion to suppress was renewed and was denied on the basis of the prior ruling. An unsuccessful objection was made when the seized items were offered in evidence at the trial.
5
In affirming petitioner's conviction the Court of Appeals agreed with the District Court that petitioner lacked standing, but proceeded to rule that even if it were to find that petitioner had standing, it would hold the evidence to have been lawfully received. A challenge to the search which petitioner had not made in the District Court, namely, that the method of executing the warrant had been illegal, was considered by the Court of Appeals and rejected, while the contention petitioner had made below, that there had been insufficient cause to issue the warrant, was rejected without discussion.
6
The issue of petitioner's standing is to be decided with reference to Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. This is a statutory direction governing the suppression of evidence acquired in violation of the conditions validating a search. It is desirable to set forth the Rule.
7
'A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. The motion to suppress evidence may also be made in the district where the trial is to be had. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.'
8
In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. Rule 41(e) applies the general principle that a party will not be heard to claim a constitutional protection unless he 'belongs to the class for whose sake the constitutional protection is given.' People of State of N.Y. ex rel. Hatch v. Reardon, 204 U.S. 152, 160, 27 S.Ct. 188, 190, 51 L.Ed. 415. The restrictions upon searches and seizures were obviously designed for protection against official invasion of privacy and the security of property. They are not exclusionary provisions against the admission of kinds of evidence deemed inherently unreliable or prejudicial. The exclusion in federal trials of evidence otherwise competent but gathered by federal officials in violation of the Fourth Amendment is a means for making effective the protection of privacy.
9
Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy. But prosecutions like this one have presented a special problem. To establish 'standing,' Courts of Appeals have generally required that the movant claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched. Since narcotics charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him. At the least, such a defendant has been placed in the criminally tendentious position of explaining his possession of the premises. He has been faced, not only with the chance that the allegations made on the motion to suppress may be used against him at the trial, although that they may is by no means an inevitable holding, but also with the encouragement that he perjure himself if he seeks to establish 'standing' while maintaining a defense to the charge of possession.
10
The dilemma that has thus been created for defendants in cases like this has been pointedly put by Judge Learned Hand:
11
'Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at one to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.' Connolly v. Medalie, 2 Cir., 58 F.2d 629, 630.
12
Following this holding, several Courts of Appeals have pinioned a defendant within this dilemma. See, e.g., Scoggins v. United States, 92 U.S.App.D.C. 29, 30, 202 F.2d 211, 212; United States v. Eversole, 7 Cir., 209 F.2d 766, 768; Accardo v. United States, 101 U.S.App.D.C. 162, 163—164, 247 F.2d 568, 569—570; Grainger v. United States, 4 Cir., 158 F.2d 236. A District Court has held otherwise. United States v. Dean, D.C.Mass., 50 F.2d 905, 906. The Government urges us to follow the body of Court of Appeals' decisions and to rule that the lower courts, including the courts below, have been right in barring a defendant in a case like this from challenging a search because of his failure, when making his motion to suppress, to allege either that he owned or possessed the property seized or that he had a possessory interest in the premises searched greater than the interest of an 'invitee or guest.'
13
Judge Hand's dilemma is not inescapable. It presupposes requirements of 'standing' which we do not find compelling. Two separate lines of thought effectively sustain defendant's standing in this case. (1) The same element in this prosecution which has caused a dilemma, iE., that possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when standing is challenged. (2) Even were this not a prosecution turning on illicit possession, the legally requisite interest in the premises was here satisfied, for it need not be as extensive a property interest as was required by the courts below.
14
As to the first ground, we are persuaded by this consideration: to hold to the contrary, that is, to hold that petitioner's failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. Petitioner's conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e).
15
The Government's argument to the contrary essentially invokes elegantia juris. In the interest of normal procedural orderliness, a motion to suppress, under Rule 41(e), must be made prior to trial, if the defendant then has knowledge of the grounds on which to base the motion. The Government argues that the defendant therefore must establish his standing to suppress the evidence at that time through affirmative allegations and may not wait to rest standing upon the Government's case at the trial. This provision of Rule 41(e), requiring the motion to suppress to be made before trial, is a crystallization of decisions of this Court requiring that procedure, and is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt. See Nardone v. United States, 308 U.S. 338, 341 342, 60 S.Ct. 266, 267—268, 84 L.Ed. 307; Segurola v. United States, 275 U.S. 106, 111—112, 48 S.Ct. 77, 79, 72 L.Ed. 186; Agnello v. United States, 269 U.S. 20, 34, 46 S.Ct. 4, 7, 70 L.Ed. 145; Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575. As codified, the rule is not a rigid one, for under Rule 41(e) 'the court in its discretion may entertain the motion (to suppress) at the trial or hearing.' This qualification proves that we are dealing with carrying out an important social policy and not a narrow, finicky procedural requirement. This underlying policy likewise precludes application of the Rule so as to compel the injustice of an internally inconsistent conviction. In cases where the indictment itself charges possession, the defendant in a very real sense is revealed as a 'person aggrieved by an unlawful search and seizure' upon a motion to suppress evidence prior to trial. Rule 41(e) should not be applied to allow the Government to deprive the defendant of standing to bring a motion to suppress by framing the indictment in general terms, while prosecuting for possession.1
16
As a second ground sustaining 'standing' here we hold that petitioner's testimony on the motion to suppress made out a sufficient interest in the premises to establish him as a 'person aggrieved' by their search. That testimony established that at the time of the search petitioner was present in the apartment with the permission of Evans, whose apartment it was. The Government asserts that such an interest is insufficient to give standing. The Government does not contend that only ownership of the premises may confer standing. It would draw distinctions among various classes of possessors, deeming some, such as 'guests' and invitees' with only the 'use' of the premises, to have too 'tenuous' an interest although concededly having 'some measure of control' through their 'temporary presence,' while conceding that others, who in a 'realistic sense, have dominion of the apartment' or who are 'domiciled' there, have standing. Petitioner, it is insisted, by his own testimony falls in the former class.
17
While this Court has never passed upon the interest in the searched premises necessary to maintain a motion to suppress, the Government's argument closely follows the prevailing view in the lower courts. They have denied standing to 'guests' and 'invitees' (e.g., Gaskins v. United States, 95 U.S.App.D.C. 34, 35, 218 F.2d 47, 48; Gibson v. United States, 80 U.S.App.D.C. 81, 84, 149 F.2d 381, 384; In re Nassetta, 2 Cir., 125 F.2d 924; Jones v. United States, 104 U.S.App.D.C. 345, 262 F.2d 234), and employees, who though in 'control' or 'occupancy' lacked 'possession' (e.g., Connolly v. Medalie, 2 Cir., 58 F.2d 629, 630; United States v. Conoscente, 2 Cir., 63 F.2d 811). The necessary quantum of interest has been distinguished as being, variously, 'ownership in or right to possession of the premises' (e.g., Jeffers v. United States, 88 U.S.App.D.C. 58, 61, 187 F.2d 498, 501, affirmed Jeffers v. United States, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59), the interest of a 'lessee or licensee' (United States v. De Bousi, D.C., 32 F.2d 902, 903), or of one with 'dominion' (McMillan v. United States, 8 Cir., 26 F.2d 58, 60; Steeber v. United States, 10 Cir., 198 F.2d 615, 617, 33 A.L.R.2d 1425). We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private properly law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in th homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between 'lessee,' 'licensee,' 'invitee' and 'guest,' often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.
18
We rejected such distinctions as inappropriate to the law of maritime torts in Kermarec v. Compagnie Generale, 358 U.S. 625, 630—632, 79 S.Ct. 406, 409—410, 3 L.Ed.2d 550. We found there to be a duty of ordinary care to one rightfully on the ship, regardless of whether he was a 'licensee' rather than an 'invitee.' 'For the admiralty law at this late date to import such conceptual distinctions would be foreign to its traditions of simplicity and practicality.' 358 U.S., at page 631, 79 S.Ct. at page 410. A fortiori we ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime. No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched. As petitioner's testimony established Evans' consent to his presence in the apartment, he was entitled to have the merits of his motion to suppress adjudicated.
19
We come to consider the grounds upon which the search is alleged to have been illegal. The attack which was made in the District Court was one of lack of probable cause for issuing the search warrant. The question raised is whether sufficient evidence to establish probable cause to search was put before the Commissioner by the officer, Didone, who applied for the warrant. The sole evidence upon which the warrant was issued was an affidavit signed by Didone. Both parties urge us to decide the question here, without remanding it to the District Court which, because it found lack of standing, did not pass on it. We think it appropriate to decide the question.
20
The affidavit is set out in the margin.2 Didone was a member of the Narcotic Squad in the District of Columbia. His affidavit claimed no direct knowledge of the presence of narcotics in the apartment. He swore that on the day before making the affidavit he had been given information, by one unnamed, that petitioner and another 'were involved in the illicit narcotic traffic' and 'kept a ready supply of heroin on hand' in the apartment. He swore that his informant claimed to have purchased narcotics at the apartment from petitioner and another 'on many occasions,' the last of which had been the day before the warrant was applied for. Didone swore that his informant 'has given information to the undersigned on previous occasion and which was correct,' that '(t)his same information' regarding petitioner had been given the narcotic squad by 'other sources of information' and that the petitioner and the other implicated by the informant had admitted being users of narcotics. On this basis Didone founded his oath that he believed 'that there is now illicit narcotic drugs being secreated (sic) in the above apartment by Cecil Jones.'
21
This affidavit was, it is claimed, insufficient to establish probable cause because it did not set forth the affiant's personal observations regarding the presence of narcotics in the apartment, but rested wholly on hearsay. We held in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159, that an affidavit does not establish probable cause which merely states the affiant's belief that there is cause to search, without stating facts upon which that belief is based. A fortiori this is true of an affidavit which states only the belief of one not the affiant. That is not, however, this case. The question here is whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by virtue of the fact that it sets out not the affiant's observations but those of another. An affidavit is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented.
22
In testing the sufficiency of probable cause for an officer's action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. We there upheld an arrest without a warrant solely upon an informant's statement that the defendant was peddling narcotics, as corroborated by the fact that the informant's description of the defendant's appearance, and of where he would be on a given morning (matters in themselves totally innocuous) agreed with the officer's observations. We rejected the contention that an officer may act without a warrant only when his basis for acting would be competent evidence upon a trial to prove defendant's guilt. Quoting from Brinegar v. United States, 338 U.S. 160, 172, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, we said that such a contention '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. * * * There is a large difference between the two things to be proved (guilt and probable cause) * * * and therefore a like difference in the quanta and modes of proof required to establish them.' 358 U.S., at pages 311—312, 79 S.Ct. at page 332. The dictum to the contrary in Grau v. United States, 287 U.S. 124, 128, 53 S.Ct. 38, 40, 77 L.Ed. 212, was expressly rejected in Draper. 358 U.S. at page 312, note 4, 79 S.Ct. at page 332. See also Judge Learned Hand in United States v. Heitner, 2 Cir., 149 F.2d 105, 106.
23
What we have ruled in the case of an officer who acts without a warrant governs our decision here. If an officer may act upon probable cause without a warrant when the only incriminating evidence in his possession is hearsay, it would be incongruous to hold that such evidence presented in an affidavit is insufficient basis for a warrant. If evidence of a more judicially competent or persuasive character than would have justified on officer in acting on his own without a warrant must be presented when a warrant is sought, warrants could seldom legitimatize police conduct, and resort to them would ultimately be discouraged. Due regard for the safeguards governing arrests and searches counsels the contrary. In a doubtful case, when the officer does not have clearly convincing evidence of the immediate need to search, it is most important that resort be had to a warrant, so that the evidence in the possession of the police may be weighed by an independent judicial officer, whose decision, not that of the police, may govern whether liberty or privacy is to be invaded.
24
We conclude therefore that hearsay may be the basis for a warrant. We cannot say that there was so little basis for accepting the hearsay here that the Commissioner acted improperly. The Commissioner need not have been convinced of the presence of narcotics in the apartment. He might have found the affidavit insufficient and withheld his warrant. But there was substantial basis for him to conclude that narcotics were probably present in the apartment, and that is sufficient. It is not suggested that the Commissioner doubted Didone's word. Thus we may assume that Didone had the day before been told, by one who claimed to have bought narcotics there, that petitioner was selling narcotics in the apartment. Had that been all, it might not have been enough; but Didone swore to a basis for accepting the informant's story. The informant had previously given accurate information. His story was corroborated by other sources of information. And petitioner was known by the police to be a user of narcotics. Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to scepticism than would be such a charge against one without such a history.
25
Petitioner argues that the warrant was defective because Didone's informants were not produced, because his affidavit did not even state their names, and Didone did not undertake and swear to the results of his own independent investigation of the claims made by his informants. If the objections raised were that Didone had misrepresented to the Commissioner his basis for seeking a warrant, these matters might be relevant. Such a charge is not made. All we are here asked to decide is whether the Commissioner acted properly, not whether Didone did. We have decided that, as hearsay alone does not render an affidavit insufficient, the Commissioner need not have required the informants or their affidavits to be produced, or that Didone have personally made inquiries about the apartment, so long as there was a substantial basis for crediting the hearsay.
26
In the Court of Appeals petitioner presented an additional attack upon the legality of the search, namely, that the warrant was not executed in conformity with 18 U.S.C. § 3109, 18 U.S.C.A. § 3109.3 Since petitioner did not, with ample opportunity to do so, make this claim in the District Court, we should not ordinarily consider it here had the Court of Appeals refused for that reason to entertain it. The Court of Appeals, however, fully considered the claim and rejected it; nor does the Government contend that it is not properly before us. In these circumstances we hold that the question of the legality of the execution of the search warrant under 18 U.S.C. § 3109, 18 U.S.C.A. § 3109, is open for our decision.
27
Unlike the claim of lack of probable cause, this contention is not one which can satisfactorily be resolved upon the record before us. As Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332, demonstrated, a claim under 18 U.S.C. § 3109, 18 U.S.C.A. § 3109, depends upon the particular circumstances surrounding the execution of the warrant. The trial revealed a direct conflict in testimony on this matter. We cannot yield to the Government's suggestion that we ignore that conflict and consider the question on the version of the warrant's execution given at the trial most favorable to the prosecution. We therefore vacate the decision of the Court of Appeals and remand the case to the District Court to consider petitioner's contention under 18 U.S.C. § 3109, 18 U.S.C.A. § 3109, in light of our decision that petitioner had standing to make it.
28
Vacated and remanded.
29
Mr. Justice DOUGLAS.
30
I join the part of the opinion which holds that petitioner had 'standing' to challenge the legality of the search. But I dissent from the ruling that there was 'probable cause' for issuance of the warrant. The view that there was 'probable cause' finds some support in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. But my dissent in Draper gives, I think, the true dimensions of the problem. This is an age where faceless informers have been reintroduced into our society in alarming ways. Sometimes their anonymity is defended on the ground that revelation of their names would ruin counter-espionage or cripple an underground network of agents. Yet I think in these Fourth Amendment cases the duty of the magistrate is nondelegable. It is not sufficient that the police think there is cause for an invasion of the privacy of the home. The judicial officer must also be convinced; and to him the police must go except for emergency situations. The magistrate should know the evidence on which the police propose to act. Unless that is the requirement, unless the magistrate makes his independent judgment on all the known facts, then he tends to become merely the tool of police interests. Though the police are honest and their aims worthy, history shows they are not appropriate guardians of the privacy which the Fourth Amendment protects.
1
Ordinarily the Government should choose between opposing a motion to suppress made before trial and basing the case upon possession, but if necessary the District Court's discretion to hear the motion to suppress during trial may be invoked. The Government must, in any case, not permit a conviction to be obtained on the basis of possession, without the merits of a duly made motion to suppress having been considered.
2
'Affidavit in Support of a U.S. Commissioners Search Warrant for Premises 1436 Meridian Place, N.W., Washington, D.C., apartment 36, including window spaces of said apartment. Occupied by Cecil Jones and Earline Richardson.
'In the late afternoon of Tuesday, August 20, 1957, I, Detective Thomas Didone, Jr. received information that Cecil Jones and Earline
Richardson were involved in the illicit narcotic traffic and that they kept a ready supply of heroin on hand in the above mentioned apartment. The source of information also relates that the two aforementioned persons kept these same narcotics either on their person, under a pillow, on a dresser or on a window ledge in said apartment. The source of information goes on to relate that on many occasions the source of information has gone to said apartment and purchased narcotic drugs from the abovementioned persons and that the narcotics were secreated (sic) in the above mentioned places. The last time being August 20, 1957.
'Both the aforementioned persons are familiar to the undersigned and other members of the Narcotic Squad. Both have admitted to the use of narcotic drugs and display needle marks as evidence of same.
'This same information, regarding the illicit narcotic traffic, conducted by Cecil Jones and Earline Richardson, has been given to the undersigned and to other officers of the narcotic squad by other sources of information.
'Because the source of information mentioned in the opening paragraph has given information to the undersigned on previous occasion and which was correct, and because this same information is given by other sources does believe that there is now illicit narcotic drugs being secreated (sic) in the above apartment by Cecil Jones and Earline Richardson.
'Det. Thomas Didone, Jr.,
Narcotic Squad, MPDC.
'Subscribed and sworn to before me this 21 day of August, 1957.
'James F. Splain,
U.S. Commissioner, D.C.'
3
'The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.' (104 U.S.App.D.C. 345, 262 F.2d 237.)
| 01
|
362 U.S. 308
80 S.Ct. 757
4 L.Ed.2d 733
Raymond E. TILGHMANv.CULVER, State Prison Custodian.
No. 135, Misc.
Supreme Court of the United States
March 28, 1960
Raymond E. Tilghman, pro se.
Messrs. Richard W. Ervin, Atty. Gen. of Florida, and Reeves Bowen, Asst. Atty. Gen., for respondent.
On motion for leave to file petition for writ of habeas corpus.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis is granted. The motion for leave to file a petition for writ of habeas corpus is denied. Treating the papers submitted as a petition for writ of certiorari, certiorari is granted. In view of the representations of the Attorney General of Florida that the cause has become moot, the judgment of the Supreme Court of Florida is vacated and the cause is remanded for such further proceedings as that Court may deem appropriate. See N. A. A. C. P. v. Committee on Offenses Against Administration of Justice, 358 U.S. 40, 79 S.Ct. 24, 3 L.Ed.2d 46.
| 89
|
362 U.S. 327
80 S.Ct. 737
4 L.Ed.2d 766
UNION PACIFIC RAILROAD CO., Appellant,v.UNITED STATES of America.
No. 98.
Argued March 23, 1960.
Decided April 4, 1960.
Mr. Elmer B. Collins, Omaha, Neb., for appellant.
Mr. John G. Laughlin, Washington, D.C., for appellee.
PER CURIAM.
1
Appellant, along with other railroads, has for years engaged in the 'roller lumber traffic' by performing intentionally delayed service in the transportation of lumber from the West Coast to market. Six roads so engaged have filed tariffs covering such services at the same rate as their fast freight, and the Interstate Commerce Commission now has such tariffs under investigation and consideration. Appellant, however, has refused to file a tariff covering such service but continues to handle roller lumber traffic on the same tariff as its fast freight.
2
The United States, at the instance of the Interstate Commerce Commission, sought and obtained a permanent injunction restraining appellant from performing its roller lumber traffic service until it publishes and files a tariff covering the same. The District Court found that appellant renders a 14-day delayed lumber service over a route ordinarily requiring from two to four days. The delay is accomplished by the holding of cars on sidings at certain points on its trunk lines awaiting diversion orders to move the shipment forward over the railroad's regular service. This affords the shipper additional time to find a market for the lumber while it is in transit. This service, the District Court found, (173 F.Supp. 401) incurred additional 'operational problems and costs' for appellant, including switching, siding, storage and 'per diem cost for the use of foreign cars' not present in its fast freight service and not included in its published tariff. We agree with the District Court that such delayed service constitutes the furnishing of additional 'privileges or facilities' under § 6(7) of the Interstate Commerce Act, 49 U.S.C.A. § 6(7), and, therefore, must be published and filed in its tariff. 49 U.S.C. § 6(1), 49 U.S.C.A. § 6(1). See Turner, Dennis & Lowry Lumber Co. v. Chicago, M. & St. P.R. Co., 1926, 271 U.S. 259, 262, 46 S.Ct. 530, 531, 70 L.Ed. 934.
3
If and when appellant publishes and files such a tariff, as other roads have already done, the Commission can then consider the reasonableness and justness of appellant's service in the light of that rate, giving due regard to any unjust or unreasonable preferences or advantages that might result to shippers or other roads should the same not be approved.
4
Affirmed.
| 78
|
362 U.S. 310
80 S.Ct. 739
4 L.Ed.2d 753
James P. MITCHELL, Secretary of Labor, etc., Petitioner,v.H. B. ZACHRY COMPANY.
No. 83.
Argued Feb. 25, 1960.
Decided April 4, 1960.
Miss Bessie Margolin, Washington, D.C., for petitioner.
Messrs. R. Dean Moorhead, Austin, Tex., and Chester H. Johnson, San Antonio, Tex., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Once again we are presented with a nice question concerning the scope of the Fair Labor Standards Act, as amended. 63 Stat. 912, 29 U.S.C. § 207, 29 U.S.C.A. § 207. The respondent, a construction contractor, was engaged by the Lower Nueces River Water Supply District (hereafter to be called the District) to construct a dam and impounding facilities on the lower Nueces River in Texas at a cost of about $6,000,000, in order to increase roughly tenfold the District's then-existing reservoir capacity. The dam is not a multi-purpose project; its sole purpose is to create an expanded reservoir for the District. The water impounded by the District is supplied to consumers locally, within the State of Texas. The site of the new dam was chosen 1,400 feet downstream from the old, with the expectation that upon completion of the new construction the old dam would be inundated and thus replaced by the greatly expanded reservoir. In the interim until completion, the old facilities could serve to assure a continuing water supply.
2
The District, though for some purposes an independent governmental agency under Texas law, may here be dealt with simply as the water supply system of the included City of Corpus Christi. Its contract with the City requires it to supply the City with the entire water output; and the City in turn agrees to operate and maintain the completed dam and impounding facilities and to supply water to consumers within the District, but outside city limits. It is conceded that between 40% and 50% of all water consumption from the system is accounted for by industrial (as distinguished from residential, commercial, hospital, municipal and other) users, most of whom produce goods for commerce, and that water is essential to their operations. Nor is it contested that an unspecified amount of the water supplied by the District is consumed by facilities and instrumentalities of commerce.
3
It is agreed that as to the employees here involved—those actually engaged in construction work on the dam—the respondent failed to comply with the requirements of § 7 of the Act, if it is applicable.1
4
On the basis of its applicability the Secretary of Labor sought an injunction in the United States District Court for the Southern District of Texas. That court granted the injunction, on two grounds of coverage: (1) since water from the system is supplied to facilities and instrumentalities of commerce, those engaged in building the dam are engaged in the production of goods—water—for commerce; and (2) since the water supplied is essential to industries in Corpus Christi producing goods for commerce, construction of the dam is an occupation 'closely related' and 'directly essential' to the production of goods for commerce. While the District Court conceded 'that Congress intended to narrow the scope of coverage' by the 1949 amendment of the statutory definition of 'produced' in § 3(j), 63 Stat. 911, 29 U.S.C.A. § 203(j),2 it concluded that this employment remained within the coverage of the Act.
5
On appeal the Court of Appeals for the Fifth Circuit reversed. 262 F.2d 546, 550. It disposed of the first ground of the District Court's decision by holding that the building of a dam could not itself constitute the production of goods for commerce, whatever the use to which the impounded water might be put. In disposing of the second, it invoked a rule that 'those engaged in building a plant to be used for the manufacturing of goods do not even come within * * * the * * * statutory definiton * * *.' It concluded that under such a rule there could be no coverage of employees engaged in construction of a facility which was not to engage in, but merely to support, the manufacture of goods for commerce. It concluded further that the 'remoteness' of these jobs from production justified their exclusion from coverage. Both conclusions reflected its general view that 'the amendment of 1949 made even more restrictive the definition of production of goods' than it was under the Act of 1938, when it substituted the words 'directly essential' for the word 'necessary,' and added the requirement that the employment be 'closely related' to production.
6
We brought the case here, 361 U.S. 807, 80 S.Ct. 52, 4 L.Ed.2d 57, because of an asserted conflict between circuits. See Chambers Construction Co. v. Mitchell, 8 Cir., 233 F.2d 717, and Mitchell v. Chambers Construction Co., 10 Cir., 214 F.2d 515.
7
The court below, in applying its rule excluding 'construction,' relied on our per curiam decision in Murphey v. Reed, 335 U.S. 865, 69 S.Ct. 105, 93 L.Ed. 410, and distinguished the more detailed decision in Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196, which expressly rejected the 'new construction' rule and held construction of a new lock on the Gulf Intracoastal Waterway to be covered employment. It did so by holding that Vollmer concerned only coverage under the 'in commerce' provision of the Act. The Vollmer decision cannot be so confined. It rejected an inflexible 'new construction' rule, which had developed in cases under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., see 349 U.S. at pages 429, 431—432, 75 S.Ct. at pages 861, 862—863, as inconsistent with the more pragmatic test of coverage under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. As early as Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, we recognized that the penetrating and elusive duty which this Act casts upon the courts to define in particular cases the less-than-constitutional reach of its scope, cannot be adequately discharged by talismanic or abstract tests, embodied in tags or formulas. No exclusion of construction work from coverage can be derived from the per curiam disposition of Murphey v. Reed, supra. There, as here, whether construction work is covered depends upon all the circumstances of the relation of the particular activity to 'commerce' in the statutory sense and setting, the question to which we now turn.
8
By confining the Act to employment 'in commerce or in the production of goods for commerce,' Congress has impliedly left to the States a domain for regulation. For want of a provision for an administrative determination, by an agency like the National Labor Relations Board, the primary responsibility has been vested in courts to apply, and so to give content to, the guiding yet undefined and imprecise phrases by which Congress has designated the boundaries of that domain.
9
Before 1949 the boundary of 'production' coverage was indicated by the statutory requirement that to be included an activity not 'in' production must be 'necessary' to it. 52 Stat. 1061. The interaction and interdependence of the processes and functions of the industrial society within which these definitions must be applied, could easily lead courts to find few activities that were discernibly related to production not to be 'necessary' to it, in a logical sense of that requirement. The statute, as illuminated by its history, see Kirschbaum Co. v. Walling, supra, 316 U.S. at page 522, 62 S.Ct. at page 1119, demanded that such merely logical deduction be eschewed. Courts were to be on the alert 'not to absorb by adjudication essentially local activities that Congress did not see fit to take over by legislation.' 10 East 40th St. Bldg. v. Callus, 325 U.S. 578, 582—583, 65 S.Ct. 1227, 1229, 89 L.Ed. 1806.
10
In Kirschbaum Co. v. Walling, supra (316 U.S. 517, 62 S.Ct. 1121), we added what was deemed a compelled gloss to suggest the limitations of 'necessary.' We found that the jobs of building-maintenance employees, ranging in responsibility from electrician to porter, of a loft building locally owned but tenanted by production facilities of producers for commerce, had 'such a close and immediate tie with the process of production for commerce, and (were) therefore so much an essential part of it,' that the employees' occupations were 'necessary' to production. In Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865, precisely the same formulation expressed our conclusion that maintenance employees of a producer-owned office building which was tenanted in part by the producer's central offices, but not by any production facilities, were also within the Act's coverage. In 10 East 40th St. Bldg. v. Callus, 325 U.S. 578, 65 S.Ct. 1227, 1229, 89 L.Ed. 1806, however, maintenance employees of an office building were held not to be covered. Although the building contained offices of some producers, it was locally owned, held out for general tenancy, and in fact tenanted by a miscellany of tenants. Regardful of the governing principle that coverage turns upon the nature of the employees' duties, and not upon the nature, local or interstate, of the employer's general business, we held the case distinguishable from Borden and Kirschbaum because the employment, since part of an enterprise which 'spontaneously satisfies the common understanding of what is local business,' was itself sufficiently different, despite identical employee duties, from prior cases to justify regarding it as separate from the 'necessary parts of a commercial process' which are within the Act. These decisions and distinctions were not exercises in lexicography. No niceties in phrasing or formula of words could do service for judgment, could dispense with painstaking appraisal of all the variant elements in the different situations presented by successive cases in light of the purpose of Congress to limit coverage short of the exercise by it of its full power under the Commerce Clause.
11
While attempted formulas of the relationship to production required for coverage cannot furnish automatic or spontaneous answers to specific problems of application as they arise in their protean diversity, general principles of the Act's scope afford direction of inquiry by defining the broad bounds within which decision must move. In Kirschbaum Co. v. Walling, supra, we found that limits on coverage cannot be understood merely in terms of the social purposes of the Act, in light of which any limitations must appear inconsistent. For the Act also manifests the competing concern of Congress to avoid undue displacement of state regulation of activities of a dominantly local character. Accommodation of these interests was sought by the device of confinement of coverage to employment in activities of traditionally national concern. The focus of coverage became 'commerce,' not in the broadest constitutional sense, but in the limited sense of § 3(b) of the statute: 'trade, commerce, transportation, transmission, or communication among the several States * * *.' Employment 'in' such activities is least affected by local interests. A step removed from employment 'in commerce' is employment 'in' production which is 'for' commerce. Under this clause we have sustained coverage whether the product is to be consumed primarily by commerce in the statutory sense, by its 'facilities and instrumentalities,' see Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745, or, as in the case of the products of the industrial consumers of water here, to move in it. Further removed from 'commerce' is employment not 'in' production 'for' commerce but in an activity which is only 'related' to such production. In applying this provision, we have necessarily borne in mind that it is furthest removed in the scheme of the statute from the hub of the national interest in 'commerce' upon which a limited displacement of state power is predicated.
12
The amendment of § 3(j) in 1949 did not alter the basic statutory scheme of coverage, but did reinforce the requirement that in applying the last clause of the section its position at the periphery of coverage be taken into account as a relevant factor in the determination. In revising coverage Congress turned only to the last clause of the section, which it evidently continued to regard as marking the outer limits of applicability. The amendment substantially adopts the gloss of Kirschbaum to indicate the scope of coverage of activities only 'related' to production. But examination of its history discloses that in adopting that gloss the purpose of Congress was not simply to approve everything done here and in the lower courts in what purported to be specific applications of that inevitably elusive formulation. While the approach of Kirschbaum was confirmed, the change manifests the view of Congress that on occasion courts, including this Court, had found activities to be covered, which the law-defining body deemed too remote from commerce or too incidental to it.
13
The House, overriding the contrary action of its Labor Committee which had left § 3(j) unchanged, see H.R. 5856, as reported, and H.R.Rep. No. 267, 81st Cong., 1st Sess., 1949, adopted an amendment proposed by Committee member Lucas from the floor (95 Cong.Rec. 11000), which did amend § 3(j). Representative Lucas made it plain that it was his purpose to constrict coverage. 95 Cong.Rev. 11001. As passed by the House, § 3(j) was identical with the present Act except that for 'directly essential' the House version used 'indispensable.'
14
The Senate substituted its own bill, S. 653, for the House draft, and its version left § 3(j) unchanged. The resulting conference adopted the House bill insofar as it amended § 3(j), with only the change already noted.
15
While the reports presented to the House and Senate by their repective conferees manifest some disagreement as to degree,3 it is apparent that some restraint on coverage was intended by both. In the House, for example, Kirschbaum was approved and our decision in Martino v. Michigan Window Cleaning Co., 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603, was disapproved (H.R.Conf.Rep. No. 1453, 81st Cong., 1st Sess., p. 15); while the Senate conferees, with different emphasis, noted only that the standard applied in 'most' of our decisions was adopted. 95 Cong.Rec. 14874.
16
Both reports use as illustrations of coverage which remains unchanged by the amendment, employment in utilities supplying water to the producers of goods for commerce. H.R.Conf.Rep. No. 1453, p. 14; 95 Cong.Rec. 14875. But no illustration in either statement deals with construction of a dam designed solely for use as an impounding facility for a local water distribution system. The House Report does expressly state that the case of E. C. Schroeder Co. v. Clifton, 10 Cir., 153 F.2d 385, is an instance of an activity not within the amended Act. But the activity there involved was one in support of construction of a dam; it was not the construction of the dam itself. Thus, even were we to accept the illustrations in the House Report as authoritative, we would not be relieved of the duty of deciding where between these boundaries of approval and disapproval the present facts lie. To do so requires that we once again apply the formulation set down in Kirschbaum, which, in light of the 1949 amendment, we must do with renewed awareness of the purpose of Congress to avoid intrusion into withdrawn local activites.
17
To establish coverage the Secretary relies upon Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672, which, he asserts, establishes that employees are covered who are engaged not merely in operation of, but in maintenance and repair of, the facilities of a company distributing water for consumption by producers for commerce.4 He urges that once it is recognized—as the court below failed to do—that construction work is not excluded from the Act's coverage, this concededly essential expansion of facilities is not distinguishable from maintenance and repair in any characteristic made relevant by the standard of 'closely related' and 'directly essential' to production. We do not agree.
18
Assuming arguendo that maintenance and repair of the completed dam would be covered employment, it does not follow that construction of the dam therefore is. The activities are undoubtedly equally 'directly essential' to the producers of goods who depend upon the water supply; but they are not equally remote from production or from the 'commerce' for which production is intended. The distinction between maintenance and repair on the one hand, and replacement or new construction on the other, may often be difficult to delineate but is a practical distinction to which law must not be indifferent. Its relevance here, where our purpose must be to isolate primarily local activities from the flow of commerce to which they invariably relate, lies in the close relation of maintenance and repair to operation, as opposed to replacement or new construction which is a separate undertaking necessarily prior to operation and therefore more remote from the end result of the process. As we held in Vollmer, that an activity is rightly called construction and is therefore distinct from operation, does not per se remove it from coverage. Construction may be sufficiently 'closely related' to production to place it in that proximity to 'commerce' which the Act demands as a predicate to coverage. Here, however, neither a facility of 'commerce' nor a facility of 'production' is under construction. Operation of the completed dam will merely support production facilities; and construction of the dam is yet another step more remote.
19
The Secretary relies upon Mitchell v. Lublin, McGaughy & Associates, 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d 243, and Mitchell v. C. W. Vollmer & Co., supra (349 U.S. 427, 75 S.Ct. 863), to establish that this construction is closely enough related to 'production of goods for commerce' to be within the coverage of the Act. In each of those cases a construction activity was found 'directly and vitally related' to 'commerce' and therefore 'in commerce,' and what we have already said demonstrates that they are not useful guides here. As Lublin, supra, manifests, an activity sufficiently 'directly related' to commerce to be 'in' it is, at most, no further removed from 'commerce' than is the employment 'in production' itself which the Act expressly covers. Compare Mitchell v. Lublin, McGaughy & Associates, supra, with Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745. For this reason, although the Act has never contained even a general definition of the relationship of an activity to commerce necessary to justify its inclusion, such a relationship has been extrapolated by the courts in conformity with the statutory scheme, so as to displace state regulation 'throughout the farthest reaches of the channels of interstate commerce.' Walling v. Jacksonville Paper Co., 317 U.S. 564, 567, 63 S.Ct. 332, 335, 87 L.Ed. 460. No independent vitality attaches to conclusory phrases such as 'directly' or 'vitally related.' What is finally controlling in each case is the relationship of the employment to 'commerce,' in the sense of the statute, and it needs no argument that as to that relationship this case is significantly different from Lublin or Vollmer.
20
Moreover, though construction and operation of this dam are equally 'directly essential' to the producers who require the water impounded and distributed, neither the construction nor the operation of the dam is designed for their use. Water is supplied by the District to a miscellany of users throughout its geographical area, and somewhat less than half of the consumption is by producers. These facilities, and their construction, are thus to be differentiated from the irrigation system in the Farmers Reservoir case, which was dedicated exclusively to supply water to farmers producing for commerce.
21
These are no doubt matters of the nicest degree. They are inevitably so in the scheme and mode of enforcement of this statute. Bearing in mind the cautionary revision in 1949, and that the focal center of coverage is 'commerce,' the combination of the remoteness of this construction from production, and the absence of a dedication of the completed facilities either exclusively or primarily to production, persuades us that the activity is not 'closely related' or 'directly essential' to production for commerce.'
22
The Secretary alternatively urges that because some of the water supplied by the District is consumed by facilities and instrumentalities of commerce, the water should be regarded as 'goods' produced 'for commerce' and the construction of the dam should be found sufficiently related to such production to be within the Act's coverage. He relies on Alstate Construction Co. v. Durkin, supra, and compares the water here to the construction materials there produced primarily for use in road construction. It is a sufficient answer to this contention that the record is devoid of evidence of a purposeful and substantial dedication of otherwise local production to consumption by 'commerce' which was the basis of our decision in Alstate. Indeed, it appears that the water supplied to the facilities and instrumentalities of commerce is but an insignificant portion of the total.
23
Affirmed.
24
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.
25
The opinion of the Court is more consistent with the dissent in Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196, in which my Brother FRANKFURTER joined, than it is with the Court's opinion in that case. The liberal construction given the Act from Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, to Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745, and down to and including the Vollmer case is now forsaken. Yet this seems to me to be a singularly inappropriate occasion to change the direction of the law in a mere matter of statutory construction.
26
The report of the Senate Conferees (95 Cong.Rec. 14874—14875) which ushered § 3(j) into the law in its present form1 said:
27
'The work of employees of employers who produce or supply goods or facilities for customers engaged within the same State in the production of other goods for interstate commerce may also be covered as closely related and directly essential to such production. This would be true, for example, of employees engaged in the following activities:
28
'2. Producing and supplying fuel, power, water, or other goods for customers using such goods in the production of different goods for interstate commerce. Reynolds v. Salt River Valley Water Users Asso. (143 F.(2d) 863 (C.A.9)); Phillips v. Meeker Coop. Light and Power Asso. (158 F.(2d) 698 (C.A.8)); Lewis v. Florida Light and Power Co., (154 F.(2d) 751 (C.A.5)); West Kentucky Coal Co. v. Walling (153 F.(2d) 152(582) (C.A.6)).' The dam here under construction was to furnish the City of Corpus Christi with a water supply—a city water system that services railroads, truck companies, airlines, other instrumentalities of interstate commerce and various producers of goods for commerce. It is conceded that the major industries in this area produce goods for commerce and use a substantial amount of water in that connection. Indeed, 40% to 50% of all water furnished by the city is used industrially.
29
Reynolds v. Salt River Valley Water Users Ass'n, 9 Cir., 143 F.2d 863, held that repair and maintenance employees of canals and dams of an irrigation company supplying water for growers of crops intended for shipment in interstate commerce were engaged in an occupation necessary for the production of goods for commerce.
30
West Kentucky Coal Co. v. Walling, 6 Cir., 153 F.2d 582, held that men producing coal sold to factories producing goods for commerce were covered by the Act.
31
Meeker Cooperative Light & Power Ass'n v. Phillips, 8 Cir., 158 F.2d 698, held that employees of a power cooperative distributing electricity to companies that produced goods for commerce were covered by the Act.
32
These three decisions, as noted, were approved by the Senate report defining the scope of § 3(j). Certainly then, employees maintaining this new dam would be covered by the Act, as our own decision in Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672, indicates.
33
How then, if these precedents are to be followed, can employees who built the dam be out of reach of the Act?
34
We held in Mitchell v. C. W. Vollmer & Co., supra, that construction of a lock to be used in commerce was work '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.' 349 U.S. at page 429, 75 S.Ct. at page 862, 99 L.Ed. 1196. There is no more remoteness here than there. It is difficult to understand why a stringent test of remoteness is used in determining whether construction work is related to 'production of goods for commerce' when a liberal test was applied in the Vollmer case in holding that such work was 'in commerce.' See Armour & Co. v. Wantock, 323 U.S. 126, 131, 65 S.Ct. 165, 167, 89 L.Ed. 118.
35
Prior to the 1949 amendments the standard in § 3(j) was whether the work was in any 'process or occupation necessary' for the production of goods for commerce. The present standard, so far as material here, is whether the work is 'in any closely related process or occupation directly essential to the production' of goods for commerce.2 The Senate report said that employees 'repairing, maintaining, improving or enlarging . . . facilities of producers of goods' were covered. 95 Cong.Rec. 14875. This group, the report stated, were included because they were 'performing tasks necessary to effective productive operations of the producer.' 95 Cong.Rec. 14874.
36
Most of the decisions cited in the report which are descriptive of this category of employees were cases where the employees were working on existing structures or appliances used by producers of goods for commerce,3 whether or not those facilities were owned by the producers. Such is the case of Borden Co. v. Borella, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865. But one of the cases cited by the report as also descriptive of this group of employees was Walling v. McCrady Construction Co., 3 Cir., 156 F.2d 932, which brought within the Act's coverage workers building roads and bridges to be used to transport goods in process of production for interstate commerce. These facilities, like the one in the present case, were not owned by the producers, nor were some of them yet in existence. But when completed they would serve as facilities for those who were producing goods for commerce. That case clearly suggests that the Congress in redefining the scope of § 3(j) was following the broad contours of the coverage which had been delineated by the construction cases, as well as by the maintenance cases.
37
It seems as if there could be no doubt that the present case is brought squarely within that category, for this project was not the construction of a wholly new water system but an improvement of an existing water system. Moreover, the water system being improved would seem to be as much a facility of those producing goods for commerce as was the highway in the McCrady case. Moreover, in Alstate Construction Co. v. Durkin, supra, a company, making products sold intrastate but used to improve the facilities of those producing goods for commerce, was held to be employing workers covered by the Act. The work in improving the present facility used by producers of goods for commerce is at least as close to the process of production as the labor of the men in the Alstate case.
38
So it is that I believe today's decision changes the symmetry of the judicial rulings under the Act, narrows its scope, and impairs its effectiveness. Today's ruling is a departure from the accepted construction. By this retreat I fear we invite hostile constructions that will undermine the broad base which Congress gave the Act. If there is to be a change in the direction of the law or an alteration in its emphasis, it should be done by Congress which is far better suited than we to mark the farthest areas which the liberal policies of the Act were designed to cover. I regret that today we give up territory that Congress has fairly claimed, that we take a backward step from the measures Congress designed to protect the lowest paid and weakest group of wage earners in the Nation.
1
With exceptions not relevant here, § 7, the hours provision, directs an employer to comply with its provisions as to 'any of his employees who is engaged in commerce or in the production of goods for commerce * * *.'
2
Only the last clause of § 3(j) was amended in 1949. Before the amendment it was provided that 'an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State.' 52 Stat. 1061. (Emphasis added.) The amended last clause provides: 'or in any closely related process or occupation directly essential to the production thereof, in any State.' 63 Stat. 911. (Emphasis added.)
3
The views of a minority of the Senate conferees emphasize the apparent inconsistencies between the reports delivered to the House and Senate. 95 Cong.Rec. 14880.
4
The Secretary similarly relies on the approval in general terms of such coverage in the reports of the House and Senate conferees. H.R.Conf.Rep. No. 1453, 81st Cong., 1st Sess., p. 14; 95 Cong.Rec. 14875.
1
Section 3(j) provides:
"Produced' means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State.'
2
See note 1, supra.
3
And see Roland Electrical Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383, also cited with approval in the report. 95 Cong.Rec. 14875.
| 67
|
362 U.S. 402
80 S.Ct. 788
4 L.Ed.2d 824
Milton R. DUSKY, Petitioner,v.UNITED STATES of America.
No. 504, Misc.
April 18, 1960.
Mr. James W. Benjamin, for petitioner.
Solicitor General Rankin, for the United States.
PER CURIAM.
1
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. Upon consideration of the entire record we agree with the Solicitor General that 'the record in this case does not sufficiently support the findings of competency to stand trial,' for to support those findings under 18 U.S.C. § 4244, 18 U.S.C.A. § 4244 the district judge 'would need more information than this record presents.' We also agree with the suggestion of the Solicitor General that it is not enough for the district judge to find that 'the defendant (is) oriented to time and place and (has) some recollection of events,' but that the 'test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.' In view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony in this case and the resulting difficulties of retrospectively determining the petitioner's competency as of more than a year ago, we reverse the judgment of the Court of Appeals affirming the judgment of conviction, and remand the case to the District Court for a new hearing to ascertain petitioner's present competency to stand trial, and for a new trial if petitioner is found competent. It is so ordered.
2
Reversed and remanded with directions.
| 34
|
362 U.S. 396
80 S.Ct. 789
4 L.Ed.2d 820
Raymond P. WARD, Petitioner,v.ATLANTIC COAST LINE R. CO.
No. 485.
Argued March 31, 1960.
Decided April 18, 1960.
Mr. Neal P. Rutledge, Miami, Fla., for petitioner.
Mr. Sam T. Dell, Jr., Gainesville, Fla., for respondent.
PER CURIAM.
1
In this action under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. §§ 51—60, 45 U.S.C.A. §§ 51—60, the Court of Appeals for the Fifth Circuit, by a divided court, affirmed a judgment in favor of the respondent railroad entered on a jury verdict in the District Court for the Northern District of Florida. 265 F.2d 75. We granted certiorari, 361 U.S. 861, 80 S.Ct. 126, 4 L.Ed.2d 101, to consider the issues presented in the light of our decisions in Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799, and Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756. The latter is an intervening decision.
2
The railroad employed the petitioner as a laborer in a section gang with a regular work-week from Monday through Friday. The petitioner was injured on a Saturday, ordinarily the gang's day off, when the gang, supervised by their foreman, using the work tools supplied by the railroad, adn following standard railroad methods for doing the work, were replacing ties under a siding track which ran off the railroad's main line tracks to the plant of the M. & M. Turpentine Company. That company had an agreement with the railroad calling for the railroad to make periodic inspections of the track and for the repairs disclosed to be necessary by such inspections to be made by and at the expense of the Turpentine Company 'to the satisfaction of the (railroad's) Chief Engineer.' When an inspection revealed the need for the work in question, the Turpentine Company engaged the petitioner's foreman to recruit his crew to do the work on their day off under his direction. The foreman offered the crew railroad overtime rates of pay for doing the work, but there is a sharp conflict in the evidence whether he told the crew that they would not be working for the railroad but for someone else. The foreman paid the wages with funds supplied to him by the Turpentine Company.
3
The petitioner contends that the proofs require a holding as a matter of law that the Turpentine Company, in the maintenance of the siding, was the 'agent' of the respondent railroad within the meaning of § 1 of the Federal Employers' Liability Act, 45 U.S.C. § 51, 45 U.S.C.A. § 51, as we construed that term in Sinkler v. Missouri Pacific R. Co., supra. We find no merit in this contention. Indeed, we do not think that the proofs presented a jury question whether the Turpentine Company was the railroad's 'agent' within the meaning of the Act. This was not a situation, as in Sinkler, in which the railroad engaged an independent contractor to perform operational activities required to carry out the franchise. This was a siding privately owned by the Turpentine Company and established to service it alone. In maintaining it, we do not see how it can be said under the proofs that the Turpentine Company was 'engaged in furthering the operational activities of respondent.' Sinkler v. Missouri Pacific R. Co., supra, 356 U.S. at page 331, 78 S.Ct. at page 763. Even the use of the siding by local farmers in harvest time to load respondent's cars with watermelons, a fact heavily relied upon by the petitioner, was, according to uncontradicted testimony, not at the instance of the railroad but because the President of the Turpentine Company 'leased this track—I guess that is what you would call it—anyhow, he let those farmers load watermelons out there on that track and he always repaired it every year before watermelon time.'
4
However, we agree with the petitioner's alternative contention that the trial judge erred in refusing to instruct the jury as requested by the petitioner,1 and in giving the instructions he did,2 as to the factors to be considered by the jury in determining whether the petitioner was an 'employee' of the railroad during the performance of the work within the meaning of the Act. The instructions given in effect limited inquiry to the question whether the petitioner was aware that the railroad considered him not to be working for it but for some third party. But neither the railroad's communication of its concept of petitioner's status to petitioner, nor his acquiescence therein, if shown, is determinative of the issue. Cf. Cimorelli v. New York Central R. Co., 6 Cir., 148 F.2d 575, 578. The parties' characterization is but one factor to be considered among others, see Restatement, Agency 2d, § 220(2)(i), and the issue is one for determination by the jury on the basis of all the relevant factors. Baker v. Texas & Pacific R. Co., supra.
5
Reversed.
6
Mr. Justice FRANKFURTER would dismiss this writ of certiorari as improvidently granted. As the Court's opinion demonstrates, the case solely presents the appropriateness of instructions given by a trial court and the refusal of requested instructions in the light of the unique circumstances of a particular situation. As such it falls outside the considerations which, according to Rule 19 of this Court, 28 U.S.C.A., govern the granting of a petition for certiorari. See Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524, 77 S.Ct. 457, 459, 1 L.Ed.2d 515 (dissenting).
7
Mr. Justice HARLAN, with whom Mr. Justice WHITTAKER joins, dissenting.
8
Since I consider that, except as to the one issue submitted to the jury, there is no evidence in the record tending to establish any of the usual criteria showing an employment relationship between the petitioner and the respondent in connection with this work, I dissent. See Restatement, Agency 2d, § 227, Comment a.
1
The requested instructions were the following:
'One of the issues to be decided in this case is whether or not the plaintiff, Raymond P. Ward, was employed by the defendant railroad at the time he was injured. This issue must be determined from all of the circumstances of the case. The primary factor to be considered is whether or not the railroad had the power to direct, control, and supervise the plaintiff in the performance of his work at the time he was injured. Other relevant factors to be considered are: who selected and engaged the plaintiff to perform the work; who furnished the tools with which the work was performed; who paid the plaintiff his wages for the performance of the work; the amount of scale of such wages; and who had the power to fire or dismiss the plaintiff from the work.
'If you find that the railroad, through its foreman, I. H. Keen, had the power to direct, control and supervise the plaintiff in the performance of the work he was doing at the time he was injured, then you should find that the plaintiff was employed by the defendant railroad at the time he was injured.
'The fact that the money used to pay the plaintiff Ward for the work he was doing at the time he was injured came originally from some third person with whom the railroad or the owner of the spur track had made an arrangement, does not remove the defendant railroad from its employer-employee relationship with the plaintiff Ward and does not relieve the defendant railroad of liability for injuries suffered by the plaintiff during the course of his railroad employment as a result of the defendant railroad's negligence.
'The accident here involved occurred upon a spur track which was partly owned by the M. & M. Turpentine Co. The fact that the M. & M. Turpentine Co. had contracted with the defendant railroad to maintain all or a portion of this spur track does not relieve the defendant railroad of its liability to the plaintiff if the plaintiff was injured during the course of his employment with the defendant railroad on the spur track as a direct consequence, in whole or in part, of the defendant railroad's negligence.'
2
The pertinent portion of the court's charge was as follows:
'That the Railroad Company was liable unless the defendant's foreman made it clear to him before he started to work that morning that they were not working for the Railroad, but working on a private track to make such extra money. I think I put it just about that simply, didn't I, to make some extra money. I told you that if the foreman failed to make that disclosure to him, ordered him to go out there and go to work, and put him to work on that private track, the Railroad Company would be liable. I don't see how I can say it any plainer. Do you have a word that you think I could use to make it any plainer?
'Mr. Rutledge: Your Honor, to make it clear he was working for some third person and not working for the Railroad.
'The Court: Yes sir, that is the word I believe he suggested that he was working for some third person. The foreman had to make it clear to him that he was working for some third person and not the Railroad. I thought I said it, but I guess I didn't spell it out as much as he wanted, but I want to make that clear to you. If you find from this evidence he was so advised before he went out there to work, and he went out on his own volition and joined the others to make some extra money, then he was not an employee of the Railroad Company and they would not be liable.'
| 78
|
362 U.S. 330
80 S.Ct. 761
4 L.Ed.2d 774
ORDER OF RAILROAD TELEGRAPHERS et al., Petitioners,v.CHICAGO AND NORTH WESTERN R. CO., a Corporation.
No. 100.
Argued March 1, 2, 1960.
Decided April 18, 1960.
Rehearing Denied May 16, 1960.
See 362 U.S. 984, 80 S.Ct. 1056.
Mr. Lester P. Schoene, Washington, D.C., for petitioners.
Mr. Carl McGowan, Chicago, Ill., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
According to the verified complaint filed in a United States District Court in Illinois by the respondent, Chicago & North Western Railway Company, against the petitioners, the Order of Railroad Telegraphers and its officials, 'This is an action for injunction to restrain and enjoin the calling and carrying out of a wrongful and unlawful strike or work stoppage on plaintiff's railroad.' Section 4 of the Norris-LaGuardia Act provides, however, that 'No court of the United States shall have jourisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons * * * from * * * (a) Ceasing or refusing to perform any work or to remain in any relation of employment; * * *'1 The main question in this case then was, and still is, whether this prohibition of the Norris-LaGuardia Act bars an injunction in the circumstances of this case.
2
Respondent railroad, owning and operating a rail system of over .,000 miles in the States of Illinois, Wisconsin, Iowa, Minnesota, Michigan, Nebraska, South Dakota, North Dakota, and Wyoming, is an integral part of the nationwide railway system important to the transportation of passengers and freight in interstate commerce. When the railroad began operations, about 100 years ago, traffic was such that railroad stations were established about 7 to 10 miles apart. Trucks, automobiles, airplanes, barges, pipelines and modern roads have reduced the amount of railroad traffic so that the work now performed at many of these stations by agents is less than one hour during a normal eight-hour day. Maintenance of so many agencies where company employees do so little work, the complaint alleges, is wasteful and consequently in 1957 the railroad filed petitions with the public utility commissions in four of the nine States in which it operated asking permission to institute a 'Central Agency Plan whereby certain stations would be made central agencies * * *' and others abolished. The plan would necessarily result in loss of jobs for some of the station agents and telegraphers, members of the petitioner union. A few weeks after the state proceedings were filed and before any decision had been made, the petitioner union, the duly recognized, certified and acting collective bargaining agent for the railroad's employees, notified the railroad under § 6 of the Railway Labor Act, 45 U.S.C. § 156, 45 U.S.C.A. § 156, that it wanted to negotiate with the railroad to amend the current bargaining agreement by adding the following rule:
3
'No position in existence on December 3, 1957, will be abolished or discontinued except by agreement between the carrier and the organization.'
4
The railroad took the position, according to its complaint, that this request did not constitute a 'labor dispute under the Railway Labor Act,' that it did not raise a bargainable issue, and that the union had no right to protest or to seek relief except by appearing before the state public utility commissions which had power to determine whether station agencies could be discontinued, a power which private parties could not thwart by entering into a bargaining agreement. The respondent added that maintenance of the unnecessary agencies was offensive to the national transportation policy Congress adopted in the Interstate Commerce Act, 49 U.S.C. §§ 1—27, 49 U.S.C.A. §§ 1—27, and that the duties that Act imposed on railroads could not be contracted away.
5
The union contended that the District Court was without jurisdiction to grant injunctive relief under the provisions of the Norris-LaGuardia Act because this case involved a labor dispute, and that the railroad had refused to negotiate in good faith on the proposed change in the agreement in violation of § 2, First, of the Railway Labor Act, 45 U.S.C. § 152, First, 45 U.S.C.A. § 152, subd. 1, which requires the railroad to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions. Therefore, the union argued, an injunction in federal court is barred if for no other reason because of § 8 of the Norris-LaGuardia Act which provides:
6
'No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.' 29 U.S.C. § 108, 29 U.S.C.A. § 108.
7
See Brotherhood of Railroad Trainmen v. Toledo, P. & W.R.R., 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534.
8
After hearings, the District Court found, so far as is relevant here, that the railroad 'refused to negotiate, confer, mediate or otherwise treat with defendant Telegraphers on the proposed change in agreement set forth in the Section 6 notice,' although the railroad 'did show willingness to negotiate upon the central agency plan, including a possibility concerning severance pay'; that the proposed contract change referred to in the § 6 notice 'relates to the length or term of employment as well as stabilization of employment' and that collective bargaining as to the length or term of employment is commonplace; that 'The dispute giving rise to the proposed strike is a major dispute and not a minor grievance under the Railway Labor Act, and no issue involved therein is properly referable to the National Railroad Adjustment Board';2 and that the contract change proposed in the § 6 notice related to 'rates of pay, rules and working conditions,' and was therefore a bargainable issue under the Railway Labor Act. On its findings and conclusions of law, the District Court granted temporary relief but declined to grant a permanent injunction on the ground that it was without jurisdiction to do so.
9
On appeal the Court of Appeals did grant a permanent injunction upon its decision that 'The District Court's finding that the proposed contract change related to 'rates of pay, rules, or working conditions,' and was thus a bargainable issue under the Railway Labor Act, is clearly erroneous.'3 It held that the Norris-LaGuardia Act did not apply to bar an injunction against this strike4 and we granted certiorari, 361 U.S. 809, 80 S.Ct. 56, 4 L.Ed.2d 58, to consider this important question.5
10
We hold, with the District Court, that this case involves or grows out of a labor dispute within the meaning of the Norris-LaGuardia Act and that the District Court was without jurisdiction permanently to enjoin the strike.
11
Section 4 of the Norris-LaGuardia Act specifically withdraws jurisdiction from a District Court to prohibit any person or persons from '(c)easing or refusing to perform any work or to remain in any relation of employment' 'in any case involving or growing out of any labor dispute' as 'herein defined.'6 Section 13(c) of the Act defines a labor dispute as including,
12
'any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.'7
13
Unless the literal language of this definition is to be ignored, it squarely covers this controversy. Congress made the definition broad because it wanted it to be broad. There are few pieces of legislation where the congressional hearings, committee reports, and the language in the legislation itself more clearly point to the necessity for giving an Act a construction that will protect the congressional policy the Act adopted. Section 2 of this Act specifies the public policy to be taken into consideration in interpreting the Act's language and in determining the jurisdiction and authority of federal courts; it is one of freedom of association, organization, representation and negotiation on the part of workers.8 The hearings and committee reports reveal that Congress attempted to write its bill in unmistakable language because it believed previous measures looking toward the same policy against nonjudicial intervention in labor disputes had been given unduly limited constructions by the courts.9
14
Plainly the controversy here relates to an effort on the part of the union to change the 'terms' of an existing collective bargaining agreement. The change desired just as plainly referred to 'conditions of employment' of the railroad's employees who are represented by the union. The employment of many of these station agents inescapably hangs on the number of railroad stations that will be either completely abandoned or consolidated with other stations. And, in the collective bargaining world today, there is nothing strange about agreements that effect the permanency of employment. The District Court's finding that '(c)ollective bargaining as to the length or term of employment is commonplace,' is not challenged.
15
We cannot agree with the Court of Appeals that the union's effort to negotiate about the job security of its members 'represents an attempt to usurp legitimate managerial prerogative in the exercise of business judgment with respect to the most economical and efficient conduct of its operations.'10 The Railway Labor Act and the Interstate Commerce Act recognize that stable and fair terms and conditions of railroad employment are essential to a well-functioning national transportation system. The Railway Labor Act safeguards an opportunity for employees to obtain contracts through collective rather than individualistic bargaining. Where combinations and consolidations of railroads might adversely affect the interests of employees, Congress in the Interstate Commerce Act has expressly required that before approving such consolidations the Interstate Commerce Commission 'shall require a fair and equitable arrangement to protect the interests of the railroad employees affected.'11 It requires the Commission to do this by including 'terms and conditions' which provide that for a term of years after a consolidation employees shall not be 'in a worse position with respect to their employment' than they would otherwise have been.12 (Emphasis supplied.)
16
In 1942 this Court held that when a railroad abandons a portion of its lines, the Interstate Commerce Commission has power to include conditions for the protection of displaced workers in deciding what 'the public convenience and necessity may require.' We so construed the Interstate Commerce Act specifically on the basis that imposition of such conditions 'might strengthen the national system through their effect on the morale and stability of railway workers generally.' Interstate Commerce Comm. v. Railway Labor Exec. Ass'n, 315 U.S. 373, 375, 62 S.Ct. 717, 720, 86 L.Ed. 904, citing United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208. The brief for the railroad associations there called our attention to testimony previously given to Congress that as early as 1936 railroads representing 85% of the mileage of the country had made collective bargaining agreements with their employees to provide a schedule of benefits for workers who might be displaced or adversely affected by coordinations or mergers.13 In an effort to prevent a disruption and stoppage of interstate commerce, the trend of legislation affecting railroads and railroad employees has been to broaden, not narrow, the scope of subjects about which workers and railroads may or must negotiate and bargain collectively. Furthermore, the whole idea of what is bargainable has been greatly affected by the practices and customs of the railroads and their employees themselves. It is too late now to argue that employees can have no collective voice to influence railroads to act in a way that will preserve the interests of the employees as well as the interests of the railroad and the public at large.
17
The railroad has argued throughout the proceedings that the union's strike here may be enjoined, regardless of Norris-LaGuardia, because its effort to bargain about the consolidation and abandonment of railroad stations is unlawful. It is true that in a series of cases where collective bargaining agents stepped outside their legal duties and violated the Act which called them into being, we held that they could be enjoined.14 None of these cases, however, enjoined conduct which the Norris-LaGuardia Act withdrew from the injunctive power of the federal courts except the Chicago River case which held that a strike could be enjoined to prevent a plain violation of a basic command of the Railway Labor Act 'adopted as a part of a pattern of labor legislation.' 353 U.S. 30, 42, 77 S.Ct. 635, 641. The Court there regarded as inapposite those cases in which it was held that the Norris-LaGuardia Act's ban on federal injunctions is not lifted because the conduct of the union is unlawful under some other, nonlabor statute.15 Here, far from violating the Railway Labor Act, the union's effort to negotiate its controversy with the railroad was in obedience to the Act's command that employees as well as railroads exert every reasonable effort to settle all disputes 'concerning rates of pay, rules, and working conditions.' 45 U.S.C. § 152, First, 45 U.S.C.A. § 152, subd. 1. Moreover, neither the respondent nor anyone else points to any other specific legal command that the union violated here by attempting to bring about a change in its collective bargaining agreement. It would stretch credulity too far to say that the Railway Labor Act, designed to protect railroad workers, was somehow violated by the union acting precisely in accordance with that Act's purpose to obtain stability and permanence in employment for workers. There is no express provision of law, and certainly we can infer none from the Interstate Commerce Act, making it unlawful for unions to want to discuss with railroads actions that may vitally and adversely affect the security, seniority and stability of railroad jobs.16 And for a number of reasons the statepublic utility proceedings, invoked by the railroad to obtain approval of consolidation or abandonment of stations, could not stamp illegality on the union's effort to negotiate this whole question with the railroad. The union merely asked for a contractual right to bargain with the railroad about any voluntary steps it might take to abandon stations or to seek permission to abandon stations and thus abolish jobs. Nothing the union requested would require the railroad to violate any valid law or the valid order of any public agency. There is no testimony and there are no findings that this union has set itself up in defiance of any state mandatory order. In fact, there was no state order of any kind at the time the union first asked to negotiate about the proposed contractual change. Even if a Norris-LaGuardia 'labor dispute' could not arise out of an unlawful bargaining demand, but see Afran Transport Co. v. National Maritime Union, D.C., 169 F.Supp. 416, 1959 A.M.C. 326, the union's proposal here was not unlawful.
18
The union contends that, whether the state rulings were mandatory or permissive, the States are without authority to order an abandonment of stations that would conflict with collective bargaining agreements made or to be made between the railroad and the union. Whether this contention is valid or not we need not decide since there is no such conflict before us. And the District Court expressly refused to find that the union's proposal was prompted by the railroad's action in seeking state authority to put its Central Agency Plan into effect. Instead, the District Court specifically found that the dispute grew out of the failure of the parties to reach an agreement on the contract change proposed by the union.
19
Only a word need be said about the railroad's contention that the dispute here with the union was a minor one relating to an interpretation of its contract and therefore one that the Railway Labor Act requires to be heard by the National Railroad Adjustment Board. We have held that a strike over a 'minor dispute' may be enjoined in order to enforce compliance with the Railway Labor Act's requirement that minor disputes be heard by the Adjustment Board. Brotherhood of Railroad Trainmen v. Chicago River & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622. But it is impossible to classify as a minor dispute this dispute relating to a major change, affecting jobs, in an existing collective bargaining agreement, rather than to mere infractions or interpretations of the provisions of that agreement. Particularly since the collective bargaining agreement which the union sought to change was a result of mediation under the Railway Labor Act, this is the type of major dispute that is not governed by the Adjustment Board.
20
In concluding that the injunction ordered by the Court of Appeals is forbidden by the Norris-LaGuardia Act, we have taken due account of the railroad's argument that the operation of unnecessary stations, services and lines is wasteful and thus runs counter to the congressional policy, expressed in the Interstate Commerce Act, to foster an efficient national railroad system. In other legislation, however, like the Railway Labor and Norris-LaGuardia Acts, Congress has acted on the assumption that collective bargaining by employees will also foster an efficient national railroad service. It passed such Acts with knowledge that collective bargaining might sometimes increase the expense of railroad operations because of increased wages and better working conditions. It goes without saying, therefore, that added railroad expenditures for employees cannot always be classified as 'wasteful.' It may be, as some people think, that Congress was unwise in curtailing the jurisdiction of federal courts in railroad disputes as it did in the Norris-LaGuardia Act. Arguments have even been presented here pointing to the financial debilitation of the respondent Chicago & North Western Railroad and to the absolute necessity for the abandonment of railroad stations. These arguments, however, are addressed to the wrong forum. If the scope of the Norris-LaGuardia Act is to be cut down in order to prevent 'waste' by the railroads, Congress should be the body to do so. Such action is beyond the judicial province and we decline to take it.
21
There are other subsidiary questions raised with reference to the validity of a second 30-day restraining order issued by the district judge and an injunction pending appeal under Rule 62(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. But since we have determined the main controversy between the parties, we think it inadvisable to decide either of these questions now. We intimate no opinion concerning either at this time.
22
The judgment of the Court of Appeals is reversed and that of the District Court is affirmed insofar as it held that the court was without jurisdiction under the Norris-LaGuardia Act to enter the injunction. It is so ordered.
23
Judgment of Court of Appeals reversed and judgment of District Court affirmed in part.
24
Mr. Justice CLARK, dissenting.
25
The respondent, suffering from financial headcashes, conducted an efficiency survey of its operations. This indicated that it was carrying considerable dead weight on its payroll in the form of local, one-man stations. Some of its local agents worked as little as 12 minutes a day and the average daily work time on its one-man stations was only 59 minutes. All drew a full day's pay. In fact, the pay for time worked, it was found, ran in some cases as high as $300 per hour. Meanwhile the railroad was facing a slow death for lack of funds—all to the ultimate but certain detriment of the public, the employees and the management. It then proposed—and, after hearings, four States approved—a consolidation of work so that an agent would have sufficient duties to perform to earn a full day's pay. This would also permit the railroad, without any curtailment of its service to the public, to reduce its employee force over its entire system by several hundred agents. It proposed to negotiate with the union as to the severance pay and other perquisites for those agents whose services would no longer be needed. This the union refused to do, demanding that before any agent's position be abolished the railroad obtain its consent. The union offered but one alternative: 'comply with' its demand, or suffer a 'strike.' The railroad, in the face of such a ukase, brought this suit.
26
Today the Court tells the railroad that it must bargain with the union or suffer a strike. The latter would be the death knell of the railroad. Hence, for all practical purposes, the Court is telling the railroad that it must secure the union's approval before severing the hundreds of surplus employees now carried on its payroll. Everyone knows what the answer of the union will be. It is like the suitor who, when seeking the hand of a young lady, was told by her to 'go to father.' But, as the parody goes, 'She knew that he knew that her father was dead; she knew that he knew what a life he had led; and she knew that he knew what she meant when she said 'go to father."
27
I do not believe that the Congress intended to put the railroads in such a situation. In fact, its over-all purpose has been to prevent the devastating effects of strikes from paralyzing our transportation systems, the efficient operation of which is so vital to the public welfare. As I read t he Interstate Commerce Act—the provisions of which were reaffirmed as late as the Transportation Act of 1958—the Congress told the railroads to go to the States—not the union—before abandoning or consolidating its local stations. Respondent went to the States and obtained their approval. The Court today gives to the union a veto power over this action of the States. Until this power is removed, the railroads will continue to be plagued with this situation—so foreign to the concept of a fair day's pay for a fair day's work, which has been the basis of union labor's great achievements.
28
For this reason, as well as those so ably enumerated by my Brother WHITTAKER in his dissent, which I join, I am obliged to disagree with the Court. Perhaps the Congress will be obliged, in the face of this ruling, to place the solution of such problems within the specific power of the Interstate Commerce Commission or under the Railway Labor Act, each of which, as well as the courts, is today held impotent.
29
Mr. Justice WHITTAKER, with whom Mr. Justice FRANKFURTER, Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.
30
The Court concludes, as I read its opinion, that the Union's demand for a covenant that no existing position may be abolished without its consent was a lawfully bargainable one under the Railway Labor Act; that the union did not, by its demand, attempt unlawfully to 'set itself up in defiance of' public regulatory orders; that the 'Union merely asked for a contractual right to bargain with the railroad about * * * abandon(ing) stations * * * and thus abolish(ing) jobs'; that '(e)ven if a Norris-LaGuardia 'labor dispute' could not arise out of an unlawful bargaining demand * * * the union's proposal here was not unlawful,' and that the Norris-LaGuardia Act deprived the court of jurisdiction to enjoin the threatened strike to enforce acceptance of the Union's demand.
31
With all deference, I believe that these conclusions are contrary to the admitted or indubitable facts in the record, to the provisions and policies of Acts adopted by Congress, and also to principles established by many decisions of this Court; and being fearful that the innovation and reach of the Court's conclusions will be destructive of congressional policy and injurious to the public interest, I feel compelled to state my dissenting views.
32
Inasmuch as I read the record somewhat differently than does the Court, my first effort will be to make a plain and chronological statement of the relevant facts.
33
The Chicago and North Western Railway Company ('North Western') is a major interstate common carrier by railroad. The Order of Railroad Telegraphers ('Union') is a railway labor union, certified by the National Mediation Board as the representative of the station agents and various other employees of North Western. North Western's lines extend westerly and northerly from Chicago into and serve nine largely agricultural midwestern States. They were laid out and constructed near the middle of the last century, and, to accommodate that day's mode and conditions of rural travel, stations were established at close intervals along its lines—one every seven to 10 miles along its branch lines through rural sections—to enable its patrons to travel, by horse or horses and wagon over dirt roads, from their homes to the station and return in one day.
34
Although originally an efficient and profitable railroad, North Western, in more recent years, failed both to maintain and to modernize its lines, facilities and equipment, and also permitted many outmoded, inefficient and wasteful practices to continue—producing the highest ratio of wage and salary expense to the revenue dollar of all major American railroads—resulting ultimately in its inability effiectively to compete with new forms of transportation, or even with modernized railroads. In consequence, its net revenues so steadily and extensively declined that it lost $8,000,000 in the first quarter of 1956, and this so reduced its cash position that its payrolls of $330,000 per day to its 18,000 employees were in jeopardy.
35
Alarmed by these conditions, North Western's new managers undertook a number of steps in the spring of 1956 to improve its physical condition and competitive position, including the elimination of many outmoded, costly and wasteful practices. It then had several hundred 'one-man' stations, principally located on branch lines from which—due to lack of need, occasioned by the advent of paved roads and motorized vehicles—all passenger trains and many freight trains had been removed and over which the few remaining freight trains passed at hours when many of the agents were not even on duty.1 Its studies, disclosed many instances where such agents were drawing a full day's pay for as little as 15 to 30 minutes' work. Conceiving this to be a wasteful practice and violative of the national transportation policy,2 North Western promulgated a plan—known as its Central Agency Plan—which contemplated the discontinuance of a full-time agent at most of such stations and provided, instead, for a centrally located agent to perform the necessary agency services that the central station and also at the neighboring station or stations to either side.
36
Accordingly, North Western filed petitions with the Public Utility Commissions of South Dakota, Iowa, Minnesota and Wisconsin to effectuate its Central Agency Plan. The first of those petitions was filed with the South Dakota Commission on November 5, 1957, asking authority to effectuate the Central Agency Plan with respect to 69 'one-man' stations in that State. Hearings were held by that Commission beginning November 26, 1957, and ending January 17, 1958. The Union appeared in that proceeding, presented evidence, a brief and an oral argument, in opposition to the petition. It contended, among other things, that its existing bargaining agreement with North Western prohibited abolishment of any agency jobs without its consent. On May 9, 1958, the Commission entered its order. It found that the workload of the agents at the stations involved varied from 12 minutes to 2 hours per day and averaged 59 minutes per day. It further found:
37
'That the maintenance of full-time agency service at all of the subject stations, because of the lack of public need constitutes mismanagement and a dissipation of carrier's revenues which has and will impair its capacity to render adequate rail service to the public at reasonable rates * * *'3
38
Thereupon, the Commission, electing to act under a South Dakota statute authorizing it to order changes to be made in station operations where necessary in the public interest, directed North Western to make the plan (establishing 16 central agency stations and abolishing 53 full-time agency positions) effective immediately.
39
On December 23, 1957, about six weeks after North Western filed its petition with the South Dakota Commission, the Union, purporting to act under the provisions of § 6 of the Railway Labor Act,4 sent a letter to North Western requesting that their bargaining agreement be amended by adding the following provision:
40
'No position in existence on December 3, 1957, will be abolished or discontinued except by agreement between the carrier and the Organization.'
41
North Western responded the next day, saying that it did not consider the request to be a proper subject of bargaining,5 but it offered, without waiving its position, to meet with the Union's officers and to discuss the matter further. Conferences were thereafter held by the parties but no agreement was reached, and the Union invoked mediation under the Railway Labor Act. On February 24, 1958, the National Mediation Board began its efforts to mediate the controversy, and its representative conducted a number of meetings between the parties to that end,6 but was not successful, and thereafter the Board, acting pursuant to § 5, First, of the Railway Labor Act,7 wrote the parties on May 27, requesting them to submit the controversy to arbitration under the provisions of § 8 of the Railway Labor Act.8 But both parties declined—the Union on May 28 and North Western on June 12—and, on June 16, the Board terminated its services and so advised the parties in writing.
42
On July 10, the Union sent to its members a strike ballot under an accompanying letter.9 The vote was almost unanimous in favor of a strike, and, on August 18, the Union called a strike of its members to begin at 6 a.m. on August 21.10 A renewed proffer of mediation services by the Board was accepted by the parties and, through it, further efforts were made on August 19 to compose the controversy, but without success, and, on August 20, the Board again advised the parties that it had terminated its services.
43
On August 20, North Western filed a complaint against the Union and various of its officials in the United States District Court for the Northern District of Illinois, alleging that the Union's contract demand was not a lawfully bargainable subject under the Railway Labor Act; that the impending strike, called to force acceptance of that demand by North Western, would be illegal; that North Western had a right arising under the laws of the United States, particularly the Interstate Commerce Act and the Railway Labor Act, to be free of such an illegal strike, and it prayed that it be enjoined. The court entered a temporary restraining order on that date. Thereafter, following full hearing, the court held that the Union's demand 'relates to 'rates of pay, rules and working conditions' and is a bargainable issue under the Railway Labor Act'; that a strike to force acceptance of that demand would not be unlawful; and, on September 8, 1958, the court entered its decree restraining the strike until midnight, September 19, denying any further injunctive relief,11 and dismissing the complaint. The Court of Appeals, holding that the Union's contract demand was not a lawfully bargainable one and that its acceptance could not legally be forced by a strike, reversed and remanded with directions to enter an injunction as prayed in the complaint. 264 F.2d 254. This Court granted certiorari, 361 U.S. 809, 80 S.Ct. 56, 4 L.Ed.2d 58, and now reverses the judgment of the Court of Appeals upon grounds which, with deference, I think are not only injurious to the public interest but also demonstrably legally erroneous, as I shall endeavor to show.
44
Congress, in comprehensively providing for the regulation of railroads, their transportation services and their employer-employee relations, has declared its policies in several related Acts, including Part 1 of the Interstate Commerce Act,12 the Railway Labor Act,13 and the Norris-LaGuardia Act,14 and, at least in cases such as this, none of them may meaningfully be read in isolation but only together as, for they are in fact, an integrated plan of railroad regulation. And if, as is frequently the case in such undertakings, there be overlappings, '(w)e must determine here how far Congress intended activities under one of these policies to neutralize the results envisioned by the other.' Allen Bradley Co. v. Local Union, 325 U.S. 797, 806, 65 S.Ct. 1533, 1538, 89 L.Ed. 1939.
45
By Part I of the Interstate Commerce Act, Congress has provided a pervasive scheme of regulation of all common carriers engaged in transportation by railroad in interstate commerce. The declared policy of that Act was to promote economical and efficient transportation services at reasonable charges15 and, as this Court has said, 'It is a primary aim of that policy to secure the avoidance of waste. That avoidance, as well as the maintenance of service, is viewed as a direct concern of the public.' State of Texas v. United States, 292 U.S. 522, 530, 54 S.Ct. 819, 824, 78 L.Ed. 1402. 'Congress has long made the maintenance and development of an economical and efficient railroad system a matter of primary national concern. Its legislation must be read with this purpose in mind.' Seaboard Air Line R. Co. v. Daniel, 333 U.S. 118, 124—125, 68 S.Ct. 426, 430, 92 L.Ed. 580.
46
To aid in effectuating that policy, Congress has contemplated the abandonment of railroad lines, stations, depots and other facilities and services when found by designated public regulatory bodies to be burdensome and no longer required to serve the public convenience and necessity. To this end, it has empowered the Interstate Commerce Commission, upon application and after notice and public hearing, to issue a certificate authorizing the abandonment of 'all or any portion of a line of railroad,' and it has provided that '(f)rom and after issuance of such certificate * * * the carrier by railroad may, without securing approval other than such certificate * * * proceed with the * * * abandonment covered thereby.'16 (Emphasis added.) And in the Transportation Act of 1958 (72 Stat. 568), Congress has empowered the Commission, under stated conditions, to authorize the abandonment of 'any train or ferry.'17 However, Congress has not sought completely to accomplish its abandonment policies through the Commission. Rather, it has sought to make use of state regulatory commissions, as additional instruments for the effectuation of its policies, in respect to the abandonment of some railroad facilities and services. Among others, it has long left to state regulatory commissions abandonments of railroad stations and station agency service; and, in 1958, after extensive review of that subject in the process of enacting the Transportation Act of 1958, it deliberately reaffirmed that policy.18 Moreover, in its report on S. 3778, which culminated in the Transportation Act of 1958, the Senate Committee on Interstate and Foreign Commerce critically attributed a major part of the financial plight of the railroads to their failure to apply to regulatory bodies for permission to abandon burdensome and needless services in accordance with congressional policy, and strongly advocated that such be done.19
47
For the fair and firm effectuation of these policies, Congress has provided that issues respecting the propriety of an abandonment shall be determined by a public regulatory body. It has contemplated that the carrier shall propose to the proper regulatory body the abandonment of particular facilities or services and that, after notice and hearing—at which all persons affected, including employees and their union representatives, may appear and be heard—the public regulatory body shall determine whether the proposal is in the public interest, and its order, unless reversed on judicial review, shall be binding upon all persons. These procedures plainly exclude any right or power of a carrier, at its will alone, to effectuate, or of a labor union representing its employees to veto, any proposed abandonment. Although both may be heard, neither of them, nor the two in agreement, even if their agreement be evidenced by an express contract, may usurp the Commission's decisional function by dictating the result or thwarting its effect. It is obvious that any abandonment, authorized by a proper regulatory body, will result in abolishment of the jobs that were involved in the abandoned service. And inasmuch as the maintenance of these jobs constituted at least a part of the wasteful burden that necessitated the abandonment, it is equally obvious that Congress intended their abolishment. Yet, here, the Union has demanded, and threatens to force by a strike, acceptance by the carrier of a covenant that no job in existence on December 3, 1957, will be abolished without its consent. Certainly that demand runs in the teeth of the recited provisions and policies of the Interstate Commerce Act. It plainly would destroy the public regulation of abandonments, provided and contemplated by Congress in the public interest, and render them subject to the Union's will alone. A demand for such a contractual power surely is an unlawful demand.
48
The Union argues, and the Court seems to find, that there is a basis for the claimed legality of the Union's demand in the provision of § 5(2)(f) of the Interstate Commerce Act20 that the Commission in approving railroad mergers or consolidations 'shall require a fair and equitable arrangement to protect the interests of the railroad employees affected.' Instead of supporting legality of the Union's demand, I think the provisions of that section and its legislative history are further proof of its illegality. While that section authorizes the Commission to require temporary mitigation of hardships to employees displaced by such unifications, nothing in it authorizes the Commission to freeze existing jobs. However, in the course of its enactment an effort was made to amend it to that end. On the floor of the House, Representative Harrington advocated the following proviso:
49
'Provided, however, That no such transaction shall be approved by the Commission if such transaction will result in unemployment or displacement of employees of the carrier or carriers, or in the impairment of existing employment rights of said employees.'21 (Emphasis added.)
50
While the bill was in Conference, the Legislative Committee of the Interstate Commerce Commission sent a communication to Congress condemning the principle of the Harrington amendment in the following words:
51
'As for the (Harrington) proviso, the object of unifications is to save expense, usually by the saving of labor. Employees who may be displaced should, in the case of railroad unifications, be protected by some such plan as is embodied in the so-called 'Washington agreement' of 1936 between the railroad managements and labor organizations (providing for the mitigation of hardships by the payment of certain monetary benefits for a limited period to employees whose jobs are abolished by such approved unifications). The proviso, by prohibiting any displacement of employees, goes much too far, and in the long run will do more harm than good to the employees.'22
52
(Emphasis added.)
53
Congress rejected the Harrington proviso in the form proposed. Yet, the Union's demand here is designed to accomplish the very purpose that Congress rejected. Of the Harrington proviso this Court said in Railway Labor Executives' Ass'n v. United States, 339 U.S. 142, 70 S.Ct. 530, 94 L.Ed. 721, that it 'threatened to prevent all consolidations to which it related * * * (but Congress) * * * made it workable by putting a time limit upon its otherwise prohibitory effect.' 339 U.S. at pages 151, 153, 70 S.Ct. at page 534. But Congress actually did more. It eliminated any power to freeze existing jobs. It is not to be doubted that a carrier and a labor union representing the carrier's employees, lawfully may bargain about and agree upon matters in mitigation of hardships to employees who are displaced by railroad unifications or abandonments; but they may not agree, nor may any regulatory body order, that no jobs shall be abolished, and thus defeat unifications or abandonments required in the public interest. Railway Labor Executives' Ass'n v. United States, supra; Interstate Commerce Comm. v. Railway Labor Executives Ass'n, 315 U.S. 373, 62 S.Ct. 717, 86 L.Ed. 904; United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208.
54
There is no dispute in the record that the carrier sought to bargain and agree with the Union upon matters in mitigation of hardships to employees displaced by the station abandonments. It offered to bargain about (1) transferring the agents affected to productive jobs, (2) limiting the job abolishments to an agreed number per year, and (3) paying supplemental unemployment benefits to the employees affected.23 Short of foregoing the station abandonments, this is all it lawfully could do. It is not suggested that it should have done more in this respect. Indeed, the Union refused even to discuss these proposals.24 Instead, as its president testified at the trial, the only 'alternative' the Union 'offered the North Western Railroad was to comply with this rule or strike.'25
55
This also answers the Court's argument that there is nothing in the Interstate Commerce Act 'making it unlawful for unions to want to discuss with railroads actions that may vitally and adversely affect the security, seniority, and stability of railroad jobs.' The quoted statement is literally true. But the further truth is that the carrier offered to bargain and agree with the United about those matters, but the Union refused even to discuss them. Note 6, ante. The Union's demand was not for a right 'to discuss' such matters with the carrier, but was, rather, that the carrier agree that no jobs in existence on December 3, 1957, be abolished without the Union's consent. And the only 'alternative' it offered was: 'comply with this rule or strike.' Ibid. The foregoing likewise answers the Court's argument that the Union 'merely asked for a contractual right to bargain with the railroad about any voluntary steps it might take to abandon stations * * * and thus abolish jobs.' Plainly the Union's demand was not for a right 'to bargain with' the carrier about 'abolish(ing) jobs,' but was for a unilateral right to prohibit the abolishment of any job without its consent.
56
The Court fails to find any testimony in the record 'that this union has set itself up in defiance of any state mandatory order.' Although, in my view, the question is not whether it has set itself up in defiance of any valid existing state mandatory order, but rather is whether it lawfully may demand, and force by a strike, acceptance of a covenant in derogation of the law; yet, in very truth, it 'has set itself up in defiance,' or, at least, in derogation, of a 'state mandatory order.' As earlier noted, the order of the South Dakota Commission—the validity of which cannot be questioned here—was a mandatory one. It directed the carrier to make the Central Agency Plan effective in that State and, thereunder, forthwith to abolish 53 full-time agency jobs. That order was entered on May 9, 1958, and if the Union's demand, that no job in existence on December 3, 1957, may be abolished without its consent, is a lawful one nad may be enforced by a strike, then the South Dakota order is not only defied but defied successfully. Moreover, while such orders of state commissions, like those of the Interstate Commerce Commission, are in the nature of things usually permissive in character, they are nevertheless binding administrative determinations made, as Congress contemplated and Mr. Justice Brandeis said, 'to protect interstate commerce from undue burdens,' State of Colorado v. United States, 271 U.S. 153, 162, 46 S.Ct. 452, 454, 70 L.Ed. 878, and may not be overridden or thwarted by private veto.
57
Section 2, First, of the Railway Labor Act makes it the duty of carriers and their employees to exert every reasonable effort 'to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise.'26 Here, the Union's demand was simply for a covenant that no existing jobs may be abolished without its consent. It thus seems plain that the demand did not relate to the 'rates' of compensation to be paid to employees nor to their 'working conditions,' but, rather, it related solely to whether the employment relation, as to any existing job, might be severed altogether. It, therefore, seems clear enough that the demanded covenant was, in terms, beyond the purview of § 2, First. But even if this conclusion may be doubted, surely it must be agreed that Congress did not contemplate that agreements might be made, under the aegis of that section, in derogation of the commands, policies and purposes of related Acts which it has promulgated for the regulation of carriers and their employer-employee relations in the public interest. Here, as has been shown, the Union's demand was in derogation of the provisions and policies of the Interstate Commerce Act. It could not therefore be a lawfully bargainable subject within the purview of § 2, First, of the Railway Labor Act. The carrier could not lawfully accept it,27 and hence a strike to force its acceptance would be one to force a violation of the law.
58
Surely, in such circumstances, the carrier, in discharging its duty to safeguard the public interest,28 has a legal right to be free of a strike to force it to accept a demand which Congress has made unlawful. But there is no administrative remedy in such a case, and, hence, the legal right will be sacrificed, and Congress' policies will be thwarted, unless a preventive judicial remedy is available. Certainly Congress did not intend to create and 'to hold out to (the carrier and the public) an illusory right for which it was denying them a remedy.' Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232, 240, 70 S.Ct. 14, 18, 94 L.Ed. 22.
59
Nor does the Norris-LaGuardia Act render federal courts impotent to enjoin unlawful conduct or strikes to force acceptance of unlawful demands. That Act, in terms, permits federal courts to enjoin 'unlawful acts (that) have been threatened and will be committed unless restrained.'29 This Court has consistently held that the Norris-LaGuardia Act does not prevent a federal court from enjoining an unlawful abuse of power conferred upon a labor union by the Railway Labor Act or a threatened strike to force acceptance of an unlawful demand.
60
In Brotherhood of Railroad Trainmen v. Chicago River & Indiana R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622, a union threatened a strike to force a carrier to accept demands which Congress had placed within the exclusive jurisdiction of the Railroad Adjustment Board. Holding that the demands were in derogation of that Act of Congress and therefore illegal, a federal court enjoined the threatened strike to enforce them. The union contended here that the Court was without jurisdiction to issue the injunction because 'the Norris-LaGuardia Act has withdrawn the power of federal courts to issue injunctions in labor disputes (and that the) limitation * * * applies with full force to all railway labor disputes.' 353 U.S. at pages 39—40, 77 S.Ct. at page 640. In rejecting that contention, this Court said:
61
'We hold that the Norris-LaGuardia Act cannot be read alone in matters dealing with railway labor disputes. There must be an accommodation of that statute and the Railway Labor Act so that the obvious purpose in the enactment of each is preserved. We think that the purposes of these Acts are reconcilable.' 353 U.S. at page 40, 77 S.Ct. at page 640.
62
And finding that the union's demands violated the provisions of the Railway Labor Act, this Court held 'that the specific provisions of the Railway Labor Act take precedence over the more general provisions of the Norris-LaGuardia Act,' and, reaffirming its decision in Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, it further held "that the District Court (had) jurisdiction and power (to enjoin the threatened strike) notwithstanding the provisions of the Norris-LaGuardia Act." 353 U.S. at pages 41—42, 77 S.Ct. at page 641.
63
There, as here, the union's demand was in derogation of the specific provisions of an Act of Congress, and here, as there, those specific provisions must 'take precedence over the more general provisions of the Norris-LaGuardia Act.'
64
In Virginia Railway Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789, this Court held that a federal court could lawfully issue an injunction in a labor dispute that was governed by the specific provisions of a federal statute, and that '(s)uch provisions cannot be rendered nugatory by the earlier and more general provisions of the Norris-LaGuardia Act.' 300 U.S. at page 563, 57 S.Ct. at page 607.
65
Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173, involved the unlawful misuse by a union of the powers conferred upon it by the Railway Labor Act. Observing that 'there is no mode of enforcement (of the rights that were being denied by such misuse of powers) other than resort to the courts,' this Court held that a federal court had the 'jurisdiction and duty to afford a remedy for a breach of statutory (rights).' 323 U.S. at page 207, 65 S.Ct. at page 234. On almost identical facts, this Court reaffirmed that principle in Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187. In a similar factual situation, this Court held in Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22, that a federal court may enjoin a labor union from unlawfully using or abusing powers conferred upon it by the Railway Labor Act, notwithstanding the Norris-LaGuardia Act. And, after reviewing the then-existing cases, the Court concluded:
66
'If, in spite of the Virginian, Steele, and Tunstall cases, supra, there remains any illusion that under the Norris-LaGuardia Act the federal courts are powerless to enforce these rights, we dispel it now.' 338 U.S., at page 240, 70 S.Ct. at page 18.
67
Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283, was an action to enjoin a union and a carrier from enforcing the provisions of a contract, made under the threat of a strike, that unlawfully deprived a class of railroad employees of legal rights which this Court held had been impliedly vouchsafed to them by the Railway Labor Act. Finding that the questioned provisions of that contract were 'unlawful' and that the injured persons 'must look to a judicial remedy to prevent the sacrifice or obliteration of their rights under the (Railway Labor) Act (inasmuch as) no adequate administrative remedy can be afforded by the National Railroad Adjustment or Mediation Board(s),' this Court concluded 'that the District Court has jurisdiction and power to issue necessary injunctive orders notwithstanding the provisions of the Norris-LaGuardia Act. We need add nothing to what was said about inapplicability of that Act in the Steele case and in Graham v. Brotherhood of Firemen & Enginemen, 338 U.S. 232, 239—240, 70 S.Ct. 14, 18, 94 L.Ed. 22.' 343 U.S. at apge 774, 72 S.Ct. at page 1025.
68
Resting upon its conclusion that the Union's demand here was a lawful one, the Court relegates the Virginian, Steele, Tunstall, Graham and Howard cases to a footnote, and says, 'None of these cases, however, enjoined conduct which the Norris-LaGuardia Act withdrew from the injunctive power of the federal courts.' Does the Court mean by this statement that, although it enjoined enforcement of the illegal provisions of the contract which had been forced upon the carrier by 'the threat of a strike' in the Howard case, it would not, if asked, have enjoined the strike which forced acceptance by the carrier of that unlawful contract? At all events, it cannot be denied, and the Court concedes, that the Chicago River case holds that a threatened strike to force compliance with unlawful demands may be enjoined. There, just as here, a threatened strike was enjoined. There, as here, the injunction issued because the Union's demand was not a lawfully bargainable one under the Railway Labor Act. The demands in the Chicago River case were unlawful because jurisdiction over their subject matter had been exclusively vested by Congress in the Railroad Adjustment Board, while in this case the demand is unlawful because jurisdiction over its subject matter has been exclusively vested partly in the Interstate Commerce Commission and partly in state regulatory commissions. Today's attempted distinctions of that case were advanced in that case, but were found 'inapposite,' 353 U.S. at page 42, 77 S.Ct. at page 641. Being 'inapposite' there, they are so here. I submit that, on the point in issue, the Chicago River case is indistinguishable from this one, and that if the Norris-LaGuardia Act did not prohibit a federal court from issuing an injunction in that case, it does not do so in this one.
69
It is to be noted that the Court does not say that the Norris-LaGuardia Act prohibits federal courts from enjoining threatened strikes to force acceptance of illegal demands. It says, rather, that 'Even if a Norris-LaGuardia 'labor dispute' could not arise out of an unlawful bargaining demand * * * the union's proposal here was not unlawful.' If it fairly may be inferred from that statement that the Court would have sustained jurisdiction had it found the demand to be unlawful, then my disagreement with the Court would be reduced to and turn on that simply issue. And as to it, I respectfully submit that the admitted facts show that the demand was in derogation of the provisions and policies of the Interstate Commerce Act. Believing that the demand was not a lawfully bargainable one under the Railway Labor Act, and that the District Court had jurisdiction to enjoin the threatened strike, called to force acceptance of that illegal demand, I would affirm the judgment of the Court of Appeals.
70
Memorandum of Mr. Justice STEWART.
71
I have strong doubt as to the existence of federal jurisdiction in this case, for reasons well expressed by then Circuit Judge Minton, dissenting in Toledo, P. & W.R.R. v. Brotherhood of Railroad Trainmen, 7 Cir., 132 F.2d 265, 272—274. See Brotherhood of Railroad Trainmen v. New York Central R. Co., 6 Cir., 246 F.2d 114, at page 122 (dissenting opinion). If, however, the Federal District Court had jurisdiction, as all my Brethren seem to believe or at least assume, Mr. Justice WHITTAKER'S dissenting opinion convincingly demonstrates for me that the District Court had power to issue an injunction.
1
47 Stat. 70, 29 U.S.C. § 104, 29 U.S.C.A. § 104. (Emphasis supplied.)
2
See Brotherhood of Railroad Trainmen v. Chicago River & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622.
3
Chicago & N.W.R. Co. v. Order of Railroad Telegraphers, 264 F.2d 254, at page 260.
4
Ibid. See Brotherhood of Railroad Trainmen v. New York Central R. Co., 6 Cir., 246 F.2d 114. But see A. H. Bull Steamship Co. v. Seafarers' International Union, 2 Cir., 250 F.2d 326.
At the time of the District Court's decision, two States (South Dakota and Iowa) of the four in which the railroad had sought permission to institute its Central Agency Plan (the other two were Minnesota and Wisconsin) had granted permission and the plan was promptly placed in effect. Since then, we are given to understand, the commissions in the remaining two States have issued orders approving the plan.
5
Compare Marine Cooks & Stewards v. Panama Steamship Co., 362 U.S. 365, 80 S.Ct. 779.
6
29 U.S.C. § 104, 29 U.S.C.A. § 104.
7
29 U.S.C. § 113(c), 29 U.S.C.A. § 113(c).
8
29 U.S.C. § 102, 29 U.S.C.A. § 102.
9
See Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 805, 65 S.Ct. 1533, 1538, 89 L.Ed. 1939; United States v. Hutcheson, 312 U.S. 219, 230—236, 61 S.Ct. 463, 465—468, 85 L.Ed. 788; Milk Wagon Drivers' Union Local 753 v. Lake Valley Farm Products, Inc., 311 U.S. 91, 102—103, 61 S.Ct. 122, 127—128, 85 L.Ed. 63.
10
264 F.2d at page 259.
11
49 U.S.C. § 5(2)(f), 49 U.S.C.A. § 5(2)(f). And see § 5(2)(c).
12
49 U.S.C. § 5(2)(f), 49 U.S.C.A. § 5(2)(f).
13
Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 2531, 76th Cong., 1st Sess., 216—217.
14
Brotherhood of Railroad Trainmen v. Chicago River & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622; Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22; Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187; Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789. See also Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 457—459, 77 S.Ct. 912, 918 919, 923, 1 L.Ed.2d 972. And see Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173.
15
The Court cited the following cases to show that unlawfulness under nonlabor legislation did not remove the restrictions of the Norris-LaGuardia Act upon the jurisdiction of federal courts: Milk Wagon Drivers' Union Local 753 v. Lake Valley Farm Products, Inc., 311 U.S. 91, 103, 61 S.Ct. 122, 128, 85 L.Ed. 63 (alleged violations of Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note); East Texas Motor Freight Lines v. Internationl Brotherhood of Teamsters, 5 Cir., 163 F.2d 10, 12 (violation of Interstate Commerce Act and Motor Carrier Act).
Of course, a holding here that mere unlawfulness under any law is enough to remove the strictures of the Norris-LaGuardia Act would require a modification or abandonment of our statement that 'For us to hold, in the face of this legislation (the Clayton and Norris-LaGuardia Acts), that the federal courts have jurisdiction to grant injunctions in cases growing out of labor disputes, merely because alleged violations of the Sherman Act are involved, would run counter to the plain mandate of the (Norris-LaGuardia) Act and would reverse the declared purpose of Congress.' Milk Wagon Drivers' Union Local 753 v. Lake Valley Farm Products, Inc., 311 U.S. 91, 103, 61 S.Ct. 122, 128, 85 L.Ed. 63. See also Lee Way Motor Freight v. Keystone Freight Lines, 10 Cir., 126 F.2d 931, 934.
16
Moreover, this railroad operates in nine States; it has instituted proceedings in the state regulatory commissions of four only and at the time of the District Court's decision, only two of these had rendered decisions. Yet the union's proposal was to negotiate for a clause which would apply to respondent's entire system. The railroad's refusal to bargain was not limited, however, to operations in the four States in which proceedings had begun. And even assuming that the order of one State, South Dakota, was mandatory and that this fact is of importance, it would not relieve the railroad from any duty it had to bargain on the proposed contract change in the eight other States involved.
1
The fact that many of these agents were not on duty when the freight trains passed their stations was due to a union requirement that their day's work must begin at 8:30 a.m.
2
Act of Sept. 18, 1940, c. 722, Title I, § 1, 54 Stat. 899 preceding Part I of the Interstate Commerce Act, 49 U.S.C. § 1, 49 U.S.C.A. note preceding section 1—titled 'National Transportation Policy.' In pertinent part, it provides: 'It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act * * * to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers * * *'
3
The South Dakota Commission further found that the expenses of operating the 69 stations involved exceeded related revenues by $170,399 in 1956, and that if the Central Agency Plan had been in effect during that period there would have been a surplus of $58,884.
Hearings were afterwards conducted upon the similar petitions before the Iowa, Minnesota and Wisconsin Commissions. The Union appeared in each of those proceedings and presented evidence, briefs and arguments in opposition to the petitions, but each was granted.
The Iowa Commission found that the agents at the stations there involved worked an average of 1 hour and 14 minutes per day, a decrease of 28% since 1951, and that the estimated average workload under the Central Agency Plan would be 3 hours and 15 minutes per day. It said, inter alia, 'Savings must be made by reducing or eliminating service no longer needed. The case before us is a proposal to reduce agency service to the level of actual need.' And it found that such was necessary 'to insure efficiency, economy and adequate rail transportation.'
The Union appealed from the orders of the respective Commissions to the courts of the respective States, but the Commission action was affirmed in each instance.
4
48 Stat. 1197, 45 U.S.C. § 156, 45 U.S.C.A. § 156.
5
North Western's reply stated, inter alia, that, in its view, the Union's request was 'not a proper subject for a Section 6 notice in that it does not in fact concern rules, rates of pay or working conditions, but instead constitutes an attempt to freeze assignments regardless of the controlling agreement and regardless of the necessity or justification for such assignments.'
6
In the mediation meetings and other meetings between the parties, North Western suggested several means of cushioning the effects of discontinuing these 'one-man' agency jobs, including (1) the transfer of the agents affected to productive jobs; (2) the limiting of job abolishments to an agreed number per year; and (3) the payment of supplemental unemployment benefits to the employees affected. The Union refused to discuss these proposals.
At a meeting between North Western's chief executive officer and the Union's president and its general counsel at Madison, Wisconsin, during the period of the mediation efforts, North Western's official asked if there was any 'possibility' of 'working out these station closing matters and the discontinuance of the position of these station agents' either on a South Dakota or a system basis. The Union's president asked his general counsel for his views on the matter. The latter replied 'I think we are too far apart,' and North Western's official then said 'I want you to know that my door is always open.'
The Union's president testified at the subsequent District Court trial that '* * * the only alternative which up to the present I have offered the North Western Railroad was to comply with this rule or strike.'
7
45 U.S.C. § 155, First, 45 U.S.C.A. § 155, subd. 1.
8
45 U.S.C. § 158, 45 U.S.C.A. § 158.
9
The Union's letter of July 10, 1958, after referring to the efforts of North Western to abolish many of the 'one-man' agency jobs and to the Union's efforts in opposition, stated among other things:
'However, it became evident at an early date that to meet this onslaught effectively would require strengthening of our Agreements. * * * We must prevent a continuance of such a program.
'While we hope the commissions in other states will be more reasonable than the South Dakota Commission, we have no assurance that we will not soon see a repetition in other states of what has happened in South Dakota. * * *'
10
The strike call, after referring to the Union's efforts to prevent the abolishment of jobs at 'one-man' stations said, inter alia, that: 'The need for the proposed rule has again been tragically demonstrated in the last few days. What happened in South Dakota was repeated in Iowa, except that this time 70 positions were abolished and 27 assignments enlarged.'
11
By order of Sept. 16, 1958, the District Court further restrained the impending strike pending determination of North Western's appeal.
12
49 U.S.C. §§ 1—27, 49 U.S.C.A. §§ 1—27.
13
45 U.S.C. §§ 151—164, 45 U.S.C.A. §§ 151—164.
14
29 U.S.C. §§ 101—115, 29 U.S.C.A. §§ 101—115.
15
See note 2 for the pertinent provisions of the National Transportation Policy.
16
49 U.S.C. §§ 1(18), 1(19), 1(20), 49 U.S.C.A. § 1(18—20).
17
Act of Aug. 12, 1958, Pub.L. 85—625, § 5, 72 Stat. 571, 49 U.S.C. § 13a, 49 U.S.C.A. § 13a.
18
The Transportation Act of 1958, 72 Stat. 568. See Hearings Before Subcommittee on Surface Transportation of Senate Committee on Interstate and Foreign Commerce on Problems of the Railroads, 85th Cong., 2d Sess., pp. 1816, 1817, 1821, 2027, 2028; 104 Cong.Rec., pp. 10850, 12522, 12537, 15528; S.Rep. No. 1647 on S. 3778, 85th Cong., 2d Sess.; H.R.Rep. No. 1922 on H.R. 12832, 85th Cong., 2d Sess.; H.R.Conf.Rep. No. 2274, 85th Cong., 2d Sess.
19
'The railroad industry has not, in the subcommittee's opinion, been sufficiently interested in self-help in such matters as consolidations and mergers of railroads; joint use of facilities in order to eliminate waste, such as multiple terminals and yards that require expensive interchange operations; reduction of duplications in freight and passenger services by pooling and joint operations; abandonment or consolidation of nonpaying branch and secondary lines; abolishing of unnecessarily circuitous routes for freight movements; improved handling of less-than-carload traffic; coordination of transportation services and facilities by establishment of through routes and joint rates with other forms of transportation; and modernization of the freight-rate structure, including revision of below-cost freight rates to levels that cover cost and yield some margin of profit as well as adjustment of rates excessively above cost to attract traffic and yield more revenue.' S.Rep. No. 1647, 85th Cong., 2d Sess., p. 11.
20
49 U.S.C. § 5(2)(f), 49 U.S.C.A. § 5(2)(f).
21
84 Cong.Rec. (1939), Pt. 9, p. 9882.
22
Interstate Commerce Commission Report on S. 2009, Omnibus Transportation Legislation, p. 67 (76th Cong., 3d Sess., House Committee Print), transmitted Jan. 29, 1940.
23
See note 6.
24
Ibid.
25
Ibid.
26
45 U.S.C. § 152, First, 45 U.S.C.A. § 152, subd. 1.
27
Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283.
28
Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789. 'Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.' 300 U.S. at page 552, 57 S.Ct. at page 601.
29
29 U.S.C. § 107(a), 29 U.S.C.A. § 107(a).
| 67
|
362 U.S. 390
80 S.Ct. 799
4 L.Ed.2d 816
Willia NIUKKANEN, etc., Petitioner,v.E. D. McALEXANDER, etc.
No. 130.
Argued March 21, 1960.
Decided April 18, 1960.
Rehearing Denied June 6, 1960.
See 363 U.S. 817, 80 S.Ct. 1245.
Mr. Joseph Forer, Washington, D.C., and Nels Peterson, Portland, Or., for petitioner.
Mr. Oscar H. Davis, Washington, D.C., for respondent.
PER CURIAM.
1
The petitioner sought relief from an order directing his deportation on the ground that as an alien he had become, after entering the United States, a member of the Communist Party within the meaning of the Act of October 16, 1918, as amended by § 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006.1 The District Court, after hering, denied the petition, Niukkanen v. Boyd, 148 F.Supp. 106, and the Court of Appeals affirmed. 9 Cir., 241 F.2d 938. Invoking Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140, decided after the order for his deportation, petitioner sought an administrative reconsideration of his status. Upon its denial by the Board of Immigration Appeals he began the judicial proceeding immediately before us for review. After a hearing, the District Court again denied his petition for relief and the Court of Appeals affirmed the order of the District Court. 9 Cir., 265 F.2d 825. The ultimate question is whether petitioner is subject to deportation under Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, or is saved from it under Rowoldt v. Perfetto, supra. The determination of this issue turns on evaluation of the testimony before the District Court, in light of Galvan v. Press, supra, and Rowoldt v. Perfetto, supra. Such assessment largely depends on the credibility of the testimony on which the district judge based his judgment, particularly that of the petitioner himself, whom the judge saw and heard. An able judge found that petitioner in denying membership in the Communist Party, unlike Rowoldt who admitted membership, see 355 U.S., at pages 116—117, 78 S.Ct. at page 181, but accounted for its innocence, 'perjured himself before, and I believe that he perjured himself today.' We cannot say that his findings, affirmed by the Court of Appeals, were clearly erroneous and do not support the conclusion of both the lower courts.
2
Judgment affirmed.
3
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE, Mr. Justice BLACK, and Mr. Justice BRENNAN concur, dissenting.
4
Petitioner was born in Finland in 1908, came here when he was less than a year old and has resided here ever since. He is married to a native-born citizen; he served honorably in our Army; and he has no criminal record of any kind except for a petty offense, back in 1930.
5
The evidence against petitioner was given by two witnesses who had once been Communists, one of whom petitioner swore he never knew. They testified that petitioner was a member of the Communist Party from 1937 to 1939 in Portland, Oregon. One of them testified that petitioner had assisted in the circulation of a paper, Labor New Dealer, which apparently was an organ of the Party. There was evidence he paid dues to the Party of 25 cents a month and that he attended both open and closed meetings of the Party. But even these two ex-Communists who appeared against petitioner said that there was no discussion of ways and means to overthrow the Government at those meetings, that only problems such as labor conditions, relief, and the like were discussed. One also swore that petitioner never advocated the overthrow of the Government. Petitioner's interest in the Party, according to one of these hostile witnesses, was as a result of 'the sufferings of the people in the depression'; and he was 'very sympathetic toward their welfare.' This witness agreed that petitioner was not an intellectual interested in 'theory' or 'political discussion.' His interests were 'in bread and butter topics of the day, what to do for unemployment and relief.' Nor had petitioner ever taught the Communist doctrine nor distributed its literature, except for the Labor New Dealer.
6
These two ex-Communists testified that petitioner attended dances that the Party arranged in Portland. But they said he never held an office in the Party; nor was ever employed by the Party; nor was ever a 'functionary' in the sense of representing the Party. He attended a regional meeting at Aberdeen, Washington, where various speakers, according to one ex-Communist, gave 'glowing accounts' of their work for the Party, 'more or less fabricating' their achievements.
7
We know from petitioner's lips that he was not acquainted with the conventional Communist literature; and nothing came from the lips of his accusers that denied it. One who reads the whole of this record cannot put it down without feeling that here is a man neither conspiratorial, dangerous, cunning, nor knowledgeable. Petitioner—a painter by trade represents a microscopic element in the ranks of our labor force who was caught up in a movement whose ideology he did not understand and whose leaders spoke in terms of bread for the hungry, and jobs for the unemployed. He has recently earned about $4,000 a year; he bought a home for $3,100 (which is now worth from $6,000 to $6,500 subject to a $2,500 mortgage); and he has personal property, including a car, worth $2,000.
8
This is the background against which the following testimony can be best understood.
9
'Q. In the Finnish Hall or anywhere else did you attend Communist Party meetings? A. Well, if I said yes and if I said no maybe I wouldn't be telling the truth, because I really couldn't tell one way or the other. I went to meetings there. Sometimes maybe they were Communist, and maybe they wasn't. It could have been and maybe they wasn't.
10
'Q. Have you been a member of the Communist Party of the United States or any branch or affiliate or organization by that name or any similar name? A. Knowingly, I haven't, no.
11
'Q. Do you believe that membership in the Communist Party now is a lawful political purpose? A. No. I can't answer questions about that because I don't know. If Congress says it is unlawful, it is unlawful. If it isn't, it isn't. I don't know. If I got the question right, I don't know.
12
'Q. I am not trying to confuse you, * * * I am trying to find out your feelings toward Communism. A. Naturally I don't—Communism or socialism, I don't care what party it is here or any place else, if it has anything to do with overthrowing the government by force and violence I don't agree with it, no.
13
'Q. What was your impression of what the Communist Party was trying to do? A. Well, the only thing I heard in those days was more relief and more work, and I never heard anything else; no violent overthrow of the Government, or anything of that sort, but anyplace I went to meetings was always more work and more food.
14
'Q. As far as you know, that was what the Communist Party stood for during that period? A. I don't know if they stood for that, but I never heard anything against it.'
15
The case is on all fours with Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140. The 'solidity of proof' (id., 355 U.S. at page 120, 78 S.Ct. at page 183) required for the severe consequences of the deportation of a man who came here when he was less than one year old, whose only memory of life is in this land, and who has lived here over 50 years has not been met. The 'meaningful association' with the Party which the Rowoldt case requires (355 U.S. at page 120, 78 S.Ct. at page 183) simply has not been established here. In this case, as in Rowoldt, petitioner's association with the Party was 'wholly devoid of any 'political' implications.' 355 U.S. at page 120, 78 S.Ct. at page 183.
16
The testimony of the two ex-Communists upon which petitioner is being banished has never been heard by a court. The only testimony taken by the District Court was that of the petitioner and his character witnesses. The district judge believed the witnesses against Niukkanen, by virtue of having read the same record that is now before this Court. His impression of their credibility can be no more reliable than our own. Certainly then his conclusion that petitioner 'perjured himself before, and * * * perjured himself today' does not preclude this Court's review of the evidence against him. Apart from that, the evidence would be far too meagre to establish the 'meaningful association' which we required in the Rowoldt case.
17
The unanimity of all the finders of fact in the Rowoldt case (355 U.S. at page 119, 78 S.Ct. at page 182) that Rowoldt was a 'member' of the Party and his refusal to answer when asked in the deportation proceedings whether he had ever been a member of the Communist Party, did not stop us from declaring that 'the record before us is all too insubstantial to support the order of deportation.' 355 U.S. at page 121, 78 S.Ct. at page 184. The unanimity of the finders of fact in the present case should likewise be no barrier to our entry of a just decree. A man who has lived here for every meaningful month of his entire life should not be sent into exile for acts which this record reveals were utterly devoid of any sinister implication.
1
Now 8 U.S.C.A. § 1251(a)(6)(C).
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362 U.S. 373
80 S.Ct. 792
4 L.Ed.2d 804
MILLER MUSIC CORPORATION, Petitioner,v.CHARLES N. DANIELS, INC.
No. 214.
Argued Feb. 24, 25, 1960.
Decided April 18, 1960.
Mr. Julian T. Abeles, New York City, for petitioner.
Mr. Milton A. Rudin, Los Angeles, Cal., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, a music publisher, sued respondent, another music publisher, for infringement of petitioner's rights through one Ben Black, as coauthor, in the renewal copyright of the song 'Moonlight and Roses.' Respondent's motion for summary judgment was granted, D.C., 158 F.Supp. 188, and the Court of Appeals affirmed by a divided vote. 2 Cir., 265 F.2d 925. The case is here on a petition for a writ of certiorari which we granted. 361 U.S. 809, 80 S.Ct. 77, 4 L.Ed.2d 58.
2
The facts are stipulated. Ben Black and Charles Daniels composed the song and assigned it to Villa Moret, Inc., which secured the original copyright. Prior to the expiration of the 28-year term, Black assigned to petitioner his renewal rights in this song in consideration of certain royalties and the sum of $1,000. Black had no wife or child; and his next of kin were three brothers. Each of them executed a like assignment of his renewal expectancy and delivered it to petitioner. These assignments were recorded in the copyright office. Before the expiration of the original copyright, Black died, leaving no widow or child. His will contained no specific bequest concerning the renewal copyright. His residuary estate was left to his nephews and nieces. One of the brothers qualified as executor of the will and renewed the copyright for a further term of 28 years. The probate court decreed distribution of the renewal copyright to the residuary legatees. Respondent then obtained assignments from them.
3
The question for decision is whether by statute the renewal rights accrue to the executor in spite of a prior assignment by his testator. Section 23 of the Copyright Act of 1909, 35 Stat. 1075, now 17 U.S.C. § 24, 17 U.S.C.A. § 24, after stating that 'the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years,' goes on to provide:
4
'That * * * the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright.' An assignment by an author of his renewal rights made before the original copyright expires is valid against the world, if the author is alive at the commencement of the renewal period. Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 63 S.Ct. 773, 87 L.Ed. 1055, so holds. It is also clear, all questions of assignment apart, that the renewal rights go by statute to an executor, absent a widow or child. Fox Film Corp. v. Knowles, 261 U.S. 326, 43 S.Ct. 365, 67 L.Ed. 680, so holds.
5
Petitioner argues that the executor's right under the statute can be defeated through a prior assignment by the testator. If the widow, widower, and children were the claimants, concededly no prior assignment could bar them. For they are among those to whom § 24 has granted the renewal right, irrespective of whether the author in his lifetime has or has not made any assignment of it. See De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415. Petitioner also concedes—and we see no rational escape from that conclusion—that where the author dies intestate prior to the renewal period leaving no widow, widower, or children, the next of kin obtain the renewal copyright free of any claim founded upon an assignment made by the author in his lifetime. These results follow not because the author's assignment is invalid but because he had only an expectancy to assign;1 and his death, prior to the renewal period, terminates his interest in the renewal which by § 24 vests in the named classes. The right to obtain a renewal copyright and the renewal copyright itself exist only by reason of the Act and are derived solely and directly from it.
6
We fail to see the difference in this statutory scheme between widows, widowers, children, or next of kin on the one hand and executors on the other. The hierarchy of people granted renewal rights by § 24 are first, the author if living; second, the widow, widower, or children, if he or she is not living; third, his or her executors if the author and the widow, widower, or children are not living; fourth, in absence of a will, the next of kin. True, these are disparate interests. Yet Congress saw fit to treat them alike. It seems clear to us, for example, that by the force of § 24, if Black had died intestate, his next of kin would take as against the assignee of the renewal right. Congress in its wisdom expressed a preference for that group against the world, if the author, the widow, the widower, or children are not living. By § 24 his executors are placed in the same preferred position, unless we refashion § 24 to suit other policy considerations. Of course an executor usually takes in a representative capacity. He 'represents the person of his testator' as Fox Film Corp. v. Knowles, supra, 261 U.S. at page 330, 43 S.Ct. at page 366, states. And that normally means that when the testator has made contracts, the executor takes cum onere. Yet it is also true, as pointed out in Fox Film Corp. v. Knowles, supra, 261 U.S. at page 330, 43 S.Ct. at page 366, that 'it is no novelty' for the executor 'to be given rights that the testator could not have exercised while he lived.' It is clear that under this Act the executor's right to renew is independent of the author's rights at the time of his death. What Congress has done by § 24 is to create contingent renewal rights. Congress has provided that, when the author dies before the renewal period arrives, special rules in derogation of the usual rules of succession are to apply for the benefit of three classes of people (1) widows, widowers, and children; (2) executors, and (3) next of kin. We think we would redesign § 24 if we held that executors, named as one of the preferred classes, do not acquire the renewal rights, where there has been a prior assignment, though widows, widowers, and children or next of kin would acquire them. Certainly Fox Film Corp. v. Knowles, supra, 261 U.S. 329—330, 43 S.Ct. 365, states that what one of the three could have done, either of the others may do. Mr. Justice Holmes speaking for the Court said:
7
'No one doubts that if Carleton had died leaving a widow she could have applied as the executor did, and executors are mentioned alongside of the widow with no suggestion in the statute that when executors are the proper persons, if anyone, to make the claim, they cannot make it whenever a widow might have made it. The next of kin come after the executors. Surely they again have the same rights that the widow would have had.'
8
The legislative history supports that view:
9
'Instead of confining the right of renewal to the author, if still living, or to the widow or children of the author, if he be dead, we provide that the author of such work, if still living, may apply for the renewal, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or, in the absence of a will, his next of kin. It was not the intention to permit the administrator to apply for the renewal, but to permit the author who had no wife or children to bequeath by will the right to apply for the renewal.'2
10
The category of persons entitled to renewal rights therefore cannot be cut down and reduced as petitioner would have us do. Section 24 reflects, it seems to us, a consistent policy to treat renewal rights as expectancies until the renewal period arrives. When that time arrives, the renewal rights pass to one of the four classes listed in § 24 according to the then-existing circumstances. Until that time arrives, assignees of renewal rights take the risk that the rights acquired may never vest in their assignors. A purchaser of such an interest is deprived of nothing. Like all purchasers of contingent interests, he takes subject to the possibility that the contingency may not occur. For example, an assignment from an author and his wife will be ineffective, if on his death another woman is the widow. Examples could be multiplied. We have said enough, however, to indicate that there is symmetry and logic in the design of § 24. Whether it works at times an injustice is a matter for the Congress, not for us.
11
Affirmed.
12
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER, Mr. Justice WHITTAKER, and Mr. Justice STEWART join, dissenting.
13
I cannot agree to this decision, by which the assignee of an author's renewal rights in a copyrighted work is deprived of the fruits of his purchase—a purchase which, we must assume, was made in good faith and for a consideration fairly agreed upon.1 While, for all that appears, the author in this case may not have contemplated the defeat of his assignment, the effect of the decision is to enable an author who has sold his renewal rights during his lifetime to defeat the transaction by a deliberate subsequent bequest of those rights to others in his will.
14
An assignee of renewal rights inter vivos cannot of course protect himself from such an unjust result by obtaining an assignment from the author's executor, who acquires his status as such only upon the author's death. Nor can he with any assurance of success seek to secure assignments from everyone who might be expected to be the fortunate legatee. In consequence, the efficacy of a good-faith attempt to accomplish a lasting conveyance of renewal rights may hereafter depend on whether a particular transaction, under the law of whichever State may ultimately govern the matter, will be deemed a contract to make a will and given effect as such. The resulting uncertainties as to construction, validity, and mode of enforcement of such transactions under the laws of the various States need hardly be spelled out. A result so unjust and unsettling, and which indeed may impair the marketability of an author's renewal rights, should be reached only if clear statutory language or evident legislative purpose fairly compels it. Far from resting on such considerations, this decision is supported only by a parlaying of an ill-considered 'concession' of counsel with an exaltation of literal 'symmetry and logic' (80 S.Ct. 796) over what it seems to me a more penetrating inquiry into congressional aims would have revealed.
15
For convenience I quote the Copyright Act, 17 U.S.C. § 24, 17 U.S.C.A. § 24, again:
16
'That * * * the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright.' On its face, the section manifests no intention to deal with the problem of priority of rights as between an assignee and the persons named in the section. The discussion in the House Report quoted by the Court, 80 S.Ct. 795, likewise shows no advertence to the question, and we are referred to no other significant legislative history on this score. Hence, we must resolve the matter in light of the purpose disclosed by the structure of the provision.
17
On this basis we do not write upon a clean slate. In Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 63 S.Ct. 773, it was argued that the renewal provisions of the statute demonstrated a congressional determination 'to treat the author as though he were the beneficiary of a spendthrift trust.' Brief for petitioners, No. 327, O.T.1942, p. 36. The Court, finding no support in the evolutionary history of the legislation and its structure, rejected that view, and held that an author could, during the original term of his copyright, validly assign his right to apply for the renewal, and that having done so he could not, upon the arrival of the renewal year, himself claim that right. The Court seems to regard that case as entirely inapplicable in a situation where, as here, the author has not survived the beginning of the renewal year. But had the statute conferred renewal rights on 'the author, if still living, or if the author be not living, on his executors or administrators,' I have little doubt that the Fisher decision would control this case and require its reversal. The important question, then, is to determine the extent to which Congress has seen fit to depart from the ordinary rules of succession. In reaching its conclusion, the Court has, I think, overlooked critical distinctions between the different clauses of the statute.
18
The evolution of § 24 was exhaustively described and analyzed in Fisher, and need not be recanvassed here. See also De Sylva v. Ballentine, 351 U.S. 570, 574—576, 76 S.Ct. 974, 976—977, 100 L.Ed. 1415. Briefly, the clause regarding widows, widowers, and children originated with the 1831 Act, 4 Stat. 436, while that dealing with executors and next of kin was added in 1909, 35 Stat. 1081. The retention, at that latter date, of the provision for widows, widowers, and children, and its position in the amended statute, can only be taken as expressive of a desire to regard them, in the words of the Court, as a 'preferred class,' and to ensure that the author could not by bequest confer on another the benefits of the renewal term. Cf. De Sylva v. Ballentine, supra, 351 U.S. at page 582, 76 S.Ct. 980. For it would indeed be anomalous to say that an author could convey for a consideration during his lifetime what he is not permitted to bequeath at death. Hence I agree that the provision for a 'compulsory bequest,' ibid., to the author's widow and children should be held to bar effective assignment of renewal rights as against them.
19
But I cannot perceive the applicability of this reasoning to the executor. There is simply no warrant for regarding him as in any way one of a 'preferred class.' The executor himself manifestly could not have been the object of such congressional solicitude, since he takes nothing beneficially, but only as a fiduciary for those benefited by the will. As to the latter, a legatee can be any person, corporation, or association capable of taking property by bequest. Surely we cannot infer legislative concern over the protection of the interest of whosoever, of the large indeterminate class of potential legatees, should prove in fact to be chosen by the author. The evident purpose of the clause regarding executors was merely 'to permit the author who had no wife or children to bequeath by will the right to apply for the renewal.' H.R.Rep. No. 2222, 60th Cong., 2d Sess., p. 15. The Court gave full effect to that purpose in Fox Film Corp. v. Knowles, 261 U.S. 326, 43 S.Ct. 365, 67 L.Ed. 680, when it held that an executor acquired the right to apply for renewal, even though the author's death occurred prior to the renewal year, when the author himself first could have renewed his copyright. It goes beyond that purpose, and beyond anything at issue in Fox Film, to read into the statute a desire to protect legatees from the claims of an assignee of the author.
20
The Court's treatment of the rights of an author's next of kin is especially curious. With no more authority than what appears to me to have been a demonstrably unnecessary 'concession' of counsel,2 the Court regards its as 'clear' that the next of kin take over an assignee. From this dubious premise, the Court reasons that the executor, being thus surrounded in the 'hierarchy of people granted renewal rights' by persons whose rights are superior to those of an assignee, must be 'placed in the same preferred position.' This reasoning, I submit, ignores the legislative purpose evidenced by the statute. There is no basis whatever for supposing that next of kin were sought to be protected from loss of rights arising out of the author's acts, in the sense that widows and children were. For the obvious fact is that under the statute next of kin, though related—albeit often distantly3—to the author, may be deprived of any interest in the renewal rights by a bequest of those rights by the author to another—even to one who is a total stranger.
21
It is thus apparent that Congress had no intention of protecting next of kin from defeasance of their expectancy. Its purpose was more limited. Having determined that, despite an author's death without a surviving spouse or child prior to the renewal year, his work should not pass into the public domain, Congress sought to ensure that the failure of the author to leave a will would not bring this result about. The decision to give the renewal rights directly to the next of kin, rather than to an administrator, may well have been due to a desire to save authors' estates—which not infrequently might contain no other asset of substance—the expense of going through administration. Be that as it may, it seems to me abundantly clear that the result now reached by the Court was never intended.
22
To construe the statute as I have is not to 'refashion' it, but only to appraise the competing claims of the author's assignee and those named in § 24 in light of the policy indicated by the manner in which the various interests involved are dealt with by the statute. The 'symmetry and logic' of the provision is a dynamic, not a static or syntactical, symmetry and logic. Consistently with Fisher, the assignment is given effect as against those whose claims must rest on the voluntary decision of the author to benefit them; as to the surviving spouse and children, however, the legislative care taken to make their rights independent of the author's desires leads to a contrary result. It is only to that extent that Congress has departed from the ordinary rules of succession, in accord, it may be noted, with modern legislative trends precluding disinheritance of widows and children. We should not, by failing to heed the limits of that departure, foster an unjust and disruptive result. By undermining the sales value of renewal rights at the expense of the author and his immediate family this decision impinges on the very interests which the Copyright Act was designed to protect.
23
I would reverse.
1
Spring, Risks and Rights in Publishing, Television, Radio, Motion Pictures, Advertising, and the Theatre (2d rev. ed. 1956), pp. 94—95; Ball, The Law of Copyright and Literary Property (1944), § 243; Ladas, International Protection of Literary and Artistic Property (1938), Vol. II, p. 772. But see Shafter, Musical Copyright (2d ed. 1939), p. 177.
2
H.R.Rep. No. 2222, 60th Cong., 2d Sess., p. 15. And see S.Rep. No. 1108, 60th Cong., 2d Sess., p. 15.
1
Today even less than when Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 63 S.Ct. 773, was decided, 'can we be unmindful of the fact that authors have themselves devised means of safeguarding their interests.' Id., 318 U.S. at page 657, 63 S.Ct. at page 779. More particularly there is no suggestion in this case that the sale of these renewal rights was in any way improvident.
2
It is not difficult to understand why a publisher would be content with a rule preferring the next of kin—who can ordinarily be determined with reasonable accuracy during the assignor's lifetime, and from whom an assignment can often be purchased, as indeed was done in this instance—and at the same time regard application of a similar principle to the executor as unworkable. Yet it need hardly be said that such practical considerations do not relieve this Court of the duty of construing the statute for itself.
3
Our reference in the DeSylva case, supra, 351 U.S. at page 582, 76 S.Ct. at page 980, to the 'family' of the author was of course to the immediate family, the spouse and children, and not to all those related, however remotely, to the author.
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