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365 U.S. 125
81 S.Ct. 433
5 L.Ed.2d 457
UNITED STATES, Appellant,v.PARKE, DAVIS & COMPANY.
No. 526.
Decided Jan. 23, 1961.
Solicitor General Rankin, Assistant Attorney General Bicks, Daniel M. Friedman and Richard A. Solomon, for the United States.
Gerhard A. Gesell, Edward S. Reid, Jr. and Roberts B. Owen, for appellee.
PER CURIAM.
1
When this case was last here we held that the Government's proofs were sufficient to show that Parke Davis violated the Sherman Act, 15 U.S.C.A. §§ 1—7, 15 note. However, in reversing the District Court's judgment we remanded the case with direction to afford Parke Davis a further opportunity to submit evidence in defense in order to refute the Government's right to injunctive relief. United States v. Parke, Davis & Co., 362 U.S. 29, 49, 80 S.Ct. 503, 514, 4 L.Ed.2d 505. On remand, Parke Davis introduced evidence not to rebut the Government's proof as to violation but only to show that it had abandoned its illegal sales policy, and that therefore an injunction, being unnecessary, should not issue. On that record the District Court, 164 F.Supp. 827, entered an order denying not only the injunctive relief sought by the Government, but also an adjudication that Parke Davis had violated the law. The present appeal is not from the provision which denies injunctive relief, but from the omission of a provision adjudging that Parke Davis violated the Act. We have examined the record as supplemented on the remand and hold that under our prior order the Government is entitled to a judgment on the merits, as prayed in paragraph 1 of the section of the Complaint captioned 'Prayer.' We also hold that the District Court should retain the case on the docket for future action in the event the Government applies for further relief from an alleged resumption by Parke Davis of illegal activity. The order of the District Court filed July 18, 1960, is therefore vacated and the case is remanded to the District Court with direction to enter judgment accordingly.
2
It is so ordered.
3
Order vacated and case remanded.
4
Mr. Justice HARLAN, with whom Mr. Justice FRANKFURTER agrees, would place this case on the summary calendar for argument, postponing to the merits consideration of the question of jurisdiction raised by the respondent.
| 78
|
365 U.S. 123
81 S.Ct. 434
5 L.Ed.2d 455
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.MATTISON MACHINE WORKS.
No. 74.
Argued Jan. 9, 1961.
Decided Jan. 23, 1961.
Mr. Norton J. Come, Washington, D.C., for petitioner.
Mr. J. Warren McCaffrey, Chicago, Ill., for respondent.
PER CURIAM.
1
The judgment of the Court of Appeals is reversed and the case remanded to that court for the entry of a decree enforcing the Board's order. The refusal of the Court of Appeals to enforce that order because the Board's notices of election contained a minor and unconfusing mistake in the employer's corporate name, was plain error. It was well within the Board's province to find, as it did, upon the record before it that this occurrence had not affected the fairness of the representation election, particularly in the absence of any contrary showing by the employer, upon whom the burden of proof rested in this respect. That finding should have been accepted by the Court of Appeals. In the absence of proof by the employer that there has been prejudice to the fairness of the election such trivial irregularities of administrative procedure do not afford a basis for denying enforcement to an otherwise valid Board order.
2
Judgment reversed and cause remanded.
| 67
|
365 U.S. 85
81 S.Ct. 421
5 L.Ed.2d 428
Alvin R. CAMPBELL, Arnold S. Campbell and Donald Lester, Petitioners,v.UNITED STATES.
No. 53.
Argued Dec. 6, 1960.
Decided Jan. 23, 1961.
Messrs. Melvin S. Louison, Taunton, Mass., and Lawrence F. O'Donnell, Boston, Mass., for petitioners.
Mr. Roger G. Connor, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
After a government witness testifies on direct examination in a federal criminal prosecution the trial court is required, under the so-called Jencks Act,1 on motion of the defendant, to order the United States to produce, for impeachment purposes, defined pretrial statements of the witness, or parts of such statements as determined under subsection (c), which relate to the subject matter of his trial testimony and are in the possession of the United States. The conviction of the petitioners in the District Court for the District of Massachusetts for bank robbery in violation of 18 U.S.C. § 2113, 18 U.S.C.A. § 2113, was sustained by the Court of Appeals for the First Circuit. 1 Cir., 269 F.2d 688. During the trial the court ordered the Government to produce a document described on cross-examination by one of its witnesses in terms which satisfy the definition of a 'statement' under the Act. The Government denied having possession of such a document. It did, however, admit possession of an Interview Report of an interview by an FBI agent with that witness, but contended that this report fell outside the statute. The trial judge held an inquiry without the jury present, at the conclusion of which he refused to order the United States to deliver the Interview Report to the petitioners, and also denied their motion to strike the testimony of the witness. The procedure at that inquiry raises questions important in the administration of the Jencks Act, and we granted certiorari limited to the review of those questions. 362 U.S. 909, 80 S.Ct. 663, 4 L.Ed.2d 618.
2
The government witness was Dominic Staula, a depositor who was in the bank at the time of the robbery. On direct examination he identified the petitioner Lester as one of the robbers. When asked on cross-examination whether he made any statements to government agents before the trial, he said that an agent of the Federal Bureau of Investigation who interviewed him during the week following the robbery wrote down such a statement. His recollection of what occurred at the interview was not entirely clear,2 but the trial judge ruled that he had made a statement satisfying the requirements of the Jencks Act and ordered the United States to produce it. The Assistant United States Attorney presenting the Government's case stated that he had no such paper as the witness described. He stated further that the only document in the possession of the prosecution was not a 'statement' within the statute, but a typed Interview Report3 of FBI Special Agent Toomey prepared and transcribed after the interview at a time unknown to the Assistant. The Assistant refused to deliver the report to petitioners' counsel but delivered it to the judge for his inspection. To the court's question whether the Government possessed 'any statement that was copied by an FBI Agent which in any way would reflect a statement that this witness made and which he substantially adopted
3
`-----------
4
'Property of FBI.—This report is loaned to you by the FBI, and neither it nor its contents are to be distributed outside the agency to which loaned.
5
Sex................................ Male.
6
Race............................... Negro.
7
Age................................ Approximately 30 years.
8
Height............................. 5' 10".
9
Weight............................. 165 pounds.
10
Complexion......................... Very dark.
11
Build.............................. Slender.
12
Face............................... Round.
13
Clothing........................... Dark blue suit.
14
................................... Blue snap brim hat.
15
................................... White shirt.
16
'Mr. Staula stated that he did not observe a third man in the bank—
17
'It was stated by Mr. Staula that he did not know what type of gun was carried by these two individuals whom he observed but believed that they could have been 45 Caliber automatics.
18
'Mr. Staula stated that after taking a look at the individual wearing the blue suit he faced the wall as previously ordered and observed these individuals no further.
19
'He stated that after he stood with his face to the wall for approximately 10 minutes one of the robbers ordered him and the other people who were standing on either side of him to walk into the vault. He stated that he does not recall which of the robbers issued this order but that he did enter the vault as directed and observed these individuals no further.
20
'Mr. Staula stated that one of the robbers, closed the door of the vault he issued some order to the effect that the people locked inside should not leave and that they stayed there for 5 or 10 minutes until the vault door was opened by Sergeant Ruane of the Canton, Massachusetts, Police Department.'
21
'Interview with Dominic Staula, File #91—952, on July 19, 1957, at Canton, Massachusetts, by Special Agent John F. Toomey, Jr., bjp.' as the statement,' the Assistant replied 'No, your Honor, we don't.' To the further question whether 'the United States (has) in its possession any notes that were taken down by the FBI Agent at the time this witness was interviewed,' the Assistant answered, 'I do not have them in my possession and I do not know whether they ever existed.'
22
The Jencks Act limits access by defendants to such government papers as fit the Act's definition of 'statements' which relate to the subject matter as to which the witness has testified, Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287. However, the statute requires that the judge shall, on motion of the defendant, after a witness called by the United States has testified on direct examination, order the United States, for impeachment purposes, to produce any such 'statements.' To that extent, as the legislative history makes clear, the Jencks Act 'reaffirms' our holding in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, that the defendant on trial in a federal criminal prosecution is entitled, for impeachment purposes, to relevant and competent statements of a government witness in possession of the Government touching the events or activities as to which the 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. The command of the statute is thus designed to further the fair and just administration of criminal justice, a goal of which the judiciary is the special guardian.
23
After an overnight recess the trial judge conducted an inquiry without the jury present to take testimony and hear argument of counsel. Plainly enough this was a proper, even a required, proceeding in the circumstances. Determination of the question whether the Government should be ordered to produce government papers could not be made from a mere inspection of the Interview Report, but only with the help of extrinsic evidence. The situation was different from that governed by subsection (c), in which the Government admits that a document in its possession is a 'statement' but submits the paper for the judge's in camera inspection to delete matter which the Government contends does not relate to the subject matter of the testimony of the witness. The situation was similar to that in Palermo, where the Government also contended that a paper in its possession was not a 'statement.' We there approved the procedure of taking extrinsic testimony out of the presence of the jury to assist the judge in reaching his determination whether to order production of the paper. We said, 360 U.S. at pages 354—355, 79 S.Ct. at page 1226, '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.'
24
In this case the aid of extrinsic evidence was required to answer the following questions bearing on the petitioners' motions:
25
Did Toomey write down what Staula told him at the interview? If so, did Toomey give Staula the paper 'to read over, to make sure that it was right,' and did Staula sign it?
26
Was the Interview Report the paper Staula described, or a copy of that paper? In either case, as the trial judge ruled, the Interview Report would be a producible 'statement' under subsection (e)(1). 'Statements' under that subsection are not limited to such as the witness has himself set down on paper. They include also a statement written down by another which the witness 'signed or otherwise adopted or approved' as a statement 'made by said witness.' True, the report does not bear Staula's signature and the witness testified 'I think I had to sign' the original paper. However, if the paper was otherwise adopted or approved by the witness, his signature was not essential. See Bergman v. United States, 6 Cir., 253 F.2d 933, 935, note 1; United States v. Tomaiolo, 2 Cir., 280 F.2d 411, 413.
27
If the Interview Report was not the original or a copy of the paper Staula described, what became of the paper?
28
In any event, even if the Interview Report was not the original or a copy of the paper Staula described, had Staula read over and approved the Interview Report? In such case the report would be producible under subsection (e)(1) although not related to the paper Staula described. Or was the Interview Report a substantially verbatim recital of an oral statement which the agent had recorded contemporaneously? If extrinsic evidence established this the report would be producible under subsection (e)(2). Palermo v. United States, 360 U.S. at pages 351—352, 79 S.Ct. at page 1224.
29
The obvious witness to call was Special Agent Toomey who, the parties agreed, was readily available. Defense counsel suggested that the agent be called 'to explain where he got the * * * (Interview Report),' and also because 'Mr. Toomey could easily say what he has done with the original writing.' Defense counsel were not in a position also to appreciate the significance of Toomey's testimony to the possible producibility of the Interview Report itself. Consistent with our admonition in Palermo, 360 U.S. at page 354, 79 S.Ct. at page 1226, that 'it would indeed defeat this design (to limit defense access to government papers) to hold that the defense may see statements in order to argue whether it should be allowed to see them,' neither the Government nor the judge permitted them to inspect it. From his own inspection, however, the judge was aware of the significance which Toomey's evidence might have on the judge's determination whether he should order the Government to turn over the Interview Report to the defense. The Interview Report resembles the statement Staula described and the judge indicated that he would order its production if it was that statement or a copy of it, or although not the original or a copy, if Staula had read and approved it, or if it was a contemporaneously recorded substantially verbatim recital of Staula's oral statement. Nevertheless, the judge ruled that it was for the petitioners to subpoena Toomey as 'their witness' if they believed his testimony would support their motions, and that he would not of his own motion summon Toomey to testify, or require the Government to produce him. We think that this ruling was erroneous.
30
The inquiry being conducted by the judge was not an adversary proceeding in the nature of a trial controlled by rules governing the allocation between the parties of the burdens of proof or persuasion. The inquiry was simply a proceeding necessary to aid the judge to discharge the responsibility laid upon him to enforce the statute. The function of prosecution and defense at the inquiry was not so much a function of their adversary positions in the trial proper, as it was a function of their duty to come forward with relevant evidence which might assist the judge in the making of his determination. These considerations standing alone suggest that the emphasis on the petitioners' burden to produce the evidence was misplaced. The statute says nothing of burdens of producing evidence. Rather it implies the duty in the trial judge affirmatively to administer the statute in such way as can best secure relevant and available evidence necessary to decide between the directly opposed interests protected by the statute—the interest of the Government in safeguarding government papers from disclosure, and the interest of the accused in having the Government produce 'statements' which the statute requires to be produced.
31
The circumstances of this case clearly required that the judge call Toomey of his own motion or require the Government to produce him. Not only did the Government have the advantage over the defense of knowing the contents of the Interview Report but it also had the advantage of having Toomey in its employ and presumably knew, or could readily ascertain from him, the facts about the interview. In addition to the consideration that the interest of the United States in a criminal prosecution '* * * 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, the ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary. United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 256, 78 S.Ct. 212, 214, 2 L.Ed.2d 247, note 5. Moreover, the petitioners' cross-examination of Staula had shown a prima facie case of their entitlement to a statement, and, at the least, the judge should have required the Government to come forward with evidence to answer that case. Cf. United States v. Costello, D.C., 145 F.Supp. 892, 894—895, note 13. Since the Interview Report was not, and under Palermo could not be, made available to the petitioners, and they thus had no way of knowing the significance of its contents to the question the judge was to determine, it saddled an unfairly severe burden on them to require them to subpoena Toomey as 'their witness.' In the role of petitioners' witness, they would be groping in the dark in questioning him, and they might be bound by his answers. As a witness called by the Government or even as the court's witness, they would have a latitude in cross-examination to which the circumstances entitled them.
32
Instead of calling Toomey or having the Government call him, the trial judge fell into further error by relying upon Staula to supply the information he sought. Over the objection of government counsel that the Interview Report had not been 'recorded contemporaneously with the making of such oral statement,' and over the objection of the petitioners that 'If this man now reads that statement it loses its effect for purposes of impeachment,' the judge directed Staula to read the Interview Report and say whether he was familiar with it. The witness said that he had never seen the report. The judge then asked Staula '* * * is that a substantially verbatim recital of what you told Agent Toomey?' The witness replied, 'That's not written up just the way the story is.' 'There are things in there turned around.' It was after this testimony was elicited from Staula that the judge ruled he would not order the delivery of the Interview Report to the petitioners, and denied their motion to strike the witness' testimony.
33
Reliance upon the testimony of the witness based upon his inspection of the controverted document must be improper in almost any circumstances. The very question being determined was whether the defense should have the document for use in cross-examining the witness. Under Palermo, the trial judge was not to allow the defense to inspect the Interview Report 'in order to argue whether it should be allowed to see' it, since to do so would be inconsistent with the congressional purpose to limit access to government papers. Similarly, Staula should not have been allowed to inspect the Interview Report, since there necessarily inhered in the witness' inspection of the paper the obvious hazard that his self-interest might defeat the statutory design of requiring the Government to produce papers which are 'statements' within the statute. For example, the Interview Report states that Staula was unable to give any description of one of the robbers. This is in sharp contrast to his positive identification of Lester made on direct examination. Experienced trial judges and lawyers will readily understand the value of the use of the report on cross-examination of the witness. But the petitioners were deprived of the opportunity to make use of the report by the obviously self-serving declarations of the witness that it did not accurately record what he told the agent.
34
Moreover, failure of the judge to call for Toomey's testimony foreclosed a proper determination of the petitioners' motion to strike the witness' testimony. If the Interview Report was not the original or a copy of the paper Staula described, and that paper was destroyed, the petitioners might have been denied a statement to which they were entitled under the statute. Thus, even if the Interview Report itself were producible, a situation might have arisen calling for decision whether subsection (d) of the statute required the striking of the testimony of the witness. The parties argue whether destruction may be regarded as the equivalent of noncompliance with an order to produce under that subsection. The Government contends that only destruction for improper motives or in bad faith should be so regarded. The petitioners contend that destruction without regard to the circumstances should be so regarded. However, this record affords us no opportunity to decide this important question of the construction of subsection (d). We do not yet know that such a paper existed, and was destroyed, or the circumstances of its destruction, nor can we know without the benefit at least of Toomey's testimony.
35
We conclude that because of these errors in the conduct of the inquiry the petitioners are entitled to a redetermination of their motion for the production of Staula's pretrial statements, and of their motion to strike his testimony. However, we do not think that this Court should vacate their conviction and order a new trial. The petitioners' right can be fully protected by a remand to the trial court with direction to hold a new inquiry consistent with this opinion. See United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234. The District Court will supplement the record with new findings and enter a new final judgment of conviction if the court concludes upon the new inquiry to reaffirm its former rulings. This will preserve to the petitioners the right to seek further appellate review on the augmented record. On the other hand, if the court concludes that the Government should have been required to deliver the Interview Report or other statement to the petitioners, or that it should have granted their motion to strike Staula's testimony, the court will vacate the judgment of conviction and accord the petitioners a new trial.
36
The judgment of the Court of Appeals is therefore vacated and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
37
Judgment of Court of Appeals vacated and case remanded to District Court.
38
Mr. Justice FRANKFURTER, whom Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting in part and concurring in the result in part.
39
What is this case? In the course of a prosecution for violation of the Federal Bank Robbery Act, 18 U.S.C. § 2113, 18 U.S.C.A. § 2113, Dominic Staula, a government witness, identified defendant Lester as one of three men whom he had observed committing the alleged offense. Upon cross-examination, he disclosed that, on one occasion at local police headquarters, he had been interviewed by at least two FBI agents. He stated that he did not sign any statements, but only signed 'a piece of paper saying I was in the bank.' On the basis of this testimony the defense requested 'the statement of this man' under the Jencks Act, 18 U.S.C. § 3500, 18 U.S.C.A. § 3500, which requires that the court order the Government to produce 'any statement * * * of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.' The trial judge denied this request on the ground that the defense had 'laid no foundation for it' since 'this man said nothing was ever read back to him.' No exception was taken to this ruling. In the continuing cross-examination that followed, Staula changed his testimony by recalling that the agents had written down what he had told them, that 'it' was read back to him, and that he had told the agents 'it' was 'essentially what (he) * * * had just related to them.' The judge then held sua sponte that a foundation had been laid for an order to the Government to produce the described document, and ordered the document produced. A colloquy at the bench followed, in the course of which Staula explained to the judge that since his earlier testimony he had recollected what had taken place; that he 'believed' or was 'pretty sure' that 'it' had been read back to him; that what was read back was an accurate statement of what he had told the agents; that he thought they gave 'it' back to him to read over and that he had to sign it, although he was not 'sure.' Government counsel stated at the bench that the only document in their possession was a 'summary of the result of the interview' which represented the FBI agent's 'interpretation of what happened.' The judge then asked whether the Government possessed 'any statement that was copied by an FBI Agent which in any way would reflect a statement that this witness made and which he substantially adopted as the statement,' to which government counsel replied 'No, your Honor, we don't.' A moment later the judge again asked, 'Has the United States in its possession any notes that were taken down by the FBI Agent at the time this witness was interviewed?' Government counsel answered 'I do not have them in my possession and I do not know whether they ever existed.' The judge then asked for and received the FBI agent's report referred to by the United States Attorney, and the case was adjourned for the day.
40
The following morning during a conference held in the judge's chambers the Government again asserted that the agent's report was not a copy of the original notes, and that the notes were no longer in existence. A long discussion ensued concerning the producibility of the agent's report. Defense counsel suggested that the FBI agent (Toomey) be called into chambers 'to explain where he got the document,' and to 'say what he has done with the original writing.' This the judge denied, but suggested that the defendants were free to subpoena the agent, or, more simply, could ask the Government to have the agent made available for examination. The judge then proposed to ask Staula, out of the presence of the jury, whether the report was a substantially verbatim recital of what he had told the agent, and, if the answer were affirmative, the report would be given to defendants for impeachment purposes. Both sides opposed this move. The Government argued that in any event the report had not been 'recorded contemporaneously with the making of such oral statement,' and defendants' counsel objected because the impeachment value of the report would be negated by having the witness see the document and himself decide whether it conformed to what he had told the FBI. But Staula was shown the document. He denied that it was a 'substantially verbatim recital of what (he) * * * told Agent Toomey,' and the judge thereupon denied the defense access to the document for purposes of impeachment. Thereupon defendants moved that, in accordance with the Act, Staula's entire testimony be stricken because the Government had failed to produce 'the original document.' This motion was denied.
41
The case presents two entirely separate questions under the Jencks Act, and they should be kept apart. First, what are the procedural requirements, under the Jencks statute, when counsel for the United States announces that he cannot produce documents for which a foundation has been laid because he does not possess them and does not know of their existence? Secondly, was the FBI agent's available report producible under the Act?
I.
42
Title 18 U.S.C. § 3500, 18 U.S.C.A. § 3500, requires the trial judge, upon a motion by the defendant, to 'order the United States to produce any statement * * * of the witness in the possession of the United States' which is relevant to the direct testimony of the government witness. Nothing in the legislative history of the Act remotely suggests that Congress' intent was to require the Government, with penalizing consequences, to preserve all records and notes taken during the countless interviews that are connected with criminal investigation by the various branches of the Government. The legislation narrowed the application of our decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, as construed by some of the lower courts, partly by having the relevancy of the material determined by the district judge prior to its production. S.Rep. No. 981, 85th Cong., 1st Sess., p. 2.
43
Petitioners' contention that the words 'in the possession of' must be interpreted as meaning 'possession at any prior or present time' must be rejected. Congress surely did not intend to initiate a game of chance whereby the admission of a witness' testimony is made to depend upon a file clerk's accuracy or care. Senator O'Mahoney, the sponsor of the bill, in illustrating that his measure approved the essential basis of the Jencks case, interpreted Jencks to apply only where the Government 'had at the same time in its files a statement' pertinent to a witness' testimony. 103 Cong.Rec. 10120. See also S.Rep. No. 981, 85th Cong., 1st Sess., p. 5; H.R.Rep. No. 700, 85th Cong., 1st Sess., p. 5.1
44
Here government counsel told the court that he did not possess and did not know the whereabouts of the documents which Staula had described. The Court today holds that it fell upon the district judge to conduct a further investigation as to the disposition of the documents, whereby it becomes his duty to call and question the FBI agent who signed the subsequent summary. Defendants did not question the truth or accuracy of the responses of the United States Attorney as to the non-existence of the original notes. Defendants were represented by two competent lawyers who were alert to protect their clients' interest through all available trial procedures and tactics. It surely is not the duty of a district judge to investigate a response by one who is an officer of the court as well as of the United States on the assumption that he has intentionally or irresponsibly violated his responsibility to the court and the Government in conducting the Government's case in a manner consistent with basic legal ethics and professional care.
45
How does the court's duty regarding a claim by defense under the Jencks statute differ from any other claim for the production of a document? We are told that because Agent Toomey was readily available, it devolved on the judge instead of on the defendants to seek whatever light could be thrown on the matter. Is it now the duty of the district judge to do all that a competent defense counsel would do, or would choose, as a matter of trial judgment, not to do? The procedure now suggested places the judge in the position of a voluntary defender for defendants already adequately represented. This seems only the more questionable since it may well be that counsel here were satisfied that the documents had been disposed of in a bona fide manner. It is not the duty of this Court to invent hypothetical situations in which independent action by the district judge might have revealed unexpected facts. There was no suggestion, not a hint—either before the trial court, or below, or upon argument here—that the Government's representation of the non-existence of the documents was not bona fide, was a piece of chicane and as such a fraud upon the court bringing into action the court's protection of its dignity and honor, or a manifestation of professional inadequacy as to call for the court's safeguarding action.
II.
46
The other issue presented by the case is the producibility of the FBI agent's report which had been put into possession of the court. Subsection (e) of the Jencks Act thus defines the papers in the Government's possession that are subject to production:
47
'(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or
48
'(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.'
49
The plain differentiation between the two clauses is that the former relates to statements written by a witness, while the latter encompasses his oral statements recorded and transcribed by another. As to the statements that the witness had himself set down on paper, Congress desired that his signature or some other form of approval be shown to assure authenticity. The required approval would also quiet any doubts that the witness had an adequate opportunity to scrutinize for verification the document which he had prepared. These are appropriate safeguards for the use of these documents as a basis for impeaching the witness' testimony on the stand. As to oral statements, the statute prescribes that their content be 'a substantially verbatim recital' of the witness' words recorded contemporaneously. 'Clearly this provision allows the production of mechanical or stenographic recordings of oral statements, even though later transcribed.' Palermo v. United States, 360 U.S. 343, 351—352, 79 S.Ct. 1217, 1224, 3 L.Ed.2d 1287. Producibility, for purpose of impeachment of a statement drawn up in the third person by an agent requires that the whole oral statement be contemporaneously recorded. Under this standard, a summarization by an agent of selective portions of testimony by the witness would not fall within the scope of the Act. '(B)eyond mechanical or stenographic statements * * * a very restrictive standard is to be applied' in defining what is a 'statement' under the statutory language. Palermo v. United States, supra, 360 U.S. at page 360, 79 S.Ct. at page 1228. Under subsection (2), it makes no difference whether these agent summaries are signed or approved by the witness; '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.' Palermo v. United States, supra, 360 U.S. at page 352, 79 S.Ct. at page 1225. As the bill originally came out of the House Judiciary Committee, 103 Cong.Rec. 16125, such summaries when approved by the witness would have been subject to production. H.R.Rep. No. 700, 85th Cong., 1st Sess., p. 6. However, the subsequent revision of the bill as finally enacted makes clear that those statements of a witness given orally to the Government must meet the standard of 'substantially verbatim' in order to be produced for purposes of impeachment.2 See Appendix B, Palermo v. United States, supra, 360 U.S. at pages 358—360, 79 S.Ct. at page 1227.
50
In Palermo, we approved of the district judge's holding proceedings in camera to determine whether questionable documents constituted statutory 'statements.' 360 U.S. at page 354, 79 S.Ct. at page 1225. It needed no explicitness to establish that the 'substantially verbatim' test was to be made by extrinsic proof, not by asking the witness himself whether the document in question substantially conformed to what he had told the federal agents. We agree with the Court that the procedure in which the trial judge indulged was erroneous. The witness might deny the accuracy of the document in order to avoid impeachment; even if produced, the document loses much of its potentiality for impeachment if the witness has already examined its contents.
51
But the trial judge's error in submitting, out of hearing of the jury, the Interview Report for Staula's determination of its accuracy would not warrant reversal if that report proves itself, on its face, not to be a statutory 'statement.' In Palermo, the document was a 600-word summary of a 3 1/2-hour conference, which we held was clearly not a virtually verbatim transcript. 360 U.S. at page 355, 79 S.Ct. at page 1226, note 12. The Interview Report here comes to slightly over 500 words. But the record is silent as to the duration of the interview. Nor does it disclose whether the interview was contemporaneously recorded,3 or how any such recording was transcribed. However doubtful it may seem, it may be the fact that the interview was very brief, not more than a few minutes, and that the conversation as an entirety was faithfully recorded and constituted an accurate account of all that transpired.
52
It is the responsibility of counsel for defendants, as has been elucidated, to pursue ascertainment of the correctness of the Government's claim that documents which are demandable for production under the Jencks Act are no longer in existence, and for no reprehensible reason chargeable to the Government. That is an issue like any other issue of appropriate evidentiary demand. It is not for the court to question that the foundation for production—here, the existence of a document—is wanting, if counsel for defendants do not question the Government's explanation for non-production. A very different issue is presented in determining the legal significance of a document like the FBI report under the Jencks Act, which is produced for the confidential inspection of the court and not shown to the defense. Here the responsibility for resolving the issue rests with the court, and it is the court that must pursue appropriate means for ascertaining the facts relevant to judgment.
53
The district judge should and easily could have probed these matters, vital to ascertainment of the Jencks Act quality of the report, by interrogating counsel, or, as the Court suggests, examining Agent Toomey on the circumstances of the interview.4 Since on this record we cannot say that the report was patently not producible under the Act, we have no recourse but to remand the matter to the District Court for determination whether the report meets the requirements of subsection (e)(2).
1
18 U.S.C. § 3500, 18 U.S.C.A. § 3500. Demands for production of statements and reports of witnesses.
'(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 testified. 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 statement 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.' Added by Pub.L. 85—269, Sept. 2, 1957, 71 Stat. 595.
2
The pertinent parts of his testimony are as follows:
'XQ. Now, Mr. Witness, when you said you had a conversation with the FBI some time less than a week after July 18, 1957, did they write down what you had to say to them?
'The Court: If you know.
'The Witness: Yes.
'XQ. And did they read it back to you, sir? A. Yes.
'XQ. And did they ask you if that was essentially what you had just related to them? A. Yes.
'XQ. And did you tell them yes? A. Yes.
'The Court: I will order it produced. There is a foundation laid for it.
'The Witness: * * * He didn't actually ask me questions. I mean, at first I told him the story, and then when I got through he asked me a few questions.
'The Court: Well, did he read it back to you?
'The Witness: I believe he did.
'The Court: What is your best memory of it?
'The Witness: I am pretty sure he did.
'The Court: Is your memory such as to enable you to say that what was read back to you was an accurate statement of what you told him?
'The Witness: Yes.
'The Witness: If you will excuse me, I am trying to rack my brain to think about what happened. I think they wrote down what I said, and then I think they gave it back to me to read over, to make sure that it was right. And I think I had to sign it. Now, I am not sure. I couldn't remember before—'
3
The District Court sealed the Interview Report for the Court of Appeals. The Court of Appeals released it and it is in the record here. The full text is as follows:
'Federal Bureau of Investigation Interview Report.
'Mr. Dominic Staula, home address 259 Island Street, Stoughton, Massachusetts, a customer at the victim bank, advised that he arrived at the Norfolk County Trust Company in Canton, Massachusetts, to transact some business at approximately 10:15 A.M., July 18, 1957. Mr. Staula stated that he was driving a truck and parked it beside the Canton Depot, in the parking area located between the railroad depot and the bank. He stated that he noted nothing unusual when he entered this parking area nor did he notice anything unusual in walking from where he parked his vehicle to the bank.
'It was stated by Mr. Staula that he went to the teller's window which is served by Mr. Kennedy and while standing in line at this window, but before being waited upon by Mr. Kennedy, he heard somebody state from behind him 'Over against the wall.'
'Mr. Staula stated that he looked around and observed a man whom he described as being a negro, wearing gray chino pants, standing in the center of the lobby and holding a gun. Staula stated that he immediately realized that the bank was being held up and at once took his deposits which consisted of cash and slid them into his side trouser pocket.
'Mr. Staula went on to state that he only observed the man standing in the center of the lobby for an instant and could give no further description of him because he turned toward the front of the bank and observed another man standing there holding a gun. Staula stated that he looked at this man for a short period of time and described him as follows:
1
The Court's opinion implies that the defendant is entitled to statements which the Government does not now possess, 365 U.S. at page 98, 81 S.Ct. at page 428. The Act plainly speaks only to a 'statement * * * of the witness in the possession of the United States.'
2
Insofar as the Court's opinion suggests that, had Staula signed the Interview Report, it would conclusively have been producible, we disagree. Under the statutory language, it still would have been necessary to find that the report was 'a substantially verbatim recital' of that which Staula told the agents. Section 3500(e)(1) is inapplicable.
3
Aside from Staula's conflicting testimony that the agent took notes.
During the proceedings in chambers, the Government repeatedly asserted that the report was not in existence at the time Staula was interviewed. Assuming this to be true, it is irrelevant; the question is whether there was a contemporaneous recording from which the transcription was later made. See Palermo v. United States, supra, 360 U.S. at pages 351—352, 79 S.Ct. at page 1224.
4
Calling Agent Toomey for this purpose is a very different thing from requiring the judge to call him in order to controvert the Government's assertion that no other notes or documents were in their possession. That was for the defense to deal with.
| 01
|
365 U.S. 43
81 S.Ct. 391
5 L.Ed.2d 403
TIMES FILM CORPORATION, Petitioner,v.CITY OF CHICAGO et al.
No. 34.
Argued Oct. 19 & 20, 1960.
Decided Jan. 23, 1961.
Messrs. Felix J. Bilgrey and Abner J. Mikva, New York City, for petitioner.
Messrs. Robert J. Collins and Sydney R. Drebin, Chicago, Ill., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
Petitioner challenges on constitutional grounds the validity on its face of that portion of § 155—41 of the Muncipal Code of the City of Chicago which requires submission of all motion pictures for examination prior to their public exhibition. Petitioner is a New York corporation owning the exclusive right to publicly exhibit in Chicago the film known as 'Don Juan.' It applied for a permit, as Chicago's ordinance required, and tendered the license fee but refused to submit the film for examination. The appropriate city official refused to issue the permit and his order was made final on appeal to the Mayor. The sole ground for denial was petitioner's refusal to submit the film for examination as required. Petitioner then brought this suit seeking injunctive relief ordering the issuance of the permit without submission of the film and restraining the city officials from interfering with the exhibition of the picture. Its sole ground is that the provision of the ordinance requiring submission of the film constitutes, on its face, a prior restraint within the prohibition of the First and Fourteenth Amendments. The District Court dismissed the complaint on the grounds, inter alia, that neither a substantial federal question nor even a justiciable controversy was presented. 180 F.Supp. 843. The Court of Appeals affirmed, finding that the case presented merely an abstract question of law since neither the film nor evidence of its content was submitted. 272 F.2d 90. The precise question at issue here never having been specifically decided by this Court, we granted certiorari, 1960, 362 U.S. 917, 80 S.Ct. 672, 4 L.Ed.2d 737.
2
We are satisfied that a justiciable controversy exists. The section of Chicago's ordinance in controversy specifically provides that a permit for the public exhibition of a motion picture must be obtained; that such 'permit shall be granted only after the motion picture film for which sid permit is requested has been produced at the office of the commissioner of police for examination'; that the commissioner shall refuse the permit if the picture does not meet certain standards;2 and that in the event of such refusal the applicant may appeal to the mayor for a de novo hearing and his action shall be final. Violation of the ordinance carries certain punishments. The petitioner complied with the requirements of the ordinance, save for the production of the film for examination. The claim is that this concrete and specific statutory requirement, the production of the film at the office of the commissioner for examination, is invalid as a previous restraint on freedom of speech. In Joseph Burstyn, Inc., v. Wilson, 1952, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098, we held that motion pictures are included 'within the free speech and free press guaranty of the First and Fourteenth Amendments.' Admittedly, the challenged section of the ordinance imposes a previous restraint, and the broad justiciable issue is therefore present as to whether the ambit of constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture. It is that question alone which we decide. We have concluded that § 155—4 of Chicago's ordinance requiring the submission of films prior to their public exhibition is not, on the grounds set forth, void on its face.
3
Petitioner's narrow attack upon the ordinance does not require that any consideration be given to the validity of the standards set out therein. They are not challenged and are not before us. Prior motion picture censorship cases which reached this Court involved questions of standards.3 The films had all been submitted to the authorities and permits for their exhibition were refused because of their content. Obviously, whether a particular statute is 'clearly drawn,' or 'vague,' or 'indefinite,' or whether a clear standard is in fact met by a film are different questions involving other constitutional challenges to be tested by considerations not here involved.
4
Moreover, there is not a word in the record as to the nature and content of 'Don Juan.' We are left entirely in the dark in this regard, as were the city officials and the other reviewing courts. Petitioner claims that the nature of the film is irrelevant, and that even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government, it may nonetheless be shown without prior submission for examination. The challenge here is to the censor's basic authority; it does not go to any statutory standards employed by the censor or procedural requirements as to the submission of the film.
5
In this perspective we consider the prior decisions of this Court touching on the problem. Beginning over a third of a century ago in Gitlow v. People of State of New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, they have consistently reserved for future decision possible situations in which the claimed First Amendment privilege might have to give way to the necessities of the public welfare. It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. State of Minnesota ex rel. Olson, 1931, 283 U.S. 697, 715—716, 51 S.Ct. 625, 631, 75 L.Ed. 1357, Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint 'is stated too broadly, if every such restraint is deemed to be prohibited * * *. (T)he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.' These included, the Chief Justice found, utterances creating 'a hindrance' to the Government's war effort, and 'actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.' In addition, the Court said that 'the primary requirements of decency may be enforced against obscene publications' and the 'security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.' Some years later, a unanimous Court, speaking through Mr. Justice Murphy, in Chaplinsky v. State of New Hampshire, 1942, 315 U.S. 568, 571—572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, held that there were 'certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' Thereafter, as we have mentioned, in Joseph Burstyn, Inc., v. Wilson, supra, we found motion pictures to be within the guarantees of the First and Fourteenth Amendments, but we added that this was '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.' At page 502 of 343 U.S., at page 781 of 72 S.Ct. Five years later, in Roth v. United States, 1957, 354 U.S. 476, 483, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, we held that 'in light of * * * history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.' Even those in dissent there found that '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.' Id., 354 U.S. at page 514, 77 S.Ct. at page 1324. And, during the same Term, in Kingsley Books, Inc., v. Brown, 1957, 354 U.S. 436, 441, 77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469, after characterizing Near v. State of Minnesota ex rel. Olson, supra, as 'one of the landmark opinions' in its area, we took notice that Near 'left no doubts that 'Liberty of speech, and of the press, is also not an absolute right * * * the protection even as to previous restraint is not absolutely unlimited.' * * * The judicial angle of vision,' we said there, 'in testing the validity of a statute like § 22—a (New York's injunctive remedy against certain forms of obscenity) is 'the operation and effect of the statute in substance." And as if to emphasize the point involved here, we added that 'The phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test.' Even as recently as our last Term we again observed the principle, albeit in an allied area, that the State possesses some measure of power 'to prevent the distribution of obscene matter.' Smith v. People of State of California, 1959, 361 U.S. 147, 155, 80 S.Ct. 215, 220, 4 L.Ed.2d 205.
6
Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. The State's sole remedy, it says, is the invocation of criminal process under the Illinois pornography statute, Ill.Rev.Stat. (1959), c. 38, § 470, and then only after a transgression. But this position, as we have seen, is founded upon the claim of absolute privilege against prior restraint under the First Amendment—a claim without sanction in our cases. To illustrate its fallacy, we need only point to one of the 'exceptional cases' which Chief Justice Hughes enumerated in Near v. State of Minnesota ex rel. Olson, supra, namely, 'the primary requirements of decency (that) may be enforced against obscene publications.' Moreover, we later held specifically 'that obscenity is not within the area of constitutionally protected speech or press.' Roth v. United States, 1957, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498. Chicago emphasizes here its duty to protect its people against the dangers of obscenity in the public exhibition of motion pictures. To this argument petitioner's only answer is that regardless of the capacity for, or extent of, such an evil, previous restraint cannot be justified. With this we cannot agree. We recognized in Burstyn, supra, that 'capacity for evil * * * may be relevant in determining the permissible scope of community control,' 343 U.S. at page 502, 72 S.Ct. at page 780, and that motion pictures were not 'necessarily subject to the precise rules governing any other particular method of expression. Each method,' we said, 'tends to present its own peculiar problems.' At page 503 of 343 U.S., at page 781 of 72 S.Ct. Certainly petitioner's broadside attack does not warrant, nor could it justify on the record here, our saying that—aside from any consideration of the other 'exceptional cases' mentioned in our decisions—the State is stripped of all constitutional power to prevent, in the most effective fashion, the utterance of this class of speech. It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances. Kingsley Books, Inc., v. Brown, supra, 354 U.S. at page 441, 77 S.Ct. at page 1327. We, of course, are not holding that city officials may be granted the power to prevent the showing of any motion picture they deem unworthy of a license. Joseph Burstyn, Inc., v. Wilson, supra, 343 U.S. at pages 504—505, 72 S.Ct. at pages 781, 782.
7
As to what may be decided when a concrete case involving a speciic standard provided by this ordinance is presented, we intimate no opinion. The petitioner has not challenged all—or for that matter any—of the ordinance' standards. Naturally we could not say that every one of the standards, including those which Illinois' highest court has found sufficient, is so vague on its face that the entire ordinance is void. At this time we say no more than this—that we are dealing only with motion pictures and, even as to them, only in the context of the broadside attack prsented on this record.
8
Affirmed.
9
Mr. Chief Justice WARREN, with whom Mr. Justice BLACK, Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
10
I cannot agree either with the conclusion reached by the Court or with the reasons advanced for its support. To me, this case clearly presents the question of our approval of unlimited censorship of motion pictures before exhibition through a system of administrative licensing. Moreover, the decision presents a real danger of eventual censorship for every form of communication, be it newspapers, journals, books, magazines, television, radio or public speeches. The Court purports to leave these questions for another day, but I am aware of no constitutional principle which permits us to hold that the communication of ideas through one medium may be censored while other media are immune. Of course each medium presents its own peculiar problems, but they are not of the kind which would authorize the censorship of one form of communication and not others. I submit that in arriving at its decision the Court has interpreted our cases contrary to the intention at the time of their rendition and, in exalting the censor of motion pictures, has endangered the First and Fourteenth Amendment rights of all others engaged in the dissemination of ideas.
11
Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, was a landmark opinion in this area. It was there that Chief Justice Hughes said for the Court 'that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.' Id., 283 U.S. at page 716, 51 S.Ct. at page 631. The dissenters in Near sought to uphold the Minnesota statute, struck down by the Court, on the ground that the statute did 'not authorize administrative control in advance such as was formerly exercised by the licensers and censors * * *.' Id., 283 U.S. at page 735, 51 S.Ct. at page 638. Thus, three decades ago, the Constitution's abhorrence of licensing or censorship was first clearly articulated by this Court.
12
This was not a tenet seldom considered or soon forgotten. Five years later, a unanimous Court observed:
13
'As early as 1644, John Milton, in an 'Appeal for the Liberty of Unlicensed Printing,' assailed an act of Parliament which had just been passed providing for censorship of the press previous to publication. He vigorously defended the right of every man to make public his honest views 'without previous censure'; and declared the impossibility of finding any man base enough to accept the office of censor and at the same time good enough to be allowed to perform it duties.' Grosjean v. American Press Co., 297 U.S. 233, 245—246, 56 S.Ct. 444, 447, 80 L.Ed. 660.
14
Shortly thereafter, a unanimous Court once more recalled that the 'struggle for the freedom of the press was primarily directed against the power of the licensor.' Lovell v. City of Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 669, 82 L.Ed. 949. And two years after this, the Court firmly announced in Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155:
15
'(T)he ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.' Id., 308 U.S. at page 164, 60 S.Ct. at page 152.
16
Just twenty years ago, in the oft-cited case of Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, the Court, again without dissent, decided:
17
'(T)he availability of a judicial remedy for abuses in the system of licensing still leaves that system one of previous restraint which, in the field of free speech and press, we have held inadmissible. A statute authorizing previous restraint upon the exercise of the guaranteed freedom by judicial decison after trial is as obnoxious to the Constitution as one providing for like restraint by administrative action.' Id., 310 U.S. at page 306, 60 S.Ct. at page 904.
18
This doctrine, which was fully explored and which was the focus of this Court's attention on numerous occasions, had become an established principle of constitutional law. It is not to be disputed that this Court has stated that the protection afforded First Amendment liberties from previous restraint is not absolutely unlimited. Near v. State of Minnesota ex rel. Olson, supra. But, licensing or censorship was not, at any point, considered within the 'exceptional cases' discussed in the opinion in Near. Id., 283 U.S. at pages 715—716, 51 S.Ct. at pages 630, 631. And, only a few Terms ago, the Court, speaking through Mr. Justice Frankfurter, in Kingsley Books, Inc., v. Brown, 354 U.S 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, reaffirmed that 'the limitation is the exception; it is to be closely confined so as to preclude what may fairly be deemed licensing or censorship.' Id., 354 U.S. at page 441, 77 S.Ct. at page 1328. (Emphasis added.)
19
The vice of censorship through licensing and, more generally, the particular evil of previous restraint on the right of free speech have many times been recognized when this Court has carefully distinguished between laws establishing sundry systems of previous restraint on the right of free speech and penal laws imposing subsequent punishment on utterances and activities not within the ambit of the First Amendment's protection. See Near v. State of Minnesota, ex rel. Olson, supra, 283 U.S. at pages 718 719, 51 S.Ct. at pages 631, 632; Schneider v. State of New Jersey, supra, 308 U.S. at page 164, 60 S.Ct. at page 152; Cantwell v. State of Connecticut, supra, 310 U.S. at page 306, 60 S.Ct. at page 904; Niemotko v. State of Maryland, 340 U.S. 268, 282, 71 S.Ct. 325, 328, 333, 95 L.Ed. 267 (concurring opinion); Kunz v. People of State of New York, 340 U.S. 290, 294—295, 71 S.Ct. 312, 315, 95 L.Ed. 280.
20
Examination of the background and circumstances leading to the adoption of the First Amendment reveals the basis for the Court's steadfast observance of the proscription of licensing, censorship and previous restraint of speech. Such inquiry often begins with Blackstone's assertion: 'The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published.' 4 Bl.Comm. (Cooley, 4th Ed. 1899) 151. Blackstone probably here referred to the common law's definition of freedom of the press;1 he probably spoke of the situation existing in England after the disappearance of the licensing systems but during the existence of the law of crown libels. There has been general criticism of the theory that Blackstone's statement was embodied in the First Amendment, the objection being "that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions'; and that 'the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a by-word, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications.' 2 Cooley, Const. Lim., (8th Ed.,) p. 885.' Near v. State of Minnesota ex rel. Olson, supra, 283 U.S. at page 715, 51 S.Ct. at page 630; Grosjean v. American Press Co., supra, 297 U.S. at page 248, 56 S.Ct. at page 448. The objection has been that Blackstone's definition is too narrow; it had been generally conceded that the protection of the First Amendment extends at least to the interdiction of licensing and censorship and to the previous restraint of free speech. Near v. State of Minnesota ex rel. Olson, supra, 283 U.S. at page 715, 51 S.Ct. at page 630; Grosjean v. American Press Co., supra, 297 U.S. at page 246, 56 S.Ct. at page 447; Chafee, Free Speech in the United States, 18.
21
On June 24, 1957, in Kingsley Books, Inc., v. Brown, supra, the Court turned a corner from the landmark opinion in Near and from one of the bases of the First Amendment. Today it falls into full retreat.
22
I hesitate to disagree with the Court's formulation of the issue before us, but, with all deference, I must insist that the question presented in this case is not whether a motion picture exhibitor has a constitutionally protected, 'complete and absolute freedom to exhibit, at least once, any and every kind of motion picture.' 365 U.S. 46, 81 S.Ct. 393. Surely, the Court is not bound by the petitioner's conception of the issue or by the more extreme positions that petitioner may have argued at one time in the case. The question here presented is whether the City of Chicago—or, for that matter, any city, any State or the Federal Government—may require all motion picture exhibitors to submit all films to a police chief, mayor or other administrative official, for licensing and censorship prior to public exhibition within the jurisdiction.
23
The Court does not even have before it an attempt by the city to restrain the exhibition of an allegedly 'obscene' film, see Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Nor does the city contend that it is seeking to prohibit the showing of a film which will impair the 'security of the community life' because it acts as an incitement to 'violence and the overthrow by force of orderly government.' See Near v. State of Minnesota, ex rel. Olson, supra, 283 U.S. at page 716, 51 S.Ct. at page 631. The problem before us is not whether the city may forbid the exhibition of a motion picture, which, by its very showing, might in some way 'inflict injury or tend to incite an immediate breach of the peace.' See Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031.
24
Let it be completely clear what the Court's decision does. It gives official license to the censor, approving a grant of power to city officials to prevent the showing of any moving picture these officials deem unworthy of a license. It thus gives formal sanction to censorship in its purest and most far-reaching form,2 to a classical plan of licensing that, in our country, most closely approaches the English licensing laws of the seventeenth century which were commonly used to suppress dissent in the mother country and in the colonies. Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp.Prob., 648, 667. The Court treats motion pictures, food for the mind, held to be within the shield of the First Amendment, Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, little differently than it would treat edibles. See Smith v. People of State of California, 361 U.S. 147, 152, 80 S.Ct. 215, 218, 4 L.Ed.2d 205.3 Only a few days ago, the Court, speaking through Mr. Justice Stewart, noted in Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231:
25
'In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.'
26
Here, the Court ignores this considered principle and indiscriminately casts the net of control too broadly. See Niemotko v. State of Maryland, supra, 340 U.S. at page 282, 71 S.Ct. at page 333 (concurring opinion). By its decision, the Court gives its assent to unlimited censorship of moving pictures through a licensing system, despite the fact that Chicago has chosen this most objectionable course to attain its goals without any apparent attempt to devise other means so as not to intrude on the constitutionally protected liberties of speech and press.
27
Perhaps the most striking demonstration of how far the Court departs from its holdings in Near and subsequent cases may be made by examining the various schemes that it has previously determined to be violative of the First and Fourteenth Amendments' guaranty.
28
A remarkable parallel to the censorship plan now before the Court, although one less offensive to the First Amendment, is found in the Near case itself. The Minnesota statute there under attack did not require that all publications be approved before distribution. That statute only provided that a person may be enjoined by a court from publishing a newspaper which was 'malicious, scandalous and defamatory.' Id., 283 U.S. at page 702, 51 S.Ct. at page 629. The injunction in that case was issued only after Near had allegedly published nine such newspapers. The statute permitted issuance of an injunction only on proof that, within the prior three months, such an offensive newspaper had already been published. Near was not prevented 'from operating a newspaper in harmony with the public welfare.' Ibid. If the state court found that Near's subsequent publication conformed to this standard, Near would not have been held in contempt. But, the Court there found that this system of censorship by a state court, used only after it had already been determined that the publisher had previously violated the standard, had to fall before the First and the Fourteenth Amendments. It would seem that, a fortiori, the present system must also fall.
29
The case of Grosjean v. American Press Co., supra, provides another foreceful illustration. The Court held there that a license tax of two percent on the gross receipts from advertising of newspapers and periodicals having a circulation of over 20,000 a week was a form of prior restraint and therefore invalid. Certainly this would seem much less an infringement on the liberties of speech and press protected by the First and Fourteenth Amendments than the classic system of censorship we now have before us. It was held, in Grosjean, that the imposition of the tax would curtail the amount of revenue realized from advertising and therefore operate as a restraint on publication. The license tax in Grosjean is analogous to the license fee in the case at bar, a fee to which petitioner raises no objection. It was also held, in Grosjean, that the tax had a 'direct tendency * * * to restrict circulation,' id., 297 U.S. at pages 244—245, 56 S.Ct. at page 447 (emphasis added), because it was imposed only on publications with a weekly circulation of 20,000 or more; that 'if it were increased to a high degree * * * it might well result in destroying both advertising and circulation.' Id., 297 U.S. at page 245, 56 S.Ct. at page 447. (Emphasis added.) These were the evils calling for reversal in Grosjean. I should think that these evils are of minor import in comparison to the evils consequent to the licensing system which the Court here approves.
30
In Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, a city ordinance required that a permit be obtained for public parades or public assembly. The permit could 'only be refused for the purpose of preventing riots, disturbances or disorderly assemblage.' Id., 307 U.S. at page 502, 59 S.Ct. at page 958. Mr. Justice Roberts' opinion said of the ordinance:
31
'It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disordely assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs, for the prohibition of all speaking will undoubtedly 'prevent' such eventualities.' Id., 307 U.S. at page 516, 59 S.Ct. at page 964.
32
May anything less be said of Chicago's movie censorship plan?
33
The question before the Court in Schneider v. State of New Jersey, supra, concerned the constitutional validity of a town ordinance requiring a license for the distribution of circulars. The police chief was permitted to refuse th license if the application for it or further investigation showed 'that the canvasser is not of good character or is canvassing for a project not free from fraud * * *.' Id., 308 U.S. at page 158, 60 S.Ct. at page 149. The Court said of that ordinance:
34
'It bans unlicensed communication of any views or the advocacy of any cause from door to door, and permits canvassing only subject to the power of a police officer to determine, as a censor, what literature may be distributed from house to house and who may distribute it. The applicant must submit to that officer's judgment evidence as to his good character and as to the absence of fraud in the 'project' he proposes to promote or the literature he intends to distribute, and must undergo a burdensome and inquisitorial examination, including photographing and fingerprinting. In the end, his liberty to communicate with the residents of the town at their homes depends upon the exercise of the officer's discretion.' Id., 308 U.S. at pages 163—164, 60 S.Ct. at page 152.
35
I believe that the licensing plan at bar is fatally defective because of this precise objection.
36
A study of the opinion in Cantwell v. State of Connecticut, supra, further reveals the Court's sharp divergence today from seriously deliberated precedent. The statute in Cantwell forbade solicitation for any alleged religious, charitable or philanthropic cause unless the secretary of the public welfare council determined that the 'cause (was) a religious one or (was) a bona fide object of charity or philanthropy and conform(ed) to reasonable standards of efficiency and integrity * * *.' Id., 310 U.S. at page 302, 60 S.Ct. at page 902. Speaking of the secretary of the public welfare council, the Court held:
37
'If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth.' Id., 310 U.S. at page 305, 60 S.Ct. at page 904.
38
Does the Court today wish to distinguish between the protection accorded to religion by the First and Fourteenth Amendments and the protection accorded to speech by those same provisions? I cannot perceive the distinction between this case and Cantwell. Chicago says that it faces a problem—obscene and incendious films. Connecticut faced the problem of fraudulent solicitation. Constitutionally, is there a difference? See also Largent v. State of Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873.
39
In Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, this Court held that a state statute requiring a labor union organizer to obtain an organizer's card was incompatible with the free speech and free assembly mandates of the First and Fourteenth Amendments. The statute demanded nothing more than that the labor union organizer register, stating his name, his union affiliations and describing his credentials. This information having been filed, the issuance of the organizer's card was subject to no further conditions. The State's obvious interest in acquiring this pertinent information was felt not to constitute an exceptional circumstance to justify the restraint imposed by the statute. It seems clear to me that the Chicago ordinance in this case presents a greater danger of stifling speech.
40
The two sound truck cases are further poignant examples of what had been this Court's steadfast adherence to the opposition of previous restraints on First Amendment liberties. In Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574, it was held that a city ordinance which forbade the use of sound amplification devices in public places without the permission of the Chief of Police was unconstitutionally void on its face since it imposed a previous restraint on public speech. Two years later, the Court upheld a different city's ordinance making unlawful the use of 'any instrument of any kind or character which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing upon * * * streets or public places * * *.' Kovacs v. Cooper, 336 U.S. 77, 78, 69 S.Ct. 448, 449, 93 L.Ed. 513. One of the grounds by which the opinion of Mr. Justice Reed distinguished Saia was that the Kovacs ordinance imposed no previous restraint. Id., 336 U.S. at page 82, 69 S.Ct. at page 451: Mr. Justice Jackson chose to differentiate sound trucks from the 'moving picture screen, the radio, the newspaper, the handbill * * * and the street corner orator * * *.' Id., 336 U.S. at page 97, 69 S.Ct. at page 459 (concurring opinion). (Emphasis added.) He further stated that 'No violation of the Due Process Clause of the Fourteenth Amendment by reason of infringement of free speech arises unless such regulation or prohibition undertakes to censor the contents of the broadcasting.' Ibid. Needless to repeat, this is the violation the Court sanctions today.
41
Another extremely similar, but again less objectionable, situation was brought to the Court in Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280. There, a city ordinance proscribed the right of citizens to speak on religious matters in the city streets without an annual permit. Kunz had previously had his permit revoked because 'he had ridiculed and denounced other religious beliefs in his meetings.' Id., 340 U.S. at page 292, 71 S.Ct. at page 314.4 Kunz was arrested for subsequently speaking in the city streets without a permit. The Court reversed Kunz' conviction holding:
42
'We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.' Id., 340 U.S. at page 293, 71 S.Ct. at page 314.
43
The Chicago censorship and licensing plan is effectively no different. The only meaningful distinction between Kunz and the case at bar appears to be in the disposition of them by the Court.
44
The ordinance before us in Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302, made unlawful the solicitation, without a permit, of members for an organization which requires the payment of membership dues. The ordinance stated that 'In passing upon such application the Mayor and Council shall consider the character of the applicant, the nature of the business of the organization for which members are desired to be solicited, and its effects upon the general welfare of citizens of the City of Baxley.' Id., 355 U.S. at page 315, 78 S.Ct. at page 278. Mr. Justice Whittaker, speaking for the Court, stated 'that the ordinance is invalid on its face because it makes enjoyment of the constitutionally guaranteed freedom of speech contingent upon the will of the Mayor and Council of the City and thereby constitutes a prior restraint upon, and abridges, that freedom.' Id., 355 U.S. at page 321, 78 S.Ct. at page 282. In Staub, the ordinance required a permit for solicitation; in the case decided today, the ordinance requires a permit for the exhibition of movies. If this is a valid distinction, it has not been so revealed. In Staub, the permit was to be granted on the basis of certain indefinite standards; in the case decided today, nothing different may be said.
45
As the Court recalls, in Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098, it was held that motion pictures come 'within the free speech and free press guaranty of the First and Fourteenth Amendments.' Although the Court found it unnecessary to decide 'whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films,' id., 343 U.S. at page 506, 72 S.Ct. at page 782, Mr. Justice Clark stated, in the Court's opinion, quite accurately:
46
'But the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule. There is no justification in this case for making an exception to that rule.
47
'The statute involved here does not seek to punish, as a past offense, speech or writing falling within the permissible scope of subsequent punishment. On the contrary, New York requires that permission to communicate ideas be obtained in advance from state officials who judge the content of the words and picture sought to be communicated. This Court recognized many years ago that such a previous restraint is a form of infringement upon freedom of expression to be especially condemned. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The Court there recounted the history which indicates that a major purpose of the First Amendment guaranty of a free press was to prevent prior restraints upon publication, although it was carefully pointed out that the liberty of the press is not limited to that protection. It was further stated that 'the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.' Id., 283 U.S. at page 716, 51 S.Ct. at page 631. In the light of the First Amendment's history and of the Near decision, the State has a heavy burden to demonstrate that the limitation challenged here presents such an exceptional case.' Id., 343 U.S. at pages 503—504, 72 S.Ct. at page 781.
48
Here, one more, the Court recognized that the First Amendment's rejection of prior censorship through licensing and previous restraint is an inherent and basic principle of freedom of speech and press. Now, the Court strays from that principle; it strikes down that tenet without requiring any demonstration that this is an 'exceptional case,' whatever that might be, and without any indication that Chicago has sustained the 'heavy burden' which was supposed to have been placed upon it. Clearly, this is neither an exceptional case nor has Chicago sustained any burden.
49
Perhaps today's surrender was forecast by Kingsley Books, Inc., v. Brown, supra. But, that was obviously not this case, and accepting arguendo the correctness of that decision, I believe that it leads to a result contrary to that reached today. The statute in Kingsley authorized 'the chief executive, or legal officer, of a municipality to invoke a 'limited injunctive remedy,' under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial (by a court) to be obscene * * *.' Id., 354 U.S. at page 437, 77 S.Ct. at page 1326. The Chicago scheme has no procedural safeguards; there is no trial of the issue before the blanket injunction against exhibition becomes effective. In Kingsley, the grounds for the restraint were that the written or printed matter was 'OBSCENE, LEWD, LASCIVIOUS, FILTHY, INDecent or disgusting * * * or immoral * * *.' Id., 354 U.S. at page 438, 77 S.Ct. at page 1326. The Chicago objective is to capture much more. The Kingsley statute required the existence of some cause to believe that the publication was obscene before the publication was put on trial. The Chicago ordinance requires no such showing.
50
The booklets enjoined from distribution in Kingsley were concededly obscene.5 There is no indication that this is true of the moving picture here. This was treated as a particularly crucial distinction. Thus, the Court has suggested that, in times of national emergency, the Government might impose a prior restraint upon 'the publication of the sailing dates of transports or the number and location of troops.' Near v. State of Minnesota, ex rel. Olson, supra, 283 U.S. at page 716, 51 S.Ct. at page 631; cf. Ex parte Milligen, 4 Wall. 2, 71 U.S. 2, 18 L.Ed. 281. But, surely this is not to suggest that the Government might require that all newspapers be submitted to a censor in order to assist it in preventing such information from reaching print. Yet in this case the Court gives its blessing to the censorship of all motion pictures in order to prevent the exhibition of those it feels to be constitutionally unprotected.
51
The statute in Kingsley specified that the person sought to be enjoined was to be entitled to a trial of the issues within one day after joinder and a decision was to be rendered by the court within two days of the conclusion of the trial. The Chicago plan makes no provision for prompt judicial determination. In Kingsley, the person enjoined had available the defense that the written or printed matter was not obscene if an attempt was made to punish him for disobedience of the injunction. The Chicago ordinance admits no defense in a prosecution for failure to procure a license of the than that the motion picture was submitted to the censor and a license was obtained.
52
Finally, the Court in Kingsley painstakingly attempted to establish that that statute, in is effective operation, was no more a previous restraint on, or interference with, the liberty of speech and press than a statute imposing criminal punishment for the publication of pornography. In each situation, it contended, the publication may have passed into the hands of the public. Of course this argument is inadmissible in this case and the Court does not purport to advance it.
53
It would seem idle to suppose that the Court today is unaware of the evils of the censor's basic authority, of the mischief of the system against which so many great men have waged stubborn and often precarious warfare for centuries, see Grosjean v. American Press Co., supra, 297 U.S. at page 247, 56 S.Ct. at page 448, of the scheme that impedes all communication by hanging threateningly over creative thought.6 But the Court dismisses all of this simply by opining that 'the phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test.' 365 U.S. 49, 81 S.Ct. 394. I must insist that 'a pragmatic assessment of its operation,' Kingsley Books, Inc., v. Brown, supra, 354 U.S. at page 442, 77 S.Ct. at page 1328, lucidly portrays that the system that the Court sanctions today is inherently bad. One need not disagree with the Court that Chicago has chosen the most effective means of suppressing obscenity. Censorship has been so recognized for centuries. But, this is not to say that the Chicago plan, the old, abhorrent English system of censorship through licensing, is a permissible form of prohibiting unprotected speech. The inquiry, as stated by the Court but never resolved, is whether this form of prohibition results in 'unreasonable strictures on individual liberty,' 365 U.S. 50, 81 S.Ct. 395;7 whether licensing, as a prerequisite to exhibition, is barred by the First and Fourteenth Amendments.
54
A most distinguished antagonist of censorship, in 'a plea for unlicensed printing,' has said:
55
'If he (the censor) be of such worth as behoovs him, there cannot be a more tedious and unpleasing Journey-work, a greater loss of time levied upon his head, then to be made the perpetuall reader of unchosen books and pamphlets * * * we may easily forsee what kind of licensers we are to expect hereafter, either ignorant, imperious, and remisse, or basely pecuniary.' Areopagitica, in the Complete Poetry and Selected Prose of John Milton (Modern Library College Ed. 1950), 677, at 700.
56
There is no sign that Milton's fear of the censor would be dispelled in twentieth century America. The censor is beholden to those who sponsored the creation of his office, to those who are most radically preoccupied with the suppression of communication. The censor's function is to restrict and to restrain; his decisions are insulated from the pressures that might be brought to bear by public sentiment if the public were given an opportunity to see that which the censor has curbed.
57
The censor performs free from all of the procedural safeguards afforded litigants in a court of law. See Kingsley Books, Inc., v. Brown, supra, 354 U.S. at page 437, 77 S.Ct. at page 1326; cf. Near v. State f Minnesota ex rel. Olson, supra, 283 U.S. at page 713, 51 S.Ct. at page 630; Cantwell v. State of Connecticut, supra, 310 U.S. at page 306, 60 S.Ct. at page 904. The likelihood of a fair and impartial trial disappears when the censor is both prosecutor ans judge. There is a complete absence of rules of evidence; the fact is that there is usually no evidence at all as the system at bar vividly illustrates.8 How different from a judicial proceeding where a full case is presented by the litigants. The inexistence of a jury to determine contemporary community standards is a vital flaw.9 See Kingsley Books, Inc., v. Brown, supra, 354 U.S. at pages 447—448, 77 S.Ct. at page 1331 (dissenting opinion).
58
A revelation of the extent to which censorship has recently been used in this country is indeed astonishing. The Chicago licensors have banned newsreel films of Chicago policemen shooting at labor pickets and have ordered the deletion of a scene depicting the birth of a buffalo in Walt Disney's Vanishing Prairie. Gavzer, Who Censors Our Movies? Chicago Magazine, Feb. 1956, pp. 35, 39. Before World War II, the Chicago censor denied licenses to a number of films portraying and criticizing life in Nazi Germany including the March of Time's Inside Nazi Germany. Editorials, Chicago Daily Times, Jan. 20, Nov. 18, 1938. Recently, Chicago refused to issue a permit for the exhibition of the motion picture Anatomy of a Murder based upon the best-selling novel of the same title, because it found the use of the words 'rape' and 'contraceptive' to be objectionable. Columbia Pictures Corp. v. City of Chicago, D.C.N.D.Ill., 1959, 184 F.2d 817. The Chicago censor bureau excised a scene in Street With No Name in which a girl was slapped because this was thought to be a 'too violent' episode. Life, Oct. 25, 1948, p. 60. It Happened in Europe was severely cut by the Ohio censors who deleted scenes of war orphans resorting to violence. The moral theme of the picture was that such children could even then be saved by love, affection and satisfaction of their basic needs for food. Levy, Case Against Film Censorship, Films in Review, Apr. 1950, p. 40 (published by National Board of Review of Motion Pictures, Inc.). The Memphis censors banned The Southerner which dealt with poverty among tenant farmers because 'it reflects on the south.' Brewster's Millions, an innocuous comedy of fifty years ago, was recently forbidden in Memphis because the radio and film character Rochester, a Negro, was deemed 'too familiar.' See Velie, You Can't See That Movie: Censorship in Action, Collier's, May 6, 1950, pp. 11, 66. Maryland censors restricted a Polish documentary film on the basis that it failed to present a true picture of modern Poland. Levy, Case Against Film Censorship, Films in Review, supra, p. 41. No Way Out, the story of a Negro doctor's struggle against race prejudice, was banned by the Chicago censor on the ground that 'there's a possibility it could cause trouble.' The principal objection to the film was that the conclusion showed no reconciliation between blacks and whites. The ban was lifted after a storm of protest and later deletion of a scene showing Negroes and whites arming for a gang fight. N.Y. Times, Aug. 24, 1950, p. 31, col. 3; Aug. 31, 1950, p. 20, col. 8. Memphis banned Curley because it contained scenes of white and Negro children in school together. Kupferman and O'Brien, Motion Picture Censorship—The Memphis Blues, 36 Cornell L.J. 273, 276—278. Atlanta barred Lost Boundaries, the story of a Negro physician and his family who 'passed' for white, on the ground that the exhibition of said picture 'will adversely affect the peace, morals and good order' in the city. N.Y. Times, Feb. 5, 1950, § 2, p. 5, col. 7. See generally Kupferman and O'Brien, supra; Note, 60 Yale L.J. 696 et seq.; Brief for American Civil Liberties Union as amicus curiae, pp. 14 15. Witchcraft, a study of superstition through the ages, was suppressed for years because it depicted the devil as a genial rake with amorous leanings, and because it was feared that certain historical scenes, portraying the excesses of religious fanatics, might offend religion. Scarface, thought by some as the best of the gangster films, was held up for months; then it was so badly mutilated that retakes costing a hundred thousand dollars were required to preserve continuity. The New York censors banned Damaged Lives, a film dealing with venereal disease, although it treated a difficult theme with dignity and had the sponsorship of the American Social Hygiene Society. The picture of Lenin's tomb bearing the inscription 'Religion is the opiate of the people' was excised from Potemkin. From Joan of Arc the Maryland board eliminated Joan's exclamation as she stood at the stake: 'Oh, God, why hast thou forsaken me?' and from Idiot's Delight, the sentence: 'We, the workers of the world, will take care of that.' Professor Mamlock was produced in Russia and portrayed the persecution of the Jews by Nazis. The Ohio censors condemned it as 'harmful' and calculated to 'stir up hatred and ill will and gain nothing.' It was released only after substantial deletions were made. The police refused to permit its showing in Providence, Rhode Island, on the ground that it was communistic propaganda. Millions of Us, a strong union propaganda film, encountered trouble in a number of jurisdictions. Spanish Earth, a pro-Loyalist documentary picture, was banned by the board in Pennsylvania. Ernst and Lindey, The Censor Marches On, 96—97, 102 103, 108—111. During the year ending June 30, 1938, the New York board censored, in one way or another, over five percent of the moving pictures it reviewed. Id., at 81. Charlie Chaplin's satire on Hitler, The Great Dictator, was banned in Chicago, apparently out of deference to its large German population. Chafee, supra, at p. 541. Ohio and Kansas banned newsreels considered pro labor. Kansas ordered a speech by Senator Wheeler opposing the bill for enlarging the Supreme Court to be cut from the March of Time as 'partisan and biased.' Id., at 542. An early version of Carmen was condemned on several different grounds. The Ohio censor objected because cigarette-girls smoked cigarettes in public. The Pennsylvania censor disapproved the duration of a kiss. Id., at 543. The New York censors forbade the discussion in films of pregnancy, venereal disease, eugenics, birth control, abortion, illegitimacy, prostitution, miscegenation and divorce. Ernst and Lindey, supra, at p. 83. A member of the Chicago censor board explained that she rejected a film because 'it was immoral, corrupt, indecent, against my * * * religious principles.' Transcript of Record, p. 172. Times Film Corp. v. City of Chicago, 244 F.2d 432. A police sergeant attached to the censor board explained, 'Coarse language or anything that would be derogatory to the government—propaganda' is ruled out of foreign films. 'nothing pink or red is allowed,' he added. Chicago Daily News, Apr. 7, 1959, p. 3, cols. 7—8. The police sergeant in charge of the censor unit has said: 'Children should be allowed to see any movie that plays in Chicago. If a picture is objectionable for a child, it is objectionable period.' Chicago Tribune, May 24, 1959, p. 8, col. 3. And this is but a smattering produced from limited research. Perhaps the most powerful indictment of Chicago's licensing device is found in the fact that between the Court's decision in 1952 in Joseph Burstyn, Inc., v. Wilson, supra, and the filing of the petition for certiorari in 1960 in the present case, not once have the state courts upheld the censor when the exhibitor elected to appeal. Brief of American Civil Liberties Union as amicus curiae, pp. 13—14.
59
This is the regimen to which the Court holds that all films must be submitted. It officially unleashes the censor and permits him to roam at will, limited only by an ordinance which contains some standards that, although concededly not before us in this case, are patently imprecise. The Chicago ordinance commands the censor to reject films that are 'immoral,' see Commercial Pictures Corp. v. Regents of University of State of New York, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329; 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; or those that portray 'depravity, criminality, or lack of virtue of a class of citizens of any race, color, creed, or religion and (expose) them to contempt, derision, or obloquy, or (tend) to produce a breach of the peace or riots, or (purport) to represent any hanging, lynching, or burning of a human being.' May it not be said that almost every censored motion picture that was cited above could also be rejected, under the ordinance, by the Chicago censors? It does not require an active imagination to conceive of the quantum of ideas that will surely be suppressed.
60
If the censor denies rights protected by the First and Fourteenth Amendments, the courts might be called upon to correct the abuse if the exhibitor decides to pursue judicial remedies. But, this is not a satisfactory answer as emphasized by this very case. The delays in adjudication may well result in irreparable damage, both to the litigants and to the public. Vindication by the courts of The Miracle was not had until five years after the Chicago censor refused to license it. And then the picture was never shown in Chicago. Brief for Petitioner, p. 17. The instant litigation has now consumed almost three years. This is the delay occasioned by the censor; this is the injury done to the free communication of ideas. This damage is not inflicted by the ordinary criminal penalties. The threat of these penalties, intelligently applied, will ordinarily be sufficient to deter the exhibition of obscenity. However, if the exhibitor believes that his film is constitutionally protected, he will show the film, and, if prosecuted under criminal statute, will have ready that defense. The perniciousness of a system of censorship is that the exhibitor's belief that his film is constitutionally protected is irrelevant. Once the censor has made his estimation that the film is 'bad' and has refused to issue a permit, there is ordinarily no defense to a prosecution10 for showing the film without a license.11 Thus, the film is not shown, perhaps not for years and sometimes not ever. Simply a talismanic test or self-wielding sword? I think not.
61
Moreover, more likly than not, the exhibitor will not pursue judicial remedies. See Schneider v. State of New Jersey, supra, 308 U.S. at page 164, 60 S.Ct. at page 152; Ernst and Lindey, supra, at p. 80. His inclination may well be simply to capitulate rather than initiate a lengthy and costly litigation.12 In such case, the liberty of speech and press, and the public, which benefits from the shielding of that liberty, are, in effect, at the mercy of the censor's whim. This powerful tendency to restrict the free dissemination of ideas calls for reversal. See Grosjean v. American Press Co., supra, 297 U.S. at page 245, 56 S.Ct. at page 447.
62
Freedom of speech and freedom of the press are further endangered by this 'most effective' means for confinement of ideas. It is axiomatic that the stroke of the censor's pen or the cut of his scissors will be a less contemplated decision than will be the prosecutor's determination to prepare a criminal indictment. The standards of proof, the judicial safeguards afforded a criminal defendant and the consequences of bringing such charges will all provoke the mature deliberation of the prosecutor. None of these hinder the quick judgment of the censor, the speedy determination to suppress. Finally, the fear of the censor by the composer of ideas acts as a substantial deterrent to the creation of new thoughts. See Tolstoy's declaration, note 6, supra. This is especially true of motion pictures due to the large financial burden that must be assumed by their producers. The censor's sword pierces deeply into the heart of free expression.
63
It seems to me that the Court's opinion comes perilously close to holding that not only may motion pictures be censored but that a licensing scheme may also be applied to newspapers, books and periodicals, radio, television, public speeches, and every other medium of expression. The Court suggests that its decision today is limited to motion pictures by asserting that they are not 'necessarily subject to the precise rules governing any other particular method of expression. Each method * * * tends to present its own peculiar problems.' 365 U.S. 49, 81 S.Ct. 395. But, this, I believe, is the invocation of a talismanic phrase. The Court, in no way, explains why moving pictures should be treated differently than any other form of expression, why moving pictures should be denied the protection against censorship 'a form of infringement upon freedom of expression to be especially condemned.' Joseph Burstyn, Inc., v. Wilson, supra, 343 U.S. at page 503, 72 S.Ct. at page 781. (Emphasis added.) When pressed during oral argument, counsel for the city could make no meaningful distinction between the censorship of newspapers and motion pictures. In fact, the percentage of motion pictures dealing with social and political issues is steadily rising.13 The Chicago ordinance makes no exception for newsreels, documentaries, instructional and educational films or the like. All must undergo the censor's inquisition. Nor may it be suggested that motion pictures may be treated differently from newspapers because many movies are produced essentially for purposes of entertainment. As the Court said in Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840:
64
'We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine.' See Thomas v. Collins, supra, 323 U.S. at Page 531, 65 S.Ct. at page 323.14
65
The contention may be advanced that the impact of motion pictures is such that a licensing system of prior censorship is permissible. There are several answers to this, the first of which I think is the Constitution itself. Although it is an open question whether the impact of motion pictures is greater or less than that of other media, there is not much doubt that the exposure of television far exceeds that of the motion picture. See S.Rep. No. 1466, 84th Cong., 2d Sess. 5. But, even if the impact of the motion picture is greater than that of some other media, that fact constitutes no basis for the argument that motion pictures should be subject to greater suppression. This is the traditional argument made in the censor's behalf; this is the argument advanced against newspapers at the time of the invention of the printing press. The argument was ultimately rejected in England, and has consistently been held to be contrary to our Constitution. No compelling reason has been predicated for accepting the contention now.
66
It is true that 'each method (of expression) tends to present its own peculiar problems.' Joseph Burstyn, Inc., v. Wilson, supra, 343 U.S. at page 503, 72 S.Ct. at page 781. The Court has addressed itself on several occasions to these problems. In Schneider v. State of New Jersey, supra, 308 U.S. at pages 160 161, 60 S.Ct. at page 150, the Court stated, in reference to speaking in public, that 'a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets.' The Court recognized that sound trucks call for particularized consideration when it said in Saia v. People of State of New York, supra, 334 U.S. at page 562, 68 S.Ct. at page 1150, 'Noise can be regulated by regulating decibels. The hours and place of public discussion can be controlled. * * * Any abuses which loud-speakers create can be controlled by narrowly drawn statutes.' But, the Court's decision today does not follow from this. Our prior decisions do not deal with the content of the speech; they deal only with the conditions surrounding its delivery. These conditions 'tend to present the problems peculiar to each method of expression.' Here the Court uses this magical phrase to cripple a basic principle of the Constitution.
67
The Court, not the petitioner, makes the 'broadside attack.' I would reverse the decision below.
68
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
69
My view that censorship of movies is unconstitutional because it is a prior restraint and violative of the First Amendment has been expressed on prior occasions. Superior Films, Inc. v. Department of Education, 346 U.S. 587, 588—589, 74 S.Ct. 286, 98 L.Ed. 329 (concurring opinion); Kingsley International Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 697, 79 S.Ct. 1362, 1370, 3 L.Ed.2d 1512 (concurring opinion).
70
While the problem of movie consorship is relatively new, the censorship device is an ancient one. It was recently stated, 'There is a law of action and reaction in the decline and resurgence of censorship and control. Whenever liberty is in the ascendant, a social group will begin to resist it; and when the reverse is true, a similar resistance in favor of liberty will occur.' Haney, Comstockery in America (1960) pp. 11—12.
71
Whether or not that statement of history is accurate, censorship has had many champions throughout time.
72
Socrates: 'And shall we just carelessly allow children to hear any casual tales which may be devised by casual persons, and to receive into their minds ideas for the most part the very opposite of those which we should wish them to have when they are grown up?'
73
Glaucon: 'We can not.'
74
Socrates: 'Then the first thing will be to establish a censorship of the writers of fiction, and let the censors receive any tale of fiction which is good, and reject the bad; and we will desire mothers and nurses to tell their children the authorized ones only. Let them fashion the mind with such tales, even more fondly than they mould the body with their hands; but most of those which are now in use must be discarded.' Plato, Republic 'The Dialogues of Plato, Jowett trans., Ox. Univ. Press 1953) vol. 2, p. 221.
75
Hobbes was the censor's proponent: '* * * it is annexed to the sovereignty, to be judge of what opinions and doctrines are averse, and what conducing to peace; and consequently, on what occasions, how far, and what men are to be trusted withal, in speaking to multitudes of people; and who shall examine the doctrines of all books before they be published. For the actions of men proceed from their opinions; and in the well-governing of opinions, consisteth the well-governing of men's actions, in order to their peace, and concord.' Leviathan (Oakeshott ed. 1947), p. 116.
76
Regimes of censorship are common in the world today. Every dictator has one; every Communist regime finds it indispensable.1 One shield against world opinion that colonial powers have used was the censor, as dramatized by France in North Africa. Even England has a vestige of censorship in the Lord Chamberlain (32 Halsbury's Laws of England (2d ed. 1939), p. 68) who presides over the stage—a system that in origin was concerned with the barbs of political satire.2 But the concern with political satire shifted to a concern with atheism and with sexual morality—the last being the concern evident in Chicago's system now before us.
77
The problems of the wayward mind concern the clerics, the psychiatrists, and the philosophers. Few groups have hesitated to create the political pressures that translate into secular law their notions of morality. Pfeffer, Creeds in Competition (1958), pp. 103—109. No more powerful weapon for sectarian control can be imagined than governmental censorship. Yet in this country the state is not the secular arm of any religious school of thought, as in some nations; nor is the church an instrument of the state. Whether—as here—city officials or—as in Russia—a political party lays claim to the power of governmental censorhip, whether the pressures are for a conformist moral code or for a conformist political ideology, no such regime is permitted by the First Amendment.
78
The forces that build up demands for censorship are heterogeneous.
79
'The comstocks are not merely people with intellectual theories who might be convinced by more persuasive theories; nor are they pragmatists who will be guided by the balance of power among pressure groups. Many of them are so emotionally involved in the condemnation of what they find objectionable that they find rational arguments irrelevant. They must suppress what is offensive in order to stabilize their own tremulous values and consciences. Panic rules them, and they cannot be calmed by discussions of legal rights, literary integrity, or artistic merit.' Haney, op. cit. supra, pp. 176 177.
80
Yet as long as the First Amendment survives, the censor, no matter how respectable his cause, cannot have the support of government. It is not for government to pick and choose according to the standards of any religious, political, or philosophical group. It is not permissible, as I read the Constitution, for government to release one movie and refuse to release another because of an official's concept of the prevailing need or the public good. The Court in Near v. State of Minnesota, ex rel. Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 630, 75 L.Ed. 1357, said that the 'chief purpose' of the First Amendment's guarantee of freedom of press was 'to prevent previous restraints upon publication.'
81
A noted Jesuit has recently stated one reason against government censorship:
82
'The freedom toward which the American people are fundamentally orientated is a freedom under God, a freedom that knows itself to be bound by the imperatives of the moral law. Antecedently it is presumed that a man will make morally and socially responsible use of his freedom of expression; hence there is to be no prior restraint on it. However, if his use of freedom is irresponsible, he is summoned after the fact to responsibility before the judgment of the law. There are indeed other reasons why prior restraint on communications is outlawed; but none are more fundamental than this. Murray, We Hold These Truths (1960), pp. 164—165.
83
Experience shows other evils of 'prior restraint.' The regime of the censor is deadening. One who writes cannot afford entanglements with the man whose pencil can keep his production from the market. The result is a pattern of conformity. Milton made the point long age: 'For though a licenser should happen to be judicious more than ordinarily, which will be a great jeopardy of the next succession, yet his very office, and his commission enjoins him to let pass nothing but what is vulgarly received already.' Areopagitica, 3 Harvard Classics (1909), p. 212.
84
Another evil of censorship is the ease with which the censor can erode liberty of expression. One stroke of the pen is all that is needed. Under a censor's regime the weights are cast against freedom.3 If, however, government must proceed against an illegal publication in a prosecution, then the advantages are on the other side. All the protections of the Bill of Rights come into play. The presumption of innocence, the right to jury trial, proof of guilt beyond a reasonable doubt—these become barriers in the path of officials who want to impose their standard of morality on the author or producer. The advantage a censor enjoys while working as a supreme bureaucracy disappears. The public trial to which a person is entitled who violates the law gives a hearing on the merits, airs the grievance, and brings the community judgment to bear upon it. If a court sits in review of a censor's ruling, its function is limited. There is leeway left the censor, who like any agency and its expertise, is given a presumption of being correct.4 That advantage disappears when the government must wait until a publication is made and then prove its case in the accepted manner before a jury in a public trial. All of this is anathema to the censor who prefers to work in secret, perhaps because, as Milton said, he is 'either ignorant, imperious, and remiss, or basely pecuniary.' Areopagitica, supra, p. 210.
85
The First Amendment was designed to enlarge, not to limit, freedom in literature and in the arts as well as in politics, economics, law, and other fields. Hannegan v. Esquire, Inc., 327 U.S. 146, 151—159, 66 S.Ct. 456, 459—463, 90 L.Ed. 586; Kingsley International Pictures Corp. v. Regents of University of State of New York, supra. Its aim was to unlock all ideas for argument, debate, and dissemination. No more potent force in defeat of that freedom could be designed than censorship. It is a weapon that no minority or majority group, acting through government, should be allowed to wield over any of us.5
1
The portion of the section here under attack is as follows:
'Such permit shall be granted only after the motion picture film for which said permit is requested has been produced at the office of the commissioner of police for examination or censorship. * * *'
2
That portion of § 155—4 of the Code providing standards is as follows:
'If a picture or series of pictures, for the showing or exhibition of which an application for a permit is made, is immoral or obscene, or portrays, depravity, criminality, or lack of virtue of a class of citizens of any race, color, creed, or religion and exposes them to contempt, derision, or obloquy, or tends to produce a breach of the peace or riots, or purports to represent any hanging, lynching, or burning of a human being, it shall be the duty of the commissioner of police to refuse such permit; otherwise it shall be his duty to grant such permit.
'In case the commissioner of police shall refuse to grant a permit as here-inbefore provided, the applicant for the same may appeal to the mayor. Such appeal shall be presented in the same manner as the original application to the commissioner of police. The action of the mayor on any application for a permit shall be final.'
It should be noted that the Supreme Court of Illinois, in an opinion by Schaefer, C.J., has already considered and rejected an argument against the same Chicago ordinance, similar to the claim advanced here by petitioner. The same court also sustained certain of the standards set out above. American Civil Liberties Union v. City of Chicago, 1954, 3 Ill.2d 334, 121 N.E.2d 585.
3
Joseph Burstyn, Inc., v. Wilson, supra ('sacrilegious'); Gelling v. State of Texas, 1952, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359 ('prejudicial to the best interests of the people of said City'); Commercial Pictures Corp. v. Regents of University of State of New York, 1954, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329 ('immoral'); Superior Films, Inc., v. Department of Education, 1954, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329 ('harmful'); Kingsley International Pictures Corp. v. Regents of University of State of New York, 1959, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 ('sexual immorality').
1
The following charge to the grand jury by Chief Justice Hutchinson of Massachusetts in 1767 defines the common-law notion of freedom of the press:
'The Liberty of the Press is doubtless a very great Blessing; but this Liberty means no more than a Freedom for every Thing to pass from the Press without a License.' Quincy, Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay, Between 1761 and 1772, 244.
2
Professor Thomas I. Emerson has stated:
'There is, at present, no common understanding as to what constitutes 'prior restraint.' The term is used loosely to embrace a variety of different situations. Upon analysis, certain broad categories seem to be discernible:
'The clearest form of prior restraint arises in those situations where the government limitation, expressed in statute, regulation, or otherwise, undertakes to prevent future publication or other communication without advance approval of an executive official.' Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Prob., 648, 655.
See also Brattle Films, Inc., v. Commissioner of Public Safety, 333 Mass. 58, 127 N.E.2d 891.
3
In Smith, we pointed out that although a 'strict liability penal ordinance' which does not require scienter may be valid when applied to the distributors of food or drugs, it is invalid when applied to booksellers, distributors of ideas. Id., 361 U.S. at pages 152—153, 80 S.Ct. at pages 218, 219.
4
For the particularly provocative statements made by Kunz, see the dissent of Mr. Justice Jackson. Id., 340 U.S. at pages 296 297, 71 S.Ct. at pages 316, 317.
5
Judge Stanley H. Fuld rightly observed:
'Whatever might be said of a scheme of advance censorship directed against all possibly obscene writings, the case before us concerns a regulatory measure of far narrower impact, of a kind neither entailing the grave dangers of general censorship nor productive of the abuses which gave rise to the constitutional guarantees. (Cf. Pound, Equitable Relief Against Defamation and Injuries to Personality, 29 Harv.L.Rev. 640, 650—51.)' Brown v. Kingsley Books, Inc., 1 N.Y.2d 177, 185, 151 N.Y.S.2d 639, 645, 134 N.E.2d 461, 465.
6
Tolstoy once wrote:
'You would not believe how, from the very commencement of my activity, that horrible Censor question has tormented me! I wanted to write what I felt; but all the same time it occurred to me that what I wrote would not be permitted, and involuntarily I had to abandon the work. I abandoned, and went on abandoning, and meanwhile the years passed away.' Quoted by Chafee, supra, at p. 241.
7
In Smith v. People of State of California, supra, we noted that '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.' Id., 361 U.S. at pages 150—151, 80 S.Ct. at page 217. See Shelton v. Tucker, supra. Forty-six of our States currently see fit to rely on traditional criminal punishment for the protection of their citizens.
8
Although the Chicago ordinance designates the Commissioner of Police as the censor, counsel for the city explained that the task is delegated to a group of people, often women. The procedure before Chicago's censor board was found to be as follows according to the testimony of the 'commanding officer of the censor unit':
'Q. Am I to understand that the procedure is that only these six people are in the room, and perhaps you, at the time the film is shown? A. Yes.
'Q. Does the distributor ever get a chance to present his views on the picture? A. No, sir.
'Q. Are other people's views invited, such as drama critics or movie reviewers or writers or artists of some kind; or are they ever asked to comment on the film before the censor board makes its decision? A. No, sir.
'Q. In other words, it is these six people plus yourself in a relationship that we have not as yet defined who decide whether the picture conforms to the standards set up in the ordinance? A. yes, sir.' Transcript of Record, p. 51, Times Film Corp. v. City of Chicago, 7 Cir., 244 F.2d 432.
9
Cf. Chafee, supra:
'A jury is none too well fitted to pass on the injurious nature of opinions, but at least it consists of twelve men who represent the general views and the common sense of the community and often appreciate the motives of the speaker or writer whose punishment is sought. A censor, on the contrary, is a single individual with a professionalized and partisan point of view. His interest lies in perpetuating the power of the group which employs him, and any bitter criticism of the group smacks to him of incitement to bloody revolution.' Id., at 314.
'On the other hand, a mayor and a police commissioner are not ordinarily selected on the basis of wide reading and literary judgment. They have other duties, which require other qualities. They may lack the training of the permanent censor, and yet run the same risk of being arbitrary and bureaucratic.' Id., at 533.
10
That portion of the Chicago ordinance dealing with penalties is as follows:
'Any person exhibiting any pictures or series of pictures without a permit having been obtained therefor shall be fined not less than fifty dollars nor more than one hundred dollars for each offense. A separate and distinct offense shall be regarded as having been committed for each day's exhibition of each picture or series of pictures without a permit.'
11
Professor Paul A. Freund has affirmed that this situation 'does indeed have a chilling effect (on freedom of communication) beyond that of a criminal statute.' Freund, The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539.
12
A particularly frightening illustration is found in the operation of a Detroit book censorship plan. One publisher simply submitted his unprinted manuscripts to the censor and deleted everything 'objectionable' before publication. From 1950 to 1952, more than 100 titles of books were disapproved by the censor board. Every book banned was withheld from circulation. The censor board, in addition to finding books 'objectionable,' listed a group of books not suitable for criminal prosecution as 'partially objectionable.' Most booksellers were also afraid to handle these. Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 314—316.
13
See Note, 60 Yale L.J. 696, 706, n. 25.
14
'The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.' 2 Cooley, Const. Lim (8th ed.), p. 886.
1
'Nowhere have the Communists become simply a vote-getting party. They are organized around ideas and they care about ideas. They are the great heresy hunters of the modern world.' Ways, Beyond Survival (1959), p. 199.
2
Ivor Brown in a recent summary of the work of the Lord Chamberlain states: 'The licensing of plays was imposed not to protect the morals of the British public but to safeguard the reputation of politicians. This happened in 1737 when the Prime Minister, Sir Robet Walpole, infuriated by the stage lampoons of Henry Fielding and others, determined to silence these much enjoyed exposures of his alleged corruption and incompetence. This had the curiously beneficial result of driving Fielding away from the stage. He then became an excellent magistrate and a major creator of the English novel. But in the puritanical atmosphere of the nineteenth century the discipline was applied to the moral content of plays and applied so rigorously that the dramatists were barred from serious treatment of 'straight sex,' as well as the abnormalities. The prissiness of respectable Victorian society was such that legs were hardly to be mentioned, let alone seen, and Charles Dickens wrote cumbrously of 'unmentionables' when he meant trousers.' N.Y. Times, Jan. 1, 1961, § 2, p. X3. And see Knowles, The Censor, The Drama, and The Film (1934). As to British censorship of movies see 15 & 16 Geo. 6 & 1 Eliz. 2, c. 68.
3
John Galsworthy wrote in opposition to the British censorship of plays: 'In this country the tongue ad pen are subject to the law; so may it ever be! But in this country neither tongue nor pen are in any other instance subject to the despotic judgments of a single man. The protest is not aimed at the single man who holds this office. He may be the wisest man in England, the best fitted for his despotic office. It is not he; it is the office that offends. It offends the decent pride and self-respect of an entire profession. To those who are surprised that dramatic authors should take themselves so seriously we say, What workman worthy of his tools does not believe in the honour of his craft? In this appeal for common justice we dramatists, one little branch of the sacred tree of letters, appeal to our brother branches. We appeal to the whole knighthood of the pen—scientists, historians, novelists, journalists. The history of the health of nations is the history of the freedom—not the license—of the tongue and pen. We are claiming the freedom—not the license—of our pens. Let those hold back in helping us who would tamely suffer their own pens to be warped and split as ours are before we take them up.' London Times, Nov. 1, 1907, p. 7. And see the testimony of George Bernard Shaw in Report, Joint Select Committee of the House of Lords and the House of Commons on the Stage Plays (Censorship) (1909), p. 46 et seq. Shaw, three of whose plays had been suppressed, caused a contemporary sensation by asking, and being refused, permission to file with the Committee and attack on censorship that he had prepared. Shaw's version of the story and the rejected statement can be found as his preface to The Shewing-Up of Blanco Posnet. He says in his statement: 'Any journalist may publish an article, any demagogue may deliver a speech without giving notice to the government or obtaining its license. The risk of such freedom is great; but as it is the price of our political liberty, we think it worth paying. We may abrogate it in emergencies * * * just as we stop the traffic in a street during a fire or shoot thieves on sight after an earthquake. But when the emergency is past, liberty is restored everywhere except in the theatre. (Censorship is) a permanent proclamation of martial law with a single official substituted for a court martial.' The Shewing-Up of Blanco Posnet (Brentano's, 1913), p. 36.
4
See Note, 71 Harv.L.Rev. 326, 331. Cf. Glanzman v. Christenberry, D.C., 175 F.Supp. 485, with Grove Press, Inc., v. Christenberry, D.C., 175 F.Supp. 488, as to the weight given to post-office determinations of nonmailability.
5
'First, within the larger pluralist society each minority group has the right to censor for its own members, if it so chooses, the centent of the various media of communication, and to protect them, by means of its own choosing, from materials considered harmful according to its own standards.
'Second, in a pluralist society no minority group has the right to demand that government should impose a general censorship, affecting all the citizenry, upon any medium of communication, with a view to punishing the communication of materials that are judged to be harmful according to the special standards held within one group.
'Third, any minority group has the right to work toward the elevation of standards of public morality in the pluralist society, through the use of the methods of persuasion and pacific argument.
'Fourth, in a pluralist society no minority group has the right to impose its own religious or moral views on other groups, through the use of the methods of force, coercion, or violence.' Murray, We Hold These Truths (1960), p. 168.
| 23
|
365 U.S. 109
81 S.Ct. 413
5 L.Ed.2d 445
Elijah McNEAL, Jr., Petitioner,v.R. O. CULVER, as State Prison Custodian.
No. 52.
Argued Dec. 6, 1960.
Decided Jan 23, 1961.
Mr. Sam Daniels, Miami, for petitioner.
Mr. Odis M. Henderson, for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Upon an information charging 'Assault to Murder in the First Degree,' petitioner was put to trial, without counsel, before a jury in Florida court, was convicted of 'Assault to Murder in the Second Degree' and sentenced to imprisonment for a term of 20 years which he is now serving. No appeal was taken, but within a year from his conviction petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Florida.
2
In that rather inartfully drawn petition, prepared in the penitentiary, at least the following allegations were made with reasonable clarity: When brought before the court for trial, petitioner, an indigent, ignorant and mentally ill Negro then 29 years of age, advised the court that he was without, and unable to obtain, counsel to conduct his defense and asked that counsel be appointed to represent him. The judge declined to do so, saying (1) '(S)ince this is not a capital offence you are not entitled to a court appointed attorney,' and (2) 'you won't need a Lawyer in this case.' Immediately, a jury was impaneled, the trial began, and petitioner was left to conduct his own defense. But, having 'never before appeared in any court on a felony, and * * * not understand(ing) court procedure or know(ing) how to defend himself,' petitioner was unable effectively to conduct and present his defense, and, in consequence, the court's denial of his request for counsel deprived him of due process of law guaranteed by both the Florida and the United States Constitutions.
3
The Florida Supreme Court issued a provisional writ of habeas corpus directing respondent to make a proper return. Respondent's return denied that 'petitioner's constitutional right were violated by the court's alleged refusal to appoint counsel in his behalf,' attached a copy of (1) a partial transcript of proceedings at the trial, (2) the judgment of conviction and sentence, and (3) the commitment, and asserted that petitioner was being lawfully imprisoned under the latter document. Finding nothing 'in this record of the trial to show whether or not any request was made of the trial judge to appoint counsel to aid the petitioner in his defense,' and believing 'that the issues were (not) so complex, or (that) the petitioner was (not) so young, ignorant and inexperienced, as to bring into play the exception to the rule requiring appointment of counsel only in capital cases and to require further inquiry into the procedure culminating in his conviction and sentence,' the Florida Supreme Court, without any hearing upon petitioner's allegations, discharged the writ and remanded petitioner to custory. 113 So.2d 381, 382. We granted certiorari to determine whether the allegations in the habeas corpus petition, as supplemented by other portions of the record, are such as entitled him to a full hearing thereon, and, if so and if those allegations be found true, whether petitioner was denied due process of law guaranteed by the Fourteenth Amendment of the United States Constitution. 362 U.S. 910, 80 S.Ct. 662, 4 L.Ed.2d 618.
It is thoroughly settled that:
4
"Where the gravity of the crime and other factors—such as the age and education of the defendant, the conduct of the court or the prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto—render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair,' the Constitution requires that the accused must have legal assistance at his trial.' Cash v. Culver, 358 U.S. 633, 637, 79 S.Ct. 432, 436, 6 L.Ed.2d 557, and cases cited.1
5
The record shows that petitioner was involved in a minor altercation with the proprietors—two men named Scurry—of what is referred to as a 'jook,' called the 'Blue Chip,' located in the 'colored quarters' of Lake Wales, Florida, during the evening of December 10, 1957, and was ordered to leave the place, which he did. Soon afterward, petitioner, 'without shirt or shoes' and armed with a shotgun, approached the 'Blue Chip' and, although a number of persons, including one of the Scurrys, were standing on the sidewalk, petitioner fired the gun in their direction. Some of the pellets struck the lower legs of four persons, but Scurry was not hit. City police officers immediately arrested petitioner. They stated that, in the course of transporting him to jail, petitioner said that 'he was sorry he shot these other boys, he intended to kill Scurry.' On this premise, petitioner was charged with and tried for 'assault to Murder in the First Degree.'
6
Although the record does not disclose the extent of petitioner's education, there is abundant evidence that it was slight.2 Moreover, the record shows that he suffered head injuries in the Army in 1952, and ever since has been subject to 'blackout spells' when excited. For a period of months following April 8, 1956, he underwent treatment for his mental condition in the Veterans Hospital at Bay Pines, Florida, and during four months of that period he was detained in the psychopathic ward. In October 1956, he was released, apparently to his mother as his guardian,3 but he continued to return to the hospital to 'get pills.' The record shows that petitioner was incapable of questioning witnesses and otherwise unable to conduct his defense. The State produced four witnesses—the complaining witness, Ellix Scurry, and three police officers. Petitioner asked two questions of the witness Scurry and obtained answers thereto. His third 'question' was precluded by the judge, although not objected to by the State, because 'that is testifying and it isn't time for you to testify.' Petitioner asked no further questions of Scurry, did not cross-examine the other three witnesses, nor did he make a single objection during the trial. When the State rested, the judge said to petitioner: 'All right, now, Elijah, that is the State's case. If you want to, you can take the stand and tell your side of it. If you don't want to, you don't have to * * *.' Petitioner then took the stand and, after mentioning his head injury, 'blackout spells' and hospital treatment for his mental illness, testified that he must have suffered a 'blackout spell' preceding and during the shooting incident as 'that part is a complete blank,' but that he is sure he did not 'intend to kill anybody.' He then attempted to put in evidence a doctor's statement which he said verified his claim of suffering 'blackout spells.' Although the State did not object, the judge said 'This statement would not be admissible. You could put the doctor on and have him testify; but we cannot admit any statement like this,' and the statement was not received in evidence. At the conclusion of petitioner's testimony, the judge said to petitioner: 'Now, Lige, if you had an attorney, he would argue the case before the jury' and advised petitioner that, if he desired, he could 'plead (his) case.' Petitioner replied: 'Well, sir, I don't quite understand the meaning of that,' and he did not make any argument to the jury.
7
These facts tend strongly to show that petitioner's ignorance, coupled with his mental illness and complete unfamiliarity with the law and court procedures, and the scant, if any, help he received from the court, made the trial fundamentally unfair.
8
In addition to this showing of petitioner's lack of education and mental illness and his consequent inability to defend himself, the record at least implicitly discloses a number of highly complex legal questions, beyond the comprehension of almost any layman.
9
The Florida assault law appears to be replete with distinctions and degrees. Mayhem, bare assault, assault and battery, aggravated assault and assault with intent to commit felony are all statutory offenses.4 Assault with intent to commit felony—apparently the crime intended to be charged against petitioner—incorporates by reference all Florida felonies and the degrees thereof.5 The Florida homicide statutes appear to create four separate offenses—manslaughter,6 and murder in the first, second and third degrees.7 In considering the interplay between homicide and assault with intent to commit felony, the Florida courts have held that, although one may be guilty of assault with intent to commit manslaughter, Lassiter v. State, 98 Fla. 370, 123 So. 735, there is no such thing as assault with intent to commit murder in the second or third degree because inasmuch as those crimes do not require a finding of 'intent'—such would be 'an assault with intent to commit an act without intent.' Tillman v. State, 81 Fla. 558, 564, 88 So. 377, 380.
10
To establish the requisite 'intent' to commit any of the grades or degrees of unlawful homicide 'it will not be sufficient to show that the killing, had it occurred, would have been unlawful and a felony, but it must be found that the accused committed the assault with intent to take life, for although an unintentional or involuntary killing may in some cases be unlawful and a felony, no man can intentionally do an unitentional act; and without the intent the assault can not be punished under this statute, even though the killing, had it been committed, would have amounted to a felony * * *.' Williams v. State, 41 Fla. 295, 298, 26 So. 184, 185.
11
If, in firing the gun, petitioner did not have this felonious 'intent to kill,' his greatest possible crime would have been 'Aggravated Assault'—an assault 'with a deadly weapon, without intent to kill.'8 This is not an academic distinction, for 15 years' difference in punishment is involved.9 The only testimony in this record of 'intent to kill' was that of the police officers who testified that while transporting him to jail on the night of the occurrence, petitioner stated that he 'intended to kill Scurry.' That testimony appears to have been admitted without the slightest inquiry as to whether the statement was freely and voluntarily made by petitioner. Admission of that crucial evidence, in those circumstances, shows a patent violation of the Florida law which renders inadmissible all admissions made to law officers by an accused while under arrest unless the State affirmatively shows that they were freely and voluntarily made. Louette v. State, 152 Fla. 495, 12 So.2d 168; Thomas v. State, Fla.1957, 92 So.2d 621; Williams v. State, Fla.1954, 74 So.2d 797. These complex and intricate legal questions were obviously 'beyond the ken of a layman.' Cash v. Culver, supra, 358 U.S. at page 638, 79 S.Ct. at page 436.
12
Indeed, it is questionable whether such a crime as the one upon which petitioner was charged, tried and convicted—'assault to Murder,' not 'Assault with Intent to Commit Felony'—actually exists under the Florida law, Williams v. State, supra, and it is equally uncertain whether the verdict, convicting petitioner of 'Assault to Murder in the Second Degree,' is sufficient to support the judgment in the light of 2 Fla.Stat.1957, p. 2957, § 921.03, F.S.A., which contains the provision that 'no judgment of guilty shall be rendered on a verdict unless the jurors clearly express in it a finding against the defendant upon the issue.' See also French v. State, 96 Fla. 657, 118 So. 815.
13
Moreover, the record contains facts which would have instantly suggested to counsel that petitioner might have a good insanity defense. '(W)hen there is testimony of insanity sufficient to present a reasonable doubt of sanity the presumption (of sanity) vanishes. The defendant is then entitled to an acquittal if the state does not overcome the reasonable doubt.' Farrell v. State, Fla.1958, 101 So.2d 130, 133. It is too much to expect this mentally ill petitioner effectively to raise and establish the defense of his own insanity, and, so far as this record shows, neither the prosecutor nor the trial court took any notice of the matter.
14
The question treated in the separate concurring opinion only lurks in the record, as it was not raised, briefed or argued here, and therefore we do not reach or express any views upon it.
15
For the totality of the reasons reviewed, due process of law required that petitioner have the assistance of counsel at the trial of this case, if the facts and circumstances alleged in his habeas corpus petition are true. On the present record it is not possible to determine their truth. But the allegations themselves made it incumbent on the Florida court to grant petitioner a hearing and to determine what the true facts are.
16
Reversed.
17
Mr. Justice DOUGLAS, whom Mr. Justice BRENNAL joins, concurring.
18
While I join the opinion of the Court, I rest also on another ground for reversal.
19
Nearly 19 years ago the Court held in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, that a state court in a criminal case need not appoint counsel to represent an indigent defendant, unless the failure to furnish counsel results in a conviction lacking in 'fundamental fairness.' Id., 316 U.S. 473, 62 S.Ct. 1261. That decision was by a divided Court; and six Justices now sit on the Court who had no hand in fashioning the rule.
20
I cannot believe that a majority of the present Court would agree to Betts v. Brady were it here de novo, especially in light of our unanimous decision in Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 5, 99 L.Ed. 4, where we held that the right of a defendant in a state criminal trial 'to be heard through his own counsel' is 'unqualified.' In that case an accused requested a continuance so that he could obtain a lawyer. We held it was reversible error for a state court to deny the request and to put the defendant to trial without counsel. We said that right to counsel turned, not on the nature of the crime charged, but on the importance of the presence of counsel to an accused's right to a hearing. We relied on Powell v. State of Alabama, 287 U.S. 45, 68 69, 53 S.Ct. 55, 64, 77 L.Ed. 158:
21
'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law * * *. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.'1
22
The result of our decisions is to refuse a State the power to force a person into a criminal trial without a lawyer if he wants one and can afford to hire one, but to deny the same protection to an accused who is too poor to retain counsel. This draws a line between rich and poor that is repugnant to due process. The need of counsel is the same, whatever the economic status of the accused. If due process requires that a rich man who wants a lawyer be allowed the opportunity to obtain one before he is tried, why should not due process give the same protection to the accused who is indigent? Even penniless vagrants2 are at times caught in a tangle of laws that only an astute lawyer can resolve, as our own decisions show. Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119; Edelman v. People of State of California, 344 U.S. 357, 73 S.Ct. 293, 97 L.Ed. 387; Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654.
23
Betts v. Brady requires the indigent, when convicted in a trial where he has no counsel, to show that there was fundamental unfairness. We have set aside a number of convictions so obtained, as our recent decision in Cash v. Culver, 358 U.S. 633, 636, 79 S.Ct. 432, 435, 3 L.Ed.2d 557, note 6, shows. Yet this is a heavy burden to carry, especially for an accused who has no lawyer and who cannot afford to hire one. It is a burden placed on an accused solely by reason of his poverty. Its only sanction is Betts v. Brady which is so at war with our concept of equal justice under law that it should be overruled.3 Are we to wait to overrule it until a case arises where the indigent is unable to make a convincing demonstration that the absence of counsel prejudiced him?
24
Appendix to Opinion of Mr. Justice DOUGLAS.
25
In 1942, Mr. Justice Black appended to his dissenting opinion in Betts v. Brady, 316 U.S. 455, 477, 62 S.Ct. 1252, 1263, 86 L.Ed. 1595, a compilation of the laws of the States regarding the right to appointment of counsel. This Appendix brings the classification down to date. Thirty-five States provide for appointment of counsel as of course of behalf of an indigent in any felony case; 15 States either make no explicit provision for appointment of counsel or make provision therefor only in capital cases or leave appointment of counsel to the discretion of the trial judge.
26
A. Appointment of counsel for indigents in all felony cases, as of course, by force of the State Constitution, statutes, court rule, or judicial decision.
27
Alaska: Rules of Criminal Procedure, rule 39(b).
28
Arizona: Rules of Criminal Procedure, rule 163, 17 A.R.S.
29
Arkansas: Ark.Stat. § 43—1203.
30
California: Calif. Penal Code, § 987.
31
Connecticut: Gen.Stat. of Conn. (1958 Rev.) § 54—80, C.G.S.A. See State v. Reid, 146 Conn. 227, 149 A.2d 698.
32
Georgia: Ga.Const. Art. I, § I, Par. V (Ga.Code Ann. § 2 105). See Bibb County v. Hancock, 211 Ga. 429, 86 S.E.2d 511.
33
Idaho: Idaho Code Ann. §§ 19—1512, 19—1513.
34
Illinois: Ill. Supreme Court Rules, Rule 26(2), Ill.Rev.Stat. (1959), c. 110, § 101.26(2).
35
Indiana: Ind.Const. Art. I, § 13. See State ex rel. Grecco v. Allen Circuit Court, 238 Ind. 571, 153 N.E.2d 914.
36
Iowa: Iowa Code Ann. § 775.4.
37
Kansas: Gen.Stat. of Kansas (1959 Supp.) § 62—1304.
38
Kentucky: Ky.Const. § 11. See Calhoun v. Commonwealth, 301 Ky. 789, 193 S.W.2d 420.
39
Louisiana: L.S.A.—Rev.Stat. § 15—143.
40
Massachusetts: Rule 10, General Rules of the Supreme Judicial Court of Massachusetts, 337 Mass. 813; Ann. Laws of Mass., c. 277, § 47, M.G.L.A.
41
Minnesota: Minn.Stat.1957, § 611.07, as amended by Minn.Laws 1959, c. 383, M.S.A.
42
Missouri: Mo.Rev.Stat.1949, § 545.820, V.A.M.S.
43
Montana: Rev.Code of Montana § 94—6512.
44
Nebraska: Rev.Stat. of Nebraska (1943) § 29—1803, as amended by Laws 1957, c. 104, § 1, c. 107, § 6.
45
Nevada: Nev.Rev.Stat. § 174.120.
46
New Jersey: N.J.Const. Art. I, 10; Rev.Rules, § 1:12—9.
47
New Mexico: N.M.Stat.Ann. (1953 Comp.) § 41—11—2. Cf. Const. Art. II, § 14¢ see State v. Garcia, 47 N.M. 319, 142 P.2d 552, 149 A.L.R. 1394.
48
New York: N.Y.Code of Criminal Procedure, § 308.
49
North Dakota: N.D.Century Code, § 29—01—27.
50
Ohio: Ohio Rev.Code, § 2941.50.
51
Oklahoma: 22 Okl.St.Ann. § 464.
52
Oregon: Ore.Rev.Stat. § 135.320.
53
South Dakota: S.D.Code § 34.3506; S.D.Code (1960 Supp.) § 34.1901.
54
Tennessee: Tenn.Code §§ 40—2002, 40—2003.
55
Texas: Vernon's Texas Code of Criminal Procedure, § 494, as amended by Acts 1959, 56th Leg., p. 1061, c. 484, § 1.
56
Utah: Utah Code Ann. § 77—22—12.
57
Virginia: Code of Va. § 19.1—241.
58
Washington: Rev.Code of Wash. § 10.01.110.
59
West Virginia: Rules of Practice for Trial Courts, Rule IV.
60
Wisconsin: Carpenter v. Dane County, 9 Wis. 274. See Wis.Stat.Ann. § 957.26.
61
Wyoming: Wyo.Stat. § 7—7.
62
B. States not making provision for appointment of counsel for indigents in all felony cases.
63
Alabama: Code of Ala. Tit. 15, § 318 (capital cases). See Gilchrist v. State, 234 Ala. 73, 173 So. 651.
64
Colorado: Colo.Rev.Stat. § 39—7—29. See Kelley v. People, 120 Colo. 1, 206 P.2d 337.
65
Delaware: Superior Court Rules—Criminal, Rule 44, Del.C.Ann. (capital cases and 'any other case in which the court deems it appropriate').
66
Florida: Fla.Stat. § 909.21, F.S.A. (capital cases). See Watson v. State, 142 Fla. 218, 194 So. 640.
67
Hawaii: Rev.Laws of Hawaii (1955) § 253—5, as amended by Laws 1957, Act 239 (in force after statehood, see Const. Art. XVI, § 2).
68
Maine: MeRev.Stat. c. 148, § 11 (capital cases and where sentence of life imprisonment may be imposed, otherwise permissive).
69
Maryland: Md.Rules of Procedure, Criminal Causes, Rule 723, § b (in all capital cases and other 'serious cases').
70
Michigan: Mich.Comp.Laws 1948, § 775.16, as amended by Public Acts 1957, No. 256. See People v. Williams, 225 Mich. 133, 195 N.W. 818.
71
Mississippi: Miss.Code Ann. (rec. 1956) § 2505 ('capital crime').
72
New Hampshire: N.H.Rev.Stat. §§ 604:1, 604:2 (capital crimes or other cases where 'injustice may be done if provision is not made therefor').
73
North Carolina: N.C.Gen.Stat. § 15—4.1. See State v. Davis, 248 N.C. 318, 103 S.E.2d 289.
74
Pennsylvania: Purdon's Pa.Stat. Tit. 19, §§ 783, 784 (capital cases).
75
Rhode Island: Gen.Laws of Rhode Island, § 12—15—3. See State v. Hudson, 55 R.I. 141, 179 A. 130, 100 A.L.R. 313; Lee v. Kindelan, 80 R.I. 212, 95 A.2d 51.
76
South Carolina: S.C.Code of Laws § 17—507 (capital cases). See State v. Hollman, 232 S.C. 489, 102 S.E.2d 873.
77
Vermont: 13 Vt.Stat.Ann. § 6503. See State v. Gomez, 89 Vt. 490, 96 A. 190.
1
Such is the rule, in those circumstances, whether or not the accused requested the appointment of counsel. Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 185, 93 L.Ed. 127.
2
The following statements, made by petitioner at his trial, are clear evidence of his lack of education: 'when I gets excited, I blacks out'; 'I had it because I throwed it down myself'; '* * * without no shirt and no shoes'; 'I goes and gets pills.'
3
On this score petitioner testified:
'When I was in the hospital, I stayed over there four months locked in the ward, psycho part of it; and the four months I was over there, I had to stay in there locked up all the time. Mama was the only one that could come and see me. And, well, about the latter part of the four months he give me a weekend pass. He was trying me to see if I would come back.
'And I went home and I come back on time. And I asked mama to come and sign for me as that was the only way I could get back. I had to have a guardian to sign. And she come over there that day and begged the doctor to let me go home.'
4
2 Fla.Stat.1957, p. 2800, §§ 784.01—784.06, F.S.A.
5
2 Fla.Stat.1957, p. 2800, § 784.06, F.S.A., which provides:
'Assault with intent to commit felony.—Whoever commits an assault on another, with intent to commit any felony punishable with death or imprisonment for life, shall be punished by imprisonment in the state prison not exceeding twenty years. An assault with intent to commit any other felony shall be punished to an extent not exceeding one-half the punishment which could have been inflicted had the crime been committed.'
6
2 Fla.Stat.1957, p. 2798, § 782.07, F.S.A.
7
2 Fla.Stat.1957, p. 2797, § 782.04, F.S.A.
8
2 Fla.Stat.1957, p. 2800, § 784.04, F.S.A.
9
Five years is the maximum sentence for aggravated assault under § 784.04, whereas a 20-year sentence may be imposed for assault with intent to commit felony under § 784.06.
1
For a scholarly account of an attempt in a contemporary society to abolish procedural safeguards and provide 'simple' judicial systems see Hazard, Settling Disputes in Soviet Society (1960).
2
The manner of administration of vagrancy laws and their harshness, due in part to the denial to the drifters in our midst of the procedural protections which others obtain, is vividly shown in Foote, Vagrancy-Type Law and Its Administration, 104 U. of Pa.L.Rev. 603.
3
In Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, Mr. Justice Brandeis, writing for the Court, overruled Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865. Mr. Justice Butler, speaking for himself and Mr. Justice McReynolds, strenuously objected, pointing out that the question had never been raised or argued, 304 U.S. at pages 82, 87, 58 S.Ct. at pages 824, 826, and asking that, before Swift v. Tyson was overruled, the case be put down for reargument. 'It may not justly be assumed that the labor and argument of counsel for the parties would not disclose the right conclusion and aid the Court in the statement of reasons to support it.' 304 U.S. at page 88, 58 S.Ct. at page 827. But the problems created under the regime of Swift v Tyson were as abundantly clear to the Court from its screening of hundreds of cases as are those which Betts v. Brady has spawned.
| 01
|
365 U.S. 160
81 S.Ct. 561
5 L.Ed.2d 486
Eugene E. MAYNARD, Petitioner,v.DURHAM AND SOUTHERN RAILWAY COMPANY.
No. 183.
Argued Jan. 12, 1961.
Decided Feb. 20, 1961.
Mr. Charles F. Blanchard, Raleigh, N.C., for petitioner.
Mr. Charles B. Nye, Durham, N.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, an employee of respondent, sued in a North Carolina court for damages under the Federal Employers' Liability Act, 45 U.S.C. § 51, 45 U.S.C.A. § 51. As a defense, respondent tendered a release signed by petitioner and moved for a nonsuit. The motion was allowed after all the evidence was in, and the Supreme Court of North Carolina affirmed, one judge dissenting. 251 N.C. 783, 112 S.E.2d 249.
2
We said in Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 361, 72 S.Ct. 312, 314, 96 L.Ed. 398, that the 'validity of releases under the Federal Employers' Liability Act raises a federal question to be determined by federal rather than state law.' While that case dealt with a release challenged on the ground of fraud, the rule it announced also governs releases challenged for lack of consideration. For releases obtained by fraud or for no consideration could equally defeat the federal rights created by this Act of Congress. It was because of our doubts that the decision below squared with that rule that we brought the case here on certiorari. 363 U.S. 839, 80 S.Ct. 1634, 4 L.Ed.2d 1725.
3
Petitioner was injured August 22, 1955, and came back to work on September 12, 1955. On September 17 he signed the release in question. There is conflicting evidence as to what happened at that time. According to petitioner he went into the office of Mr. McAllister, General Manager, and asked for his pay check; Mr. McAllister 'gave me a paper, told me to sign that, and I signed it'; petitioner did not read the paper; he signed it 'because every check that we ever got from the railroad we had to sign for it'; he signed thinking he was signing for his pay check; he thought the railroad owed him $144.60 for labor, the amount he received; he 'never received anything from the railroad as a result of the injury.' Petitioner also testified that some six months after he received the $144.60 he was asked to sign a release for his injuries and refused. As to the paper he signed on September 17, petitioner further testified that Mr. McAllister 'didn't make me any false representations. The only thing he did do there, he just didn't explain the paper to me. He didn't make any deceitful suggestions to me. He didn't make any fraudulent suggestions to me.' Petitioner also testified, 'The $144.60 that I received there from Mr. McAllister was not for injuries. That was my pay check.'
4
On the other side there was testimony by a former employee, who was petitioner's witness, that it was the policy of the company not to pay wages for the time a person was 'off from work' unless he signed a release and that policy applied when an employee did not work because of an injury. This witness also testified that in a conversation he and petitioner had with Mr. McAllister,* McAllister told petitioner he would have to sign a release before he could get back pay. Moreover, Mr. McAllister testified that petitioner stated 'that he would like to settle up with the company, that he was broke and needed some money'; that McAllister told petitioner 'that he knew if we settled up with him it would be necessary for him to sign a release'; that petitioner said he was 'willing to sign a release' and that that was 'the purpose of his visit'; that he, McAllister, explained to petitioner what was in the release and that if he signed it he would be paid 'for his time lost'; that McAllister did not promise 'any future payments' if petitioner signed the release 'except that possibly we would take care of his doctor's bills if he had any.'
5
In addition petitioner testified that while he did not know it was the railroad's policy to pay an injured employee for time lost only upon signing a release, 'This wasn't the kind of thing that I would sign for my regular pay check. I didn't know what it was. I just did not give to no thought.'
6
We find no evidence sufficient for a jury that respondent obtained the release by fraud, duress, or undue influence. We conclude, however, that there was a jury question as to whether the release was given for a consideration.
7
we think the correct rule concerning the adequacy of consideration for a release of claims under the Act was stated in Burns v. Northern Pac. R. Co., 8 Cir., 134 F.2d 766, 770. 'In order that there may be consideration, there must be mutual concessions. A release is not supported by sufficient consideration unless something of value is received to which the creditor had no previous right.' If, in other words, an employee receives wages to which he had an absolute right, the fact that the amount is called consideration for a release does not make the release valid. See Hogue v. National Automotive Parts Ass'n, D.C., 87 F.Supp. 816, 821.
8
On this record there is a genuine issue of fact concerning the presence of consideration for the release. Petitioner claimed that what he received was his pay check, rightfully owing. Against that was evidence that no back wages were due and that an amount equal to back wages was paid for the release. It is not for the judges to resolve the conflict and to conclude that one side or the other was right. The issue of fact that is presented is one on which fair-minded jurors might honestly differ. Cf. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 510, 77 S.Ct. 443, 450, 1 L.Ed.2d 493.
9
Reversed.
10
Mr. Justice FRANKFURTER, dissenting.
11
This case was brought here on a meager typewritten petition which invoked the Court's certiorari jurisdiction on the claim that the North Carolina Supreme Court had disregarded controlling federal standards for determining the validity of a release from liability under the Federal Employers' Liability Act. In reversing the North Carolina Supreme Court, this Court does not support the grounds on which review was urged. The oral argument dispelled such a claim and revealed, what the Court's opinion now recognizes, that the conflict between the state court and this Court turns on assessment of the trial testimony. This Court has repeatedly announced that the writ of certiorari is not to be employed to pass on matters of evidence and our Rule 19, 28 U.S.C.A., formally bars such an obvious misuse of our discretionary jurisdiction. Again and again we deny petitions for certiorari which merely raise disputed issues of fact. Instead of making cases arising under the Federal Employers' Liability Act an exceptional class, Congress in 1916 explicitly withdrew Federal Employers' Liability cases from the Court's obligatory jurisdiction. 39 Stat. 727. For reasons set forth at length in my dissenting opinion in Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 524, 77 S.Ct. 459, 1 L.Ed.2d 515, I would dismiss this writ as improvidently granted. Doing so after argument has been had would serve to discourage petitions brought solely to review matters of evidence; to adjudicate the case on the merits by taking one view of the evidence as against another only encourages petitions that ought not to be filed here. See Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 43 S.Ct. 422, 67 L.Ed. 712.
12
Mr. Justice WHITTAKER, with whom Mr. Justice HARLAN joins, dissenting.
13
Petitioner was employed by respondent as a 'section' worker at Apex, North Carolina. He normally worked five eight-hour days per week, and was compensated for hours worked at a rate aggregating about $290 per month. The record is not entirely clear on the point, but it would appear that he had received the wages he had earned through Friday, August 19, 1955. On Monday, August 22, he was injured in the course of his work, but he worked the remainder of the day and also the next, Tuesday, August 23. He was then off work for a total of 19 days, 13 of which were working days, returning to work on Mondays, September 12, and working through Friday, September 16, of that week. On Saturday, September 17, he signed a 'Release' of all claims against his employer on account of his injury and delivered the same to his employer in exchange for its check to his order in the amount of $144.60—which, it appears, is the exact amount he would have earned had he worked each working day through the period he was off.
14
At the conclusion of the trial of his action, brought under the Federal Employers' Liability Act against his employer, the trial court rejected his contentions that the 'Release' was (1) obtained by fraud and (2) was not supported by any consideration, held the 'Release' to be a valid bar of his claim for damages, and dismissed the suit. On appeal, the Supreme Court of North Carolina affirmed, 251 N.C. 783, 112 S.E.2d 249, and we granted certiorari. 363 U.S. 839, 80 S.Ct. 1634, 4 L.Ed.2d 1725.
15
The only question here is whether that judgment was justified by the record. With all respect, I think it was.
16
I agree with the Court that the evidence wholly failed to sustain the claim of fraud. In fact, as the Court's opinion shows, petitioner's testimony affirmatively discloses that there was none. He testified that respondent's officer, with whom he dealt in respect of the 'Release,' 'didn't make me any false representations. * * * He didn't make any deceitful suggestions to me. He didn't make any fraudulent suggestions to me.'
17
But I am equally unable to find in the record any evidence to show that the 'Release' was given without consideration. Petitioner admits that he was required to sign the 'Release' before respondent would pay him the $144.60 which he received in exchange for it. Of course, I agree with the Court's statement of the law that "A release is not supported by sufficient consideration unless something of value is received to which the (releasor) had no previous right.' If, in other words, an employee receives wages to which he had an absolute right, the fact that the amount is called consideration for a release does not make the release valid.'
18
Here, however, there is no evidence that the $144.60 which petitioner received in exchange for the release had been earned by, or was due, him. It is true that that amount was exactly the sum he would have earned in the relevant period had he worked. But he did not work in that period. He admits that he was off work from Wednesday morning, August 23, to Monday morning, September 12 a total of 19 days, 13 of which were working days. Of course, he could have had a contract with his employer obligating it to pay him normal wages while disabled by injury or sickness. But he has not shown that any such contract existed.
19
As I read and understand them, these undisputed facts fail to show that the amount paid by respondent to petitioner for the Release was his own money—money that he had earned as wages, or that was otherwise owing to him. As I see it, then, petitioner has wholly failed to produce any evidence to show that the Release was made without consideration.
20
Whether petitioner may have had a solid basis to rescind the Release—upon the ground of mutual mistake of fact, i.e., that he was more seriously injured than either he or respondent believed at the time the Release was made, of which there is considerable indication in the record—would present a question of more substance. But that question is not before us, as petitioner has not proceeded on that theory.
21
On the record as it stands, I think the North Carolina Courts were right, and that their judgment should be affirmed.
*
The witness, who was Chairman of the local union at the time of the accident, could not remember whether this meeting took place before or after September 17, 1955 (the date of the release), although he was sure it took place after August 22, 1955. Petitioner testified this meeting took place after September 17.
| 78
|
365 U.S. 127
81 S.Ct. 523
5 L.Ed.2d 464
EASTERN RAILROAD PRESIDENTS CONFERENCE et al., Petitioners,v.NOERR MOTOR FREIGHT, INC., et al.
No. 50.
Argued Dec. 12, 1960.
Decided Feb. 20, 1961.
Rehearing Denied April 3, 1961.
See 365 U.S. 875, 81 S.Ct. 899.
Mr. Philip Price, Philadelphia, Pa., for petitioners.
Mr. Harold E. Kohn, Philadelphia, Pa., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
American railroads have always largely depended upon income from the long-distance transportation of heavy freight for economic survival. During the early years of their existence, they had virtually no competition in this aspect of their business, but, as early as the 1920's, the growth of the trucking industry in this country began to bring about changes in this situation. For the truckers found, just as the railroads had learned earlier, that a very profitable part of the transportation business was the long hauling of heavy freight. As the trucking industry became more and more powerful, the competition between it and the railroads for this business became increasingly intense until, during the period following the conclusion of World War II, at least the railroads, if not both of the competing groups, came to view the struggle as one of economic life or death for their method of transportation. The present litigation is an outgrowth of one part of that struggle.
2
The case was commenced by a complaint filed in the United States District Court in Pennsylvania on behalf of 41 Pennsylvania truck operators and their trade association, the Pennsylvania Motor Truck Association. This complaint, which named as defendants 24 Eastern railroads, an association of the presidents of those railroads known as the Eastern Railroad Presidents Conference, and a public relations firm, Carl Byoir & Associates, Inc., charged that the defendants had conspired to restrain trade in and monopolize the long-distance freight business in violation of §§ 11 and 22 of the Sherman Act. The gist of the conspiracy alleged was that the railroads had engaged Byoir to conduct a publicity campaign against the truckers designed to foster the adoption and retention of laws and law enforcement practices destructive of the trucking business, to create an atmosphere of distaste for the truckers among the general public, and to impair the relationships existing between the truckers and their customers. The campaign so conducted was described in the complaint as 'vicious, corrupt, and fraudulent,' first, in that the sole motivation behind it was the desire on the part of the railroads to injure the truckers and eventually to destroy them as competitors in the long-distance freight business, and, secondly, in that the defendants utilized the so-called third-party technique, that is, the publicity matter circulated in the campaign was made to appear as spontaneously expressed views of independent persons and civic groups when, in fact, it was largely prepared and produced by Byoir and paid for by the railroads.3 The complaint then went on to supplement these more or less general allegations with specific charges as to particular instances in which the railroads had attempted to influence legislation by means of their publicity campaign. One of several such charges was that the defendants had succeeded in persuading the Governor of Pennsylvania to veto a measure known as the 'Fair Truck Bill,'4 which would have permitted truckers to carry heavier loads over Pennsylvania roads.
3
The prayer of the complaint was for treble damages under § 4 of the Clayton Act5 and an injunction restraining the defendants from further acts in pursuance of the conspiracy. Insofar as the prayer for damages was concerned a stipulation was entered that the only damages suffered by the individual truck operators was the loss of business that resulted from the veto of the 'Fair Truck Bill' by the Governor of Pennsylvania, and accordingly the claim for damages was limited to an amount based upon the loss of profits as a result of this veto plus the expenses incurred by the truckers' trade association for the purpose of combatting the railroads' publicity campaign. The prayer for injunctive relief was much broader, however, asking that the defendants be restrained from disseminating any disparaging information about the truckers without disclosing railroad participation, from attempting to exert any pressure upon the legislature or Governor of Pennsylvania through the medium of front organizations, from paying any private or public organizations to propagate the arguments of the railroads against the truckers or their business, and from doing 'any other act or thing to further * * * the objects and purposes' of the conspiracy.
4
In their answer to this complaint, the railroads admitted that they had conducted a publicity campaign designed to influence the passage of state laws relating to truck weight limits and tax rates on heavy trucks, and to encourage a more rigid enforcement of state laws penalizing trucks for overweight loads and other traffic violations, but they denied that their campaign was motivated either by a desire to destroy the trucking business as a competitor or to interfere with the relationships between the truckers and their customers. Rather, they insisted, the campaign was conducted in furtherance of their rights 'to inform the public and the legislatures of the several states of the truth with regard to the enormous damage done to the roads by the operators of heavy and especially of overweight trucks, with regard to their repeated and deliberate violations of the law limiting the weight and speed of big trucks, with regard to their failure to pay their fair share of the cost of constructing, maintaining and repairing the roads, and with regard to the driving hazards they create * * *.' Such a campaign, the defendants maintained, did not constitute a violation of the Sherman Act, presumably because that Act could not properly be interpreted to apply either to restraints of trade or monopolizations that result from the passage or enforcement of laws or to efforts of individuals to bring about the passage or enforcement of laws.6
5
Subsequently, defendants broadened the scope of the litigation by filing a counterclaim in which they charged that the truckers had themselves violated §§ 1 and 2 of the Sherman Act by conspiring to destroy the railroads' competition in the long-distance freight business and to monopolize that business for heavy trucks. The means of the conspiracy alleged in the counterclaim were much the same as those with which the truckers had charged the railroads in the original complaint, including allegations of the conduct of a malicious publicity campaign designed to destroy the railroads' business by law, to create an atmosphere hostile to the railroads among the general public, and to interfere with relationships existing between the railroads and their customers. The prayer for relief of the counterclaim, like that of the truckers' original complaint, was for treble damages and an injunction restraining continuance of the allegedly unlawful practices. In their reply to this counterclaim, the truckers denied each of the allegations that charged a violation of the Sherman Act and, in addition, interposed a number of affirmative defenses, none of which are relevant here.
6
In this posture, the case went to trial. After hearings, the trial court entered a judgment, based upon extensive findings of fact and conclusions of law, that the railroads' publicity campaign had violated the Sherman Act while that of the truckers had not.7 In reaching this conclusion, the trial court expressly disclaimed any purpose to condemn as illegal mere efforts on the part of the railroads to influence the passage of new legislation or the enforcement of existing law. Instead, it rested its judgment upon findings, first, that the railroads' publicity campaign, insofar as it was actually directed at lawmaking and law enforcement authorities, was malicious and fraudulent—malicious in that its only purpose was to destroy the truckers as competitors, and fraudulent in that it was predicated upon the deceiving of those authorities through the use of the third-party technique;8 and, secondly, that the railroads' campaign also had as an important, if not overriding, purpose the destruction of the truckers' goodwill, among both the general public and the truckers' existing customers, and thus injured the truckers in ways unrelated to the passage or enforcement of law. In line with its theory that restraints of trade and monopolizations resulting from valid laws are not actionable under the Sherman Act, however, the trial court awarded only nominal damages to the individual truckers, holding that no damages were recoverable for loss of business due to the veto of the Pennsylvania 'Fair Truck Bill.' The judgment did, however, award substantial damages to the truckers' trade association as well as the broad injunction asked for in the complaint.9
7
The conclusion that the truckers' publicity campaign had not violated the Sherman Act was reached despite findings that the truckers also had engaged in a publicity campaign designed to influence legislation, as charged in the counterclaim, and despite findings that the truckers had utilized the third-party technique in this campaign. Resting largely upon the fact that the efforts of the truckers were directed, at least for the most part,10 at trying to get legislation passed that was beneficial to them rather than harmful to the railroads, the trial court found that the truckers' campaign was purely defensive in purpose and concluded that the truckers' campaign differed from that of the railroads in that the truckers were not trying to destroy a competitor. Accordingly, it held that the truckers' campaign, though technically in restraint of trade, was well within the rule of reason which governs the interpretation of §§ 1 and 2 of the Sherman Act and consequently dismissed the counterclaim.
8
The railroads appealed from this judgment, both as to the conclusion that they had violated the Sherman Act as charged in the original complaint and as to the conclusion that the truckers had not violated the Act as charged in the counterclaim. The Court of Appeals for the Third Circuit, one judge dissenting in part, upheld the judgment of the District Court in every respect, stating that the findings amply support the judgment and that there was sufficient evidence to support all of the findings.11 This was followed by a petition for certiorari filed on behalf of the railroads and Byoir limited to the question of the correctness of the judgment insofar as it held that they had violated the Sherman Act. Because the case presents a new and unusual application of the Sherman Act and involves severe restrictions upon the rights of these railroads and others to seek the passage or defeat of legislation when deemed desirable, we granted that petition.12
9
We accept, as the starting point for our consideration of the case, the same basic construction of the Sherman Act adopted by the courts below—that no violation of the Act can be predicated upon mere attempts to influence the passage or enforcement of laws. It has been recognized, at least since the landmark decision of this Court in Standard Oil Co., of New Jersey v. United States,13 that the Sherman Act forbids only those trade restraints and monopolizations that are created, or attempted, by the acts of 'individuals or combinations of individuals or corporations.'14 Accordingly, it has been held that where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out.15 These decisions rest upon the fact that under our form of government the question whether a law of that kind should pass, or if passed be enforced, is the responsibility of the appropriate legislative or executive branch of government so long as the law itself does not violate some provision of the Constitution.
10
We think it equally clear that the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly. Although such associations could perhaps, through a process of expansive construction, be brought within the general proscription of 'combination(s) * * * in restraint of trade,' they bear very little if any resemblance to the combinations normally held violative of the Sherman Act, combinations ordinarily characterized by an express or implied agreement or understanding that the participants will jointly give up their trade freedom, or help one another to take away the trade freedom of others through the use of such devices as price-fixing agreements, boycotts, market-division agreements, and other similar arrangements.16 This essential dissimilarity between an agreement jointly to seek legislation or law enforcement and the agreements traditionally condemned by § 1 of the Act, even if not itself conclusive on the question of the applicability of the Act, does constitute a warning against treating the defendants' conduct as though it amounted to a common-law trade restraint. And we do think that the question is conclusively settled, against the application of the Act, when this factor of essential dissimilarity is considered along with the other difficulties that would be presented by a holding that the Sherman Act forbids associations for the purpose of influencing the passage or enforcement of laws.
11
In the first place, such a holding would substantially impair the power of government to take actions through its legislature and executive that operate to restrain trade. In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act.17 Secondly, and of at least equal significance, such a construction of the Sherman Act would raise important constitutional questions. The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms. Indeed, such an imputation would be particularly unjustified in this case in view of all the countervailing considerations enumerated above. For these reasons, we think it clear that the Sherman Act does not apply to the activities of the railroads at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws. We are thus called upon to consider whether the courts below were correct in holding that, notwithstanding this principle, the Act was violated here because of the presence in the railroads' publicity campaign of additional factors sufficient to take the case out of the area in which the principle is controlling.
12
The first such factor relied upon was the fact, established by the finding of the District Court, that the railroads' sole purpose in seeking to influence the passage and enforcement of laws was to destroy the truckers as competitors for the long-distance freight business. But we do not see how this fact, even if adequately supported in the record,18 could transform conduct otherwise lawful into a violation of the Sherman Act. All of the considerations that have led us to the conclusion that the Act does not apply to mere group solicitation of governmental action are equally applicable in spite of the addition of this factor. The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so. It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors. This Court has expressly recognized this fact in its opinion in United States v. Rock Royal Co-op., where it was said: 'If ulterior motives of corporate aggrandizement stimulated their activities, their efforts were not thereby rendered unlawful. If the Act and Order are otherwise valid, the fact that their effect would be to give cooperatives a monopoly of the market would not violate the Sherman Act * * *.'19 Indeed, it is quite probably people with just such a hope of personal advantage who provide much of the information upon which governments must act. A construction of the Sherman Act that would disqualify people from taking a public position on matters in which they are financially interested would thus deprive the government of a valuable source of information and, at the same time, deprive the people of their right to petition in the very instances in which that right may be of the most importance to them. We reject such a construction of the Act and hold that, at least insofar as the railroads' campaign was directed toward obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had.
13
The second factor relied upon by the courts below to justify the application of the Sherman Act to the railroads' publicity campaign was the use in the campaign of the so-called third-party technique. The theory under which this factor was related to the proscriptions of the Sherman Act, though not entirely clear from any of the opinions below, was apparently that it involved unethical business conduct on the part of the railroads. As pointed out above, the third-party technique, which was aptly characterized by the District Court as involving 'deception of the public, manufacture of bogus sources of reference, (and) distortion of public sources of information,' depends upon giving propaganda actually circulated by a party in interest the appearance of being spontaneous declarations of independent groups. We can certainly agree with the courts below that this technique, though in widespread use among practitioners of the art of public relations,20 is one which falls far short of the ethical standards generally approved in this country. It does not follow, however, that the use of the technique in a publicity campaign designed to influence governmental action constitutes a violation of the Sherman Act. Insofar as that Act sets up a code of ethics at all, it is a code that condemns trade restraints, not political activity, and, as we have already pointed out, a publicity campaign to influence governmental action falls clearly into the category of political activity. The proscriptions of the Act, tailored as they are for the business world, are not at all appropriate for application in the political arena. Congress has traditionally exercised extreme caution in legislating with respect to problems relating to the conduct of political activities, a caution which has been reflected in the decisions of this Court interpreting such legislation.21 All of this caution would go for naught if we permitted an extension of the Sherman Act to regulate activities of that nature simply because those activities have a commercial impact and involve conduct that can be termed unethical.
14
Moreover, we think the courts below themselves recognized this fact to some extent for their disposition of the case is inconsistent with the position that the use of the third-party technique alone could constitute a violation of the Sherman Act. This much is apparent from the fact that the railroads' counterclaim against the truckers was not allowed. Since it is undisputed that the truckers were as guilty as the railroads of the use of the technique,22 this factor could not have been in any sense controlling of the holding against the railroads. Rather, it appears to have been relied upon primarily as an indication of the vicious nature of the campaign against the truckers. But whatever its purpose, we have come to the conclusion that the reliance of the lower courts upon this factor was misplaced and that the railroads' use of the third-party technique was, so far as the Sherman Act is concerned, legally irrelevant.
15
In addition to the foregoing factors, both of which relate to the intent and methods of the railroads in seeking governmental action, the courts below rested their holding that the Sherman Act had been violated upon a finding that the purpose of the railroads was 'more than merely an attempt to obtain legislation. It was the purpose and intent * * * to hurt the truckers in every way possible even though they secured no legislation.' (Emphasis in original.) Specifically, the District Court found that the purpose of the railroads was to destroy the goodwill of the truckers, among the public generally and among the truckers' customers particularly, in the hope that by doing so the over-all competitive position of the truckers would be weakened, and that the railroads were successful in these efforts to the extent that such injury was actually inflicted. The apparent effect of these findings is to take this case out of the category of those that involve restraints through governmental action and thus render inapplicable the principles announced above. But this effect is only apparent and cannot stand under close scrutiny. There are no specific findings that the railroads attempted directly to persuade anyone not to deal with the truckers. Moreover, all of the evidence in the record, both oral and documentary, deals with the railroads' efforts to influence the passage and enforcement of laws. Circulars, speeches, newspaper articles, editorials, magazine articles, memoranda and all other documents discuss in one way or another the railroads' charges that heavy trucks injure the roads, violate the laws and create traffic hazards, and urge that truckers should be forced to pay a fair share of the costs of rebuilding the roads, that they should be compelled to obey the laws, and that limits should be placed upon the weight of the loads they are permitted to carry. In the light of this, the findings of the District Court that the railroads' campaign was intended to and did in fact injure the truckers in their relationships with the public and with their customers can mean no more than that the truckers sustained some direct injury as an incidental effect of the railroads' campaign to influence governmental action and that the railroads were hopeful that this might happen.23 Thus, the issue presented by the lower courts' conclusion of a violation of the Sherman Act on the basis of this injury is no different than the issue presented by the factors already discussed. It is inevitable, whenever an attempt is made to influence legislation by a campaign of publicity, that an incidental effect of that campaign may be the infliction of some direct injury upon the interests of the party against whom the campaign is directed. And it seems equally inevitable that those conducting the campaign would be aware of, and possibly even pleased by, the prospect of such injury. To hold that the knowing infliction of such injury renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns. We have already discussed the reasons which have led us to the conclusion that this has not been done by anything in the Sherman Act.
16
There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified. But this certainly is not the case here. No one denies that the railroads were making a genuine effort to influence legislation and law enforcement practices. Indeed, if the version of the facts set forth in the truckers' complaint is fully credited, as it was by the courts below, that effort was not only genuine but also highly successful. Under these circumstances, we conclude that no attempt to interfere with business relationships in a manner proscribed by the Sherman Act is involved in this case.
17
In rejecting each of the grounds relied upon by the courts below to justify application of the Sherman Act to the campaign of the railroads, we have rejected the very grounds upon which those courts relied to distinguish the campaign conducted by the truckers. In doing so, we have restored what appears to be the true nature of the case—a 'no-holds-barred fight'24 between two industries both of which are seeking control of a profitable source of income.25 Inherent in such fights, which are commonplace in the halls of legislative bodies, is the possibility, and in many instances even the probability, that one group or the other will get hurt by the arguments that are made. In this particular instance, each group appears to have utilized all the political powers it could muster in an attempt to bring about the passage of laws that would help it or injure the other. But the contest itself appears to have been conducted along lines normally accepted in our political system, except to the extent that each group has deliberately deceived the public and public officials. And that deception, reprehensible as it is, can be of no consequence so far as the Sherman Act is concerned. That Act was not violated by either the railroads or the truckers in their respective campaigns to influence legislation and law enforcement. Since the railroads have acquiesced in the dismissal of their counterclaim by not challenging the Court of Appeals' affirmance of that order in their petition for certiorari, we are here concerned only with those parts of the judgments below holding the railroads and Byoir liable for violations of the Sherman Act. And it follows from what we have said that those parts of the judgments below are wrong. They must be and are reversed.
18
Reversed.
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 declared to be illegal: * * *' 15 U.S.C. § 1, 15 U.S.C.A. § 1.
2
'Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor * * *' 15 U.S.C. § 2, 15 U.S.C.A. § 2.
3
For a discussion of the mechanics of this technique and the purposes generally underlying its use by public relations firms, see Ross, The Image Merchants, at 118, 226—227 and 266—267.
4
The 'Fair Truck Bill' referred to was introduced in the Pennsylvania Legislature in May 1951, as Senate bill 615.
5
'Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.' 15 U.S.C. § 15, 15 U.S.C.A. § 15.
6
The answer to the truckers' complaint also interposed a number of other defenses, including the contention that the activities complained of were constitutionally protected under the First Amendment and the contention that the truckers were barred from prosecuting this suit by reason of the fact that they had themselves engaged in conduct identical to that about which they were complaining with regard to the railroads and were thus in pari delicto. Because of the view we take of the proper construction of the Sherman Act, we find it unnecessary to consider any of these other defenses.
7
The opinion of the District Court on the merits of the controversy is reported at 155 F.Supp. 768. An additional opinion dealing with the question of relief is reported at 166 F.Supp. 163. For reports of earlier opinions dealing with preliminary motions, see D.C., 113 F.Supp. 737; D.C., 14 F.R.D. 189, and D.C., 19 F.R.D. 146.
8
The District Court did not expressly find that any particular part of the railroads' publicity campaign was false in its content. Rather, it found that the technique of the railroads was 'to take a dramatic fragment of truth and by emphasis and repetition distort it into falsehood.' 155 F.Supp. at page 814.
9
If anything, the injunction was even broader than had been requested in the complaint for it effectively enjoined the defendants from any publicity activities against the truckers whether or not the third-party technique was used. See 166 F.Supp. at pages 172—173.
10
The trial court did recognize that on at least one occasion the truckers attempted to encourage legislation that would have been directly harmful to the railroads rather than beneficial to themselves. Thus, the court found: 'About the middle of the decade (the 1940's) PMTA had a tax manual prepared charging that the railroads of Pennsylvania themselves did not pay their fair share of taxes as compared with other states and made a wide distribution of it to legislators, banks, security investment houses, etc.' The trial court found, however, that this action of the truckers also lay within the rule of reason because 'the truckers had been the target of a strong campaign directed to the public with the purpose of convincing the public that trucks did not pay their fair share of taxes,' thus making it necessary for the truckers to 'be permitted to likewise show the public that their competitors, the railroads, were actually guilty of the fault charged against the truckers.' 155 F.Supp. at page 803.
11
273 F.2d 218. Chief Judge Biggs dissented from the opinion of the majority of the Court of Appeals insofar as it upheld the District Court's conclusion that the railroads and Byoir had violated the Sherman Act. For similar reasons, he concurred in that part of the majority opinion which upheld the conclusion that the truckers had not violated the Act.
12
362 U.S. 947, 80 S.Ct. 862, 4 L.Ed.2d 866.
13
221 U.S. 1, at pages 51—62, 31 S.Ct. 502, at pages 512 516, 55 L.Ed. 619.
14
Id., 221 U.S. at page 57, 31 S.Ct. at page 514.
15
United States v. Rock Royal Co-op., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446; Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315.
16
See Apex Hosiery Co. v. Leader, 310 U.S. 469, 491—493, 60 S.Ct. 982, 990—992, 84 L.Ed. 1311.
17
In Parker v. Brown, supra, this Court was unanimous in the conclusion that the language and legislative history of the Sherman Act would not warrant the invalidation of a state regulatory program as an unlawful restraint upon trade. In so holding, we rejected the contention that the program's validity under the Sherman Act was affected by the nature of the political support necessary for its implemenation—a contention not unlike that rejected here. The reasoning underlying that conclusion was stated succinctly by Mr. Chief Justice Stone: 'Here the state command to the Commission and to the program committee of the California Prorate Act is not rendered unlawful by the Sherman Act since, in view of the latter's words and history, it must be taken to be a prohibition of individual and not state action. It is the state which has created the machinery for establishing the prorate program. Although the organization of a prorate zone is proposed by producers, and a prorate program, approved by the Commission, must also be approved by referendum of producers, it is the state, acting through the Commission, which adopts the program and which enforces it with penal sanctions, in the execution of a governmental policy. The prerequisite approval of the program upon referendum by a prescribed number of producers is not the imposition by them of their will upon the minority by force of agreement or combination which the Sherman Act prohibits. The state itself exercises its legislative authority in making the regulation and in prescribing the conditions of its application.' 317 U.S., at page 352, 63 S.Ct. at page 314.
18
A study of the record reveals that the only evidence or subsidiary findings upon which this conclusory finding could be based is the undisputed fact that the railroads did seek laws by arguments and propaganda that could have had the effect of damaging the competitive position of the truckers. There is thus an absence of evidence of intent independent of the efforts that were made to influence legislation and law enforcement. We nonetheless accept the finding of the District Court on this issue for, in our view, the disposition of this case must be the same regardless of that fact.
19
307 U.S. 533, 560, 59 S.Ct. 993, 1006.
20
The extent to which the third-party technique is utilized in the public relations field is demonstrated by the fact, found by the District Court, that each of the several public relations firms interviewed by the railroads before they finally decided to hire the Byoir organization to conduct their publicity campaign included the use of this technique in its outline of proposed activities submitted for consideration by the railroads. See 155 F.Supp. at page 778.
21
See, e.g., United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989. Cf. United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770.
22
The District Court expressly recognized this fact in its opinion: 'The record discloses that both sides used, or wanted to use, fronts and/or the propaganda technique.' 155 F.Supp. at page 816. This conclusion was amply supported by specific findings. Thus, the court found: 'The record establishes that the truckers wrote to and made personal contacts with legislators in support of bills increasing the weight of trucks; that they had representatives of other industries write and make personal contacts with legislators in Harrisburg without disclosing trucker connections; and that they had such persons intentionally refrain from advising the legislators and the said officials that the letters and contacts had been solicited; that they solicited from legislators statements in support of their position and had news releases issued thereon.' 155 F.Supp. at page 803.
23
Here again, the petitioners have leveled a vigorous attack upon the trial court's findings. As a part of this attack, they urge that there is no basis in reason for the finding that some shippers quit doing business with the truckers as a result of the railroads' publicity campaign. Their contention is that since the theme of the campaign was that the truckers had an unfair competitive advantage and could consequently charge unfairly low prices, the campaign would have encouraged, rather than discouraged, shippers who availed themselves of the truckers' services. This argument has considerable appeal but, as before, we find it unnecessary to pass upon the validity of these findings for we think the conclusion must be the same whether they are allowed to stand or not.
24
We borrow this phrase from the dissenting opinion below of Chief Judge Biggs.
25
Since the commencement of this litigation, a new bill increasing truck-weight limits has passed the Pennsylvania Legislature and has become law by virtue of the Governor's approval. Thus, the fight goes on.
| 78
|
365 U.S. 292
81 S.Ct. 686
5 L.Ed.2d 570
Quincy BULLOCK, petitioner,v.STATE OF SOUTH CAROLINA.
No. 78.
Supreme Court of the United States
October Term, 1960.
February 20, 1961
Mr. Matthew J. Perry, Spartanburg, S. C., for petitioner.
Mr. Robert L. Kilgo, Darlington, S. C., for respondent.
On Writ of Certiorari to the Supreme Court of South Carolina.
PER CURIAM.
1
After hearing oral argument and fully examining the record which was only partially set forth in the petition for certiorari, we conclude that the totality of circumstances as the record makes them manifest did not warrant bringing the case here. Accordingly, the writ is dismissed.
| 89
|
365 U.S. 290
81 S.Ct. 565
5 L.Ed.2d 568
UNITED STATES, Petitioner,v.Gaetano LUCCHESE, etc.
No. 57.
Argued Dec. 8 and 12, 1960.
Decided Feb. 20, 1961.
Mr. Wayne G. Barnett, Washington, D.C., for petitioner.
Mr. Richard J. Burke, New York City, for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This denaturalization proceeding was brought in the District Court for the Eastern District of New York under § 338(a) of the Nationality Act of 1940. 8 U.S.C. (1946 ed.) § 738.1 The 'good cause' affidavit was not filed with the complaint. The District Court dismissed the complaint following our decision in United States v. Zucca, 351 U.S. 91, 76 S.Ct. 671, 100 L.Ed. 964, 'without prejudice to the government's right to institute a proceeding to denaturalize the defendant upon the filing of the required affidavit.' 149 F.Supp. 952. The Court of Appeals for the Second Circuit reversed, holding that the dismissal motion should have been denied. 247 F.2d 123. We reversed and ordered the case 'remanded to the District Court with directions to dismiss' the complaint. 356 U.S. 256, 78 S.Ct. 713, 2 L.Ed.2d 741. The District Court on the remand declined to order a dismissal 'without prejudice' and instead entered an order which did not specify whether the dismissal was with or without prejudice. The Court of Appeals for the Second Circuit dismissed the Government's appeal in an unreported opinion which stated that 'there was no basis for (the district judge) to take action other than he did, namely, to comply with the clear command of the Supreme Court, without attempted embellishment. We have no occasion now to pass on the effect of that command upon possible later litigation.'
2
The Government filed its petition for certiorari only to assure its right to proceed against the respondent in a new proceeding in the event that we should rule in Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551, that the order entered by the District Court for the Southern District of New York in that case precluded the institution of the second denaturalization action against Costello. Our decision today in Costello establishes that such a form of dismissal does not bar a subsequent proceeding against the respondent. The writ is therefore dismissed.
3
Dismissed.
4
Mr. Justice HARLAN took no part in the consideration or decision of this case.
1
Now 8 U.S.C.A. § 1451.
| 12
|
365 U.S. 265
81 S.Ct. 534
5 L.Ed.2d 551
Frank COSTELLO, Petitioner,v.UNITED STATES of America.
No. 59.
Argued Dec. 12, 1960.
Decided Feb. 20, 1961.
Mr. Edward Bennett Williams, Washington, D.C., for petitioner.
Messrs. Ralph S. Spritzer and Wayne G. Barnett, Washington, D.C., for respondent.
Mr. Justice BRENNAN, delivered the opinion of the Court.
1
The petitioner became a naturalized citizen on September 10, 1925. The District Court for the Southern District of New York revoked his citizenship on March 9, 1959, in this proceeding brought by the Government under § 340(a) of the Immigration and Nationality Act of 1952. That Act authorizes revocation of naturalized citizenship 'on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation * * *.'1 The petitioner, in 1925, swore in his Preliminary Form for Naturalization, in his Petition for Naturalization, and when he appeared before a Naturalization Examiner, that his occupation was 'real estate.' The District Court found that this was 'willful misrepresentation and fraud' and that 'his true occupation was bootlegging,' 171 F.Supp. 10, 16. The Court of Appeals for the Second Circuit affirmed, 275 F.2d 355. We granted certiorari. 362 U.S. 973, 80 S.Ct. 1058, 4 L.Ed.2d 1009.
2
An earlier denaturalization complaint brought under 8 U.S.C. (1946 ed.) § 738(a), the predecessor of § 340(a), was dismissed on the ground that wiretapping may have infected both the Government's affidavit of good cause and its evidence. United States v. Costello, D.C., 145 F.Supp. 892. The Court of Appeals for the Second Circuit reversed on the ground that the Government should have been afforded an opportunity to show that its evidence either was untainted or was admissible in any event. 247 F.2d 384. We granted certiorari and reversed, 356 U.S. 256, 78 S.Ct. 714, 2 L.Ed.2d 741, on a ground not considered below, namely, that the affidavit of good cause, which is a prerequisite to the initiation of denaturalization proceedings under § 340(a), United States v. Zucca, 351 U.S. 91, 76 S.Ct. 671, 100 L.Ed. 964, was not filed with the complaint. On remand the District Court declined to enter an order of dismissal 'without prejudice' and entered an order which did not specify whether the dismissal was with or without prejudice. The Government did not appeal from that order but brought this new proceeding under § 340(a) by affidavit of good cause and complaint filed on May 1, 1958.
3
The petitioner argues several grounds for reversal of the order revoking his citizenship. He contends: (1) that the finding that he willfully misrepresented his occupation is not supported by clear, unequivocal, and convincing evidence, the standard of proof required of the Government in these cases; (2) that some of his admissions as to his true occupation at the time of his naturalization were tainted by wiretapping, and thus were not evidence which the District Court might rely upon in reaching its conclusion; (3) that in the circumstances of this case the lapse of 27 years from the time of the petitioner's naturalization to the time of the filing in 1952 of the Government's first complaint should be deemed to bar the Government from instituting this proceeding; (4) that the second denaturalization proceeding was barred under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., by the failure of the District Court on remand of the first proceeding to specify that the dismissal was 'without prejudice' to the filing of a new complaint.
4
We find no merit in any of these contentions.2 The judgment of the Court of Appeals will be affirmed.
I.
5
The Government carries a heavy burden of proof in a proceeding to divest a naturalized citizen of his citizenship. American citizenship is a precious right. Severe consequences may attend its loss, aggravated when the person has enjoyed his citizenship for many years. See Schneiderman v. United States, 320 U.S. 118, 122—123, 63 S.Ct. 1333, 1335, 87 L.Ed. 1796; Nowak v. United States, 356 U.S. 660, 663, 78 S.Ct. 955, 957, 2 L.Ed.2d 1048. In Chaunt v. United States, 364 U.S. 350, 352—353, 81 S.Ct. 147, 149, 5 L.Ed.2d 120, we said:
6
'Acquisition of American citizenship is a solemn affair. Full and truthful response to all relevant questions required by the naturalization procedure is, of course, to be exacted, and temporizing with the truth must be vigorously discouraged. Failure to give frank, honest, and unequivocal answers to the court when one seeks naturalization is a serious matter. Complete replies are essential so that the qualifications of the applicant or his lack of them may be ascertained. Suppressed or concealed facts, if known, might in and of themselves justify denial of citizenship. Or disclosure of the true facts might have led to the discovery of other facts which would justify denial of citizenship.
7
'On the other hand, in view of the grave consequences to the citizen, naturalization decrees are not lightly to be set aside—the evidence must indeed be 'clear, unequivocal, and convincing' and not leave 'the issue in doubt.' Schneiderman v. United States, 320 U.S. 118, 125, 158, 63 S.Ct. 1333, 1336, 1352, 87 L.Ed. 1796; Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525. The issue in these cases is so important to the liberty of the citizen that the weight normally given concurrent findings of two lower courts does not preclude reconsideration here * * *.'
8
In 1925 a known bootlegger would probably not have been admitted to citizenship. Decisions before and after the repeal of the Eighteenth Amendment held that the applicant who trafficked in the sale, manufacture, or transportation of intoxicating liquors during Prohibition, within the five years preceding his application, did not meet the statutory criterion that an applicant must have behaved as a person 'of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.' Act of 1906, § 4, 34 Stat. 596, 598.
9
In United States v. De Francis, 60 App.D.C. 207, 208, 50 F.2d 497, 498, the Court of Appeals for the District of Columbia stated, 'Any person who violates the provisions of the Prohibition Act violates the principles of the Constitution of the United States, and cannot be held to be attached to the principles of the Constitution of the United States. Nor can it be said that such a person possesses good moral character.'
10
In Turlej v. United States, 10 Cir., 31 F.2d 696, 699, it was said, 'Few cases can be found where applicants for citizenship have been admitted, if guilty of violating liquor laws within the five years preceding the hearing, and such cases have been severely criticized by the courts. This was true even before the adoption of the Eighteenth Amendment as a part of our national Constitution.' See also In re Trum, D.C., 199 F. 361.
11
In United States v. Villaneuva, D.C., 17 F.Supp. 485, 487, the court said, 'Courts have quite universally held that violations of prohibition liquor laws, whether national or state, should be taken into consideration in determining questions respecting the good moral character of applicants for citizenship and their attachment to the principles of the Constitution of the United States.'
12
In United States v. Mirsky, 17 F.2d 275, a denaturalization case, Judge Thacher of the District Court for the Southern District of New York, who had admitted Costello to citizenship less than a year earlier, said: 'One who deliberately violates the Eighteenth Amendment of the Constitution cannot be said to be attached to the principle declared by that amendment.' At page 275. 'Neither the fact that in this and in other communities there are many citizens who are not attached in thought or deed to the principle embodied in the Constitution by the Eighteenth Amendment, nor the fact that opposition to that principle with a view to removing it from the Constitution is quite generally thought to be the part of good citizenship, can relieve this court of its duty to apply the law as it is now written.' At page 276.
13
See also In re Nagy, D.C., 3 F.2d 77; In re Raio, D.C., 3 F.2d 78; In re Phillips, D.C., 3 F.2d 79; In re Bonner, D.C., 279 F. 789; Ex parte Elson, D.C., 299 F. 352.
14
Some of these cases turned on a finding of illegal procurement of the certificate because of demonstrated lack of attachment to the principles of the Constitution rather than upon 'fraud' under 8 U.S.C. (1946 ed.) § 738(a).3 However, the cases demonstrate the materiality of the concealment by the petitioner of his bootlegging if that in fact was his true occupation. Such concealment would support the conclusion that he was an applicant who had '(s) uppressed or concealed facts * * * (which) * * * if known, might in and of themselves justify denial of citizenship.' Chaunt v. United States, supra, 364 U.S. at pages 352—353, 81 S.Ct. at page 149.
15
We have examined the record to determine if the evidence leaves 'the issue in doubt,' Schneiderman v. United States, 320 U.S. 118, 158, 63 S.Ct. 1333, 1352, 87 L.Ed. 1796, whether the petitioner procured his naturalization by willfully misrepresenting that his occupation was real estate. It does not. However occupation is defined, whether in terms of primary source of income, expenditure of time and effort, or how the petitioner himself viewed his occupation, we reach the conclusion that real estate was not his occupation and that he was in fact a largescale bootlegger.
16
The Government built its case on a solid foundation of admissions made by the petitioner in several federal and New York State inquiries beginning in 1938. In that year he admitted to a Special Agent of the Bureau of Internal Revenue that he had engaged in the illicit liquor business from 1923 or 1924 until a year or two before the repeal of the Eighteenth Amendment in 1933. In 1939 he testified before a federal grand jury in the Southern District of New York that 'I did a little bootlegging. * * * The last time was around 1926.' In 1943 he testified before a New York County grand jury that he had been in the liquor business in the twenties and had an office at 405 Lexington Avenue, New York City, as early as 1925. He also admitted that he had reported an aggregate income of $305,000 for New York State income tax purposes for the years 1919 to 1932 and that '(m)aybe most of it' was earned in the bootlegging business. Indeed, except for $25,000 realized from a real estate venture to be discussed shortly, there was no evidence of income from any legitimate business. In 1943, in a proceeding before an Official Referee of the Appellate Division of the Supreme Court of New York, he acknowledged that money he had lent to Arnold Rothstein, prior to the latter's murder in 1928, might have been derived 'from a little bootlegging'; he also admitted that during the Prohibition era his business of smuggling alcoholic liquors into the United States was 'profitable.' In 1947 he appeared before the New York State Liquor Authority and testified that from 1923 to 1926 he operated a bootlegging business from 405 Lexington Avenue.
17
Several of his associates in bootlegging enterprises presented a picture of largescale operations by the petitioner from early in Prohibition past the time of his application for citizenship. Emanuel Kessler, a big operator apprehended in 1923 and convicted for his activities, financed, about 1921, the petitioner's purchase of trucks to haul Kessler's liquors after Kessler landed them on Long Island from boats on the high seas. Kessler 'very often' discussed shipments with the petitioner in telephone calls to the Lexington Avenue office. Kessler's volume at the time was about 3,000 cases per week and he paid the Costello organization approximately $6,000 a week for haulage and storage. Kessler said that before he began serving his sentence 'Frank Costello personally asked me * * * for some money so he could continue on. I think I left him either 100 or 200 cases.'
18
Frank Kelly, who began bootlegging about 1922, smuggled liquors into the country using a chartered ship which he moored off the Long Island shore. He became associated with the petitioner in 1925 when he was introduced to the petitioner and the petitioner's Canadian representative, Harry Sausser, at Montauk, Long Island. On this occasion, Sausser negotiated with Kelly for the storage of liquors on Kelly's boat. Kelly was one of a combine including the petitioner which was indicted in 1925 for conspiracy to violate the liquor laws.
19
Philip Coffey, also indicted with the petitioner in 1925, was a former Kessler employee. He purchased liquor from the Costello organization at 405 Lexington Avenue as early as 1922 or 1923. He insisted that he did 'all my business with Eddie Costello,' the petitioner's brother, but admitted placing orders with Edward in the petitioner's presence and discussing purchases with the petitioner. Coffey told of an occasion, which he thought occurred in 1925, when Kelly and the petitioner came by automobile to Montauk Point and Kelly gave him instructions for the removal of liquor from Kelly's chartered schooner. He said that he was paid for his services at petitioner's Lexington Avenue office by Edward Ellis, the petitioner's bookkeeper.
20
Albert Feldman, another admitted bootlegger, started in 1920 and dealt with both the petitioner and Kessler. He arranged with the petitioner about 1923 at the Lexington Avenue office to have the petitioner haul and store some liquor for him. He also talked with the petitioner regarding its sale. The petitioner told Feldman he had 'a customer for the 1000 cases,' that he 'could sell them and he would be able to pay me in a few days, as soon as they were delivered, to which I agreed; and Frank said that 'I'll be responsible for the money." In regard to the petitioner's role in liquor transactions, Feldman said, 'everything was Frank Costello. He was the business man. He did all the business.'
21
Helen L. Sausser, daughter of Harry Sausser, was 18 when she became acquainted with the petitioner in 1925. Sausser was one of the two persons who executed the affidavit attached to the petitioner's Petition for Naturalization and swore that he also was in the real estate business. The daughter recalled overhearing conversations between petitioner and her father about liquor, and said that her father admitted to her mother that he was engaged in bootlegging. The daughter testified that she had never known her father to engage in the real estate business.
22
Despite these strong proofs of the falsity of the petitioner's answers, the petitioner insists that the evidence derived from the Government's own investigation of his activities in the real estate business should leave us with a troubling doubt whether he stated falsely that he was engaged in that occupation. He had told the New York grand jury in 1943, when asked what 'other occupation' besides bootlegging he followed during Prohibition, that 'I was doing a little leal estate at that time.' The Government put in evidence in this proceeding state corporate records and records from the Registries of Deeds in New York City. These show that petitioner was indeed identified with three corporations empowered to engage in the purchase and sale of real estate. We dismiss two of the corporations, organized in 1926, without further mention beyond the fact that the petitioner testified before the Official Referee in the Appellate Division that his investment of $25,000 or $30,000 in one of them came from 'bootlegging or gambling'; there was no evidence of any real estate transactions involving either company. The petitioner's contention must therefore be tested in the light of the activities of Koslo Realty Corporation. This corporation was organized in December 1924 and at least as early as August 1925 listed its address as the petitioner's office, 405 Lexington Avenue. A December 1925 document lists the petitioner as president of the company. The only evidence of any investment by the petitioner or profitable transaction in which he engaged before May 1, 1925, when he filed his Petition for Naturalization, concerned a property at West End Avenue and 92d Street, Manhattan, acquired by the corporation in December 1924. The petitioner admitted before the New York County grand jury that his investment in that transaction was from earnings in 'gambling or liquor' and claimed that he made a profit of $25,000 on the sale of the property in June 1925. The only other transactions occurred after May 1, 1925. The corporation bought lots in the Bronx in August and October 1925. Some of the lots were improved and all of them were sold in 1926.
23
These proofs raise no troubling doubt in our minds. They do not support an inference that his occupation was real estate. They show only that the petitioner invested his illicit earnings in real estate transactions with the hope of profit. But he was neither deriving his principal income from Koslo Realty Corporation, spending any appreciable time conducting its affairs, nor making it his central business concern. He himself admitted that he operated his bootlegging enterprises from the Lexington Avenue address. All of the witnesses who testified to activities at that address recounted bootlegging transactions and not one in real estate. And the postman who delivered mail to the office from 1924 to 1926, and saw the petitioner there several times a week, saw neither a secretary nor a typewriter as might be expected in an active real estate business.
24
The Government's proofs show not merely that the petitioner's statements were factually incorrect, but show clearly, unequivocally, and convincingly that the statements were willfully false. The petitioner argues that the evidence is susceptible of the inference that he may have believed that the questions called for the disclosure only of a legal occupation. We may assume that 'occupation' can be a word of elusive content in some circumstances, like the question involved in Nowak v. United States, supra, and Maisenberg v. United States, 356 U.S. 670, 78 S.Ct. 960, 2 L.Ed.2d 1056, upon which decisions the petitioner relies. But that argument of ambiguity is farfetched here. No one in the petitioner's situation could have reasonably thought that the questions could be answered truthfully as they were. It would have been a palpable absurdity for him to think that his occupation was real estate; he actually had no legal occupation. On this record, his only regular and continuing concern was his bootlegging upon which he depended for his livelihood. He only dabbled in real estate and by his own admission financed even this sideline from 'liquor or gambling.' We need not determine whether the evidence supports the conclusion that petitioner organized Koslo Realty Corporation to provide him with a facade or front to misled the law-enforcement authorities as to his true occupation, although the appearance of a legitimate occupation was obviously convenient for him and his group. We are convinced, however, that the petitioner counted upon the corporation to give plausibility to his representation as to his occupation when he applied for citizenship.
25
Our conclusion that his representations were willfully false is reached without reliance upon an inference from the failure of the petitioner to take the stand in this proceeding and testify in his own behalf. The Court of Appeals made some comments as to the significance of the petitioner's failure to testify, 275 F.2d at page 358, but we do not read its opinion as basing the affirmance of the District Court's order upon such an inference. The district judge, whose order the Court of Appeals affirmed, made none. The evidence so strongly supports the District Court's conclusion that the aid of the inference was unnecessary to buttress it. We therefore find it unnecessary to decide in this case whether an inference may be drawn in a denaturalization proceeding from the failure of the defendant to present himself as a witness.
II.
26
The contention that illegal wiretapping precluded reliance upon the petitioner's admissions rests primarily upon interrogations by New York County District Attorney Frank Hogan in 1943 when the petitioner appeared before the New York County grand jury and the Official Referee in the Appellate Division. State officers had a tap on the petitioner's telephone during several months of 1943. Mr. Hogan made frequent references to the tapped conversations when questioning the petitioner. The petitioner claims that his admissions of bootlegging activities during Prohibition were impelled by the belief that Mr. Hogan had learned from the tapped conversations the information sought by the questions. It is argued that the wiretaps were illegal under our decision in Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126, and that his admissions were therefore to be excluded from evidence as 'fruit of the poisonous tree,' on the reasoning in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, and Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.
27
The short answer to this contention is that we conclude from the record that his truthful answers to Mr. Hogan's questions were not given because he thought that the conversations tapped in 1943 revealed his activities in the Prohibition era, but because he realized that these facts had been known to the authorities for some time. None of Mr. Hogan's questions even implies that Mr. Hogan gained his information from the 1943 wiretaps. Mr. Hogan had a transcript of the 1939 federal grand jury minutes of the petitioner's appearance before that body. The petitioner presses no argument in this Court that his admissions before that grand jury were infected with wiretapping. Early in Mr. Hogan's examination, the petitioner admitted that he recalled being questioned before the grand jury in 1939. The questioning at that proceeding had elicited the petitioner's admission of his bootlegging. Furthermore, his arrest and trial under the 1925 indictment for conspiracy to violate the liquor laws were matters of public record. And in 1938 the petitioner had also admitted his bootlegging to the agent for the Bureau of Internal Revenue. It is plain common sense to conclude that this information, long a matter of official knowledge, not something which he thought might have been disclosed in the 1943 wiretaps, impelled the petitioner to answer Mr. Hogan truthfully.
28
Moreover, District Attorney Hogan testified in the present proceeding. He expressly disavowed that his questions of the petitioner as to his activities during Prohibition were based on the 1943 wiretaps. He testified that his information was derived from files of the District Attorney's office, newspaper reports and court records. Although one of the intercepted telephone conversations was between the petitioner and one O'Connell, a codefendant in the 1925 Prohibition prosecution, Mr. Hogan stated that none of the 1943 wiretaps concerned the petitioner's bootlegging activities. The 1943 grand jury and Appellate Division investigations were concerned only with the petitioner's part in the nomination that year of a candidate for Justice of the State Supreme Court.
29
It is true that the 1943 wiretaps prompted the calling of the petitioner before the county grand jury and the Official Referee. But the 'fruit of the poisonous tree' doctrine excludes evidence obtained from or as a consequence of lawless official acts, not evidence obtained from an 'independent source.' Silverthorne Lumber Co. v. United States, supra, 351 U.S. at page 392, 40 S.Ct. at page 182. We said in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 'Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.' We are satisfied that any knowledge in Mr. Hogan's possession which impelled the petitioner to answer truthfully came from such independent sources and that any connection between the wiretaps and the admissions was too attenuated to require the exclusion of the admissions from evidence.4
III.
30
In contending that lapse of time should be deemed to bar the Government from instituting this proceeding, the petitioner argues that the doctrine of laches should be applied to denaturalization proceedings, and that in any event, the delay of 27 years before bringing denaturalization proceedings denied him due process of law in the circumstances of the case.
31
It has consistently been held in the lower courts that delay which might support a defense of laches in ordinary equitable proceedings between private litigants will not bar a denaturalization proceeding brought by the Government. See United States v. Ali, D.C., 7 F.2d 728; United States v. Marino, D.C., 27 F.Supp. 155; United States v. Cufari, D.C., 120 F.Supp. 941, reversed on other grounds, 1 Cir., 217 F.2d 404; United States v. Parisi, D.C., 24 F.Supp. 414; United States v. Brass, D.C., 37 F.Supp. 698; United States v. Spohrer, C.C., 175 F. 440; United States v. Reinsch, D.C., 50 F.Supp. 971, reversed on other grounds, 9 Cir., 156 F.2d 678; United States v. Schneiderman, D.C., 33 F.Supp. 510, reversed on other grounds, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796. These cases have applied the principle that laches is not a defense against the sovereign. The reason underlying the principle, said Mr. Justice Story, is 'to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers.' United States v. Hoar, C.C., 26 Fed.Cas., pages 329, 330, No. 15,373. This Court has consistently adhered to this principle. See, for example, United States v. Kirkpatrick, 9 Wheat. 720, 735—737, 6 L.Ed. 199; United States v. Knight, 14 Pet. 301, 315, 10 L.Ed. 465; see also United States v. Summerlin, 310 1283; Board of Commissioners of 1283; Board of Commissioners of Jackson County, Kan. v. United States, 308 U.S. 343, 351, 60 S.Ct. 285, 288, 84 L.Ed. 313; United States v. Thompson, 98 U.S. 486, 489, 25 L.Ed. 194.
32
None of the cases in this Court considered the question of the application of laches in a denaturalization proceeding. However, even if we assume the applicability of laches, we think that the petitioner failed to prove both of the elements which are necessary to the recognition of the defense. Laches requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense. See Galliher v. Cadwell, 145 U.S. 368, 372, 12 S.Ct. 873, 874, 36 L.Ed. 738; Southern Pacific Co. v. Bogert, 250 U.S. 483, 488—490, 39 S.Ct. 533, 535, 63 L.Ed. 1099; Gardner v. Panama R. Co., 342 U.S. 29, 31, 72 S.Ct. 12, 13, 96 L.Ed. 31.
33
The petitioner alleges lack of diligence in the Government's failure to proceed to revoke his certificate within a reasonable time after his arrest and trial under the 1925 indictment for conspiracy to violate the Prohibition laws, or at least within a reasonable time after his admissions before the federal grand jury in 1939. There is no necessity to determine the merits of this argument, for the record is clear that the petitioner was not prejudiced by the Government's delay in any way which satisfies this requisite of laches. In Brown v. County of Buena Vista, 95 U.S. 157, 161, 24 L.Ed. 422, this Court said: 'The law of laches, like the principle of the limitation of actions, was dictated by experience, and is founded in a salutary policy. The lapse of time carries with it the memory and life of witnesses, the muniments of evidence, and other means of proof.' Insofar as these factors inherent in the lapse of time were operative in the present case, they seem plainly to have worked to petitioner's benefit, not to his detriment. The evidence of the petitioner's real estate activity consisted almost exclusively of public records. There is no suggestion that these records are not all the evidence of real estate activity there is or that any had been destroyed or were unavailable. Nor do we perceive any prejudice to the petitioner in the fact that the Naturalization Examiners who processed his application, the witnesses who appeared for him, and the judge who admitted him to citizenship, are dead. The examiners and the judge obviously could supply no evidence bearing on his claim that real estate was his occupation. Their knowledge on that subject came from him. And it stretches credulity to suppose that he would have inquired of those officials whether 'occupation' meant lawful occupation. Finally, the petitioner does not suggest how the witnesses who supported his petition could have aided him on any issue material in this proceeding. In addition, his bootlegging associate, Sausser, died in 1926, and would not have been available even had the Government brought a proceeding immediately after the criminal trial.
34
Indeed, any harm from the lapse of time was to the Government's case. Although that case was supported primarily by documentary proofs and the petitioner's admissions, the Government supplemented this evidence with the testimony of the petitioner's associates in the bootlegging enterprise, and of others who had knowledge of those events. The Government's proof was made more difficult when a number of the witnesses admitted that their memories of details had dimmed with the passage of the years.
35
We cannot say, moreover, that the delay denied the petitioner fundamental fairness. He suffered no prejudice from any inability to prove his defenses. Rather, the harm he may suffer lies in the harsh consequences which may attend his loss of citizenship. He has been a resident of the United States for over 65 years, since the age of four. We may assume that he has built a life in reliance upon that citizenship. But Congress has not enacted a time bar applicable to proceedings to revoke citizenship procured by fraud. On this record, the petitioner never had a right to his citizenship. Depriving him of his fraudulently acquired privilege, even after the lapse of many years, is not so unreasonable as to constitute a denial of due process. Cf. Johannessen v. United States, 225 U.S. 227, 242 243, 32 S.Ct. 613, 617, 56 L.Ed. 1066.
IV.
36
The petitioner moved for leave to amend his petition for a writ of certiorari to add a question whether the present proceeding was barred by the order of the District Court dismissing the earlier proceeding on remand, without specifying whether the dismissal was with or without prejudice. We deferred decision on the motion pending oral argument. The motion is granted and we proceed to determine the merits of the question.
37
It is the petitioner's contention that the order dismissing the earlier complaint must be construed to be with prejudice because it did not specify that it was without prejudice, and the ground of dismissal was not within one of the exceptions under Rule 41(b) of the Federal Rules of Civil Procedure. That Rule provides:
38
'For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.' We hold that a dismissal for failure to file the affidavit of good cause is a dismissal 'for lack of jurisdiction,' within the meaning of the exception under Rule 41(b). In arguing contra, the petitioner relies on cases which hold that a judgment of denaturalization resulting from a proceeding in which the affidavit of good cause was not filed is not open to collateral attack on that ground. Title v. United States, 9 Cir., 263 F.2d 28; United States v. Failla, D.C., 164 F.Supp. 307. We think that petitioner misconceives the scope of this exception from the dismissals under Rule 41(b) which operate as adjudications on the merits unless the court specifies otherwise. It is too narrow a reading of the exception to relate the concept of jurisdiction embodied there to the fundamental jurisdictional defects which render a judgment void and subject to collateral attack, such as lack of jurisdiction over the person or subject matter. We regard the exception as encompassing those dismissals which are based on a plaintiff's failure to comply with a precondition requisite to the Court's going forward to determine the merits of his substantive claim. Failure to file the affidavit of good cause in a denaturalization proceeding falls within this category. United States v. Zucca, supra; Costello v. United States, 356 U.S. 256, 78 S.Ct. 714, 2 L.Ed.2d 741.
39
At common law dismissal on a ground not going to the merits was not ordinarily a bar to a subsequent action on the same claim. In Haldeman v. United States, 91 U.S. 584, 585—586, 23 L.Ed. 433, which concerned a voluntary nonsuit, this Court said, 'there must be at least one decision on a right between the parties before there can be said to be a termination of the controversy, and before a judgment can avail as a bar to a subsequent suit. * * * There must have been a right adjudicated or released in the first suit to make it a bar, and this fact must appear affirmatively.' A similar view applied to many dismissals on the motion of a defendant. In Hughes v. United States, 4 Wall. 232, 237, 18 L.Ed. 303, it was said: 'In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.' See also House v. Mullen, 22 Wall. 42, 46, 22 L.Ed. 838; Swift v. McPherson, 232 U.S. 51, 56, 34 S.Ct. 239, 241, 58 L.Ed. 499; St. Romes v. Levee Steam Cotton Press Co., 127 U.S. 614, 619, 8 S.Ct. 1335, 1338, 32 L.Ed. 289; Burgett v. United States, 7 Cir., 80 F.2d 151, 104 A.L.R. 167; Gardner v. United States, 9 Cir., 71 F.2d 63.
40
We do not discern in Rule 41(b) a purpose to change this common-law principle with respect to dismissals in which the merits could not be reached for failure of the plaintiff to satisfy a precondition. All of the dismissals enumerated in Rule 41(b) which operate as adjudications on the merits—failure of the plaintiff to prosecute, or to comply with the Rules of Civil Procedure, or to comply with an order of the Court, or to present evidence showing a right to the relief on the facts and the law primarily involve situations in which the defendant must incur the inconvenience of preparing to meet the merits because there is no initial bar to the Court's reaching them. It is therefore logical that a dismissal on one of these grounds should, unless the Court otherwise specifies, bar a subsequent action. In defining the situations where dismissals 'not provided for in this rule' also operate as adjudications on the merits, and are not to be deemed jurisdictional, it seems reasonable to confine them to those situations where the policy behind the enumerated grounds is equally applicable. Thus a sua sponte dismissal by the Court for failure of the plaintiff to comply with an order of the Court should be governed by the same policy. Although a sua sponte dismissal is not an enumerated ground, here too the defendant has been put to the trouble of preparing his defense because there was no initial bar to the Court's reaching the merits. See United States v. Procter & Gamble Co., 356 U.S. 677, 680, and footnote 4, 78 S.Ct. 983, 985, 2 L.Ed.2d 1077; Amercan Nat. Bank & Trust Co. of Chicago v. United States, 79 U.S.App.D.C. 62, 142 F.2d 571.5
41
In contrast, the failure of the Government to file the affidavit of good cause in a denaturalization proceeding does not present a situation calling for the application of the policy making dismissals operative as adjudications on the merits. The defendant is not put to the necessity of preparing a defense because the failure of the Government to file the affidavit with the complaint require the dismissal of the proceeding. Nothing in the term 'jurisdiction' requires giving it the limited meaning that the petitioner would ascribe to it. Among the terms of art in the law, 'jurisdiction' can hardly be said to have a fixed content. It has been applied to characterize other prerequisites of adjudication which will not be re-examined in subsequent proceedings and must be brought into controversy in the original action if a defendant is to litigate them at all. See, e.g., Des Moines Navigation & R. Co. v. Iowa Homestead Co., 123 U.S. 552, 8 S.Ct. 217, 31 L.Ed. 202 (diversity of citizenship); In re Sawyer, 124 U.S. 200, 200—221, 8 S.Ct. 482, 492, 31 L.Ed. 402 (jurisdictional amount). See generally Noble v. Union River Logging R. Co., 147 U.S. 165, 173—174, 13 S.Ct. 271, 273, 37 L.Ed. 123. Decisions in the lower courts applying the exception construe 'jurisdiction' to encompass dismissals on grounds similar to that in the present case. See Madden v. Perry, 7 Cir., 264 F.2d 169; Myers v. Westland Oil Co., D.C., 96 F.Supp. 667, reversed on other grounds, 8 Cir., 181 F.2d 371. We therefore hold that the Government was not barred from instituting the present proceeding.
42
Affirmed.
43
Mr. Justice HARLAN took no part in the consideration or decision of this case.
44
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
45
I do not think 'bootlegging' per se would have been a ground for denying naturalization to an alien in the 1920's. If it were, it would be an act of hypocrisy unparalleled in American life. For the 'bootlegger' in those days came into being because of the demand of the great bulk of people in our communities—including lawyers, prosecutors, and judges—for his products. However, that may be, the forms of naturalization in use at the time did not ask for disclosure of all business activities of an applicant or of all sources of income. If that had been asked and if only one source of income were disclosed, then there would be a concealment relevant to our present problem—whether the nondisclosed income was from bootlegging, playing the races, bridge or poker games, or something else. The 'occupation' of an applicant was the question in the form Costello filed.* The form of the petition for naturalization did not ask for more; and unless we can say that 'real estate' was not his 'occupation' then we cannot let this denaturalization order stand. The Koslo Realty Corporation actually existed and petitioner was its president. It actually engaged in real estate transactions. The fact that this real estate business was secondary in petitioner's regime did not make it any the less his 'occupation.' Petitioner answered truthfully when he listed 'real estate' as his 'occupation.' He did not answer truthfully if the answer is taken to embrace all his sources of income. But, as I said, the form did not require that complete disclosure; and I would not resolve any ambiguity in favor of the Government. We could not do so and be true to the strict standard exacted from the Government by Schneiderman v. United States, 320 U.S. 118, 122—123, 63 S.Ct. 1333, 1335, 87 L.Ed. 1796.
1
The statute, 66 Stat. 260, as amended, 68 Stat. 1232; 8 U.S.C. § 1451, 8 U.S.C.A. § 1451, reads in pertinent part as follows:
'(a) Concealment of material evidence; refusal to testify.
'It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court specified in subsection (a) of section 1421 of this title in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively: * * *.'
2
The District Court also found that the petitioner knowingly and willfully swore false allegiance to the Constitution and laws of the United States. Like the Court of Appeals, 275 F.2d, at page 360, we find it unnecessary to pass upon the petitioner's attack upon this finding, since we think that the revocation of his citizenship on the first ground was clearly correct.
3
Section 340(a) authorizes denaturalization on the single ground of 'concealment of a material fact or * * * willful misrepresentation.' Its predecessors, § 338(a) of the Nationality Act of 1940, and § 15 of the original Act of Congress in 1906 giving statutory basis for denaturalization, authorized denaturalization for 'fraud' or illegal procurement. The change from 'fraud' to 'concealment of a material fact or * * * willful misrepresentation' apparently was made primarily to remove doubt as to whether denaturalization could be based on so-called 'intrinsic' fraud, fraud through false swearing in the naturalization proceedings, or only on the traditional equity ground for cancellation of a judgment, 'extrinsic' fraud, inhering in activities collateral to the proceedings themselves such as the concealment of witnesses from the court. Certain lower court cases had indicated that only extrinsic fraud might be encompassed within the term, compare United States v. Kusche, D.C., 56 F.Supp. 201, with United States v. Hauck, 2 Cir., 155 F.2d 141, in accordance with the rule that had apparently been applied to revocation of a judgment admitting to citizenship prior to the Act of 1906, see United States v. Gleeson, 2 Cir., 90 F. 778; cf. United States v. Norsch, C.C., 42 F. 417. Congress thus acted in 1952 to make it clear that false statements in the course of the naturalization proceedings could be the basis for revocation of citizenship. See S.Rep. No. 1515, 81st Cong., 2d Sess. 756—769. But there appears to be no congressional purpose to lay down a looser definitional standard for 'willful misrepresentation' or laxer requirements of proof than had previously been applied by the courts which held misstatements during naturalization proceedings to constitute fraud under the prior statutes. The practice of the Immigration and Naturalization Service apparently treated 'fraud' under the older Acts as involving willful misrepresentation or concealment of material facts. See S.Rep. No. 1515, 81st Cong., 2d Sess. 756.
4
The petitioner makes reference to the opinion of the District Court rendered upon the dismissal of the first complaint. That opinion rested the conclusion that the affidavit of good cause and the evidence were infected with wiretapping partly upon wiretaps said to have been made in the 1920's. The district judge found 'indications of the extensive use of wire taps covering a period of many years and beginning in the 1920's.' 145 F.Supp. at page 894. However, the district judge in this proceeding heard the testimony of two former Assistant United States Attorneys who conducted the investigation leading to the petitioner's indictment in 1925. The district judge 'accepted as true' their testimony 'that the Government's information as to the bootlegging activities of Costello was not derived from telephone conversations but was derived from statements of certain individuals acquainted with the defendant's activities.' 171 F.Supp. at page 25. We see no basis for disturbing this finding and the District Court's conclusion that no taint from wiretaps in the 1920's infected the later admissions made by the petitioner.
5
The inapplicability of the policy of the rule to other dismissals for failure to meet a precondition of adjudication has been recognized. The Advisory Committee on Amendments to the Federal Rules recommended in 1955 the addition of another specific exception, for dismissals for 'lack of an indispensable party.' Although the proposal was not adopted, one commentator has written:
'Undoubtedly a dismissal for lack of an indispensable party should be a dismissal without prejudice since the dismissal proceeds on the theory that his presence is required in order that the court may make an adjudication equitable to all persons involved. * * * The Committee's proposal would, however, take care of the situation where the court did not specifically provide that the dismissal was without prejudice; and thus expressly provide a result which the courts, of necessity, would have to reach even if the dismissal did not specify that it was without prejudice.' 5 Moore, Federal Practice, 1959, Cum.Supp., p. 38.
*
The printed form of the Petition for Naturalization in use at the time had in it as item 'Second' a line headed 'My occupation is.' After these words petitioner entered the words 'Real Estate.'
| 12
|
365 U.S. 293
81 S.Ct. 555
5 L.Ed.2d 571
Robert F. NOLAN, Administrator, et al., Petitioners,v.TRANSOCEAN AIR LINES.
No. 107.
Argued Jan. 12 and 13, 1961.
Decided Feb. 20, 1961.
Mr. Robert A. Dwyer, New York City, for petitioners.
Mr. William J. Junkerman, New York City, for respondent.
PER CURIAM.
1
This action was brought in the United States District Court for the Southern District of New York to recover damages for the wrongful death of Jasper W. Hall, a resident of South Carolina, who was killed in California in the crash of an airplane operated by defendant-respondent Transocean Air Lines. Plaintiffs, petitioners here, are the decedent's South Carolina-appointed administrator, decedent's widow, and decedent's minor child, who sues through the widow, her mother, appointed her guardian ad litem by the District Court. Federal jurisdiction was predicated solely on diversity of citizenship—the administrator being a New York resident, the widow and child South Carolina residents, the airline a California corporation with its principal place of business in California—and the substantive basis of the claim was California's Wrongful Death Statute, Cal.Code Civ.Proc. § 377, made applicable by the New York choice-of-law rules, see Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412, which govern this diversity action. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477. The defendant, by its answer, set up the Statute of Limitations, and subsequently moved for summary judgment on the ground that the action was time-barred. Enforcing the one-year limitations period deemed controlling under Cal.Code Civ.Proc. § 340, brought into operation by New York's 'borrowing statute,' N.Y.Civil Practice Act, § 13, the District Court held that the Statute had run as to the widow, and hence that the child and the administrator were also barred under the California doctrine, announced by California District Courts of Appeals in Sears v. Majors, 104 Cal.App. 60, 285 P. 321, and Haro v. Southern P.R. Co., 17 Cal.App.2d 594, 62 P.2d 441, that where one beneficiary of a wrongful death claim is time-barred, all beneficiaries are time-barred, the cause of action being 'joint.' 173 F.Supp. 114. There was no decision on this precise point by the Supreme Court of California; that court had left Sears and Haro undisturbed. See also Gates v. Wendling Nathan Co., 27 Cal.App.2d 307, 81 P.2d 173; Glavich v. Industrial Accident Commission, 44 Cal.App.2d 517, 112 P. 2d 774 (dictum). The District Court's order granting the motion for summary judgment was affirmed by the Court of Appeals for the Second Circuit. 276 F.2d 280. We granted certiorari. 363 U.S. 836, 80 S.Ct. 1614, 4 L.Ed.2d 1723.
2
The writ brought here several points decided adversely to petitioners below. We need discuss only one issue, for its determination disposes of the case. The Sears and Haro cases, regarded by the District Court and the Court of Appeals as controlling the effect upon a claim for wrongful death of the running of the Statute of Limitations upon one but not upon another of the decedent's heirs (the latter being under a limitations—tolling disability), were decided in 1930 and 1936, respectively, and Gates in 1938, by California District Courts of Appeal. In December 1959, the Supreme Court of California, en banc, decided Leeper v. Beltrami, 53 Cal.2d 195, 1 Cal.Rptr. 12, 347 P.2d 12, 22, which, in a considered dictum construing Cal.Code Civ.Proc. § 352, stated: 'If the cause of action were a joint one, the statute would be tolled as to both. 'If an action not severable is not barred as to one of the parties on account of his infancy at the time the cause of action arose, it is not barred as to either of the other parties." Id., 53 Cal.2d at pages 208—209, 1 Cal.Rptr. at page 22, 347 P.2d at page 22.
3
This case was handed down after the District Court's ruling granting summary judgment for respondent in the present litigation, and only shortly before argument in the Court of Appeals. It was not brought to the attention of, and was not considered by, that court. Inasmuch as the view expressed therein by the highest court of California may be decisive of an issue critical to petitioners' claims, and inasmuch as the Court of Appeals for the Second Circuit is charged with mandatory appellate review in the present case, that court should decide what relative weights, as authoritative sources for ascertaining California law, the New York Court of Appeals would accord to the Sears-Haro line (direct holdings of District Courts of Appeal between 1930 and 1933) and to Leeper (a considered, relevant dictum of general scope by the California Supreme Court in 1959). We set aside the judgment of the Court of Appeals and remand to that court for reconsideration of the case in light of the new factor introduced by Leeper v. Beltrami, supra. So ordered.
4
Judgment of Court of Appeals set aside and case remanded.
| 78
|
365 U.S. 260
81 S.Ct. 557
5 L.Ed.2d 546
Carl SCHNELL et al., Petitioners,v.PETER ECKRICH & SONS, INC., et al.
No. 219.
Argued Jan. 11, 1961.
Decided Feb. 20, 1961.
Mr. Charles J. Merriam, Chicago, Ill., for petitioners.
Mr. M. Hudson Rathburn, Chicago, Ill., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
The sole issue in this patent infringement suit, filed in the Northern District of Indiana, is whether as a matter of law respondent Allbright-Nell Co., an Illinois manufacturer, by openly assuming and controlling in this action the defense of its customer, respondent Peter Eckrich & Sons, Inc., of Indiana, subjected itself to the jurisdiction of that court and waived the statutory venue requirements of 28 U.S.C. § 1400(b), 28 U.S.C.A. § 1400(b).1 The motion of Allbright-Nell to dismiss as to it because venue in the Northern District of Indiana was improper was sustained without opinion. The Court of Appeals affirmed, 279 F.2d 594.2 We granted certiorari, 364 U.S. 813, 81 S.Ct. 60, 5 L.Ed.2d 45. We affirm the judgment.
2
Allbright-Nell manufactured the alleged infringing device, a machine for cutting sausage meat, known as the 'ANCO Emulsitator.' It sold some of the devices to Eckrich, whose principal place of business was at Fort Wayne, Indiana. In the contract of sale, Allbright-Nell agreed to defend any infringement suits which might be filed against Eckrich involving the device and to bear all of the expense thereof, including any recovery. While Eckrich was using the machines, petitioners sued it in Indiana for infringement.3 Pursuant to its contract, Allbright-Nell employed attorneys who defended the suit in the name of Eckrich. Thereafter, before any judgment was entered, petitioners amended their complaint, naming Allbright-Nell as a party defendant. Service was made upon Allbright-Nell by serving its president in Illinois. Motions to quash (on the ground that such service was made outside of the jurisdiction of the court) and to dismiss (on the ground that venue under § 1400(b) was improper) were promptly filed. The petitioners admit that this service conferred no jurisdiction on the court and also concede that Allbright-Nell had no place of business in Indiana and, therefore, under § 1400(b), venue as to it could not lie in Indiana. However, they urge that the presence of Allbright-Nell through the attorneys, openly defending and controlling the suit against Eckrich, gave the court jurisdiction over the former.4 In effect, petitioners argue, Allbright-Nell was in fact before the court protecting its own interests, was acting only as a 'puppeteer' of Eckrich, and was seeking all the benefits of litigation but attempting to avoid all of its responsibilities, save the ultimate application of res judicata. It, therefore, should be deemed to have entered a general appearance and waived its objection to venue. In the face of § 1400(b), however, we think not.
3
While objection to venue 'may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct, * * * courts affix to conduct (such) consequences as to place of suit consistent with the policy behind' the applicable venue statute. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 155, 84 L.Ed. 167. As is pointed out in the cases, Congress adopted the predecessor to § 1400(b) as a special venue statute in patent infringement actions to eliminate the 'abuses engendered' by previous venue provisions allowing such suits to be brought in any district in which the defendant could be served. Stonite Products Co. v. Melvin Lloyd Co., 315 U.S. 561, 62 S.Ct. 780, 86 L.Ed. 1026. The Act was designed 'to define the exact jurisdiction of the * * * courts in these matters,' 315 U.S. at page 565, note 5, 62 S.Ct. at page 782, and not to 'dovetail with the general (venue) provisions.' Id., 315 U.S. 566, 62 S.Ct. 782. As late as 1957 we have held § 1400(b) to be 'the sole and exclusive provision controlling venue in patent infringements actions.' Fourco Glass Co. v. Transmirra Products Corp., 1957, 353 U.S. 222, 229, 77 S.Ct. 787, 792, 1 L.Ed.2d 786. The language of this special statute is clear and specific. The practice complained of here was not at all unusual at the time of this statute's passage,5 and for us to enlarge upon the mandate of the Congress as to venue in such patent actions would be an intrusion into the legislative field.
4
In fact, the petitioners would have us do now what this Court specifically refused to do 45 years ago in Merriam Co. v. Saalfield, 1916, 241 U.S. 22, 36 S.Ct. 477, 60 L.Ed. 868. There the entire defense of the named defendant (Saalfield) was openly financed and controlled by one Ogilvie, as to whom venue was improper; Merriam sought by supplemental bill to make Ogilvie a defendant before a final judgment was rendered, but after the issue of unfair competition ahd been decided; and Ogilvie would have been bound by the final judgment under res judicata. Nevertheless, his seasonable motion to quash the substituted service had upon the attorneys defending Saalfield was sustained. We believe the holding in Merriam completely supports our conclusion here. If a general appearance could be found in such conduct, the facts there were stronger, for the proceedings against Saalfield, handled entirely by Ogilvie, had progressed to the appointment of a master to determine the amount of damages. All that remained when it was sought to join Ogilvie was an accounting. Yet a unanimous Court sustained the dismissal, saying:
5
'(I)f the decree (of injunction and accounting) * * * was not final as between appellant (Merriam Co.) and Saalfield, it cannot be res judicata as against Ogilvie; and thus the fundamental ground for proceeding against the latter by * * * substituted service of process disappears. This sufficiently shows the weakness of appellant's position, which, upon analysis, is found to be this: that upon the theory that Ogilvie would be estopped by a final decree if and when made, it sought to bring him into the suit, before final decree, as if he were already estopped. However convenient this might be to a complainant in appellant's position, it is inconsistent with elementary principles.' 241 U.S. at pages 28—29, 36 S.Ct. at page 480.
6
Petitioners stress that here the conduct of Allbright-Nell continued after it was named a party. We are not persuaded that this has any bearing upon the issue to be decided. The conduct which will amount to a waiver of venue is that of the defendant alone and nothing a plaintiff might do can change the legal consequences which attach to that conduct. Cf. Olberding v. Illinois Central R. Co., 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39. Certainly the point in time at which petitioners sought to join Allbright-Nell will control the amount of its total activities which will be considered in determining whether venue has been waived; but this cannot alter the conclusions to be drawn from that conduct. Therefore, whether Allbright-Nell's actions took place before or after being named a party is immaterial to the question of waiver under the special venue provisions of § 1400(b).
7
Petitioners insist that this result exalts form over substance. We think not. 'The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a 'liberal' construction.' Olberding v. Illinois Central R. Co., supra, 346 U.S. at page 340, 71 S.Ct. at page 85.
8
Affirmed.
1
28 U.S.C. § 1400(b), 28 U.S.C.A. § 1400(b):
'Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.'
2
The appeal was allowed under 28 U.S.C. § 1292(b), 28 U.S.C.A. § 1292(b) on the certificate of the District Court that the order dismissing Allbright-Nell involved a controlling question of law and that immediate appeal would materially advance the termination of the litigation.
3
Subsequently, a second suit involving a different patent was filed in the same court, naming both of the respondents here as defendants. The court entered similar orders in it, and the cases were consolidated on appeal.
4
It is conceded that Allbright-Nell, by openly controlling the defense of this suit, in which it has an interest, will be bound by the final judgment and precluded by res judicata, from relitigating the same issues. Souffront v. La Compagnie Des Sucreries De Porto Rico, 217 U.S. 475, 30 S.Ct. 608, 54 L.Ed. 846; Lovejoy v. Murray, 3 Wall. 1, 18 L.Ed. 129.
5
Some 30 years prior to that time this Court had occasion to pass on the effect of such conduct with relation to res judicata in Lovejoy v. Murray, 1866, 3 Wall. 1, 19, 18 L.Ed. 129, which held that one who controlled the defense in a suit was precluded from relitigating in a second action the issues adjudicated in the first.
| 89
|
365 U.S. 167
81 S.Ct. 473
5 L.Ed.2d 492
James MONROE et al., Petitioners,v.Frank PAPE et al.
No. 39.
Argued Nov. 8, 1960.
Decided Feb. 20, 1961.
Mr. Donald Page Moore, Chicago, Ill., for petitioners.
Mr. Sydney R. Drebin, Chicago, Ill., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case presents important questions concerning the construction of R.S. § 1979, 42 U.S.C. § 1983, 42 U.S.C.A. § 1983, which reads as follows:
2
'Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
3
The complaint alleges that 13 Chicago police officers broke into petitioners' home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers. It further alleges that Mr. Monroe was then taken to the police station and detained on 'open' charges for 10 hours, while he was interrogated about a two-day-old murder, that he was not taken before a magistrate, though one was accessible, that he was not permitted to call his family or attorney, that he was subsequently released without criminal charges being preferred against him. It is alleged that the officers had no search warrant and no arrest warrant and that they acted 'under color of the statutes, ordinances, regulations, customs and usages' of Illinois and of the City of Chicago. Federal jurisdiction was asserted under R.S. § 1979, which we have set out above, and 28 U.S.C. § 1343, 28 U.S.C.A. s 1343,1 and 28 U.S.C. § 1331, 28 U.S.C.A. § 1331.2
4
The City of Chicago moved to dismiss the complaint on the ground that it is not liable under the Civil Rights Acts nor for acts committed in performance of its governmental functions. All defendants moved to dismiss, alleging that the complaint alleged no cause of action under those Acts or under the Federal Constitution. The District Court dismissed the complaint. The Court of Appeals affirmed, 272 F.2d 365, relying on its earlier decision, Stift v. Lynch, 7 Cir., 267 F.2d 237. The case is here on a writ of certiorari which we granted because of a seeming conflict of that ruling with our prior cases. 362 U.S. 926, 80 S.Ct. 756, 4 L.Ed.2d 745.
I.
5
Petitioners claim that the invasion of their home and the subsequent search without a warrant and the arrest and detention of Mr. Monroe without a warrant and without arraignment constituted a deprivation of their 'rights, privileges, or immunities secured by the Constitution' within the meaning of R.S. § 1979. It has been said that when 18 U.S.C. § 241, 18 U.S.C.A. § 241, made criminal a conspiracy 'to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution,' it embraced only rights that an individual has by reason of his relation to the central government, not to state governments. United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758. Cf. United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340. But the history of the section of the Civil Rights Act presently involved does not permit such a narrow interpretation.
6
Section 1979 came onto the books as § 1 of the Ku Klux Act of April 20, 1871. 17 Stat. 13. It was one of the means whereby Congress exercised the power vested in it by § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment.3 Senator Edmunds, Chairman of the Senate Committee on the Judiciary, said concerning this section:
7
'The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill,4 which has since become a part of the Constitution,'5 viz., the Fourteenth Amendment.
8
Its purpose is plain from the title of the legislation, 'An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.' 17 Stat. 13. Allegation of facts constituting a deprivation under color of state authority of a right guaranteed by the Fourteenth Amendment satisfies to that extent the requirement of R.S. § 1979. See Douglas v. City of Jeannette, 319 U.S. 157, 161—162, 63 S.Ct. 877, 880, 87 L.Ed. 1324. So far petitioners are on solid ground. For the guarantee against unreasonable searches and seizures contained in the Fourth Amendment has been made applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 1441, 4 L.Ed.2d 1669.
II.
9
There can be no doubt at least since Ex parte Virginia, 100 U.S. 339, 346—347, 25 L.Ed. 676, that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it. See Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 287—296, 33 S.Ct. 312, 314, 318, 57 L.Ed. 510. The question with which we now deal is the narrower one of whether Congress, in enacting § 1979, meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position. Cf. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368. We conclude that it did so intend.
10
It is argued that 'under color of' enumerated state authority excludes acts of an official or policeman who can show no authority under state law, state custom, or state usage to do what he did. In this case it is said that these policemen, in breaking into petitioners' apartment, violated the Constitution6 and laws of Illinois. It is pointed out that under Illinois law a simple remedy is offered for that violation and that, so far as it appears, the courts of Illinois are available to give petitioners that full redress which the common law affords for violence done to a person; and it is earnestly argued that no 'statute, ordinance, regulation, custom or usage' of Illinois bars that redress.
11
The Ku Klux Act grew out of a message sent to Congress by President Grant on March 23, 1871, reading:
12
'A condition of affairs now exists in some States of the Union rendering life and property insecure and the carrying of the mails and the collection of the revenue dangerous. The proof that such a condition of affairs exists in some localities is now before the Senate. That the power to correct these evils is beyond the control of State authorities I do not doubt; that the power of the Executive of the United States, acting within the limits of existing laws, is sufficient for present emergencies is not clear. Therefore, I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States. * * *'7
13
The legislation—in particular the section with which we are now concerned—had several purposes. There are threads of many thoughts running through the debates. One who reads them in their entirety sees that the present section had three main aims.
14
First, it might, of course, override certains kinds of state laws. Mr. Sloss of Alabama, in opposition, spoke of that object and emphasized that it was irrelevant because there were no such laws:8
15
'The first section of this bill prohibits any invidious legislation by States against the rights or privileges of citizens of the United States. The object of this section is not very clear, as it is not pretended by its advocates on this floor that any State has passed any laws endangering the rights or privileges of the colored people.'
16
Second, it provided a remedy where state law was inadequate. That aspect of the legislation was summed up as follows by Senator Sherman of Ohio:
17
'* * * it is said the reason is that any offense may be committed upon a negro by a white man, and a negro cannot testify in any case against a white man, so that the only way by which any conviction can be had in Kentucky in those cases is in the United States courts, because the United States courts enforce the United States laws by which negroes may testify.'9
18
But the purposes were much broader. The third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice. The opposition to the measure complained that 'It overrides the reserved powers of the States,'10 just as they argued that the second section of the bill 'absorb(ed) the entire jurisdiction of the State over their local and domestic affairs.'11
19
This Act of April 20, 1871, sometimes called 'the third 'force bill," was passed by a Congress that had the Klan 'particularly in mind.'12 The debates are replete with references to the lawless conditions existing in the South in 1871. There was available to the Congress during these debates a report, nearly 600 pages in length, dealing with the activities of the Klan and the inability of the state governments to cope with it.13 This report was drawn on by many of the speakers.14 It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this 'force bill.' Mr. Lowe of Kansas said:
20
'While murder is stalking abroad in disguise, while whippings and lynchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.'15
21
Mr. Beatty of Ohio summarized in the House the case for the bill when he said:
22
'* * * certain States have denied to persons within their jurisdiction the equal protection of the laws. The proof on this point is voluminous and unquestionable. * * * (M)en were murdered, houses were burned, women were outraged, men were scouraged, and officers of the law shot down; and the State made no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent. The State, from lack of power or inclination, practically denied the equal protection of the law to these persons.'16
23
While one main scourge of the evil—perhaps the leading one was the Ku Klux Klan,17 the remedy created was not a remedy against it or its members but against those who representing a State in some capacity were unable or unwilling to enforce a state law. Senator Osborn of Florida put the problem in these terms:18
24
'That the State courts in the several States have been unable to enforce the criminal laws of their respective States or to suppress the disorders existing, and in fact that the preservation of life and property in many sections of the country is beyond the power of the State government, is a sufficient reason why Congress should, so far as they have authority under the Constitution, enact the laws necessary for the protection of citizens of the United States. The question of the constitutional authority for the requisite legislation has been sufficiently discussed.'
25
There was, it was said, no quarrel with the state laws on the books. It was their lack of enforcement that was the nub of the difficulty. Speaking of conditions in Virginia, Mr. Porter of that State said:19
26
'The outrages committed upon loyal men there are under the forms of law.'
27
Mr. Burchard of Illinois pointed out that the statutes of a State may show no discrimination:20
28
'If the State Legislature pass a law discriminating against any portion of its citizens, or if it fails to enact provisions equally applicable to every class for the protection of their person and property, it will be admitted that the State does not afford the equal protection. But if the statutes show no discrimination, yet in its judicial tribunals one class is unable to secure that enforcement of their rights and punishment for their infraction which is accorded to another, or if secret combinations of men are allowed by the Executive to band together to deprive one class of citizens of their legal rights without a proper effort to discover, detect, and punish the violations of law and order, the State has not afforded to all its citizens the equal protection of the laws.'
Mr. Hoar of Massachusetts stated:21
29
'Now, it is an effectual denial by a State of the equal protection of the laws when any class of officers charged under the laws with their administration permanently and as a rule refuse to extend that protection. If every sheriff in South Carolina refuses to serve a writ for a colored man and those sheriffs are kept in office year after year by the people of South Carolina, and no verdict against them for their failure of duty can be obtained before a South Carolina jury, the State of South Carolina, through the class of officers who are its representatives to afford the equal protection of the laws to that class of citizens, has denied that protection. If the jurors of South Carolina constantly and as a rule refuse to do justice between man and man where the rights of a particular class of its citizens are concerned, and that State affords by its legislation no remedy, that is as much a denial to that class of citizens of the equal protection of the laws as if the State itself put on its statute-book a statute enacting that no verdict should be rendered in the courts of that State in favor of this class of citizens.' Senator Pratt of Indiana spoke of the discrimination against Union sympathizers and Negroes in the actual enforcement of the laws:22
30
'Plausibly and sophistically it is said the laws of North Carolina do not discriminate against them; that the provisions in favor of rights and liberties are general; that the courts are open to all; that juries, grand and petit, are commanded to hear and redress without distinction as to color, race, or political sentiment.
31
'But it is a fact, asserted in the report, that of the hundreds of outrages committed upon loyal people through the agency of this Ku Klux organization not one has been punished. This defect in the administration of the laws does not extend to other cases. Vigorously enough are the laws enforced against Union people. They only fail in efficiency when a man of known Union sentiments, white or black, invokes their aid. Then Justice closes the door of her temples.'
32
It was precisely that breadth of the remedy which the opposition emphasized. Mr. Kerr of Indiana referring to the section involved in the present litigation said:
33
'This section gives to any person who may have been injured in any of his rights, privileges, or immunities of person or property, a civil action for damages against the wrongdoer in the Federal courts. The offenses committed against him may be the common violations of the municipal law of his State. It may give rise to numerous vexations and outrageous prosecutions, inspired by mere mercenary considerations, prosecuted in a spirit of plunder, aided by the crimes of perjury and subornation of perjury, more reckless and dangerous to society than the alleged offenses out of which the cause of action may have arisen. It is a covert attempt to transfer another large portion of jurisdiction from the State tribunals, to which it of right belongs, to those of the United States. It is neither authorized nor expedient, and is not calculated to bring peace, or order, or domestic content and prosperity to the disturbed society of the South. The contrary will certainly be its effect.'23
34
Mr. Voorhees of Indiana, also speaking in opposition, gave it the same construction:24
35
'And now for a few moments let us inspect the provisions of this bill, inspired as it is by the waning and decaying fortunes of the party in power, and called for, as I have shown, by no public necessity whatever. The first and second sections are designed to transfer all criminal jurisdiction from the courts of the States to the courts of the United States. This is to be done upon the assumption that the courts of the southern States fail and refuse to do their duty in the punishment of offenders against the law.'
36
Senator Thurman of Ohio spoke in the same vein about the section we are now considering:25
37
'It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrongdoer in the Federal courts, and that without any limit whatsoever as to the amount in controversy. The deprivation may be of the slightest conceivable character, the damages in the estimation of any sensible man may not be five dollars or even five cents; they may be what lawyers call merely nominal damages; and yet by this section jurisdiction of that civil action is given to the Federal courts instead of its being prosecuted as now in the courts of the States.'
38
The debates were long and extensive. It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.
39
Much is made of the history of § 2 of the proposed legislation. As introduced § 2 was very broad:
40
'* * * if two or more persons shall, within the limits of any State, band, conspire, or combine together to do any act in violation of the rights, privileges, or immunities of any person, to which he is entitled under the Constitution and laws of the United States, which, committed within a place under the sole and exclusive jurisdiction of the United States, would, under any law of the United States then in force, constitute the crime of either murder, manslaughter, mayhem, robbery, assault and battery, perjury, subornation of perjury, criminal obstruction of legal process or resistance of officers in discharge of official duty, arson, of larceny; and if one or more of the parties to said conspiracy or combination shall do any act to effect the object thereof, all the parties to or engaged in said conspiracy or combination, whether principals or accessories, shall be deemed guilty of a felony * * *.'
41
It was this provision that raised the greatest storm. It was § 2 that was rewritten so as to be in the main confined to conspiracies to interfere with a federal or state officer in the performance of his duties. 17 Stat. 13. Senator Trumbull said:26
42
'Those provisions were changed, and as the bill passed the House of Representatives, it was understood by the members of that body to go no further than to protect persons in the rights which were guarantied to them by the Constitution and laws of the United States, and it did not undertake to furnish redress for wrongs done by one person upon another in any of the States of the Union in violation of their laws, unless he also violated some law of the United States, nor to punish one person for an ordinary assault and battery committed on another in a State.'
43
But § 1—the section with which we are here concerned—was not changed as respects any feature with which we are presently concerned.27 The words 'under color of' law were in the legislation from the beginning to the end. The changes hailed by the opposition—indeed the history of the evolution of § 2 much relied upon now—are utterly irrelevant to the problem before us, viz., the meaning of 'under color of' law. The vindication of States' rights which was hailed in the amendments to § 2 raises no implication as to the construction to be given to 'color of any law' in § 1. The scope of § 1—under any construction—is admittedly narrower than was the scope of the original version of § 2. Opponents of the Act, however, did not fail to note that by virtue of § 1 federal courts would sit in judgment on the misdeeds of state officers.28 Proponents of the Act, on the other hand, were aware of the extension of federal power contemplated by every section of the Act. They found justification, however, for this extension in considerations such as those advanced by Mr. Hoar:29
44
'The question is not whether a majority of the people in a majority of the States are likely to be attached to and able to secure their own liberties. The question is not whether the majority of the people in every State are not likely to desire to secure their own rights. It is, whether a majority of the people in every State are sure to be so attached to the principles of civil freedom and civil justice as to be as much desirous of preserving the liberties of others as their own, as to insure that under no temptation of party spirit, under no political excitement, under no jealousy of race or caste, will the majority either in numbers or strength in any State seek to deprive the remainder of the population of their civil rights.'
45
Although the legislation was enacted because of the conditions that existed in the South at that time, it is cast in general language and is as applicable to Illinois as it is to the States whose names were mentioned over and again in the debates. It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. Hence the fact that Illinois by its constitution and laws outlaws unreasonable searches and seizures is no barrier to the present suit in the federal court.
46
We had before us in United States v. Classic, supra, § 20 of the Criminal Code, 18 U.S.C. § 242, 18 U.S.C.A. § 242,30 which provides a criminal punishment for anyone who 'under color of any law, statute, ordinance, regulation, or custom' subjects any inhabitant of a State to the deprivation of 'any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.' Section 242 first came into the law as § 2 of the Civil Rights Act, Act of April 9, 1866, 14 Stat. 27. After passage of the Fourteenth Amendment, this provision was re-enacted and amended by §§ 17, 18, Act of May 31, 1870, 16 Stat. 140, 144.31 The right involved in the Classic case was the right of voters in a primary to have their votes counted. The laws of Louisiana required the defendants 'to count the ballots, to record the result of the count, and to certify the result of the election.' United States v. Classic, supra, 313 U.S. 325—326, 61 S.Ct. 1043. But according to the indictment they did not perform their duty. In an opinion written by Mr. Justice (later Chief Justice) Stone, in which Mr. Justice Roberts, Mr. Justice Reed, and Mr. Justice Frankfurter joined, the Court ruled, 'Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law.' Id., 313 U.S. 326, 61 S.Ct. 1043. There was a dissenting opinion; but the ruling as to the meaning of 'under color of' state law was not questioned.
47
That view of the meaning of the words 'under color of' state law, 18 U.S.C. § 242, 18 U.S.C.A. § 242, was reaffirmed in Screws v. United States, supra, 325 U.S. 108—113, 65 S.Ct. 1038—1041. The acts there complained of were committed by state officers in performance of their duties, viz., making an arrest effective. It was urged there, as it is here, that 'under color of' state law should not be construed to duplicate in federal law what was an offense under state law. Id., 325 U.S. 138—149, 157—161, 65 S.Ct. 1053—1058, 1061—1063 (dissenting opinion). It was said there, as it is here, that the ruling in the Classic case as to the meaning of 'under color of' state law was not in focus and was ill-advised. Id., 325 U.S. 146—147, 65 S.Ct. 1056—1057 (dissenting opinion). It was argued there, as it is here, that 'under color of' state law included only action taken by officials pursuant to state law. Id., 325 U.S. 141—146, 65 S.Ct. 1054—1056 (dissenting opinion). We rejected that view. Id., 325 U.S. 110—113, 114-117, 65 S.Ct. 1039—1041, 1041—1043 (concurring opinion). We stated:
48
'The construction given § 20 (18 U.S.C. § 242, 18 U.S.C.A. § 242) in the Classic case formulated a rule of law which has become the basis of federal enforcement in this important field. The rule adopted in that case was formulated after mature consideration. It should be good for more than one day only. We do not have here a situation comparable to Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, where we overruled a decision demonstrated to be a sport in the law and inconsistent with what preceded and what followed. The Classic case was not the product of hasty action or inadvertence. It was not out of line with the cases which preceded. It was designed to fashion the governing rule of law in this important field. We are not dealing with constitutional interpretations which throughout the history of the Court have wisely remained flexible and subject to frequent re-examination. The meaning which the Classic case gave to the phrase 'under color of any law' involved only a construction of the statute. Hence if it states a rule undesirable in its consequences, Congress can change it. We add only to the instability and uncertainty of the law if we revise the meaning of § 20 (18 U.S.C. § 242, 18 U.S.C.A. § 242) to meet the exigencies of each case coming before us.' Id., 325 U.S. 112—113, 65 S.Ct. 1040—1041.
49
We adhered to that view in Williams v. United States, supra, 341 U.S. 99, 71 S.Ct. 578.
50
Mr. Shellabarger, reporting out the bill which became the Ku Klux Act, said of the provision with which we now deal:
51
'The model for it will be found in the second section of the act of April 9, 1866, known as the 'civil rights act.' * * * This section of this bill, on the same state of facts, not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights * * *.'32
52
Thus, it is beyond doubt that this phrase should be accorded the same construction in both statutes—in § 1979 and in 18 U.S.C. § 242, 18 U.S.C.A. § 242.
53
Since the Screws and Williams decisions, Congress has had several pieces of civil rights legislation before it. In 1956 one bill reached the floor of the House. This measure had at least one provision in it penalizing actions taken 'under color of law or otherwise.'33 A vigorous minority report was filed attacking, inter alia, the words 'or otherwise.'34 But not a word of criticism of the phrase 'under color of' state law as previously construed by the Court is to be found in that report.
54
Section 131(c) of the Act of September 9, 1957, 71 Stat. 634, 637, amended 42 U.S.C. § 1971, 42 U.S.C.A. § 1971, by adding a new subsection which provides that no person 'whether acting under color of law or otherwise' shall intimidate any other person in voting as he chooses for federal officials. A vigorous minority report was filed35 attacking the wide scope of the new subsection by reason of the words 'or otherwise.' It was said in that minority report that those words went far beyond what this Court had construed 'under color of law' to mean.36 But there was not a word of criticism directed to the prior construction given by this Court to the words 'under color of' law.
55
The Act of May 6, 1960, 74 Stat. 86, 42 U.S.C.A. §§ 1971, 1974 et seq., uses 'under color of' law in two contexts, once when § 306 defines 'officer of election' and next when § 601(a) gives a judicial remedy on behalf of a qualified voter denied the opportunity to register. Once again there was a Committee report containing minority views.37 Once again no one challenged the scope given by our prior decisions to the phrase 'under color of' law.
56
If the results of our construction of 'under color of' law were as horrendous as now claimed, if they were as disruptive of our federal scheme as now urged, if they were such an unwarranted invasion of States' rights as pretended, surely the voice of the opposition would have been heard in those Committee reports. Their silence and the new uses to which 'under color of' law have recently been given reinforce our conclusion that our prior decisions were correct on this matter of construction.
57
We conclude that the meaning given 'under color of' law in the Classic case and in the Screws and Williams cases was the correct one; and we adhere to it.
58
In the Screws case we dealt with a statute that imposed criminal penalties for acts 'wilfully' done. We construed that word in its setting to mean the doing of an act with 'a specific intent to deprive a person of a federal right.' 325 U.S. at page 103, 65 S.Ct. at page 1036. We do not think that gloss should be placed on § 1979 which we have here. The word 'wilfully' does not appear in § 1979. Moreover, § 1979 provides a civil remedy, while in the Screws case we dealt with a criminal law challenged on the ground of vagueness. Section 1979 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.
59
So far, then, the complaint states a cause of action. There remains to consider only a defense peculiar to the City of Chicago.
III.
60
The City of Chicago asserts that it is not liable under § 1979. We do not stop to explore the whole range of questions tendered us on this issue at oral argument and in the briefs. For we are of the opinion that Congress did not undertake to bring municipal corporations within the ambit of § 1979.
61
When the bill that became the Act of April 20, 1871, was being debated in the Senate, Senator Sherman of Ohio proposed an amendment which would have made 'the inhabitants of the county, city, or parish' in which certain acts of violence occurred liable 'to pay full compensation' to the person damaged or his widow or legal representative.38 The amendment was adopted by the Senate.39 The House, however, rejected it.40 The Conference Committee reported another version.41 The House rejected the Conference report.42 In a second conference the Sherman amendment was dropped and in its place § 6 of the Act of April 20, 1871, was substituted.43 This new section, which is now R.S. § 1981, 42 U.S.C. § 1986, 42 U.S.C.A. § 1986, dropped out all provision for municipal liability and extended liability in damages to 'any person or persons, having knowledge that any' of the specified wrongs are being committed. Mr. Poland, speaking for the House Conferees about the Sherman proposal to make municipalities liable, said:
62
'We informed the conferees on the part of the Senate that the House had taken a stand on that subject and would not recede from it; that that section imposing liability upon towns and counties must go out or we should fail to agree.'44
63
The objection to the Sherman amendment stated by Mr. Poland was that 'the House had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law.'45 The question of constitutional power of Congress to impose civil liability on municipalities was vigorously debated with powerful arguments advanced in the affirmative.46
64
Much reliance is placed on the Act of February 25, 1871, 16 Stat. 431, entitled 'An Act prescribing the Form of the enacting and resolving Clauses of Acts and Resolutions of Congress, and Rules for the Construction thereof.' Section 2 of this Act provides that 'the word 'person' may extend and be applied to bodies politic and corporate.'47 It should be noted, however, that this definition is merely an allowable, not a mandatory, one. It is said that doubts should be resolved in favor of municipal liability because private remedies against officers for illegal searches and seizures are conspicuously ineffective,48 and because municipal liability will not only afford plaintiffs responsible defendants but cause those defendants to eradicate abuses that exist at the police level.49 We do not reach those policy considerations. Nor do we reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals.
65
The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word 'person' was used in this particular Act to include them.50 Accordingly we hold that the motion to dismiss the complaint against the City of Chicago was properly granted. But since the complaint should not have been dismissed against the officials the judgment must be and is reversed.
66
Reversed.
67
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.
68
Were this case here as one of first impression, I would find the 'under color of any statute' issue very close indeed. However, in Classic1 and Screws2 this Court considered a substantially identical statutory phrase to have a meaning which, unless we now retreat from it, requires that issue to go for the petitioners here.
69
From my point of view, the policy of stare decisis, as it should be applied in matters of statutory construction and, to a lesser extent, the indications of congressional acceptance of this Court's earlier interpretation, require that it appear beyond doubt from the legislative history of the 1871 statute that Classic and Screws misapprehended the meaning of the controlling provision,3 before a departure from what was decided in those cases would be justified. Since I can find no such justifying indication in that legislative history, I join the opinion of the Court. However, what has been written on both sides of the matter makes some additional observations appropriate.
70
Those aspects of Congress' purpose which are quite clear in the earlier congressional debates, as quoted by my Brothers DOUGLAS and FRANKFURTER in turn, seem to me to be inherently ambiguous when applied to the case of an isolated abuse of state authority by an official. One can agree with the Court's opinion that:
71
'It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies * * *'
72
Without being certain that Congress meant to deal with anything other than abuses so recurrent as to amount to 'custom, or usage.' One can agree with any Brother FRANKFURTER, in dissent, that Congress had no intention of taking over the whole field of ordinary state torts and crimes, without being certain that the enacting Congress would not have regarded actions by an official, made possible by his position, as far more serious than an ordinary state tort, and therefore as a matter of federal concern. If attention is directed at the rare specific references to isolated abuses of state authority, one finds them neither so clear nor so disproportionately divided between favoring the positions of the majority or the dissent as to make either position seem plainly correct.4
73
Besides the inconclusiveness I find in the legislative history, it seems to me by no means evident that a position favoring departure from Classic and Screws fits better that with which the enacting Congress was concerned than does the position the Court adopted 20 years ago. There are apparent incongruities in the view of the dissent which may be more easily reconciled in terms of the earlier holding in Classic.
74
The dissent considers that the 'under color of' provision of § 1983 distinguishes between unconstitutional actions taken without state authority, which only the State should remedy, and unconstitutional actions authorized by the State, which the Federal Act was to reach. If so, then the controlling difference for the enacting legislature must have been either that the state remedy was more adequate for unauthorized actions than for authorized ones or that there was, in some sense, greater harm from unconstitutional actions authorized by the full panoply of state power and approval than from unconstitutional actions not so authorized or acquiesced in by the State. I find less than compelling the evidence that either distinction was important to that Congress.
I.
75
If the state remedy was considered adequate when the official's unconstitutional act was unauthorized, why should it not be thought equally adequate when the unconstitutional act was authorized? For if one thing is very clear in the legislative history, it is that the Congress of 1871 was well aware that no action requiring state judicial enforcement could be taken in violation of the Fourteenth Amendment without that enforcement being declared void by this Court on direct review from the state courts. And presumably it must also have been understood that there would be Supreme Court review of the denial of a state damage remedy against an official on grounds of state authorization of the unconstitutional action. It therefore seems to me that the same state remedies would, with ultimate aid of Supreme Court review, furnish identical relief in the two situations. This is the point Senator Blair made when, having stated that the object of the Fourteenth Amendment was to prevent any discrimination by the law of any State, he argued that:
76
'This being forbidden by the Constitution of the United States, and all the judges, State and national, being sworn to support the Constitution of the United States, and the Supreme Court of the United States having power to supervise and correct the action of the State courts when they violated the Constitution of the United States, there could be no danger of the violation of the right of citizens under color of the laws of the States.' Cong. Globe, 42d Cong., 1st Sess., at App. 231.
77
Since the suggested narrow construction of § 1983 presupposes that state measures were adequate to remedy unauthorized deprivations of constitutional rights and since the identical state relief could be obtained for state-authorized acts with the aid of Supreme Court review, this narrow construction would reduce the statute to having merely a jurisdictional function, shifting the load of federal supervision from the Supreme Court to the lower courts and providing a federal tribunal for fact findings in cases involving authorized action. Such a function could be justified on various grounds. It could, for example, be argued that the state courts would be less willing to find a constitutional violation in cases involving 'authorized action' and that therefore the victim of such action would bear a greater burden in that he would more likely have to carry his case to this Court, and once here, might be bound by unfavorable state court findings. But the legislative debates do not disclose congressional concern about the burdens of litigation placed upon the victims of 'authorized' constitutional violations contrasted to the victims of unauthorized violations. Neither did Congress indicate an interest in relieving the burden placed on this Court in reviewing such cases.
78
The statute becomes more than a jurisdictional provision only if one attributes to the enacting legislature the view that a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right. This view, by no means unrealistic as a common-sense matter,5 is, I believe, more consistent with the flavor of the legislative history than is a view that the primary purpose of the statute was to grant a lower court forum for fact findings. For example, the tone is surely one of overflowing protection of constitutional rights, and there is not a hint of concern about the administrative burden on the Supreme Court, when Senator Freling-huysen says:
79
'As to the civil remedies, for a violation of these privileges, we know that when the courts of a State violate the provisions of the Constitution or the law of the United States there is now relief afforded by a review in the Federal courts. And since the 14th Amendment forbids any State from making or enforcing any law abridging these privileges and immunities, as you cannot reach the Legislatures, the injured party should have an original action in our Federal courts, so that by injunction or by the recovery of damages he could have relief against the party who under color of such law is guilty of infringing his rights. As to the civil remedy no one, I think, can object.' Id., at 501.
80
And Senator Carpenter reflected a similar belief that the protection granted by the statute was to be very different from the relief available on review of state proceedings:
81
'The prohibition in the old Constitution that no State should pass a law impairing the obligation of contracts was a negative prohibition laid upon the State. Congress was not authorized to interfere in case the State violated that provision. It is true that when private rights were affected by such a State law, and that was brought before the judiciary, either of the State or nation, it was the duty of the court to pronounce the act void; but there the matter ended. Under the present Constitution, however, in regard to those rights which are secured by the fourteenth amendment, they are not left as the right of the citizen in regard to laws impairing the obligation of contracts was left, to be disposed of by the courts as the cases should arise between man and man, but Congress is clothed with the affirmative power and jurisdiction to correct the evil.
82
'I think there is one of the fundamental, one of the great, the tremendous revolutions effected in our Government by that article of the Constitution. It gives Congress affirmative power to protect the rights of the citizen, whereas before no such right was given to save the citizen from the violation of any of his rights by State Legislatures, and the only remedy was a judicial one when the case arose.' Id., at 577.
83
In my view, these considerations put in serious doubt the conclusion that § 1983 was limited to state-authorized unconstitutional acts, on the premise that state remedies respecting them were considered less adequate than those available for unauthorized acts.
II.
84
I think this limited interpretation of § 1983 fares no better when viewed from the other possible premise for it, namely that state-approved constitutional deprivations were considered more offensive than those not so approved. For one thing, the enacting Congress was not unaware of the fact that there was a substantial overlap between the protections granted by state constitutional provisions and those granted by the Fourteenth Amendment. Indeed one opponent of the bill, Senator Trumbull, went so far as to state in a debate with Senators Carpenter and Edmunds that his research indicated a complete overlap in every State, at least as to the protections of the Due Process Clause.6 Thus, in one very significant sense, there was no ultimate state approval of a large portion of otherwise authorized actions depriving a person of due-process rights. I hesitate to assume that the proponents of the present statute, who regarded it as necessary even though they knew that the provisions of the Fourteenth Amendment were self-executing, would have thought the remedies unnecessary whenever there were self-executing provisions of state constitutions also forbidding what the Fourteenth Amendment forbids. The only alternative is to disregard the possibility that a state court would find the action unauthorized on grounds of the state constitution. But if the defendant official is denied the right to defend in the federal court upon the ground that a state court would find his action unauthorized in the light of the state constitution, it is difficult to contend that it is the added harmfulness of state approval that justifies a different remedy for authorized than for unauthorized actions of state officers. Moreover, if indeed the legislature meant to distinguish between authorized and unauthorized acts and yet did not mean the statute to be inapplicable whenever there was a state constitutional provision which, reasonably interpreted, gave protection similar to that of a provision of the Fourteenth Amendment, would there not have been some explanation of this exception to the general rule? The fact that there is none in the legislative history at least makes more difficult a contention that these legislators were in fact making a distinction between use and misuse of state power.
85
There is a further basis for doubt that it was the additional force of state approval which justified a distinction between authorized and unauthorized actions. No one suggests that there is a difference in the showing the plaintiff must make to assert a claim under § 1983 depending upon whether he is asserting a denial of rights secured by the Equal Protection Clause or a denial of rights secured by the Due Process Clause of the Fourteenth Amendment. If the same Congress which passed what is now § 1983 also provided remedies against two or more non-officials who conspire to prevent an official from granting equal protection of the laws, see 42 U.S.C. § 1985, 42 U.S.C.A. § 1985, then it would seem almost untenable to insist that this Congress would have hesitated, on the grounds of lack of full state approval of the official's act, to provide similar remedies against an official who, unauthorized, denied that equal protection of the laws on his own initiative. For there would be no likely state approval of or even acquiescence in a conspiracy to coerce a state official to deny equal protection. Indeed it is difficult to attribute to a Congress which forbad two private citizens from hindering an official's giving of equal protection an intent to leave that official free to deny equal protection of his own accord.7
86
We have not passed upon the question whether 42 U.S.C. § 1985, 42 U.S.C.A. § 1985,8 which was passed as the second section of the Act that included § 1983, was intended to reach only the Ku Klux Klan or other substantially organized group activity, as distinguished from what its words seem to include, any conspiracy of two persons with 'the purpose of preventing or hindering the constituted authorities of any State * * * from giving or securing to all persons within such State * * * the equal protection of the laws * * *.'9 Without now deciding the question, I think it is sufficient to note that the legislative history is not without indications that what the words of the statute seem to state was in fact the meaning assumed by Congress.10
87
These difficulties in explaining the basis of a distinction between authorized and unauthorized deprivations of constitutional rights fortify my view that the legislative history does not bear the burden which stare decisis casts upon it. For this reason and for those stated in the opinion of the Court, I agree that we should not now depart from the holdings of the Classic and Screws cases.
88
Mr. Justice FRANKFURTER, dissenting except insofar as the Court holds that this action cannot be maintained against the City of Chicago.
89
Abstractly stated, this case concerns a matter of statutory construction. So stated, the problem before the Court is denuded of illuminating concreteness and thereby of its far-reaching significance for our federal system. Again abstractly stated, this matter of statutory construction is one upon which the Court has already passed. But it has done so under circumstances and in settings that negative those considerations of social policy upon which the doctrine of stare decisis, calling for the controlling application of prior statutory construction, rests.
90
This case presents the question of the sufficiency of petitioners' complaint in a civil action for damages brought under the Civil Rights Act, R.S. § 1979, 42 U.S.C. § 1983, 42 U.S.C.A. § 1983.1 The complaint alleges that on October 29, 1958, at 5:45 a.m., thirteen Chicago police officers, led by Deputy Chief of Detectives Pape, broke through two doors of the Monroe apartment, woke the Monroe couple with flashlights, and forced them at gunpoint to leave their bed and stand naked in the center of the living room; that the officers roused the six Monroe children and herded them into the living room; that Detective Pape struck Mr. Monroe several times with his flashlight, calling him 'nigger' and 'black boy'; that another officer pushed Mrs. Monroe; that other officers hit and kicked several of the children and pushed them to the floor; that the police ransacked every room, throwing clothing from closets to the floor, dumping drawers, ripping mattress covers; that Mr. Monroe was then taken to the police station and detained on 'open' charges for ten hours, during which time he was interrogated about a murder2 and exhibited in lineups; that he was not brought before a magistrate, although numerous magistrate's courts were accessible; that he was not advised of his procedural rights; that he was not permitted to call his family or an attorney; that he was subsequently released without criminal charges having been filed against him. It is also alleged that the actions of the officers throughout were without authority of a search warrant or an arrest warrant; that those actions constituted arbitrary and unreasonable conduct; that the officers were employees of the City of Chicago, which furnished each of them with a badge and an identification card designating him as a member of the Police Department; that the officers were agents of the city, acting in the course of their employment and engaged in the performance of their duties; and that it is the custom of the Department to arrest and confine individuals for prolonged periods on 'open' charges for interrogation, with the purpose of inducing incriminating statements, exhibiting its prisoners for identification, holding them incommunicado while police officers investigate their activities, and punishing them by imprisonment without judicial trial. On the basis of these allegations various members of the Monroe family seek damages against the individual police officers and against the City of Chicago. The District Court dismissed the complaint for failure to state a claim and the Court of Appeals for the Seventh Circuit affirmed. 272 F.2d 365.
91
Petitioners base their claim to relief in the federal courts on what was enacted as § 1 of the 'Ku Klux Act' of April 20, 1871, 'An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.' 17 Stat. 13. It became, with insignificant rephrasing, § 1979 of the Revised Statutes. As now set forth in 42 U.S.C. § 1983, 42 U.S.C.A. § 1983, it is, in relevant part, as follows:
92
'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * * subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
I.
93
In invoking § 1979 (the old designation will be used hereafter), petitioners contend that its protection of 'rights, privileges, or immunities secured by the Constitution' encompasses what 'due process of law' and 'the equal protection of the laws' of the Fourteenth Amendment guarantee against action by the States. In this contention they are supported both by the title of the Act of 1871 and by its legislative history. See the authoritative statement of Mr. Edmunds, reporting the bill from the Senate Committee on the Judiciary, Cong. Globe, 42d Cong., 1st Sess. 568. See also id., at 332—334, App. 83—85, 310. It is true that a related phrase, 'any right or privilege secured * * * by the Constitution or laws,' in § 241 of Title 18 U.S.C., 18 U.S.C.A. § 241, was said by a plurality of the Court in United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758, to comprehend only the rights arising immediately from the relationship of the individual to the central government. And see United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588.3 But this construction was demanded by § 241, which penalizes conspiracies of private individuals acting as such, while § 1979 applies only to action taken 'under color of any statute,' etc. Different problems of statutory meaning are presented by two enactments deriving from different constitutional sources. See the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. Compare United States v. Williams, supra, with Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. If petitioners have alleged facts constituting a deprivation under color of state authority of a right assured them by the Fourteenth Amendment, they have brought themselves within § 1979. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Hague v. C.I.O., 307 U.S. 496, 525—526, 59 S.Ct. 954, 968 969, 83 L.Ed. 1423 (Opinion of Stone, J.).4
94
To be sure, Screws v. United States, supra, requires a finding of specific intent in order to sustain a conviction under the cognate penal provisions of 18 U.S.C. § 242, 18 U.S.C.A. § 2425—'an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.' 325 U.S. at page 104, 65 S.Ct. at page 1037. Petitioners' complaint here alleges no such specific intent. But, for a number of reasons, this requirement of Screws should not be carried over and applied to civil actions under § 1979. First, the word 'willfully' in 18 U.S.C. § 242, 18 U.S.C.A. § 242, from which the requirement of intent was derived in Screws does not appear in § 1979. Second, § 1979, by the very fact that it is a civil provision, invites treatment different from that to be given its criminal analogue. The constitutional scruples concerning vagueness which were deemed to compel the Screws construction have less force in the context of a civil proceeding,6 and § 1979, insofar as it creates an action for damages, must be read in light of the familiar basis of tort liability that a man is responsible for the natural consequences of his acts. Third, even in the criminal area, the specific intent demanded by Screws has proved to be an abstraction serving the purposes of a constitutional need without impressing any actual restrictions upon the nature of the crime which the jury tries. The Screws opinion itself said that 'The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.' 325 U.S. at page 106, 65 S.Ct. at page 1037. And lower courts in applying the statute have allowed inference of the requisite specific intent from evidence, it would appear, of malevolence alone.7 But if intent to infringe 'specific' constitutional rights comes in practice to mean no more than intent without justification to bring about the circumstances which infringe those rights, then the consequence of introducing the specific intent issue into a litigation is, in effect, to require fictional pleading, needlessly burden jurors with abstruse instructions, and lessen the degree of control which federal courts have over jury vagaries.
95
If the courts are to enforce § 1979, it is an unhappy form of judicial disapproval to surround it with doctrines which partially and unequally obstruct its operation. Specific intent in the context of the section would cause such embarrassment without countervailing justification. Petitioners' allegations that respondents in fact did the acts which constituted violations of constitutional rights are sufficient.
II.
96
To show such violations, petitioners invoke primarily the Amendment's Due Process Clause.8 The essence of their claim is that the police conduct here alleged offends those requirements of decency and fairness which, because they are 'implicit in the concept of ordered liberty,' are imposed by the Due Process Clause upon the States. Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. When we apply to their complaint that standard of a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,'9 which has been the touchstone for this Court's enforcement of due process,10 the merit of this constitutional claim is evident. The conception expressed in Wolf v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, that 'The security of one's privacy against arbitrary intrusion by the police * * * is basic to a free society,' was not an innovation of Wolf. The tenet that there exists a realm of sanctuary surrounding every individual and infrangible, save in a very limited class of circumstances, by the agents of government, had informed the decision of the King's Bench two centuries earlier in Entick v. Carrington, 2 Wils, 275, had been the basis of Otis' contemporary speech against the Writ of Assistance, see Gray's notes in Quincy's Massachusetts Reports, App. I, at 471; Tudor, Life of James Otis (1823) 63, and has in the intervening years found expression not only in the Fourth Amendment to the Constitution of the United States, but also in the fundamental law of every State.11 Modern totalitarianisms have been a stark reminder, but did not newly teach, that the kicked-in door is the symbol of a rule of fear and violence fatal to institutions founded on respect for the integrity of man.
97
The essence of the liberty protected by the common law and by the American constitutions was 'the right to shut the door on officials of the state unless their entry is under proper authority of law'; particularly, 'the right to resist unauthorized entry which has as its design the securing of information to fortify the coercive power of the state against the individual.' Frank v. State of Maryland, 359 U.S. 360, 365, 79 S.Ct. 804, 808, 3 L.Ed.2d 877.12 Searches of the dwelling house were the special object of this universal condemnation of official intrusion.13 Night-time search was the evil in its most obnoxious form.14 Few reported cases have presented all of the manifold aggravating circumstances which petitioners here allege—intrusion en masse, by dark, by force, unauthorized by warrant, into an occupied private home, without even the asserted justification of belief by the intruders that the inhabitants were presently committing some criminal act within; physical abuse and the calculated degradation of insult and forced nakedness; sacking and disordering of personal effects throughout the home; arrest and detention against the background terror of threatened criminal proceedings. Wherever similar conduct has appeared, the courts have unanimously condemned police entries as lawless.15
98
If the question whether due process forbids this kind of police invasion were before us in isolation, the answer would be quick. If, for example, petitioners had sought damages in the state courts of Illinois and if those courts had refused redress on the ground that the official character of the respondents clothed them with civil immunity, we would be faced with the sort of situation to which the language in the Wolf opinion was addressed: 'we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment.' 338 U.S. at page 28, 69 S.Ct. at page 1361. If that issue is not reached in this case it is not because the conduct which the record here presents can be condoned. But by bringing their action in a Federal District Court petitioners cannot rest on the Fourteenth Amendment simpliciter. They invoke the protection of a specific statute by which Congress restricted federal judicial enforcement of its guarantees to particular enumerated circumstances. They must show not only that their constitutional rights have been infringed, but that they have been infringed, 'under color of (state) statute, ordinance, regulation, custom, or usage,' as that phrase is used in the relevant congressional enactment.
III.
99
Of course, if Congress by appropriate statutory language attempted to reach every act which could be attributed to the States under the Fourteenth Amendment's prohibition: 'No State shall * * *,' the reach of the statute would be the reach of the Amendment itself. Relevant to the enforcement of such a statute would be not only the concept of state action as this Court has developed it, see Nixon v. Condon, 286 U.S. 73, 89, 52 S.Ct. 484, 487, 76 L.Ed. 987, but also considerations of the power of Congress, under the Amendment's Enforcement Clause, to determine what is 'appropriate legislation' to protect the rights which the Fourteenth Amendment secures. Cf. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. Still, in this supposed case we would arrive at the question of what Congress could do only after we had determined what it was that Congress had done. So, in the case before us now, we must ask what Congress did in 1871. We must determine what Congress meant by 'under color' of enumerated state authority.16
100
Congress used that phrase not only in R.S. § 1979, but also in the criminal provisions of § 2 of the First Civil Rights Act of April 9, 1866, 14 Stat. 27, from which is derived the present 18 U.S.C. § 242, 18 U.S.C.A. § 242,17 and in both cases used it with the same purpose.18 During the seventy year which followed these enactments, cases in this Court in which the 'under color' provisions were invoked uniformly involved action taken either in strict pursuance of some specific command of state law19 or within the scope of executive discretion in the administration of state laws.20 The same is true, with two exceptions, in the lower federal courts.21 In the first of these two cases it was held that § 1979 was not directd to instances of lawless police brutality, although the ruling was not put on 'under color' grounds.22 In the second, an indictment charging a county tax collector with depriving one Ah Koo of a federally secured right under color of a designated California law, set forth in the indictment, was held insufficient against a demurrer. United States v. Jackson, C.C.D.Cal.1874, 26 Fed.Cas. p. 563, No. 15,459. The court wrote:
101
'The indictment contains no averment that Ah Koo was a foreign miner, and within the provisions of the state law. If this averment be unnecessary * * * the act of congress would then be held to apply to a case of illegal extortion by a tax collector from any person, though such exaction might be wholly unauthorized by the law under which the officer pretended to act.
102
'We are satisfied that it was not the design of congress to prevent or to punish such abuse of authority by state officers. The object of the act was, not to prevent illegal exactions, but to forbid the execution of state laws, which, by the act itself, are made void * * *.
103
'It would seem, necessarily, to follow, that the person from whom the tax was exacted must have been a person from whom, under the provisions of the state law, the officer was authorized to exact it. The statute requires that a party shall be subjected to a deprivation of right secured by the statute under color of some law, statute, order or custom; but if this exaction, although made by a tax collector, has been levied upon a person not within the provisions of the state law, the exaction cannot be said to have been made 'under color of law,' any more than a similar exaction from a Chinese miner, made by a person wholly unauthorized, and under the pretense of being a tax collector.' Id., at pages 563—564.
104
Throughout this period, the only indication of this Court's views on the proper interpretation of the 'under color' language is a dictum in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. There, in striking down other Civil Rights Act provisions which, as the Court regarded them, attempted to reach private conduct not attributable to state authority. Mr. Justice Bradley contrasted those provisions with § 2 of the Act of 1866: 'This (latter) law is clearly corrective in its character, intended to counteract and furnish redress against state laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified.' Id., 109 U.S. at page 16, 3 S.Ct. at page 25.
105
A sharp change from this uniform application of seventy years was made in 1941, but without acknowledgment or indication of awareness of the revolutionary turnabout from what had been established practice. The opinion in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, accomplished this. The case presented an indictment under § 242 charging certain local Commissioners of Elections with altering ballots cast in a primary held to nominate candidates for Congress. Sustaining the sufficiency of the indictment in an extensive opinion concerned principally with the question whether the right to vote in such a primary was a right secured by the Constitution,23 Mr. Justice Stone wrote that the alteration of the ballots was 'under color' of state law. This holding was summarily announced without exposition; it had been only passingly argued.24 Of the three authorities cited to support it, two did not involve the 'under color' statutes,25 and the third, Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, was a case in which high-ranking municipal officials claimed authorization for their actions under municipal ordinances (here held unconstitutional) and under the general police powers of the State.26 All three of these cases had dealt with 'State action' problems, and it is 'State action,' not the very different question of the 'under color' clause, that Mr. Justice Stone appears to have considered.27 (I joined in this opinion without having made an independent examination of the legislative history of the relevant legislation or of the authorities drawn upon for the Classic construction. Acquiescence so founded does not preclude the responsible recognition of error disclosed by subsequent study.) When, however, four years later the Court was called on to review the conviction under § 242 of a Georgia County Sheriff who had beaten a Negro prisoner to death, the opinion of four of the six Justices who believed that the statute applied merely invoked Classic and stare decisis and did not reconsider the meaning which that case had uncritically assumed was to be attached to the language, 'under color' of state authority. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. The briefs in the Screws case did not examine critically the legislative history of the Civil Rights Acts.28 The only reference to this history in the plurality opinion, insofar as it bears on the interpretation of the clause 'under color of * * * law,' is contained in a pair of sentences discounting two statements by Senators Trumbull and Sherman regarding the Civil Rights Acts of 1866 and 1870, cited by the minority.29 The bulk of the plurality opinion's treatment of the issue consists of the argument that 'under color' had been construed in Classic and that the construction there put on the words should not be abandoned or revised. 325 U.S. at pages 109 113, 65 S.Ct. at pages 1039—1041. The case of Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774, reaffirmed Screws and applied it to circumstances of third-degree brutality practiced by a private detective who held a special police officer's card and was accompanied by a regular policeman.30
106
Thus, although this Court has three times found that conduct of state officials which is forbidden by state law may be 'under color' of state law for purposes of the Civil Rights Acts, it is accurate to say that that question has never received here the consideration which its importance merits. That regard for controlling legislative history which is conventionally observed by this Court in determining the true meaning of important legislation that does not construe itself31 has never been applied to the 'under color' provisions; particularly, there has never been canvassed the full record of the debates preceding passage of the 1871 Act with which we are concerned in this case. Neither Classic nor Screws nor Williams warrants refusal now to take account of those debates and the illumination they afford. While we may well decline to re-examine recent cases which derive from the judicial process exercised under its adequate safeguards documenting briefs and adequate arguments on both sides as foundation for due deliberation—the relevant demands of stare decisis do not preclude considering, for the first time thoroughly and in the light of the best available evidence of congressional purpose, a statutory interpretation which started as an unexamined assumption on the basis of inapplicable citations and has the claim of a dogma solely through reiteration. Particularly is this so when that interpretation, only recently made, was at its inception a silent reversal of the judicial history of the Civil Rights Acts for three quarters of a century.
107
'The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible.' Hertz v. Woodman, 218 U.S. 205, 212, 30 S.Ct. 621, 622, 54 L.Ed. 1001. It is true, of course, that the reason for the rule is more compelling in cases involving inferior law, law capable of change by Congress, than in constitutional cases, where this Court—although even in such cases a wise consciousness of the limitations of individual vision has impelled it always to give great weight to prior decisions—nevertheless bears the ultimate obligation for the development of the law as institutions develop. See, e.g., Smith v. All-wright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987. But the Court has not always declined to re-examine cases whose outcome Congress might have changed. See Mr. Justice Brandeis, dissenting, in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406—407, note 1, 52 S.Ct. 443, 447, 76 L.Ed. 815. Decisions involving statutory construction, even decisions which Congress has persuasively declined to overrule, have been overruled here. See Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084, overruling United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889, United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302, and United States v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319; see also Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 337, 93 L.Ed. 288, overruling May v. Heiner, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826.
108
And with regard to the Civil Rights Acts there are reasons of particular urgency which authorize the Court—indeed, which make it the Court's responsibility—to reappraise in the hitherto skimpily considered context of R.S. § 1979 what was decided in Classic, Screws and Williams. This is not an area of commercial law in which, presumably, individuals may have arranged their affairs in reliance on the expected stability of decision. Compare National Bank of Genesee v. Whitney, 103 U.S. 99, 26 L.Ed. 443; Vail v. Territory of Arizona, 207 U.S. 201, 28 S.Ct. 107, 52 L.Ed. 169; Walling v. Halliburton Oil Well Cementing Co., 331 U.S. 17, 67 S.Ct. 1056, 91 L.Ed. 1312; United States v. South Buffalo R. Co., 333 U.S. 771, 68 S.Ct. 868, 92 L.Ed. 1077. Nor is it merely a minerun statutory question involving a narrow compass of individual rights and duties. The issue in the present case concerns directly a basic problem of American federalism: the relation of the Nation to the States in the critically important sphere of municipal law administration. In this aspect, it has significance approximating constitutional dimension. Necessarily, the construction of the Civil Rights Acts raises issues fundamental to our institutions. This imposes on this Court a corresponding obligation to exercise its power within the fair limits of its judicial discretion. 'We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable * * *.' Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604.
109
Now, while invoking the prior decisions which have given 'under color of (law)' a content that ignores the meaning fairly comported by the words of the text and confirmed by the legislative history, the Court undertakes a fresh examination of that legislative history. The decision in this case, therefore, does not rest on stare decisis, and the true construction of the statute may be thought to be as free from the restraints of that doctrine as though the matter were before us for the first time. Certainly, none of the implications which the Court seeks to draw from silences in the minority reports of congressional committees in 1956, 1957, and 1960, or from the use of 'under color' language in the very different context of the Act of May 6, 1960, 74 Stat. 86, 42 U.S.C.A. § 1974 et seq.—concerned, in relevant part, with the preservation of election records and with the implementation of the franchise—serves as an impressive bar to re-examination of the true scope of R.S. § 1979 itself in its pertinent legislative setting.32
IV.
110
This case squarely presents the question whether the intrusion of a city policeman for which that policeman can show no such authority at state law as could be successfully interposed in defense to a state-law action against him, is nonetheless to be regarded as 'under color' of state authority within the meaning of R.S. § 1979. Respondents, in breaking into the Monroe apartment, violated the laws of the State of Illinois.33 Illinois law appears to offer a civil remedy for unlawful searches;34 petitioners do not claim that none is available. Rather they assert that they have been deprived of due process of law and of equal protection of the laws under color of state law, although from all that appears the courts of Illinois are available to give them the fullest redress which the common law affords for the violence done them, nor does any 'statute, ordinance, regulation, custom, or usage' of the State of Illinois bar that redress. Did the enactment by Congress of § 1 of the Ku Klux Act of 1871 encompass such a situation?
111
That section, it has been noted, was patterned on the similar criminal provision of § 2, Act of April 9, 1866. The earlier Act had as its primary object the effective nullification of the Black Codes, those statutes of the Southern legislatures which had so burdened and disqualified the Negro as to make his emancipation appear illusory.35 The Act had been vetoed by President Johnson, whose veto message describes contemporary understanding of its second section; the section, he wrote,
112
'seems to be designed to apply to some existing or future law of a State or Territory which may conflict with the provisions of the bill * * *. It provides for counteracting such forbidden legislation by imposing fine and imprisonment upon the legislators who may pass such conflicting laws, or upon the officers or agents who shall put, or attempt to put, them into execution. It means an official offense, not a common crime committed against law upon the persons or property of the black race. Such an act may deprive the black man of his property, but not of the right to hold property. It means a deprivation of the right itself, either by the State judiciary or the State Legislature.'36
113
And Senator Trumbull, then Chairman of the Senate Judiciary Committee,37 in his remarks urging its passage over the veto, expressed the intendment of the second section as those who voted for it read it:
114
'If an offense is committed against a colored person simply because he is colored, in a State where the law affords him the same protection as if he were white, this act neither has nor was intended to have anything to do with his case, because he has adequate remedies in the State courts; but if he is discriminated against under color of State laws because he is colored, then it becomes necessary to interfere for his protection.'38
115
Section 2 of the 1866 Act was re-enacted in substance in 1870 as part of 'An Act to enforce the Right of Citizens * * * to vote in the several States * * *,' 16 Stat. 140, 144. The following colloquy on that occasion is particularly revealing:
116
'MR. SHERMAN. * * * My colleague cannot deny that we can by appropriate legislation prevent any private person from shielding himself under a State regulation, and thus denying to a person the right to vote * * *.
117
'MR. CASSERLY. I should like to ask the Senator from Ohio how a State can be said to abridge the right of a colored man to vote when some irresponsible person in the streets is the actor in that wrong?
118
'MR. SHERMAN. If the offender, who may be a loafer, the meanest man in the streets, covers himself under the protection or color of a law or regulation or constitution of a State, he may be punished for doing it.
119
'MR. CASSERLY. Suppose the State law authorizes the colored man to vote; what then?
120
'MR. SHERMAN. That is not the case with which we are dealing. * * * This bill only proposes to deal with offenses committed by officers or persons under color of existing State law, under color of existing State constitutions. No man could be convicted under this bill reported by the Judiciary Committee unless the denial of the right to vote was done under color or pretense of State regulation. The whole bill shows that. * * * (T)he first and second sections of the bill * * * simply punish officers as well as persons for discrimination under color of State laws or constitutions; and it so provides all the way through.'39
121
The original text of the present § 1979 contained words, left out in the Revised Statutes, which clarified the objective to which the provision was addressed:
122
'That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured * * *.'40
123
Representative Shellabarger, reporting the section, explained it to the House as 'in its terms carefully confined to giving a civil action for such wrongs against citizenship as are done under color of State laws which abridge these rights.'41 Senator Edmunds, steering the measure through the Senate, found constitutional sanction for it in the Fourteenth Amendment, explaining that state action may consist in executive nonfeasance as well as malfeasance, so that any offenses against a citizen in a State are susceptible of federal protection 'unless the criminal who shall commit those offenses is punished and the person who suffers receives that redress which the principles and spirit of the laws entitle him to have.'42 And James A. Garfield supported the bill in the House as 'so guarded as to preserve intact the autonomy of the States, the machinery of the State governments, and the municipal organizations established under State laws.'43
124
Indeed, the Ku Klux Act as a whole encountered in the course of its passage strenuous constitutional objections which focused precisely upon an assertedly unauthorized extension of federal judicial power into areas of exclusive state competence.44 A special target was § 2 of the bill as reported to the House, providing criminal penalties:
125
'if two or more persons shall, within the limits of any State, band, conspire, or combine together to do any act in violation of the rights, privileges, or immunities of any person, to which he is entitled under the Constitution and laws of the United States, which, committed within a place under the sole and exclusive jurisdiction of the United States, would, under any law of the United States then in force, constitute the crime of either murder, manslaughter, mayhem, robbery, assault and battery, perjury, subornation of perjury, criminal obstruction of legal, process (sic) or resistance of officers in discharge of official duty, arson, or larceny * * *.'45
126
In vain the proponents of this section argued its propriety, seeking to support it by argument ex necessitate from the complete failure of state judicial and executive organs to control the depredations of the Klan.46 Even in the Reconstruction Congress, the majority party split. Many balked at legislation which they regarded as establishing a general federal jurisdiction for the protection of person and property in the States.47 Only after a complete rewriting of the section to meet these constitutional objections could the bill be passed.48 Yet almost none of those who had decried § 2 as undertaking impermissibly to make the national courts tribunals of concurrent jurisdiction for the punishment of state-law offenses expressed similar objections to § 1, later § 1979.49 One of the most vehement of those who could find no constitutional sanction for federal judicial control of conduct already proscribed by state law, and who therefore opposed original § 2 as reaching beyond the limits of congressional competence, expressly supported § 1 as affording 'further redress for violations under State authority of constitutional rights.'50
127
The general understanding of the legislators unquestionably was that, as amended, the Ku Klux Act did 'not undertake to furnish redress for wrongs done by one person upon another in any of the States * * * in violation of their laws, unless he also violated some law of the United States, nor to punish one person for an ordinary assault and battery * * *.'51 Even those who opposing the constitutional objectors—found sufficient congressional power in the Enforcement Clause of the Fourteenth Amendment to give this kind of redress, deemed inexpedient the exercise of any such power: 'Convenience and courtesy to the States suggest a sparing use, and never so far as to supplant the State authorities except in cases of extreme necessity, and when the State governments criminally refuse or neglect those duties which are imposed upon them.'52 Extreme Radicals, those who believed that the remedy for the oppressed Unionists in the South was a general expension of federal judicial jurisdiction so that 'loyal men could have the privilege of having their causes, civil and criminal, tried in the Federal courts,' were disappointed with the Act as passed.53
128
Finally, it is significant that the opponents of the Act, exhausting ingenuity to discover constitutional objections to every provision of it, also construed § 1 as addressed only to conduct authorized by state law, and therefore within the admitted permissible reach of Fourteenth Amendment federal power. 'The first section of this bill prohibits any invidious legislation by States against the rights or privileges of citizens of the United States,' one such opponent paraphrased the provision.54 And Senator Thurman, who insisted vociferously on the absence of federal power to penalize a conspiracy of individuals to violate state law ('that is a case of mere individual violence, having no color whatsoever of authority of law, either Federal or State; and to say that you can punish men for that mere conspiracy, which is their individual act, and which is a crime against the State laws themselves, punishable by the State laws, is simply to wipe out all the State jurisdiction over crimes and transfer it bodily to the Congress'),55 admitted without question the constitutionality of § 156 ('It refers to a deprivation under color of law, either statute law or 'custom or usage' which has become common law').57
129
The Court now says, however, that 'It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this 'force bill." Of course, if the notion of 'unavailability' of remedy is limited to mean an absence of statutory, paper right, this is in large part true.58 Insofar as the Court undertakes to demonstrate—as the bulk of its opinion seems to do—that § 1979 was meant to reach some instances of action not specifically authorized by the avowed, apparent, written law inscribed in the statute books of the States, the argument knocks at an open door. No one would or could, deny this, for by its express terms the statute comprehends deprivations of federal rights under color of any 'statute, ordinance, regulation, custom, or usage' of a State. (Emphasis added.) The question is, what class of cases other than those involving state statute law were meant to be reached. And, with respect to this question, the Court's conclusion is undermined by the very portions of the legislative debates which it cites. For surely the misconduct of individual municipal police officers, subject to the effective oversight of appropriate state administrative and judicial authorities, presents a situation which differs toto coelo from one in which 'Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress,'59 or in which murder rages while a State makes 'no successful effort to bring the guilty to punishment or afford protection or redress,'60 or in which the 'State courts * * * (are) unable to enforce the criminal laws * * * or to suppress the disorders existing,'61 or in which, in a State's 'judicial tribunals one class is unable to secure that enforcement of their rights and punishment for their infraction which is accorded to another,'62 or 'of * * * hundreds of outrages * * * not one (is) punished,'63 or 'the courts of the * * * States fail and refuse to do their duty in the punishment of offenders against the law,'64 or in which a 'class of officers charged under the laws with their administration permanently and as a rule refuse to extend (their) protection.'65 These statements indicate that Congress—made keenly aware by the post-bellum conditions in the South that States through their authorities could sanction offenses against the individual by settled practice which established state law as truly as written codes—designed § 1979 to reach, as well, official conduct which, because engaged in 'permanently and as a rule,' or 'systematically,'66 came through acceptance by law-administering officers to constitute 'custom, or usage' having the cast of law. See Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254. They do not indicate an attempt to reach, nor does the statute by its terms include, instances of acts in defiance of state law and which no settled state practice, no systematic pattern of official action or inaction, no 'custom, or usage, of any State,' insulates from effective and adequate reparation by the State's authorities.
130
Rather, all the evidence converges to the conclusion that Congress by § 1979 created a civil liability enforceable in the federal courts only in instances of injury for which redress was barred in the state courts because some 'statute, ordinance, regulation, custom, or usage' sanctioned the grievance complained of. This purpose, manifested even by the so-called 'Radical' Reconstruction Congress in 1871, accords with the presuppositions of our federal system. The jurisdiction which Article III of the Constitution conferred on the national judiciary reflected the assumption that the state courts, not the federal courts, would remain the primary guardians of that fundamental security of person and property which the long evolution of the common law had secured to one individual as against other individuals. The Fourteenth Amendment did not alter this basic aspect of our federalism.67
131
Its commands were addressed to the States. Only when the States, through their responsible organs for the formulation and administration of local policy, sought to deny or impede access by the individual to the central government in connection with those enumerated functions assigned to it, or to deprive the individual of a certain minimal fairness in the exercise of the coercive forces of the State, or without reasonable justification to treat him differently than other persons subject to their jurisdiction, was an overriding federal sanction imposed. As between individuals, no corpus of substantive rights was guaranteed by the Fourteenth Amendment, but only 'due process of law' in the ascertainment and enforcement of rights and equality in the enjoyment of rights and safeguards that the States afford. This was the base of the distinction between federal citizenship and state citizenship drawn by the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394. This conception begot the 'State action' principle on which, from the time of the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, this Court has relied in its application of Fourteenth Amendment guarantees. As between individuals, that body of mutual rights and duties which constitute the civil personality of a man remains essentially the creature of the legal institutions of the States.
132
But, of course, in the present case petitioners argue that the wrongs done them were committed not by individuals but by the police as state officials. There are two senses in which this might be true. It might be true if petitioners alleged that the redress which state courts offer them against the respondents is different than that which those courts would offer against other individuals, guilty of the same conduct, who were not the police. This is not alleged. It might also be true merely because the respondents are the police—because they are clothed with an appearance of official authority which is in itself a factor of significance in dealings between individuals. Certainly the night-time intrusion of the man with a star and a police revolver is a different phenomenon than the night-time intrusion of a burglar. The aura of power which a show of authority carries with it has been created by state government. For this reason the national legislature, exercising its power to implement the Fourteenth Amendment, might well attribute responsibility for the intrusion to the State and legislate to protect against such intrusion. The pretense of authority alone might seem to Congress sufficient basis for creating an exception to the ordinary rule that it is to the state tribunals that individuals within a State must look for redress against other individuals within that State. The same pretense of authority might suffice to sustain congressional legislation creating the exception. See Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676. But until Congress has declared its purpose to shift the ordinary distribution of judicial power for the determination of causes between co-citizens of a State, this Court should not make the shift. Congress has not in § 1979 manifested that intention.
133
The unwisdom of extending federal criminal jurisdiction into areas of conduct conventionally punished by state penal law is perhaps more obvious than that of extending federal civil jurisdiction into the traditional realm of state tort law. But the latter, too, presents its problems of policy appropriately left to Congress. Suppose that a state legislature or the highest court of a State should determine that within its territorial limits no damages should be recovered in tort for pain and suffering, or for mental anguish, or that no punitive damages should be recoverable. Since the federal courts went out of the business of making 'general law,' Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, such decisions of local policy have admittedly been the exclusive province of state lawmakers. Should the civil liability for police conduct which can claim no authority under local law, which is actionable as common-law assault or trespass in the local courts, comport different rules' Should an unlawful intrusion by a policeman in Chicago entail different consequences than an unlawful intrusion by a hoodlum? These are matters of policy in its strictly legislative sense, not for determination by this Court. And if it be, as it is, a matter for congressional choice, the legislative evidence is overwhelming that § 1979 is not expressive of that choice. Indeed, its precise limitation to acts 'under color' of state statute, ordinance or other authority appears on its face designed to leave all questions of the nature and extent of liability of individuals to the laws of the several States except when a State seeks to shield those individuals under the special barrier of state authority. To extend Civil Rights Act liability beyond that point is to interfere in areas of state policymaking where Congress has not determined to interfere.
134
Nor will such interference be negligible. One argument urged in Screws in favor of the result which that case reached was the announced policy of self-restraint of the Department of Justice in the prosecution of cases under 18 U.S.C. § 242, 18 U.S.C.A. § 242. See 325 U.S. at pages 159—160, 65 S.Ct. at pages 1062—1063. Experience indicates that private litigants cannot be expected to show the same consideration for the autonomy of local administration which the Department purportedly shows.68
135
Relevant also are the effects upon the institution of federal constitutional adjudication of sustaining under § 1979 damage actions for relief against conduct allegedly violative of federal constitutional rights, but plainly violative of state law. Permitting such actions necessitates the immediate decision of federal constitutional issues despite the admitted availability of state-law remedies which would avoid those issues.69 This would make inroads, throughout a large area, upon the principle of federal judicial self-limitation which has become a significant instrument in the efficient functioning of the national judiciary. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, and cases following. Self-limitation is not a matter of technical nicety, nor judicial timidity. It reflects the recognition that to no small degree the effectiveness of the legal order depends upon the infrequency with which it solves its problems by resorting to determinations of ultimate power. Especially is this true where the circumstances under which those ultimate determinations must be made are not conducive to the most mature deliberation and decision. If § 1979 is made a vehicle of constitutional litigation in cases where state officers have acted lawlessly at state law, difficult questions of the federal constitutionality of certain official practices—lawful perhaps in some States, unlawful in others—may be litigated between private parties without the participation of responsible state authorities which is obviously desirable to protect legitimate state interests, but also to better guide adjudication by competent record-making and argument.
136
Of course, these last considerations would be irrelevant to our duty if Congress had demonstrably meant to reach by § 1979 activities like those of respondents in this case. But where it appears that Congress plainly did not have that understanding, respect for principles which this Court has long regarded as critical to the most effective functioning of our federalism should avoid extension of a statute beyond its manifest area of operation into applications which invite conflict with the administration of local policies. Such an extension makes the extreme limits of federal constitutional power a law to regulate the quotidian business of every traffic policeman, every registrar of elections, every city inspector or investigator, every clerk in every municipal licensing bureau in this country. The text of the statute, reinforced by its history, precludes such a reading.
137
In concluding that police intrusion in violation of state law is not a wrong remediable under R.S. § 1979, the pressures which urge an opposite result are duly felt. The difficulties which confront private citizens who seek to vindicate in traditional common-law actions their state-created rights against lawless invasion of their privacy by local policemen are obvious,70 and obvious is the need for more effective modes of redress. The answer to these urgings must be regard for our federal system which presupposes a wide range of regional autonomy in the kinds of protection local residents receive. If various common-law concepts make it possible for a policeman—but no more possible for a policeman than for any individual hoodlum intruder—to escape without liability when he has vandalized a home, that is an evil. But, surely, its remedy devolves, in the first instance, on the States. Of course, if the States afford less protection against the police, as police, than against the hoodlum—if under authority of state 'statute, ordinance, regulation, custom, or usage' the police are specially shielded— s 1979 provides a remedy which dismissal of petitioners' complaint in the present case does not impair. Otherwise, the protection of the people from local delinquencies and shortcomings depends, as in general it must, upon the active consciences of state executives, legislators and judges.71 Federal intervention, which must at best be limited to securing those minimal guarantees afforded by the evolving concepts of due process and equal protection, may in the long run do the individual a disservice by deflecting responsibility from the state lawmakers, who hold the power of providing a far more comprehensive scope of protection. Local society, also, may well be the loser, by relaxing its sense of responsibility and, indeed, perhaps resenting what may appear to it to be outside interference where local authority is ample and more appropriate to supply needed remedies.
138
This is not to say that there may not exist today, as in 1871, needs which call for congressional legislation to protect the civil rights of individuals in the States. Strong contemporary assertions of these needs have been expressed. Report of the President's Committee on Civil Rights, To Secure These Rights (1947); Chafee, Safeguarding Fundamental Human Rights: The Tasks of States and Nation, 27 Geo.Wash.L.Rev. 519 (1959). But both the insistence of the needs and the delicacy of the issues involved in finding appropriate means for their satisfaction demonstrate that their demand is for legislative, not judicial, response. We cannot expect to create an effective means of protection for human liberties by torturing an 1871 statute to meet the problems of 1960.
139
Of an enactment like the Civil Rights Act, dealing with the safeguarding and promotion of individual freedom, it is especially relevant to be mindful that, since it is projected into the future, it is ambulatory in its scope, the statute properly absorbing the expanding reach of its purpose to the extent that the words with which that purpose is conveyed fairly bear such expansion. But this admissible expansion of meaning through the judicial process does not entirely unbind the courts and license their exercise of what is qualitatively a different thing, namely, the formulation of policy through legislation. In one of the last writings by that tough-minded libertarian, who was also no friend of narrow construction, Professor Zechariah Chafee, Jr., he admonished against putting the Civil Rights Act to dubious new uses even though, as a matter of policy, they might be desirable in the changed climate nearly a hundred years after its enactment: 'At all events, we can be sure of one thing. If federal protection be desirable, we ought to get it by something better than a criminal statute of antiquated uncertainties and based on the out-moded Privileges and Immunities Clause of the Fourteenth Amendment. * * * It is very queer to try to protect human rights in the middle of the Twentieth Century by a left-over from the days of General Grant.' Id., at 529. It is not a work for courts to melt and recast this statute. 'Under color' of law meant by authority of law in the nineteenth century. No judicial sympathy, however strong, for needs now felt can give the phrase—a phrase which occurs in a statute, not in a constitution—any different meaning in the twentieth. Compare Mr. Justice Holmes' varying approaches to construction of the same word in a statute and in the Constitution, Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 372, and Eisner v. Macomber, 252 U.S. 189, 219, 40 S.Ct. 189, 197, 64 L.Ed. 521 (dissenting).
140
This meaning, no doubt, poses difficulties for the case-by-case application of § 1979. Manifestly the applicability of the section in an action for damages cannot be made to turn upon the actual availability or unavailability of a state-law remedy for each individual plaintiff's situation. Prosecution to adverse judgment of a state-court damage claim cannot be made prerequisite to § 1979 relief. In the first place, such a requirement would effectively nullify § 1979 as a vehicle for recovering damages.72 In the second place, the conclusion that police activity which violates state law is not 'under color' of state law does not turn upon the existence of a state tort remedy. Rather, it recognizes the freedom of the States to fashion their own laws of torts in their own way under no threat of federal intervention save where state law makes determinative of a plaintiff's rights the particular circumstance that defendants are acting by state authority. Section 1979 was not designed to cure and level all the possible imperfections of local common-law doctrines, but to provide for the case of the defendant who can claim that some particular dispensation of state authority immunizes him from the ordinary processes of the law.
141
It follows that federal courts in actions at law under § 1979 would have to determine whether defendants' conduct is in violation of, or under color of, state law often with little guidance from earlier state decisions. Such a determination will sometimes be difficult, of course. But Federal District Courts sitting in diversity cases are often called upon to determine as intricate and uncertain questions of local law as whether official authority would cloak a given practice of the police from liability in a state-court suit. Certain fixed points of reference will be available. If a plaintiff can show that defendant is acting pursuant to the specific terms of a state statute or of a municipal ordinance, § 1979 will apply. See Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281. If he can show that defendant's conduct is within the range of executive discretion in the enforcement of a state statute, or municipal ordinance, § 1979 will apply. See Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. Beyond these cases will lie the admittedly more difficult ones in which he seeks to show some "custom or usage' which has become common law.'73
V.
142
My Brother HARLAN'S concurring opinion deserves separate consideration. It begins by asking what is its essential question: Why would the Forty-second Congress, which clearly provided tort relief in the federal courts for violations of constitutional rights by acts of a policeman acting pursuant to state authority, not also have provided the same relief for violations of constitutional rights by a policeman acting in violation of state authority? What, it inquires, would cause a Congress to distinguish between the two situations? Examining a first possible differentiating factor—the differing degrees of adequacy of protection of person and property already available in the state courts—it reasons that this could not have been significant in view of Congress' purpose in 1871, for that purpose was not to enact a statute having 'merely a jurisdictional function, shifting the load of federal supervision from the Supreme Court to the lower courts and providing a federal tribunal for fact findings.' Examining the other possible distinction—the difference between injuries to individuals from isolated acts of abuse of authority by state officers and injuries to individuals from acts sanctioned by the dignity of state law—it finds that this, too, could not have been important, especially to a Congress which was aware of the existence of state constitutional guarantees of protection to the individual, and which enacted the conspiracy statute which became R.S. § 1980 and is now 42 U.S.C. § 1985, 42 U.S.C.A. § 1985.
143
To ask why a Congress which legislated to reach a state officer enforcing an unconstitutional law or sanctioned usage did not also legislate to reach the same officer acting unconstitutionally without authority is to abstract this statute from its historical context. The legislative process of the post-bellum Congresses which enacted the several Civil Rights Acts was one of struggle and compromise in which the power of the National Government was expanded piece by piece against bitter resistance; the Radicals of 1871 had to yield ground and bargain over detail in order to keep the moderate Republicans in line.74 This was not an endeavor for achieving legislative patterns of analytically satisfying symmetry. It was a contest of large sallies and small retreats in which as much ground was occupied, at any time, as the temporary coalescences of forces strong enough to enroll a prevailing vote could agree upon. To assume that if Congress reached one situation it would also have reached another situation involving not dissimilar problems—assuming, arguendo, that the problems, viewed in intellectual abstraction, are not dissimilar—ignores the temper of the times which produced the Ku Klux Act. This approach would be persuasive only if the two situations, that of a state officer acting pursuant to state authority and that of a state officer acting without state authority, were so entirely similar that they would not, in 1871, have been perceived as two different situations at all. In view of the fierce debate which occupied the Forty-second Congress as to whether the Fourteenth Amendment had been intended to do more than invalidate state legislation offensive on its face,75 this supposition must be ruled out. Contrariwise, it is historically persuasive that the Forty-second Congress, which was not thinking in neat abstract categories, designed a statute to protect federal constitutional rights from an immediate evil perceived to be grave—the evil described by the statute's sponsor, Mr. Shellabarger, 'such wrongs * * * as are done under color of State laws which abridge these rights,'76—but did not, by the same measure, seek to control unconstitutional action abusive of a state authority which did not, itself, 'abridge these rights.'
144
Moreover, even under the most rigorous analysis the two situations argumentatively deemed not dissimilar are indeed dissimilar, and dissimilar in both of the two relevant aspects. As to the adequacy of state-court protection of person and property, there seems a very sound distinction, as a class, between injuries sanctioned by state law (as to which there can never be state-court redress, if at all, unless (1) the state courts are sufficiently receptive to a federal claim to declare their own law unconstitutional, or (2) the litigant persists through a tortuous and protracted process of appeals, after a state trial court has found the facts, through the state-court system to this Court) and injuries not sanctioned by state law. To make this line of distinction determine the incidence of Civil Rights legislation serves to cover the bulk of cases where federal judicial protection would be needed. To be sure, this leaves certain cases unprotected, namely, the few instances of federal constitutional violations not authorized by state statute, custom or usage and which concern interests wholly unrecognized by state statute or common law. But the cost of ignoring the distinction in order to cover those cases—the cost, that is, of providing a federal judicial remedy for every constitutional violation—involves pre-emption by the National Government, in the larger class of cases in which rights secured by the Fourteenth Amendment relate to interests of person and property having a state-law origin, of matters of intimate concern to state and local governments. One of the most persistently recurring motifs in the legislative history of the Ku Klux Act is precisely a reluctance to invade these regions of state and local concern except insofar as absolutely necessary for effective assurance of the Fourteenth Amendment's guarantees. Therefore, the line of distinction between state-authorized and unauthorized actions, as a line of compromise among positions concerning which the legislative evidence is clear that Congress wanted to, and did, compromise, is the most probable for the Act's draftsmen to have selected.
145
To attribute significance to this line of distinction is not to reduce the Ku Kluz Act to having 'merely a jurisdictional function, shifting the load of federal supervision from the Supreme Court' to an original federal tribunal. First, there are certain classes of cases where § 1979, construed as reaching only unconstitutional conduct authorized by state law, will accord 'substantive' relief that would not have been available through the means of state-law, state-court litigation subject to the commands of the Supremacy Clause and to Supreme Court review. This would be the case, for example, if a Negro were to bring an action for damages against a state election official who had denied him the right to vote pursuant to discriminatory state franchise provisions77 in a State which did not recognize a common-law action for deprivation of the right to vote. Similarly, one whose home had been searched by state police acting under a state statute, regulation, custom or usage which authorized an unconstitutional intrusion could recover by a § 1979 action a measure of relief determined, as a 'substantive' matter, by federal law, whereas Supreme-Court-reviewed state-court suit might have availed him only damages for technical trespass. And, second, with reference to the more numerous classes of cases in which the redress which a federal trial court might give would be approximately the same, 'substantively,' as that which could be recovered by state-court suit, the theory that the Reconstruction Congress could not have meant § 1979 principally as a 'jurisdictional' provision granting access to an original federal forum in lieu of the slower, more costly, more hazardous route of federal appeal from fact-finding state courts, forgets how important providing a federal trial court was among the several purposes of the Ku Klux Act.78 One may agree that in one sense § 1979 is not 'merely' jurisdictional—not jurisdictional in the sense, for example, that § 3 of the 1866 Civil Rights Act was jurisdictional.79 Section 1979 does create a 'substantive' right to relief. But this does not negative the fact that a powerful impulse behind the creation of this 'substantive' right was the purpose that it be available in, and be shaped through, original federal tribunals.
146
In truth, to deprecate the purposes of this 1871 statute in terms of analysis which refers to 'merely * * * jurisdictional' effects, to 'shifting the load of federal supervision,' and to the 'administrative burden on the Supreme Court,' is to attribute twentieth century conceptions of the federal judicial system to the Reconstruction Congress. If today Congress were to devise a comprehensive scheme for the most effective protection of federal constitutional rights, it might conceivably think in terms of defining those classes of cases in which Supreme Court review of state-court decision was most appropriate, and those in which original federal jurisdiction was most appropriate, fitting all cases into one or the other category. The Congress of 1871 certainly did not think in such terms. Until 1875 there was no original 'federal question' jurisdiction in the federal courts,80 and the ordinary mode of protection of federal constitutional rights was Supreme Court review.81 In light of the then prevailing notions of the appropriate relative spheres of jurisdiction of state and federal courts of first impression, any allowance of Federal District and Circuit Court competence to adjudicate causes between co-citizens of a State was a very special case, a rarity.82 To ask why, when such a special case was created to redress deprivations of federal rights under authority of state laws which abridged those rights, a special case was not also created to cover other deprivations of federal rights whose somewhat similar nature might have made the same redress appropriate, disregards the dominant jurisdictional thought of the day and neglects consideration of the fact that redress in a federal trial court was then to be very sparingly afforded. To extend original federal jurisdiction only in the class of cases in which, constitutional violation being sanctioned by state law, state judges would be less likely than federal judges to be sympathetic to a plaintiff's claim, is a purpose quite consistent with the 'overflowing protection of constitutional rights' which, assuredly, § 1979 manifests.83
147
Finally, it seems not unreasonable to reject the suggestion that state-sanctioned constitutional violations are no more offensive than violations not sanctioned by the majesty of state authority. Degrees of offensiveness, perhaps, lie largely in the eye of the person offended, but is it implausible to conclude that there is something more reprehensible, something more dangerous, in the action of the custodian of a public building who turns out a Negro pursuant to a local ordinance than in the action of the same custodian who turns out the same Negro, in violation of state law, to vent a personal bias? Or something more reprehensible about the public officer who beats a criminal suspect under orders from the Captain of Detectives, pursuant to a systematic and accepted custom of third-degree practice, than about the same officer who, losing his temper, breaks all local regulations and beats the same suspect? If it be admitted that there is a significant difference between the situation of the individual injured by another individual and who, although the latter is an agent of the State, can claim from the State's judicial or administrative processes the same protection and redress against him as would be available against any other individual, and the situation of one who, injured under the sanction of a state law which shields the offender, is left alone and helpless in the face of the asserted dignity of the State, then certainly, it was the latter of these two situations—that of the unprotected Southern Negroes and Unionists—about which Congress was concerned in 1871.84
148
Again, an analysis which supposes that Congress, by §§ 1 and 285 of the Ku Klux Act, was attempting to provide comprehensive coverage of a single problem and, therefore, may not be supposed to have left any aspect of the problem unprovided for, ignores that these two sections were in fact designed to cope with two wholly different problems—two wholly diverse evils. Section 2 was newly drafted in 1871, not, like § 1, taken over from the 1866 Act. It was both civil and criminal, not, like § 1, merely civil. It aimed exclusively at conspiracies, as § 1 did not. And, most important, it sought to protect only the federal right of equal protection, not, like § 1, all Fourteenth Amendment rights.86 Because of its limited scope in this latter respect, those who drafted it and voted for it thought that it could constitutionally be made to reach instances of action having more tenuous connection with the lawfully asserted authority of the State than could a statute which also reached due process violations.87 For the same reason, it does not reach isolated instances of misuse of state authority, but only such as possess the character of 'purposeful discrimination'88 which amounts to a denial of equal protection. The evil that § 2 meant to stamp out was the evil of conspiracy—more particularly, the evil of the Klan, 'a conspiracy, so far-flung and embracing such numbers, with a purpose to dominate and set at naught the 'carpetbag' and 'scalawag' governments of the day,' that it appeared 'able effectively to deprive Negroes of their legal rights and to close all avenues of redress or vindication.' Collins v. Hardyman, 341 U.S. 651, 662, 71 S.Ct. 937, 942, 95 L.Ed. 1253.89 The enormity and the power of this organization were what made it dangerous.90 Section 1 aimed at another evil, the evil not of combinations dedicated to purposeful and systematic discrimination, but of violation of any rights, privileges, or immunities secured by the Constitution through the authority, enhanced by the majesty and dignity, of the States. Here it was precisely this authorization, this assurance that behind a constitutional violation lay the whole power of the State, that was the danger. One can agree that these two statutory sections may overlap unevenly rather than dovetail, but surely it is more plausible to regard this uneven overlap as a result of the diverse origins and purposes of the sections than to derive from it the justification for a construction of § 1979 which distorts the section by stretching it to cover a class of cases presenting neither the evil with which § 1, nor the evil with which § 2, of the Ku Klux Act was designed to cope.
VI.
149
The present case comes here from a judgment sustaining a motion to dismiss petitioners' complaint. That complaint, insofar as it describes the police intrusion, makes no allegation that that intrusion was authorized by state law other than the conclusory and unspecific claim that 'During all times herein mentioned the individual defendants and each of them were acting under color of the statutes, ordinances, regulations, customs and usages of the State of Illinois, of the County of Cook and of the defendant City of Chicago.' In the face of Illinois decisions holding such intrusions unlawful and in the absence of more precise factual averments to support its conclusion, such a complaint fails to state a claim under § 1979.
150
However, the complaint does allege, as to the ten-hour detention of Mr. Monroe, that 'it was, and it is now, the custom or usage of the Police Department of the City of Chicago to arrest and confine individuals in the police stations and jail cells of the said department for long periods of time on 'open' charges.' These confinements, it is alleged, are for the purpose of interrogating and investigating the individuals arrested, in the aim of inducing incriminating statements, permitting possible identification of suspects in lineups, holding suspects incommunicado while police conduct field investigations of their associates and background, and punishing the arrested persons without trial. Such averments do present facts which, admitted as true for purposes of a motion to dismiss, seem to sustain petitioners' claim that Mr. Monroe's detention—as contrasted with the night-time intrusion into the Monroe apartment—was 'under color' of state authority. Under the few relevant Illinois decisions it is impossible to say with certainty that a detention incommunicado for ten hours is unlawful per se,91 or that the courts of that State would hold that the lawless circumstances surrounding Mr. Monroe's arrest made his subsequent confinement illegal. On this record, then, petitioners' complaint suffices to raise the narrow issue of whether the detention incommunicado, considered alone, violates due process.92
151
Since the majority's disposition of the case causes the Court not to reach that constitutional issue, it is neither necessary nor appropriate to discuss it here.
1
This section provides in material part:
'The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
'(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.'
2
Subsection (a) provides:
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.'
In their complaint, petitioners also invoked R.S. §§ 1980, 1981, 42 U.S.C. §§ 1985, 1986, 42 U.S.C.A. §§ 1985, 1986. Before this Court, however, petitioners have limited their claim to recovery to the liability imposed by § 1979. Accordingly, only that section is before us.
3
See Cong.Globe, 42d Cong., 1st Sess., App. 68, 80, 83—85.
4
Act of April 9, 1866, 14 Stat. 27.
5
Supra, note 3, 568.
6
Illinois Const., Art. II, § 6, S.H.A.Const., provides:
'The right of the people to be secure in their persons, houses, paper and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.' Respondents also point to Ill.Rev.Stat., c. 38, §§ 252, 449.1; Chicago, Illinois, Municipal Code, § 11—40.
7
Cong.Globe, 42d Cong., 1st Sess., p. 244.
8
Id., App. 268.
9
Id., p. 345.
10
Id., p. 365. The speaker, Mr. Arthur of Kentucky, had no doubts as to the scope of § 1: '(I)f the sheriff levy an execution, execute a writ, serve a summons, or make an arrest, all acting under a solemn, official oath, though as pure in duty as a saint and as immaculate as a seraph, for a mere error of judgment, (he is liable) * * *.' Ibid. (Italics added.)
11
Id., p. 366.
12
Randall, The Civil War and Reconstruction (1937), p. 857.
13
S.Rep. No. 1, 42d Cong., 1st Sess.
14
See, e.g., Cong.Globe, 42d Cong., 1st Sess., App. 166 167.
15
Id., p. 374.
16
Id., p. 428.
17
As Randall, op. cit., supra, note 12, p. 855, says in discussing the Ku Klux Klan: 'A friendly view of the order might represent it as an agency of social control in the South. Yet it never attained the dignity of the vigilance committees of the western states nor of the committees of safety of Revolutionary times.'
18
Cong.Globe, 42d Cong., 1st Sess. 653.
19
Id., App. 277.
20
Id., App. 315.
21
Id., p. 334.
22
Id., p. 505.
23
Id., App., p. 50. Mr. Golladay of Tennessee expressed the same concern:
'Is the great State of New York invaded every time a murder is committed within her bounds? Was the great State of Pennsylvania invaded when rioters in the city of Philadelphia burned a public building? Was the great State of Massachusetts invaded when Webster, one of her first scholars, within the walls of Harvard murdered Parkman, or later, when evil-disposed persons violated her laws in Lowell? Did they require the Army and Navy and martial law? And, sir, because a midnight murderer is sometimes found in the South it should not be regarded as an invasion.' Id., App. 160.
24
Id., App. 179.
25
Id., App. 216.
26
Id., p. 579.
27
Section 1 in the bill as originally introduced read as follows:
'That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled 'An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication,' and the other remedial laws of the United States which are in their nature applicable in such cases.'
28
See text at note 23, supra; see note 10, supra.
29
Cong. Globe, 42d Cong., 1st Sess., pp. 334—335.
30
Then 18 U.S.C. § 52.
31
For a full history of the evolution of 18 U.S.C. § 242, 18 U.S.C.A. § 242, see Screws v. United States, 325 U.S. 91, 98 100, 65 S.Ct. 1031, 1033—1034, 89 L.Ed. 1495; United States v. Classic, 313 U.S. 299, 327, note 10, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368; cf. Hague v. Committee for Industrial Organization, 307 U.S. 496, 509—510, 59 S.Ct. 954, 961, 83 L.Ed. 1423.
32
Cong. Globe, 42d Cong., 1st Sess., App. 68.
33
H.R.Rep. No. 2187, 84th Cong., 2d Sess., p. 16.
34
Id., p. 26.
35
H.R.Rep. No. 291, 85th Cong., 1st Sess., pp. 24—60, U.S.Code Congressional and Administrative News 1957, p. 1966.
36
Id., pp. 57—58.
37
H.R.Rep. No. 956, 86th Cong., 1st Sess., pp. 32—42, U.S.Code Congressional and Administrative News 1960, p. 1939.
38
Cong., Globe, 42d Cong., 1st Sess., p. 663. The proposed amendment read:
'That if any house, tenement, cabin, shop, building, barn, or granary shall be unlawfully or feloniously demolished, pulled down, burned, or destroyed, wholly or in part, by any persons riotously and tumultuously assembled together; or if any person shall unlawfully and with force and violence be whipped, scourged, wounded, or killed by any persons riotously and tumultuously assembled together; and if such offense was committed to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude, in every such case the inhabitants of the county, city, or parish in which any of the said offenses shall be committed shall be liable to pay full compensation to the person or persons damnified by such offense if living, or to his widow or legal representative if dead; and such compensation may be recovered by such person or his representative by a suit in any court of the United States of competent jurisdiction in the district in which the offense was committed, to be in the name of the person injured, or his legal representative, and against said county, city, or parish. And execution may be issued on a judgment rendered in such suit and may be levied upon any property, real or personal, of any person in said county, city, or parish, and the said county, city, or parish may recover the full amount of such judgment, costs and interest, from any person or persons engaged as principal or accessory in such riot in an action in any court of competent jurisdiction.'
39
Id., 704—705.
40
Id., 725.
41
'That if any house, tenement, cabin, shop, building, barn, or granary shall be unlawfully or feloniously demolished, pulled down,
burned, or destroyed, wholly or in part, by any persons riotously and tumultuously assembled together; or if any person shall unlawfully and with force and violence be whipped, scourged, wounded, or killed by any persons riotously and tumultuously assembled together, with intent to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude, in every such case the county, city, or parish in which any of the said offenses shall be committed shall be liable to pay full compensation to the person or persons damnified by such offense, if living, or to his widow or legal representative if dead; and such compensation may be recovered in an action on the case by such person or his representative in any court of the United States of competent jurisdiction in the district in which the offense was committed, such action to be in the name of the person injured, or his legal representative, and against said county, city, or parish, and in which action any of the parties committing such acts may be joined as defendants. And any payment of any judgment, or part thereof unsatisfied, recovered by the plaintiff in such action, may, if not satisfied by the individual defendant therein within two months next after the recovery of such judgment upon execution duly issued against such individual defendant in such judgment, and returned unsatisfied, in whole or in part, be enforced against such county, city, or parish, by execution, attachment, mandamus, garnishment, or any other proceeding in aid of execution or applicable to the enforcement of judgments against municipal corporations; and such judgment shall be a lien as well upon all moneys in the treasury of such county, city, or parish, as upon the other property thereof. And the court in any such action may on motion cause additional parties to be made therein prior to issue joined, to the end that justice may be done. And the said county, city, or parish may recover the full amount of such judgment, by it paid, with costs and interest, from any person or persons engaged as principal or accessory in such riot, in an action in any court of competent jurisdiction. And such county, city, or parish, so paying, shall also be subrogated to all the plaintiff's rights under such judgment.' Id., 749.
42
Cong. Globe, 42d Cong., 1st Sess. 800—801.
43
Id., 804.
44
Id., 804.
45
Idid.
46
See especially the comments of Senator Sherman. Id., 820 821.
47
This Act has been described as an instance where 'Congress supplies its own dictionary.' Frankfurter, Some Reflections on the Reading of Statutes, 47 Col.L.Rev. 527, 536. The present code provision defining 'person' (1 U.S.C. § 1, 1 U.S.C.A. § 1) does not in terms apply to bodies politic. See Reviser's Note, Vol. I, Rev.U.S.Stats.1872, p. 19.
48
See note, 100 U. of Pa.L.Rev. 1182, 1206—1212.
49
See Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn.L.Rev. 493, 514. Cf. Fuller & Casner, Municipal Tort Liability in Operation, 54 Harv.L.Rev. 437, 459.
50
This has been the view of the lower federal courts. Charlton v. City of Hialeah, 5 Cir., 188 F.2d 421, 423; Hewitt v. City of Jacksonville, 5 Cir., 188 F.2d 423, 424; Cobb v. City of Malden, 1 Cir., 202 F.2d 701, 703; Agnew v. City of Compton, 9 Cir., 239 F.2d 226, 230; Cuiksa v. City of Mansfield, 6 Cir., 250 F.2d 700, 703—704. In a few cases in which equitable relief has been sought, a municipality has been named, along with city officials, as defendant where violations of 42 U.S.C. § 1983, 42 U.S.C.A. § 1983, were alleged. See e.g., Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 882, 87 L.Ed. 1324; Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776. The question dealt with in our opinion was not raised in those cases, either by the parties or by the Court. Since we hold that a municipal corporation is not a 'person' within the meaning of § 1983, no inference to the contrary can any longer be drawn from those cases.
1
313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368.
2
325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495.
3
The provision is now found in 42 U.S.C. § 1983, 42 U.S.C.A. § 1983: 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
4
Compare Cong. Globe, 42d Cong., 1st Sess. 504 (Senator Pratt), and id., at App. 50 (Rep. Kerr), with Cong. Globe, 41st Cong., 2d Sess. 3663 (Senator Sherman), Cong. Globe, 42d Cong., 1st Sess. 697 (Senator Edmunds), id., at App. 68 (Rep. Shellabarger), and Cong. Globe, 39th Cong., 1st Sess. 1758 (Senator Trumbull).
5
There will be many cases in which the relief provided by the state to the victim of a use of state power which the state either did not or could not constitutionally authorize will be far less than what Congress may have thought would be fair reimbursement for deprivation of a constitutional right. I will venture only a few examples. There may be no damage remedy for the loss of voting rights or for the harm from psychological coercion leading to a confession. And what is the dollar value of the right to go to unsegregated schools? Even the remedy for such an unauthorized search and seizure as Monroe was allegedly subjected to may be only the nominal amount of damages to physical property allowable in an action for trespass to land. It would indeed be the purest coincidence if the state remedies for violations of common-law rights by private citizens were fully appropriate to redress those injuries which only a state official can cause and against which the Constitution provides protection.
6
Id., at 577.
7
Compare the statement of Representative Burchard:
'If the refusal of a State officer, acting for the State, to accord equality of civil rights renders him amenable to punishment for the offense under United States law, conspirators who attempt to prevent such officers from performing such duty are also clearly liable.' Cong. Globe, 42d Cong., 1st Sess., App. 315.
8
Section 2 as finally adopted was substantially as now provided in 42 U.S.C. § 1985, 42 U.S.C.A. § 1985: 'If two or more persons in any State * * * conspire * * * for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State * * * from giving or securing to all persons within such State * * * the equal protection of the laws; * * * (and) if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.'
9
I do not think that this Court's decision in Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253, can properly be viewed as determining the scope of the provision of § 1985 which refers to conspiring 'for the purpose of preventing * * * the constituted authorities of any State * * * from giving * * * the equal protection of the laws * * *.' Not only did the Court specifically disclaim any consideration of this provision, but it proceeded to emphasize that the petitioners therein had only been subjected to a private discrimination since 'There is not the slightest allegation that defendants were conscious of or trying to influence the law, or were endeavoring to obstruct or interfere with it.' 341 U.S. at page 661, 71 S.Ct. at page 942. The holding that the equal protection of the law is unaffected by discriminatorily motivated violations of state law so long as the instrumentalities of law enforcement remain free, able, and willing to remedy these violations is clearly based upon premises which cannot control the quite dissimilar case of a conspiratorial attempt to affect the fairness of these instrumentalities, 'the constituted authorities of any State.'
10
Representative Poland, who had doubted the constitutionality of the earlier forms of § 2, had no such doubts about its present form. His reading of the provision is clear from his defense of it:
'But I do agree that if a State shall deny the equal protection of the laws, or if a State make proper laws and have proper officers to enforce those laws, and somebody undertakes to step in and clog justice by preventing the State authorities from carrying out this constitutional provision, then I do claim that we have the right to make such interference an offense against the United States; that the Constitution does empower us to aid in carrying out this injunction, which, by the Constitution, we have laid upon the States, that they shall afford the equal protection of the laws to all their citizens. When the State has provided the law, and has provided the officer to carry out the law, then we have the right to say that anybody who undertakes to interfere and prevent the execution of that State law is amenable to this provision of the Constitution, and to the law that we may make under it declaring it to be an offense against the United States.' Id., at 514.
An opponent of the provision was, if anything, even clearer in expressing his understanding of the coverage of the provision:
'* * * It does not require that the combination shall be one that the State cannot put down; it does not require that it shall amount to anything like insurrection. If three persons combine for the purpose of preventing or hindering the constituted authorities of any State from extending to all persons the equal protection of the laws, although those persons may be taken by the first sheriff who can catch them or the first constable, although every citizen in the country may be ready to aid as a posse, yet this statute applies. It is no case of domestic violence, no case of insurrection, and no case, therefore, for the interference of the Federal Government, much less its interference where there is no call made upon it by the Governor or the Legislature of the State.' Id., at App. 218 (Senator Thurman): see also id., at 514 (Rep. Farnsworth).
1
The complaint is in nine counts, and seeks to assert a claim in favor of Mr. Monroe, Mrs. Monroe, and their children, respectively, under each of R.S. §§ 1979, 1980 and 1981, 42 U.S.C. §§ 1983, 1985 and 1986, 42 U.S.C.A. §§ 1983, 1985, 1986. Petitioners have abandoned in this Court their claims under §§ 1980 and 1981, and we are not now asked to determine the applicability of those sections to the facts alleged.
2
The murder was asserted by the examining officers to have been committed two days before, on October 27.
3
Drawing upon the reasoning of the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394, this decision determined that only those rights or privileges were secured by the Constitution and laws which were inherent in the status of the individual as a citizen of the National Government, see Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340, or which were necessary to the integrity of the federal governmental institution, see Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150; compare Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429, with United States v. Powell, 212 U.S. 564, 29 S.Ct. 690, 53 L.Ed. 653, or which were created by Congress in the legitimate exercise of its Article I powers, see United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673.
4
It was brought to the attention of Congress in 1871 that 'rights, privileges, or immunities' was a more extensive phrase than 'privileges or immunities' as used in the Fourteenth Amendment prohibiting a State from abridging 'the privileges or immunities of citizens of the United States.' Cong. Globe, 42d Cong., 1st Sess., App. 49—50.
5
'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State * * * to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * * shall be fined not more than $1,000 or imprisoned not more than one year, or both.'
6
Civil liability has always been drawn from such indefinite standards as reasonable care, a man of ordinary prudence, foreseeability, etc. And see Baltimore & Ohio R. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; Miller v. Strahl, 239 U.S. 426, 36 S.Ct. 147, 60 L.Ed. 364.
7
See Koehler v. United States, 5 Cir., 189 F.2d 711; Clark v. United States, 5 Cir., 193 F.2d 294; Crews v. United States, 5 Cir., 160 F.2d 746. These cases are not cited by way of approval.
8
Petitioners also rely on the Equal Protection Clause. The disposition of the litigation by the majority here makes it unnecessary to discuss this aspect of the case.
9
Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674.
10
See Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183.
11
Ala.Const. Art. I, § 5; Alaska Const. Art. I § 14; Ariz.Const. Art. II, § 8, A.R.S.; Ark.Const. Art. II, § 15; Cal.Const. Art. I, § 19; Colo.Const. Art. II, § 7; Conn.Const. Art. I, § 8, C.G.S.A.; Del.Const. Art. I, § 6, Del.C.Ann.; Fla.Const. Declaration of Rights, § 22, F.S.A.; Ga.Const. Art. I, § 2—116; Art. 1, § 1, par. 16; Hawaii Const. Art. I, § 5; Idaho Const. Art. I, § 17; Ill.Const. Art. II, § 6, S.H.A.; Ind.Const. Art. I, § 11; Iowa Const. Art. I, § 8, I.C.A.; Kan.Const. Bill of Rights, § 15; Ky.Const. Bill of Rights, § 10; La.Const. Art. 1, § 7, LSA; Me.Const. Art. I, § 5; Md.Const. Declaration of Rights, Art. 26; Mass.Const. Pt. I, Art. XIV, M.G.L.A.; Mich.Const. Art. II, § 10; Minn.Const. Art. I, § 10, M.S.A.; Miss.Const. Art. 3, § 23; Mo.Const. Art. I, § 15, V.A.M.S.; Mont.Const. Art. III, § 7; Neb.Const. Art. I, § 7; Nev.Const. Art. I. § 18; N.H.Const. Pt. I, Art. 19; N.J.Const.1947, Art. I, par. 7; N.M.Const. Art. II, § 10; N.Y.Const. Art. I, § 12, and Civil Rights Law, McKinney's Consol.Laws, c. 6, § 8; N.C.Const. Art. I, § 15; N.D.Const. Art. I, § 18; Ohio Const. Art. I, § 14; Okla.Const. Art. II, § 30; Ore.Const. Art. I, § 9; Pa.Const. Art. I, § 8, P.S.; R.I.Const. Art I, § 6; S.C.Const. Art. I, § 16; S.D.Const. Art. VI, § 11; Tenn.Const. Art. I, § 7; Tex.Const. Art. I, § 9. Vernon's Ann.St.; Utah Const. Art. I, § 14; Vt.Const. C.I., Art. 11, V.S.A.; Va.Const. Art. I, § 10; Wash.Const. Art. I, § 7; W.Va.Const. Art. III, § 6; Wis.Const. Art. I, § 11, W.S.A.; Wyo.Const. Art. I, § 4.
12
See Huckle v. Money, 2 Wils. 205; Wilkes v. Wood, 19 How.St.Tr. 1153; City of Bessemer v. Eidge, 162 Ala. 201, 50 So. 270; 1 Cooley's Constitutional Limitations (8th ed.1927) 610—615; Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361 (1921), containing a collection of authorities.
13
See, e.g., Thurman v. State, 116 Fla. 426, 156 So. 484; compare Simpson v. State, 152 Tex.Cr.R. 481, 215 S.W.2d 617, with McClannan v. Chaplain, 136 Va. 1, 15—17, 116 S.E. 495. Note the common legislative proscription upon the search of private homes by officers otherwise authorized to make entries for the enforcement of prohibition laws and other regulatory statutes. E.g., National Prohibition Act, tit. II, § 25, 41 Stat. 305, 315, 27 U.S.C.A. § 39; and see Cornelius, Search and Seizure (2d ed. 1930), §§ 135—144.
14
See 2 Hale, Pleas of the Crown (Wilson ed. 1800) 150.
15
See, e.g., People v. Cahan, 1955, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513; Sarafini v. City and County of San Francisco, 1956, 143 Cal.App.2d 570, 300 P.2d 44; Ware v. Dunn, 1947, 80 Cal.App.2d 936, 183 P.2d 128; Walker v. Whittle, 1951, 83 Ga.App. 445, 64 S.E.2d 87; People v. Dalpe, 1939, 371 Ill. 607, 21 N.E.2d 756; Hart v. State, 1924, 195 Ind. 384, 145 N.E. 492; Johnson v. Commonwealth, Ky.1956, 296 S.W.2d 210; Deaderick v. Smith, 1950, 33 Tenn.App. 151, 230 S.W.2d 406.
16
The various analyses which have enabled this Court to find state action in situations other than that presented by Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737, are plainly not appropriate to consideration of the question whether in a given instance official conduct is 'under color' of state law. Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254, and Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 52 S.Ct. 133, 76 L.Ed. 265, came here on certiorari from state court proceedings. Coulter v. Louisville & Nashville R. Co., 196 U.S. 599, 25 S.Ct. 342, 49 L.Ed. 615, and Raymond v. Chicago Union Traction Co., 207 U.S. 20, 28 S.Ct. 7, 52 L.Ed. 78, held that accepted administrative usage in the exercise of a power specifically conferred by state legislation and wholly dependent upon that legislation for its coercive effects might constitute such action of a State as to present a cognizable federal question. But see City of Memphis v. Cumberland Tel. & Tel. Co., 218 U.S. 624, 31 S.Ct. 115, 54 L.Ed. 1185. Similarly, Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510, held that the existence in a state constitution of provisions coincident with those of the Federal Constitution did not ipso facto immunize state officials from the original jurisdiction of the federal courts. From none of these cases is implication to be drawn pertinent to the interpretation of § 1979.
17
See note 5, supra.
18
Mr. Shellabarger, Chairman of the House Select Committee which authored the Act of April 20, 1871, whose first section is now § 1979, reported to the House that that section was modeled upon the second section of the Act of April 9, 1866, 14 Stat. 27, and that the two sections were intended to cover the same cases, with qualifications not relevant here. Cong.Globe, 42d Cong., 1st Sess., App. 68. See also id., at 461. The 1866 provision had been re-enacted, substantially and in form, by the seventeenth and eighteenth sections of the Act of May 31, 1870, 16 Stat. 140, 144, and the 1874 revision of the provision was in turn patterned on the present § 1979. See Screws v. United States, 325 U.S. 91, 99 100, 65 S.Ct. 1031, 1034—1035, 89 L.Ed. 1495. The sections have consistently been read as coextensive in their reach of acts 'under color' of state authority. Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240, 248; Burt v. City of New York, 2 Cir., 156 F.2d 791, 792; McShane v. Moldovan, 6 Cir., 172 F.2d 1016, 1020; Geach v. Moynahan, 7 Cir., 207 F.2d 714, 717.
As enacted in 1871, the provision which is now § 1979 reached acts taken 'under color of any law, statute, ordinance, regulation, custom, or usage of any State * * *.' 17 Stat. 13. (Emphasis added.) In the Revised Statutes of 1874 and 1875 'law' was omitted from the section, although 'law' was retained in the parallel criminal provision, R.S. § 5510, as amended, 18 U.S.C. § 242, 18 U.S.C.A. § 242, and in the jurisdictional provisions, R.S. §§ 563(12) and 629(16). The deletion in § 1979 appears in the Reviser's Draft (1872) without explanation. 1 Revision of U.S. Statutes, Draft (1872) 947. No alteration in statutory coverage is permissibly to be based upon the change.
The jurisdictional provisions may now be found in 28 U.S.C. § 1343, 28 U.S.C.A. § 1343.
19
Carter v. Greenhow, 114 U.S. 317, 330, 5 S.Ct. 928, 962, 29 L.Ed. 202, 207; Bowman v. Chicago & N.W. Ry. Co., 115 U.S. 611, 6 S.Ct. 192, 29 L.Ed. 502; Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909; Devine v. City of Los Angeles, 202 U.S. 313, 26 S.Ct. 652, 50 L.Ed. 1046; Myers v. Anderson 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 1349; Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 882, 87 L.Ed. 1324. One case not involving a state constitution, statute or ordinance was an instance of state judicial action. Green v. Elbert, 137 U.S. 615, 11 S.Ct. 188, 34 L.Ed. 792; and see Anglo-American Provision Co. v. Davis Prov. Co., No. 2, 191 U.S. 376, 24 S.Ct. 93, 48 L.Ed. 228.
20
Holt v. Indiana Mfg. Co., 176 U.S. 68, 20 S.Ct. 272, 44 L.Ed. 374; Moyer v. Peabody, 212 U.S. 78, 29 S.Ct. 235, 53 L.Ed. 410; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; cf. Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987.
21
Northwestern Fertilizing Co. v. Hyde Park, C.C.N.D.Ill.1873, 18 Fed.Cas. p. 393, No. 10,336; Baltimore & Ohio R. Co. v. Allen, C.C.W.D.Va.1883, 17 F. 171; Tuchman v. Welch, C.C., 42 F. 548, and M. Schandler Bottling Co. v. Welch, C.C.D.Kan.1890, 42 F. 561; Hemsley v. Myers, C.C.D.Kan.1891, 45 F. 283; Davenport v. Board of Trustees of Cloverport High School, D.C.D.Ky.1896, 72 F. 689; Fraser v. McConway & Torley Co., C.C.D.Pa.1897, 82 F. 257; Crystal Springs Land & Water Co. v. City of Los Angeles, C.C.S.D.Cal.1896, 76 F. 148, affirmed 177 U.S. 169, 20 S.Ct. 573. 44 L.Ed. 720 (see California Oil & Gas Co. of Arizona v. Miller, C.C.S.D.Cal.1899, 96 F. 12); Aultman & Taylor Co. v. Brumfield, C.C.N.D.Ohio 1900, 102 F. 7, appeal dismissed 22 S.Ct. 938, 46 L.Ed. 1265; Wadleigh v. Newhall, C.C.N.D.Cal.1905, 136 F. 941; Farson v. City of Chicago, C.C.N.D.Ill.1905, 138 F. 184; Brickhouse v. Brooks, C.C.E.D.Va.1908, 165 F. 534; Simpson v. Geary, D.C.D.Ariz.1913, 204 F. 507; Raich v. Truax, D.C.D.Ariz.1915, 219 F. 273, affirmed 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Marcus Brown Holding Co. v. Pollak, D.C.S.D.N.Y.1920, 272 F. 137; West v. Bliley, D.C.E.D.Va.1929, 33 F.2d 177, affirmed 4 Cir., 1930, 42 F.2d 101; Trudeau v. Barnes, 5 Cir., 1933, 65 F.2d 563; Jones v. Oklahoma City, 10 Cir., 1935, 78 F.2d 860; Mitchell v. Greenough, 9 Cir., 1938, 100 F.2d 184; Blackman v. Stone, 7 Cir., 1939, 101 F.2d 500; City of Manchester v. Leiby, 1 Cir., 1941, 117 F.2d 661; Hannan v. City of Haverhill, 1 Cir., 1941, 120 F.2d 87; Hume v. Mahan, D.C.E.D.Ky.1932, 1 F.Supp. 142, reversed 287 U.S. 575, 53 S.Ct. 223, 77 L.Ed. 505; Premier-Pabst Sales Co. v. McNutt, D.C.S.D.Ind.1935, 17 F.Supp. 708; Gobitis v. Minersville School Dist., D.C.E.D.Pa.1937, 21 F.Supp. 581; D.C.1938, 24 F.Supp. 271, affirmed 3 Cir., 1939, 108 F.2d 683, reversed 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375; Connor v. Rivers, D.C.N.D.Ga.1938, 25 F.Supp. 937, affirmed, 305 U.S. 576, 59 S.Ct. 359, 83 L.Ed. 363; Ghadiali v. Delaware State Medical Society, D.C.D.Del.1939, 28 F.Supp. 841; Mills v. Board of Education, D.C.D.Md.1939, 30 ,.f.Supp. 245; Bluford v. Canada, D.C.W.D.Mo.1940, 32 F.Supp. 707, appeal dismissed 8 Cir., 1941, 119 F.2d 779; Kennedy v. City of Moscow, D.C.D.Idaho 1941, 39 F.Supp. 26. In these cases R.S. § 1979 or the parallel jurisdictional provisions were invoked. Note that in the Jones and Farson cases, supra, defendant's conduct was specifically authorized by local ordinance, although plaintiffs asserted the invalidity of those ordinances under state as well as under federal law. In both cases relief was denied on the ground that no state action was shown, within the rule of Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737. To this group of cases involving acts authorized by state law must be added Miller v. Rivers, D.C.M.D.Ga.1940, 31 F.Supp. 540, reversed as moot 5 Cir., 1940, 112 F.2d 439, in which a state governor had several times authorized action in violation of state court restraining orders, finally declaring martial law in the face of the state judicial decrees. Two reported criminal prosecutions under § 242 also involved conduct sanctioned by state law. United States v. Buntin, C.C.S.D.Ohio 1882, 10 F. 730; United States v. Stone, D.C.D.Md.1911, 188 F. 836. Cf. United States v. Horton, D.C.D.Ala.1867, 26 Fed.Cas., p. 375, No. 15,392, semble.
22
Brawner v. Irvin, C.C.N.D.Ga.1909, 169 F. 964. In one case decided in 1940 just prior to United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, a Federal District Court did distinctly decide that similar police misconduct unauthorized by state law, was 'under color' of state law. United States v. Sutherland, D.C.N.D.Ga.1940, 37 F.Supp. 344. An unreported 1940 case, United States v. Cowan, D.C.E.D.La., is said to have reached a similar result. See 1941 Atty.Gen.Rep. 98; Brief for the United States, United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, p. 45, n. 25. In neither of these two cases does there appear to have been any examination of the legislative history of the 'under color' statutes, nor is any reasoning offered to support the conclusion of the courts.
23
The court below had dismissed the indictment on the ground that the right was not so secured and had not discussed the 'under color' issue. 35 F.Supp. 66.
24
The Government's brief contended that, inasmuch as the Civil Rights statutes were passed to enforce the Fourteenth Amendment, they should be read as coextensive with it: 'under color' of state law should be coincident with 'State action' as this Court had developed the 'State action' concept. Classic's brief argued the point as though it were urging a 'State action' contention.
25
Ex parte Commonwealth of Virginia, 100 U.S. 339, 25 L.Ed. 676, arose under federal legislation penalizing 'any officer or other person charged with any duty in the selection or summoning of jurors' who discriminated on grounds of race, color, or previous condition of servitude in the choosing of juries. The issue was whether this provision could constitutionally be applied to a state judge who discriminated in the administration of a state statute fair on its face. Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510, posed the question whether the enforcement of an allegedly confiscatory municipal regulatory ordinance was state action for purposes of Federal District Court 'arising under' jurisdiction.
26
The Mayor and other officials of Jersey City were charged with a concerted program of discriminatory law enforcement intended to drive union organizers out of the city. The acts upon which amenability to suit under § 1979 was predicated were (1) the enforcement of a municipal ordinance which this Court held unconstitutional on its face; (2) the enforcement of a second ordinance in a manner which willfully discriminated against union organizers; and (3) 'acts not under the authority of any ordinance or statute but committed under color of municipal office and as part of a deliberate municipal policy.' 101 F.2d 774, 790. The Court of Appeals for the Third Circuit held that, on these facts, all three classes of conduct, viewed together, constituted 'State action.' This Court affirmed and modified the decree without considering the point.
27
That the Court had not in the Classic case isolated the 'under color' issue from the question of 'State action' is indicated by the opinions in Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497. The latter case arose under § 1979, yet although the 'State action' principle had been the basis for the decision below and was prominently treated in two opinions here, no reference was made to the 'under color' phrase.
28
The brief for petitioners Screws et al. contains no citation to legislative history. The brief for the United States, after several citations intended to demonstrate that the purpose of the Civil Rights Acts was to enforce the Fourteenth Amendment and to protect the rights which it secures (these citations, employed to the same purpose, may be found in the plurality opinion, 325 U.S. at pages 98—99, 65 S.Ct. at pages 1033—1034), sets forth only one other bit of legislative material: a statement made in debate by Senator Davis of Kentucky, an opponent of the Act of 1866, to the effect that the Act would repeal the penal laws of all the States. See Cong. Globe, 39th Cong., 1st Sess. 598.
29
See 325 U.S. at page 111, 65 S.Ct. at page 1040 (plurality); id., 325 U.S. at pages 142—144, 65 S.Ct. at pages 1054—1055 (dissent). These two statements are set forth in text at notes 38 and 39, infra. The plurality opinion also contains references to other aspects of the legislative history in another context, id., 325 U.S. at pages 98—100, 65 S.Ct. at pages 1033 1034; see note 28, supra. In his separate opinion, Mr. Justice Rutledge twice adverts to legislative materials, once with regard to matters not relevant here, id., 325 U.S. at page 120, notes 13, 14, 65 S.Ct. at page 1044, and once, pertinently, with particular reference to the position of opponents of the 1866 Act that the legislation would invade the province of the States (setting forth Senator Davis' statement, see note 28, supra), id., 325 U.S. at page 132, note 33, 65 S.Ct. at page 1050. Mr. Justice Murphy, also writing separately, does not discuss the 'under color' issue.
30
Neither the Court's opinion nor the briefs in Williams contain any citation to the legislative history of the Civil Rights Acts. It is true that between Screws and Williams Congress in 1948 re-enacted § 242 without material change. If that section were before the Court in the present case, the implications of that re-enactment might have to be appraised. Yet whatever tenuous thread of legislative approbation of Screws might be drawn from the kind of bulk-sale congressional action which was involved in its enactment of a whole criminal code by way of the new Title 18 U.S.C., 18 U.S.C.A., in 1948, any attempt to tangle in that same thread § 1979—a statute which has not been touched by Congress in three quarters of a century—would exceed the bounds of fictionally implied legislative adoption.
31
E.g., United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884; United States v. C.I.O., 335 U.S. 106, 68 S.Ct. 1349, 92 L.Ed. 1849; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035; Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972.
32
The Act of September 9, 1957, 71 Stat. 634, 637, 42 U.S.C.A. § 1971, provides that 'No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote' at any election held solely or in part for the purpose of selecting or electing candidates for designated federal offices. Such an enactment, of course, can in no conceivable manner be considered congressional 'adoption' or approbation of this Court's constructions of the 'under color' clause in Classic, Screws and Williams, for the sufficient reason (among others) that the statute employs the clause only to go beyond it—manifesting a purpose, through the expression 'under color of law or otherwise,' to reach all individual conduct of the class described, whether or not 'under color' of law, and whatever 'under color' of law may mean. See H.R.Rep. No. 291, 85th Cong., 1st Sess. 12. The provisions of H.R. 627, 84th Cong., 2d Sess., as reported from the House Committee on the Judiciary and made the subject of H.R.Rep. No. 2187, 84th Cong., 2d Sess., are similar. See especially id., at 9—11.
The Civil Rights Act of 1960, 74 Stat. 86, 88—89, 90, does twice use the clause 'under color of (law),' but in contexts wholly different from that of R.S. § 1979. Section 301 of the 1960 Act requires every 'officer of election' to retain and preserve during a specified period all records and papers which come into his possession relating to acts requisite to voting at an election wherein candidates for designated federal offices are voted for. Section 306 (which comprises the only use of 'under color' language in the House bill that was the subject of H.R.Rep. No. 956, 86th Cong., 1st Sess.) defines an 'officer of election' as 'any person who, under color of any Federal, State, Commonwealth, or local law, statute, ordinance, regulation, authority, custom, or usage, performs or is authorized to perform any function, duty, or task in connection with any application, registration, payment of poll tax, or other act requisite to voting' in any election at which votes are cast for candidates for those deisgnated federal offices. These provisions, like those of the 1957 Act, are of very limited scope, reaching only certain donduct affecting federal
elections. Section 601 of the 1960 Act provides that in any proceeding instituted by the Attorney General for preventive relief against the deprivation, on account of race or color, of certain voting rights, see R.S. § 2004, as amended by the Act of September 9, 1957, 71 Stat. 634, 637, 42 U.S.C. § 1971, 42 U.S.C.A. § 1971, the court shall, on proper request, make a finding whether such deprivation was or is pursuant to a pattern or practice. If the court finds such a pattern or practice, any person of that race or color resident within the affected area is entitled, during a specified period, to an order declaring him qualified to vote, 'upon proof that at any election or elections (1) he is qualified under State law to vote, and (2) he has since such finding by the court been (a) deprived of or denied under color of law the opportunity to register to vote or otherwise to qualify to vote, or (b) found not qualified to vote by any person acting under color of law.' Whatever meaning 'under color of law' may have as so employed, Congress' use of the phrase in this narrowly limited context—applying to a situation in which voting rights have been infringed on grounds of race or color pursuant to a pattern or practice—cannot reasonably be taken as indicative of congressional attitude toward one or another possible construction of 'under color' in the sweeping context of R.S. § 1979.
All this is said quite apart from the consideration of how little weight may properly be given to inferences drawn from the silence of minority reports of congressional committees, especially committees sitting almost a century after the enactment of the legislation in question.
33
People v. Grod, 385 Ill. 584, 53 N.E.2d 591; People v. Dalpe, 371 Ill. 607, 21 N.E.2d 756; People v. Brocamp, 307 Ill. 448, 138 N.E. 728. See Ill.Rev.Stat., c. 38, §§ 691—699 (1959); Ill.Const., Art. II, § 6.
34
See Bucher v. Krause, 7 Cir., 200 F.2d 576.
35
See Cong.Globe, 39th Cong., 1st Sess. 474, 602, 1117 1118; 1123—1124, 1151, 1159—1160, 1758—1759. See 1 Fleming, Documentary History of Reconstruction (Reprint 1950) 273—311; 2 Commager, Documents of American History (6th ed. 1958) 2—7, for typical Black Code provisions. A more dispassionate appraisal of the Codes than was possible during the turbulence of Reconstruction is found in Randall, The Civil War and Reconstruction (1937) 724—730.
36
Cong.Globe, 39th Cong., 1st Sess. 1680. See also id., at 1266. Light is thrown upon this distinction between the deprivation of a right and its violation—deprivation being competent to the law-making and law-enforcing organs of a State—by comparison of the language of § 1979, establishing liability for the 'deprivation of any rights, privileges, or immunities secured by the Constitution * * *,' 17 Stat. 13, with the provisions of the criminal conspiracy section of the 1870 Act, penalizing conspiracies to intimidate any person in order to 'hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution.' 16 Stat. 140, 141. Cf. Civil Rights Cases, 109 U.S. 3, 17—18, 3 S.Ct. 18, 25—26, 27 L.Ed. 835.
37
Senator Trumbull had introduced the bill. Cong.Globe, 39th Cong., 1st Sess. 129.
38
Cong.Globe, 39th Cong., 1st Sess. 1758.
39
Cong.Globe, 41st Cong., 2d Sess., 3663. Mr. Sherman's remarks were addressed not specifically to the section which paralleled the 1866 'under color' language, but to the whole of the pending Senate amendment, a substitute for the House bill. Compare id., at 3561 with id., at 3503. It was from the Senate amendment, containing an 'under color' provision modeled on § 2 of the Act of 1866, that the 1870 Act, as finally enacted, immediately derived.
40
17 Stat. 13. (Emphasis added.)
41
Cong.Globe, 42d Cong., 1st Sess., App. 68. Mr. Shellabarger was the Chairman of the House Select Committee which drafted the Ku Klux Act. In reporting it out of committee, he described its first section, now § 1979, as modeled on the second section of the First Civil Rights Act of 1866. Ibid. In debate on the 1866 Act Shellabarger had said that the earlier provision was meant 'not to usurp the powers of the States to punish offenses generally against the rights of citizens in the several States, but its whole force is expended in defeating an attempt, under State laws, to deprive races and the members thereof as such of the rights enumerated in this act.' Cong.Globe, 39th Cong., 1st Sess. 1294.
42
Cong.Globe, 42d Cong., 1st Sess. 697.
43
Id., at 808.
44
The claim was several times repeated in debate that the bill operated to absorb 'the entire jurisdiction of the States over their local and domestic affirs,' id., at 366, or that it would bring 'private grievances to the Federal courts.' Id., at 395. With very few exceptions (Ibid., Id., at 361, 429, App. 91) these criticisms were not directed to the Act's first section, now § 1979. See, also, Id., at 416, 510, 660, App. 160, 179, 241—243, 258. One opposition speaker did object specifically to § 1 as providing a federal forum for the deprivation of a suitor's rights although 'The offenses committed against him may be the common violations of the municipal law of his State. Id., at App. 50. And one supporter of the measure, who argued that the Fourteenth Amendment gave Congress power to enact a general criminal law, if necessary, for the protection of citizens under the Privileges and Immunities, Due Process, and Equal Protection Clauses, said of § 2 of the Act of 1866, the model for § 1 of the 1871 Act, that it punished acts which would otherwise be 'mere misdemeanors' at state law. Id., at 504. But these two remarks are the only assertions, throughout hundreds of pages of debate, that § 1 might reach conduct which state law proscribed. Proponents of the bill, addressing themselves to the charge of federal overreaching, insisted that they could support the measure only because they understood that it did not presume to enter upon that realm of protection of rights traditionally reserved to the States. Id., at 800. See notes 47—50, infra. And see the statement of Senator Edmunds, id., at 697—698: '(The bill) does not undertake to interpose itself out of the regular order of the administration of law. It does not attempt to deprive any State of the honor which is due to the punishment of crime.'
45
Id., at 317. Any act to effect the object of the conspiracy rendered all the conspirators guilty of a felony.
46
The impetus for the enactment of the Ku Klux Act was President Grant's message to Congress asserting that a condition then existed in some States which rendered life and property insecure and which was beyond the power of state authorities to control. See id., at App. 226. Throughout the debates on the bill the note was repeated: there was a need for federal action to supplant state administration which was failing to provide effective protection for private rights. Id., at 345, 368, 374, 428, 444, 457—459, 460, 476, 505—506, 653, App. 78, 167, 185, 248 249, 252. Constitutional authority for such federal action was sought in the logic that 'States' were ordered by the Fourteenth Amendment not to 'deny' equal protection of the laws; that a 'State' in effect denied such protection not only when its legislation was on its face unequal, but whenever its judicial or executive authorities by a consistent course of practice, 'permanently and as a rule' refused to enforce its laws for the protection of some class of persons. Id., at 334. See id., at 416, 482, 505—506, 606—608, 697, App. 251—252, 315. But what was deemed the prerequisite to validity of congressional action in implementation of the Amendment under this theory was no less than a State's permitting 'the rights of citizens to be systematically trampled upon without color of law,' id., at 375; 'A systematic failure to make arrests, to put on trial, to convict, or to punish offenders.' Id., at 459. The National Government was thought powerless to intervene to regulate 'A mere assault and battery, or arson, or murder * * *. The law is believed to be sufficient to cover such cases, and the officers of justice amply able to arrest and punish the offenders.' Id., at 457. See also Mr. Perry's assertion, id., at App. 79, that the wrongs which Congress may remedy 'are not injuries inflicted by mere individuals or upon ordinary rights of individuals,' but injuries inflicted 'under color of State authority or by conspiracies and unlawful combinations with at least the tacit acquiescence of the State authorities.' Wrongs susceptible of adequate redress before the state courts evidently did not concern Congress, and Congress in 1871 did not attempt to reach those wrongs.
47
General Garfield, id., at App. 154: 'In so far as this section punishes persons who under color of any State law shall deny or refuse to others the equal protection of the laws, I give it my cheerful support; but when we provide by congressional enactment to punish a mere violation of a State law, we pass the line of constitutional authority.' (This objection is taken specifically to § 3 of the Act, authorizing federal executive intervention under certain circumstances.) See also, e.g., id., at App. 113—116: Mr. Farnsworth, who had no objection to § 1, now § 1979, vigorously opposed § 2 as extending to encompass individual action. Farnsworth regarded the Fourteenth Amendment as directed exclusively to the discriminations of state legislation, and his approval of § 1 indicates his understanding that it referred to conduct authorized by such legislation. Garfield seems to have agreed that § 1 did not reach even systematic maladministration of state law fair on its face. See id., at App. 153.
48
Mr. Shellabarger proposed the amendment to § 2, id., at 477, to meet the constitutional objections which the original form of that section had evoked. See id., at 478, App. 187—190, 313. Numerous members of the majority party thereupon withdrew their opposition to the bill. See id., at 514, App. 187—190, 231, 313 315. The form of the second section as it was finally enacted is, in relevant part, substantially that of R.S. § 1980, 42 U.S.C. § 1985, 42 U.S.C.A. § 1985: 'If two or more persons in any State * * * conspire * * * for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State * * * from giving or securing to all persons within such State * * * the equal protection of the laws; (and) if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.' See 17 Stat. 13. Mr. Shellabarger emphasized that the purpose of the change was to make the gist of the offense a deprivation of equality of rights, not a deprivation of rights alone. Cong. Globe, 42d Cong., 1st Sess. 478.
49
Representative Poland had argued the unconstitutionality of the original § 2 on the ground that it sought to extend federal protection to private persons and property, whereas the Fourteenth Amendment guaranteed only equal protection, leaving the States free to protect or not to protect whatever interests they chose so long as the protection afforded was non-discriminatory. The amendment of § 2 met this objection, and Mr. Poland supported the bill, finding no cause for concern in the language of § 1. Id., at 514. For other congressmen who opposed the initial form of § 2 but found no constitutional impediment to enactment of § 1, see id., at 578—579 (Trumbull), App. 86 (Storm), 150—154 (Garfield), 187 190 (Willard). Farnsworth objected to even the amended form of § 2, but voiced no adverse criticism of § 1. Id., at 513. Slater, also opposing § 2, argued that if Congress could assert general criminal jurisdiction in the States (as he contended that section did), it could also assert general civil jurisdiction in protection of persons and property. Apparently he did not regard § 1 as threatening such an assertion. Id., at App. 304.
There was in fact relatively little opposition to § 1. See id., at 568. Many vociferous opponents of the Act did not assail that section. E.g., id., at 419, App. 112, 134—139, 300—303. What objections there were did not suggest that the section usurped state power by assuming a concurrent authority to redress state-law violations, but, quite the opposite, attacked the section for penalizing state judges, legislators and administrative officials acting in full obedience to state law, 'under a solemn, official oath, though as pure in duty as a saint.' Id., at 365.
50
Id., at App. 315. See id., at App. 313—315.
51
Id., at 579.
52
Id., at 368 (Sheldon). See also id., at 501 (Frelinghuysen).
53
Id., at App. 277 (Porter).
54
Id., at App. 268 (Sloss).
55
Id., at App. 218.
56
Id., at App. 216.
57
Id., at App. 217. One significant objection made to § 1 reveals its opponents' comprehension of its scope. It was objected that the section was unnecessary inasmuch as under Amendment Fourteen and the Supremacy Clause there was no longer any danger of 'violation of the rights of citizens under color of the laws of the States.' Id., at App. 231 (Blair). The appellate jurisdiction of the Supreme Court of the United States under § 25 of the Judiciary Act of 1789, providing for review on writ of error of state court judgments sustaining state authority against federal constitutional challenge or striking down asserted federal authority, was regarded as offering sufficient protection against the deprivations of rights covered by § 1. Id., at App. 86 (Storm).
58
See note 46, supra.
59
Cong. Globe, 42d Cong., 1st Sess. 374.
60
Id., at 428.
61
Id., at 653.
62
Id., at App. 315.
63
Id., at 505.
64
Id., at App. 179.
65
Id., at 334.
66
See note 46, supra.
67
'The Fourteenth Amendment, itself a historical product, did not destroy history for the States * * *.' Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 67 L.Ed. 107.
68
In the last twenty years the lower federal courts have encountered a volume of litigation seeking Civil Rights Act redress for a variety of wrongs ranging from arbitrary refusal by housing department officials to issue architect's certificates, Burt v. City of New York, 2 Cir., 156 F.2d 791, to allegedly malicious charges made by a state grand jury. Lyons v. Baker, 5 Cir., 180 F.2d 893. Plaintiffs have sought redress against the signers of a mandamus petition, parties to a state mandamus proceeding to compel city commissioners to hold a local referendum, Lyons v. Dehon, 5 Cir., 188 F.2d 534, against state officials administering a local WPA project for refusing to employ the plaintiff and instituting insanity proceedings against him, Love v. Chandler, 8 Cir., 124 F.2d 785, against adversaries and judge in a state civil judicial proceeding where egregious error resulting in holding against plaintiffs was alleged, Bottone v. Lindsley, 10 Cir., 170 F.2d 705; Campo v. Niemeyer, 7 Cir., 182 F.2d 115; cf. Moffett v. Commerce Trust Co., 8 Cir., 187 F.2d 242. Most courts have refused to convert what would otherwise be ordinary state-law claims for false imprisonment or malicious prosecution or assault and battery into civil rights cases on the basis of conclusory allegations of constitutional violation. Lyons v. Weltmer, 4 Cir., 174 F.2d 473; McGuire v. Todd, 5 Cir., 198 F.2d 60; Curry v. Ragan, 5 Cir., 257 F.2d 449; Deloach v. Rogers, 5 Cir., 268 F.2d 928; Agnew v. City of Compton, 9 Cir., 239 F.2d 226.
69
See, e.g., Valle v. Stengel, 3 Cir., 176 F.2d 697, a case which decides a number of novel and difficult questions of federal constitutional law. The alleged conduct of defendant sheriff which was held actionable under § 1979 was in violation of state law.
70
See Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn.L.Rev. 493 (1955); Barrett, Exclusion of Evidence Obtained by Illegal Searches—A Comment on People vs. Cahan, 43 Cal.L.Rev. 565 (1955); cf. Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 Va.L.Rev. 621 (1955). And see, e.g., State for Use of Brooks v. Wynn, 213 Miss. 306, 56 So.2d 824.
71
The common law seems still to retain sufficient flexibility to fashion adequate remedies for lawless intrusions. Compare with the cases cited in Wolf v. People of State of Colorado, 338 U.S. 25, 30, 69 S.Ct. 1359, 1362, 93 L.Ed. 1782, n. 1; Bull v. Armstrong, 1950, 254 Ala. 390, 48 So.2d 467; Sarafini v. City and County of San Francisco, 1956, 143 Cal.App.2d 570, 300 P.2d 44; Ware v. Dunn. 1947, 80 Cal.App.2d 936, 183 P.2d 128; Walker v. Whittle, 1951, 83 Ga.App. 445, 64 S.E.2d 87; Johnson v. Atlantic Coast Line R. Co., 1927, 142 S.C. 125, 140 S.E. 443; Deaderick v. Smith, 1950, 33 Tenn.App. 151, 230 S.W.2d 406.
72
This is so not only because of the practical impediment to Civil Rights Act relief which would be posed by a two-suit requirement, but because the efficient process of judicial administration might well require that a plaintiff present his federal constitutional contention to the state courts along with his state-law contentions, that he there assert the federal unconstitutionality of maintaining the defense of state authorization to a state-law tort action. Cf. Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832. Of course, once that federal contention is properly presented to the state courts, plaintiff has open for review here an adverse state-court judgment; but if plaintiff were successful in this Court, the effect of our disposition would be to return plaintiff to the state courts for a state-law measure of relief.
73
See note 57, supra. Cf. Civil Rights Cases, 109 U.S. 3, 16, 3 S.Ct. 18, 24, 27 L.Ed. 835. And see Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254: 'Here * * * all the organs of the state are conforming to a practice, systematic, unbroken for more than forty years, and now questioned for the first time. It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law. * * * Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.'
Where the jurisdiction of a Federal District Court is invoked to vindicate a claim under § 1979 and where that court finds that defendants' conduct is not under color of state law, difficult questions may also arise as to whether the court should nevertheless determine the respective rights of the parties at state law, under the doctrine of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, and Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. But see California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323; Massachusetts Universalist Convention v. Hildreth & Rogers Co., 1 Cir., 183 F.2d 497; Robinson v. Stanley Home Prods., Inc., 1 Cir., 272 F.2d 601. Petitioners in this case have never throughout the litigation below raised the issue of the possible application of the Hurn rule to these circumstances, nor is that issue among the questions presented in their petition for certiorari here. Under our Rule 23, subd. 1(c), 28 U.S.C.A., it is not now, therefore, before the Court, and there is no intention here to intimate any opinion on the novel problem of federal jurisdiction of state-law claims 'pendent' to such a case as this. Suffice it to say that whatever application Hurn may have to these situations, its application will entail a very different level of federal judicial involvement with the adjudication of rights between individuals in a State than would the interpretation of § 1979 which petitioners urge. Whatever incursion into areas of conventionally exclusive statecourt competence jurisdiction 'pendent' to a § 1979 claim might entail would touch considerations not peculiar to § 1979, but rather which concern the Hurn doctrine.
74
See the history of § 2 of the Ku Klux Act described, supra, at notes 44—50. For an excellent picture of the background of this legislative struggle, see McKitrick, Andrew Johnson and Reconstruction (1960).
75
See, e.g., Cong. Globe, 42d Cong., 1st Sess. 482, 505 506, 697, App. 81—86, 315.
76
Id., at App. 68.
77
See, e.g., Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281.
78
See, e.g., the pages of debate cited in note 46, supra.
79
That section gave the District and Circuit Courts of the United States concurrent jurisdiction of all causes, civil and criminal, 'affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section' of the 1866 Act. It further provided: 'The jurisdiction in civil and criminal matters hereby conferred on the district and circuit courts of the United States shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offences against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of the cause, civil or criminal, is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern said courts in the trial and disposition of such cause * * *.' Act of April 9, 1866, § 3, 14 Stat. 27.
80
Except, of course, during the time between the Act of February 13, 1801, § 11, 2 Stat. 92, and its repeal by the Act of March 8, 1802, § 1, 2 Stat. 132. 'Federal question' jurisdiction was conferred by the Act of March 3, 1875, § 1, 18 Stat. 470.
81
Recognition of this situation underlies the comments of Messrs. Blair and Storm, see note 57, supra, and the debate among Senators Edmunds, Trumbull and Carpenter referred to in the concurring opinion. See especially Cong.Globe, 42d Cong., 1st Sess. 576—578.
82
This is why Mr. Carpenter speaks of the Fourteenth Amendment's Enforcement Clause as working 'one of the fundamental, one of the great, the tremendous revolutions effected in our Government by that article of the Constitution.' Id., at 577.
83
See the remarks of Mr. Dawes, a member of the Committee with reported the Ku Klux bill, id., at 476:
'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 an account there, either civilly or criminally, for their infringement, I submit to the calm and candid judgment of every member of this House 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 the fact, as that great tribunal of the Constitution.'
And see, e.g., the remaks of Mr. Coburn, id., at 459—460:
'Whenever, then, there is a denial of equal protection by the State, the courts of justice of the nation stand with open doors, ready to
receive any hear with impartial attention the complaints of those who are denied redress elsewhere. Here may come the weak and poor and downtrodden, with assurance that they shall be hard. Here may come the man smitten with many stripes and ask for redress. Here may come the nation, in her majesty, and demand the trial and punishment of offenders, when all, all other tribunals are closed * * *.
'Can these means be made effectual? Can we thus suppress these wrongs? I will say we can but try. The United States courts are further above mere local influence than the county courts; their judges can act with more independence, cannot be put under terror, as local judges can; their sympathies are not so nearly identified with those of the vicinage; the jurors are taken from the State, and not the neighborhood; they will be able to rise above prejudices or bad passions or terror more easily. The marshal, clothed with more power than the sheriff, can make arrests with certainty, and, with the aid of the General Government, can seize offenders in spite of any banded and combined resistance such as may be expected. Thus, at least, these men, who disregard all law, can be brought to trial. Here we stop. The court is to do the rest, acting under all its solemn obligations of duty to country and God. Can we trust it, or are we afraid of our own institutions? Does the grim shadow of the State step into the national court, like a goblin, and terrify us? Does this harmless and helpless ghost drive us from that tribunal—the State that mocks at justice, the State that licenses outlawry, the State that stands dumb when the lash and the torch and the pistol are lifted every night over the quiet citizen? We believe that we can trust our United States courts, and we propose to do so.'
84
It is suggested that Congress knew there existed state constitutional guarantees of which state legislation might fall afoul, and that nevertheless there is found in the debates no 'explanation of (the) exception to the general rule' which would obtain if § 1979 were applied to conduct authorized by state statute, ordinance, regulation, custom or usage, but violative of a state constitution. To regard such an application as an 'exception' is to misconceive the incidence of § 1979 by regarding its operation from the wrong perspective. The question whether official action does or does not come within the statute depends not upon what state law the action does or does not violate, but upon what state law does or does not authorize the action. The state authorization against which Congress aimed § 1979 was authorization by the living , functioning law of the State, not authorization in strict conformity with what may have become no more than an unheeded pattern of words upon the closed pages of a State's books of legal learning. It meant to reach those 'Deeply embedded traditional ways of carrying out state policy (which) * * * are often tougher and truer law than the dead words of the written text,' see note 73, supra, and it would by its terms have reached the case supposed by my Brother Harlan not as a matter of exception in need of explanation, but by its natural logic.
85
Section 2 of the Ku Klux Act attached civil and criminal liability to conspiracy 'for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws * * *.' 17 Stat. 13. The civil provisions of this section were carried forward, as amended, in R.S. § 1980, and are now found in 42 U.S.C. § 1985, 42 U.S.C.A. § 1985. The criminal provisions, carried forward in R.S. § 5519, were declared unconstitutional in United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290, and Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 763, 32 L.Ed. 766.
86
See Cong.Globe, 42d Cong., 1st Sess. 478, App. 315.
87
The Fourteenth Amendment provides that no State shall 'deprive' any person of life, liberty, or property without due process of law, and that no State shall 'deny' to any person within its jurisdiction the equal protection of the laws. It is clear that the Forty-second Congress believed that 'denial' could be worked by non-action, while 'deprivation' required ill-action; thus, that the scope of federal enforcing power under the Equal Protection Clause reached further, in respect of situations in which there was no assertion of legitimate state authority, than did the equivalent scope of power under the Due Process and Privileges and Immunities Clauses. See, id., at 459, 482, 505—506, 514, 607—608, 697, App. 251, 315. This appears to be why § 2 was acceptable in its amended, while not in its original, form.
88
Snowden v. Hughes, 321 U.S. 1, 9, 64 S.Ct. 397, 401, 88 L.Ed. 497; see also Lisenba v. People of State of California, 314 U.S. 219, 226, 62 S.Ct. 280, 285, 86 L.Ed. 166.
89
I agree that this is not the appropriate occasion to pass upon the construction of § 1985.
90
For an appreciation of the nature and character of the Ku Klux Klan as it appeared to Congress in 1871, see S.Rep. No. 1, 42d Cong., 1st Sess., and the voluminous report of the Joint Select Committee to inquire into the Condition of Affairs in the late Insurrectionary States, published as S.Rep. No. 41, pts. 1 13, and H.R.Rep. No. 22, pts. 1—13, 42d Cong., 2d Sess.
91
Compare People v. Frugoli, 1929, 334 Ill. 324, 166 N.E. 129, and Fulford v. O'Connor, 1954, 3 Ill.2d 490, 121 N.E.2d 767, with People v. Kelly, 1949, 404 Ill. 281, 89 N.E.2d 27.
92
In considering the detention of Mr. Monroe as isolable from the invasion of the Monroe home for purposes of applying § 1979, one does not ignore that in its treatment of coerced-confession cases and deprivation-of-counsel cases coming here from state courts, this Court has looked to the whole sequence of activity by state authorities pertinent to the prosecution of a criminal defendant. Malinski v. People of State of New York, 324 U.S. 401, 412, 65 S.Ct. 781, 786, 89 L.Ed. 1029 (concurring opinion joined in, and made a majority view, 324 U.S. at page 438, 65 S.Ct. at page 798); 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. 1910; Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686. But these cases differ from the one at bar precisely in the fact that they do come here after the sustaining of a criminal conviction by the highest court of a State competent to act in the matter. In all such cases the processes of law administration of a State have rendered the final judgment of state law, and the federal question presented is whether the conviction has, in light of the totality of the events leading to that conviction, violated due process. The question in the instant case is the much narrower one whether petitioners have alleged conduct 'under color' of state authority which deprives them of a Fourteenth Amendment right, and thus brought respondents' conduct within the specific requirements of the statute for initiating litigation in a Federal District Court.
| 12
|
365 U.S. 146
81 S.Ct. 547
5 L.Ed.2d 476
UNITED STATES, Appellant,v.Roy FRUEHAUF et al.
No. 91.
Argued Jan. 11, 1961.
Decided Feb. 20, 1961.
Rehearing Denied April 3, 1961.
See 365 U.S. 875, 81 S.Ct. 899.
Mr. S. Hazard Gillespie, Jr., New York City, for appellant.
Mr. Louis Nizer, New York City, for appellees.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
On June 17, 1959, an indictment in two counts was filed in the United States District Court for the Southern District of New York against appellees Roy Fruehauf, Fruehauf Trailer Co., Burge Seymour, Associated Transport, Inc., and Brown Equipment and Manufacturing Co. (hereinafter referred to collectively as the Fruehauf-Seymour group)1 and appellee Dave Beck. The first count, based on § 302(a) of the Labor Management Relations Act, 1947, 61 Stat. 157, 29 U.S.C. § 186(a), 29 U.S.C.A. § 186(a), which makes it unlawful 'for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce,'2 charged that on or about June 21, 1954, each of the appellees of the Fruehauf-Seymour group, employers of employees engaged in an industry affecting commerce,
2
'did unlawfully, wilfully and knowingly pay and deliver and agree to pay and deliver to Dave Beck, President, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a representative of the aforesaid employees, a thing of value, to wit, money, in the amount of $200,000.'
3
The second count, based on § 302(b), 61 Stat. 157, 29 U.S.C. § 186(b), 29 U.S.C.A. § 186(b), and similarly couched in the words of the statute,3 charged that Beck had received and accepted, and agreed to receive and accept, from the appellees of the Fruehauf-Seymour group, $200,000. All of the appellees entered pleas of not guilty; after various pretrial proceedings, during the course of which 'trial memoranda' were submitted by the Government and by several of the appellees, the case came on for trial. At the outset of the hearing, the district judge suggested that if, as he was advised by the trial memoranda of certain among the appellees, any of them intended to move for dismissal of the indictment, such a motion should be made at that time. Counsel for the appellees replied that they 'would be in a better position to address ourselves to the grounds for a dismissal after the government had made an opening here, * * * if on inquiry in this pretrial, preliminary conference, the government conceded certain positions that it has conceded at arraignment and other places in the minutes.' The district judge then read into the record an extended excerpt from the Government's trial memorandum4 which purported to outline the 'facts which support the charge and which the government intends to prove.' These were: (A) That Beck asked Roy Fruehauf to 'lend him $200,000,' which 'loan' was subsequently discussed at a meeting of Fruehauf and attorneys for Beck and Fruehauf Trailer Co.; that after unsuccessful attempts to 'place the loan' with officers of various banks, 'Fruehauf and Burge Seymour found it necessary to arrange the loan without the aid of financial institutions and, instead, processed it through the Fruehauf Trailer Co. (Roy Fruehauf, president), Associated Transport Co. (Burge Seymour, president), and the latter's wholly owned subsidiary Brown Equipment and Manufacturing Co.' (B) That 'The method by which this otherwise simple transfer of $200,000.00 from Fruehauf to Beck was effected is a fairly complex one, apparently caused by difficulties encountered by the defendant employers in effectuating what they have called a 'loan' but without officers of their corporations learning of the transaction.' (C) That '(T)he details of this circuitous financing operations (sic)' were as follows: Inasmuch as 'Neither Fruehauf nor Seymour wished to effect the loan by use of personal funds,' and 'neither Fruehauf nor Seymour felt that their respective corporations could overtly finance the transfer of funds in such an amount without embarrassing themselves,' it was determined that the Brown Company 'would actually make the transfer to Beck.' Thereupon, (1) on June 21, 1954, Fruehauf Trailer Co. 'transferred' $175,000 by check to Brown in exchange for Brown's $175,000 promissory note, payable December 30, 1954, and 'purporting to bear interest in the amount of 5% per annum,' whereas, in fact, 'no interest was ever paid to, or even anticipated by, Fruehauf or his corporation.' (2) Brown, on the same date, transferred $200,000 to Beck in return for Beck's promissory note for that amount at 4% per annum, payable December 30, 1954—a Brown check requisition form which falsely listed the object of this transfer being explained by Seymour as intended to conceal from 'the people in Associated * * * that Beck was borrowing Associated funds.' (3) Associated, on the same date, transferred $200,000 to Brown. One week later, Brown returned to Associated $175,000, the amount lent Brown by Fruehauf. On December 30, 1954, 'after Seymour had renegotiated the loan with Manufacturers Trust Co.,' Brown returned the remaining $25,000 to Associated. ('It should be noted that Beck was supposed to, but did not, repay the 'loan' to Brown by December 30, 1954.') (4) On December 27, 1954, Seymour borrowed $200,000 at 4% per annum for 90 days from Manufacturers Trust Co., collateralizing the loan with Beck's note and obligations of Fruehauf, Seymour and others, including an attorney for Fruehauf Trailer Co. (5) Seymour paid $2,066.66 interest to Manufacturers Trust, and by check dated March 30, 1955, returned the $200,000 loan to the bank. (6) 'Beck paid the $200,000 loan from Brown by remitting to Seymour $163,215. on or about April 11, 1955, and $36,785. on or about June 30, 1955, which Seymour endorsed to Brown.' (7) 'Only $4,000 interest, approximately half of the interest due, was actually paid and that was remitted in the form of a check * * * (from Fruehauf Trailer Co.'s attorney) to Seymour.' Having read this portion of the Government's memorandum for the purpose of making known to the appellees 'the government's position, at least on the matter of the loan,' the district judge ruled that 'in my view that statement by the government is a judicial admission that the transaction was a loan. As a matter of fact, to verify that belief, the government later argues in its brief that the use of the money was a thing of value. So at least, so far as I am concerned, there can be no dispute that the government's position is that this was a loan, and we are now resolved to the question of whether a loan under these circumstances was illegal under the statute * * *.'
4
'(O)n the basis of the disclosure by the Court of what the Court understands to be a judicial admission by the government,' the court then asked, again, whether appellees wished to be heard on a motion to dismiss. At this point, government counsel interposed 'to communicate one thought to the Court that may not have been communicated by my brief.' He stated:
5
'Despite the fact that there is the repeated use of the word 'loan' in the government's advance outline before the Court, caused by the fact that the government's case in large part is as asserted by these defendants as the trial will reflect as it proceeds, nevertheless the government's position on the loan, and I hope to make this clear as the trial progresses, is actually twofold.
6
'A loan, if your Honor please, is something that relates to a state of mind between the person who is receiving the money and the person who is giving the money, and again the repayment which actually occurred in this case is only one aspect of whether or not the transfer of funds between one party or from one party to another is actually a loan.
7
'Now, to be quite specific, I will simply say that the position that the government takes is that the government has called this a loan, and in reiterating the facts as we know them from the defendants, the defendants having repeatedly used the word 'loan,' we say that this is not necessarily so, because in fact any loan when it is made, to prove the fact that it was a loan, goes through certain stages, and is accompanied by certain attributes and here those items were not present in this case.'
8
After adverting to the size of the 'loan,' the fact that no collateral was given, and the facts that the 'loan' could not be processed through financial institutions, that no interest was paid between the corporations although the transaction purported to require its payment, and that Beck did not in fact pay the 4% interest due under the terms of his note to Brown, government counsel concluded: 'That is our first position. And the second position is that even if this is a loan as a matter of law it is still encompassed within the statute.' The district judge replied:
9
'I do not think that anything you said detracts from the argument that you made in your memorandum, that you are going to prove that this was a loan, and on that basis I intend to entertain an application with respect to the dismissal of the indictment.'
10
All of the appellees moved to dismiss on the ground, among others, that the transaction between Beck and the Fruehauf-Seymour group, being a 'loan,' was not within the prohibition of the statute. Argument on the motion was had, and government counsel reiterated his position:
11
'The Court: Assuming that this case was tried and the Court was disposed to frame special interrogatories to the jury, and one of those interrogatories was, Was the transaction a loan, and the jury brought back the answer No: do you think the Court could allow that answer to stand on the basis of the facts as you have set them forth in your brief, or wouldn't the Court have to set aside the finding as being contrary to the evidence and the weight of the evidence?
12
'Mr. Guzzetta: Your Honor, in the context of the remarks I made after you read in open court my brief, I would say that that would not be an erroneous finding by them.
13
'The Court: In other words, your position is that despite the facts which you set forth this could be held to be not a loan? When I say the facts you set forth, I mean the facts in your memorandum.
14
'Mr. Guzzetta' As I tried to indicate, * * * the government's position is twofold. If it wasn't a loan, if the jury determine on the basis of the facts which they hear that this was—that the outer clothing, fabricated by one highly complex intercorporate transaction, didn't make this transfer a loan, clearly, it would come within the statute. There would be no problem in my mind at all. Secondly, if the jury decided that it was a loan, I wouldn't say that that would preclude them from finding a verdict of guilty because * * * a loan is encompassed under the statute.'
15
The District Court granted the motions to dismiss the indictment as to all of the appellees. It ruled:
16
'I am convinced that the language which I read into the record from the Government's brief is a judicial admission that this transaction was a loan. I have no doubt in my own mind at least, that in a trial either to the court or the jury, in a preliminary hearing where the defendants have not yet subjected themselves to jeopardy, if the Government established the facts which it recounted in its brief that it intended to prove, a finding by a jury to the contrary would have to be set aside, nor could the Court find to the contrary. Those facts, in my view, notwithstanding the qualifications attempted orally, and despite those qualifications and accepting those qualifications, those facts, in my view, establish that the transaction was a pure and simple loan.
17
'* * * Having found as I do on the Government's judicial admission that the transaction was a loan, we must then resolve whether the transaction as a loan was violative of the statute as it was at the time of the transaction, and I am of the opinion that it was not.'
18
From this oral ruling the Government brought the case here by direct appeal pursuant to the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. The sole question presented in its Jurisdictional Statement is 'whether a loan of money comes within the * * * prohibitions' of § 302 of the Labor Management Relations Act, 1947.5 Briefs and oral argument in this Court proceeded upon the assumption that this question, and only this question, was properly raised by the record, and that the question, thus shaped, presupposed the substantial reality and bona fides of the 'loan.' Counsel for the Government, in response to questions from the bench, asserted that in light of the framing of the issues on this direct appeal, the Government's trial theory would have to be that the Beck-Fruehauf-Seymour transaction was an incontestable, good-faith loan at a fair rate of interest, and that such other circumstances of the transaction as the lack of collateral would be immaterial. However, in a subsequent communication addressed to the Court and opposing counsel by the Solicitor General, the Government took the position 'that the Court may properly take account in disposing of this case of the salient facts with respect to the transaction, as developed by the prosecutor before the district judge and as taken into account by the district judge in dismissing the indictment, and that the question before the Court may be considered in the factual context in which it was presented; the question presented fairly comprised the two issues of (1) whether any loan was covered by Section 302, and (2) whether this loan was covered by Section 302.'
19
On this record, the question put to the Court for our direct review under 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, is left unclear. An indictment cast in statutory language has been dismissed for failure to charge an offense within the meaning of the legislation whose words it employs, on the ground (as expressed in the ruling of the District Court) that the Government's trial memorandum constituted a 'judicial admission that the transaction was a loan.' The portions of the trial memorandum upon which this ruling rests establish, at most, that approximately a year after the Fruehauf-Seymour group transferred $200,000 to Beck, Beck transferred $200,000 back to the Fruehauf-Seymour group, with $4,000 'interest,' 'approximately half of the interest due.' On the basis of such facts, putting aside of course all questions of variance between indictment and proof that might emerge at a trial, seemingly the Government might have attempted to make out violations of § 302 on any of a number of alternative theories: (1) that the 'loan' was a sham, a mere ruse and covering device intended to pass from Fruehauf and Seymour to Beck a gift or bribe of money; (2) that irrespective of intention, the acceptance by the Fruehauf-Seymour group of $200,000 plus $4,000 interest in satisfaction of Beck's obligation to repay the 'loan' with twice that amount of interest constituted a forbidden delivery of the unpaid interest to Beck; (3) that irrespective of the terms of Beck's note, the loan of a large sum of money at a rate of interest significantly lower than the going commercial rate effected a delivery to Beck of the difference between the interest payable at a commercial rate and the interest agreed on; (4) that irrespective of the interest rate, the transaction—by which Fruehauf and Seymour made available a large, unsecured loan which Beck could not have gotten through normal financing channels resulted in the delivery to Beck of a 'thing of value,' namely, the benefit of having the money in hand; (5) that irrespective of the particular incidents of this transaction, all loans, as such, violate the statute, either because the use of money is itself a 'thing of value' which may not in any case be delivered by an employer to his employees' representative, even in consideration of the payment of interest, under the statute, or because every loan, qua loan, comports the 'delivery' of the thing loaned, which delivery (regardless of repayment) violates § 302.6 However, the District Court's ruling that, by admission of the Government, the transaction was a 'loan,' appears to mean that, in light of its trial memorandum, the Government is foreclosed from pursuing some, probably most, of these theories. Which among them the court thus viewed as closed remains uncertain. On the other hand, in a representation to this Court, the Solicitor General does not leave it unequivocally clear, so as to preclude controversy in the lower court were the case to be allowed to go to trial, which (if not all) of the theories he would regard as still open. The only issue which we can be sure that the District Court decided as a matter of construction of the statute (as distinguished from those issues which the District Court held could not be proved under the indictment consistently with the Government's 'judicial admission') is the issue posed by the fifth theory above—the issue posed, in its most evidently abstract form, by the question presented here in the Government's Jurisdictional Statement 'whether a loan of money,' every loan of money, as such, 'comes within the (statute's) * * * prohibitions.'
20
We do not reach that question on this appeal. For we cannot but regard it—abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees' motions to dismiss an indictment incontestably valid on its face—as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144; Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154.
21
Nor does the record raise questions concerning the sufficiency of the indictment which would require, in an appropriate case, that the case be sent to the Court of Appeals, pursuant to 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. For this is not a case in which the District Court has construed the allegations of an indictment, or limited the scope of the Government's presentation by construction of a bill of particulars or the prosecutor's opening statement. In the present case we cannot know with reference to what supposed factual circumstances the District Court attributed to the Government the admission that the Beck-Fruehauf-Seymour transaction constituted a 'loan.' Without spelling out in detail the diverse argumentative possibilities that underlie the judge's attribution of a 'loan' as an unequivocally defined concept to the Government, it suffices to say that experience in instances of similar unclarity under the Criminal Appeals Act counsels the wisdom of abstaining from reviewing construction of a criminal statute on so cloudy a record as is now before the Court. Compare United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992, with United States v. A. Schrader's Son, Inc., 252 U.S. 85, 40 S.Ct. 251, 64 L.Ed. 471.
22
The core of the difficulty in the present case is that the record does not preclude the Government from attempting to prove that the transaction in question came within the statutory ban by reason of any or all possible theories. Of course, an undertaking by counsel here, however honorable its impulse, cannot bind the Government in the future. And the District Court's ruling, insofar as it purports to close any avenues open to the Government under the indictment—not in view of specifications made in a bill of particulars or an opening statement, but on the basis of a 'judicial admission' culled from a pretrial memorandum—was impermissible and constitutes an insufficient basis to justify the exercise of this Court's jurisdiction on direct appeal.
23
We do not think, however, that the purpose of Rule 15 of this Court, 28 U.S.C.A., under which the Government filed the Jurisdictional Statement which brought the case here, requires us to penalize the Government by dismissing this appeal, simpliciter. This Court has the power, expressly provided in 28 U.S.C. § 2106, 28 U.S.C.A. § 2106, to 'vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and * * * remand the cause and * * * require such further proceedings to be had as may be just under the circumstances.' The exercise of that authority is appropriate here. The ruling dismissing the indictment is set aside and the case is remanded for trial upon this valid indictment. So ordered.
24
Dismissal of indictment set aside and case remanded.
25
Mr. Justice STEWART, dissenting.
26
The dismissal of the indictment in this case was placed squarely upon the district court's construction of a criminal statute. Specifically, the court ruled that a loan of money did not fall within the prohibition of § 302 of the Labor Management Relations Act of 1947 (before its amendment in 1959). In bringing the appeal directly here, the Government eliminated from the case any possible questions other than the correctness of the district court's construction of the underlying statute—to which this Court's jurisdiction is limited under the Criminal Appeals Act. 18 U.S.C. § 3731, 18 U.S.C.A. § 3731. United States v. Keitel, 211 U.S. 370, 397—398, 29 S.Ct. 123, 131, 53 L.Ed. 230; United States v. Patten, 226 U.S. 525, 535, 540, 33 S.Ct. 141, 142, 57 L.Ed. 333; United States v. Colgate & Co., 250 U.S. 300, 301, 306, 39 S.Ct. 465, 466, 63 L.Ed. 992; United States v. Borden Co., 308 U.S. 188, 192—194, 60 S.Ct. 182, 185, 84 L.Ed. 181. '(I)n reviewing a direct appeal from a District Court under the Criminal Appeals Act, supra, our review is limited to the validity or construction of the contested statute. For 'The Government's appeal does not open the whole case." United States v. Petrillo, 332 U.S. 1, 5, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877.
27
I think the issue whether a loan of money came within the proscriptions of the statute is before us now and should be decided. I further think this is the only issue properly before us. However, since the Court thinks otherwise, I am persuaded that an expression of my views on the subject would not be appropriate.
1
It appears that Roy Fruehauf is President of Fruehauf Trailer Co., that Burge Seymour is President of Associated Transport, Inc., and that Brown Equipment and Manufacturing Co. is a wholly owned subsidiary of Associated Transport, Inc.
2
Section 505 of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 537, enacted September 14, 1959, amended this section to read, in pertinent part:
'It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, adviser, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value—
'(1) to any representative of any of his employees who are employed in an industry affecting commerce * * *'.
3
Count Two of the indictment charged that 'On or about the 21st day of June, 1954, * * * Dave Beck, * * * a representative of employees who were engaged in an industry affecting commerce * * * did unlawfully, wilfully and knowingly receive and accept and agree to receive and accept from (the several appellees of the Fruehauf-Seymour group), employers of the aforesaid employees, a thing of value, to wit, money, in the amount of $200,000.' Section 302(b), as it was in effect at the time of the transaction alleged, provided: 'It shall be unlawful for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other thing of value.' The Labor-Management Reporting and Disclosure Act of 1959, § 505, amended the section to cause it to parallel the amended version of § 302(a), note 2, supra.
4
The memorandum has not been made a part of the record in this Court. As read into the record, in part, by the district judge, it appears to have been prefixed by the statement:
'This memorandum is submitted for the purpose of supplying the Court with a general outline and analysis of the facts the government intends to prove together with an exposition of the statutory and decsional (sic) law regarding the crime charged in the instant case.'
5
This statement of the question differs from that in the Government's Notice of Appeal, which stated the issue to be 'Whether the payment of money by an employer (of employees in an industry affecting commerce) to a representative of his employees, intending repayment of said money with interest, is within the proscriptions of Section 302(a) and (b) of the Labor Management Relations Act, 1947 * * *.'
6
Subsection (c) of § 302 excepts five enumerated situations from the section's broad ban on delivery or receipt of any thing of value: e.g., § 302(c)(3) provides that the section shall not be applicable 'with respect to the sale or purchase of an article or commodity at the prevailing market price in the regular course of business.'
| 89
|
365 U.S. 336
81 S.Ct. 599
5 L.Ed.2d 592
ARO MANUFACTURING CO., Inc., et al., Petitioners,v.CONVERTIBLE TOP REPLACEMENT CO., Inc.
No. 21.
Argued Oct. 13 and 17, 1960.
Decided Feb. 27, 1961.
Rehearing Denied April 17, 1961.
See 365 U.S. 890, 81 S.Ct. 1024.
Mr. David Wolf, Boston, Mass., for petitioners.
Mr. Ralph S. Spritzer, Washington, D.C., for United States, as amicus curiae.
Mr. Elliott I. Pollock, Washington, D.C., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
On April 17, 1956, respondent, Convertible Top Replacement Co., Inc., acquired a 'Territorial Grant' (coextensive with 'the Commonwealth of Massachusetts') of all rights in Letters Patent No. 2,569,724, commonly known as the Mackie-Duluk patent, and 10 days later commenced this action against petitioners, Aro Manufacturing Co., Inc., and several of its officers, to enjoin the alleged infringement and contributory infringement of the patent and for an accounting of profits.
2
The patent—one for a 'Convertible Folding Top with Automatic Seal at Rear Quarter'—covers the combination, in an automobile body, of a flexible top fabric, supporting structures, and a mechanism for sealing the fabric against the side of the automobile body in order to keep out the rain. Tops embodying the patent have been installed by several automobile manufacturers in various models of convertibles. The components of the patented combination, other than the fabric, normally are usable for the lifetime of the car, but the fabric has a much shorter life. It usually so suffers from wear and tear, or so deteriorates in appearance, as to become 'spent,' and normally is replaced, after about three years of use. The consequent demand for replacement fabrics has given rise to a substantial industry, in which petitioner, Aro Manufacturing Co., is a national leader. It manufactures and sells replacement fabrics designed to fit the models of convertibles equipped with tops embodying the combination covered by the patent in suit.
3
After trial without a jury, the court held that the patent was valid, infringed and contributorily infringed by petitioners. It accordingly enjoined them from further manufacture, sale or use of these replacement fabrics, and appointed a master to hear evidence concerning, and to report to the court on, the matter of damages. The Court of Appeals affirmed, 270 F.2d 200, and we granted certiorari, 362 U.S. 902, 80 S.Ct. 609, 4 L.Ed.2d 553.
4
The Court of Appeals, after holding that the patent was valid, stated that the 'basic question' presented was whether petitioners' conduct constituted 'making a permissible replacement of a part (the fabric) which expectedly became worn out or defective sooner than other parts of the patented combination' or whether such replacement constituted 'a forbidden reconstruction of the combination.' It then held that replacement of the fabric constituted reconstruction of the combination and thus infringed or contributorily infringed the patent. It reached that conclusion principally upon the ground that 'the life of the fabric is not so short, nor is the fabric so cheap, that we can safely assume that an owner would rationally believe that in replacing it he was making only a minor repair to his top structure.' 270 F.2d at pages 202, 205.
5
Validity of the patent is not challenged in this Court. The principal, and we think the determinative, question presented here is whether the owner of a combination patent, comprised entirely of unpatented elements, has a patent monopoly on the manufacture, sale or use of the several unpatented components of the patented combination. More specifically, and limited to the particular case here, does the car owner infringe (and the supplier contributorily infringe) the combination patent when he replaces the spent fabric without the patentee's consent?
6
The fabric with which we deal here is an unpatented element of respondent's combination patent,1 which covers only the combination of certain components, one of which is a 'flexible top material.'2 The patent makes no claim to invention based on the fabric or on its shape, pattern or design. Whether the fabric or its shape might have been patentable is immaterial,3 for the fact is that neither the fabric nor its shape has been patented. No claim that the fabric or its shape, pattern or design constituted the invention was made in the application or included in the patent.
7
Since the patentees never claimed the fabric or its shape as their invention, and the claims made in the patent are the sole measure of the grant,4 the fabric is no more than an unpatented element of the combination which was claimed as the invention, and the patent did not confer a monopoly over the fabric or its shape. In Mercoid Corp. v. Mid-Continent Co., 320 U.S. 661, 667, 64 S.Ct. 268, 272, 88 L.Ed. 376, this Court ruled the point as follows:
8
'The patent is for a combination only. Since none of the separate elements of the combination is claimed as the invention, none of them when dealt with separately is protected by the patent monopoly.'
9
And in Mercoid Corp. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 684, 64 S.Ct. 278, 280, the Court said:
10
'The fact that an unpatented part of a combination patent may distinguish the invention does not draw to it the privileges of a patent. That may be done only in the manner provided by law. However worthy it may be, however essential to the patent, an unpatented part of a combination patent is no more entitled to monopolistic protection than any other unpatented device.'
11
See also McClain v. Ortmayer, 141 U.S. 419, 423—424, 12 S.Ct. 76, 35 L.Ed. 800; Pennock v. Dialogue, 2 Pet. 1, 16, 7 L.Ed. 327.
12
It follows that petitioners' manufacture and sale of the fabric is not a direct infringement under 35 U.S.C. § 271(a), 35 U.S.C.A. § 271(a).5 Cimiotti Unhairing Co. v. American Fur Co., 198 U.S. 399, 410, 25 S.Ct. 697, 702, 49 L.Ed. 1100; Eames v. Godfrey, 1 Wall. 78, 79, 17 L.Ed. 547; Prouty v. Ruggles, 16 Pet. 336, 341, 10 L.Ed. 985; U.S. Industries, Inc., v. Otis Engineering Co., 5 Cir., 254 F.2d 198, 203. But the question remains whether petitioners' manufacture and sale of the fabric constitute a contributory infringement of the patent under 35 U.S.C. § 271(c), 35 U.S.C.A. s 271(c).6 It is admitted that petitioners know that the purchasers intend to use the fabric for replacement purposes on automobile convertible tops which are covered by the claims of respondent's combination patent, and such manufacture and sale with that knowledge might well constitute contributory infringement under § 271(c), if, but only if, such a replacement by the purchaser himself would in itself constitute a direct infringement under § 271(a), for it is settled that if there is no direct infringement of a patent there can be no contributory infringement. In Mercoid v. Mid-Continent, supra, it was said: 'In a word, if there is no infringement of a patent there can be no contributory infringer,' 320 U.S. at page 677, 64 S.Ct. at page 276, and that 'if the purchaser and user could not be amerced as an infringer certainly one who sold to him * * * cannot be amerced for contributing to a non-existent infringement.' Id., 320 U.S. at page 674, 64 S.Ct. at page 275.7 It is plain that § 271(c)—a part of the Patent Code enacted in 1952—made no change in the fundamental precept that there can be no contributory infringement in the absence of a direct infringement. That section defines contributory infringement in terms of direct infringement—namely the sale of a component of a patented combination or machine for use 'in an infringement of such patent.' And § 271(a) of the new Patent Code, which defines 'infringement,' left intact the entire body of case law on direct infringement.8 The determinative question, therefore, comes down to whether the car owner would infringe the combination patent by replacing the wornout fabric element of the patented convertible top on his car, or even more specifically, whether such a replacement by the car owner is infringing 'reconstruction' or permissible 'repair.'
13
This Court's decisions specifically dealing with whether the replacement of an unpatented part, in a patented combination, that has worn out, been broken or otherwise spent, is permissible 'repair' or infringing 'reconstruction,' have steadfastly refused to extend the patent monopoly beyond the terms of the grant. Wilson v. Simpson, 9 How. 109, 13 L.Ed. 66—doubtless the leading case in this Court that deals with the distinction—concerned a patented planing machine which included, as elements, certain cutting knives which normally wore out in a few months' use. The purchaser was held to have the right to replace those knives without the patentee's consent. The Court held that, although there is no right to 'rebuild' a patented combination, the entity 'exists' notwithstanding the fact that destruction or impairment of one of its elements renders it inoperable; and that, accordingly, replacement of that worn-out essential part is permissible restoration of the machine to the original use for which it was bought. 9 How. at page 123. The Court explained that it is 'the use of the whole' of the combination which a purchaser buys, and that repair or replacement of the worn-out, damaged or destroyed part is but an exercise of the right 'to give duration to that which he owns, or has a right to use as a whole.' Ibid.9
14
The distilled essence of the Wilson case was stated by Judge Learned Hand in United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 425: 'The (patent) monopolist cannot prevent those to whom he sells from * * * reconditioning articles worn by use, unless they in fact make a new article.' Instead of applying this plain and practical test, the courts below focused attention on operative facts not properly determinative of the question of permissible repair versus forbidden reconstruction. The Court of Appeals found that the fabric 'is not a minor or relatively inexpensive component' of the patented combination, or an element that would expectedly wear out after a very short period of use although its 'expectable life span' is shorter than that of the other components—and, for these reasons, concluded that 'an owner would (not) rationally believe that * * * he was making only a minor repair' in replacing the worn-out fabric, but that, instead, the replacement 'would be counted a major reconstruction.' 270 F.2d at page 205. We think that test was erroneous.
15
Respondent has strenuously urged, as an additional relevant factor, the 'essentialness' of the fabric element to the combination constituting the invention. It argues that the particular shape of the fabric was the advance in the art—the very 'heart' of the invention—which brought the combination up to the inventive level, and, therefore, concludes that its patent should be held to grant it a monopoly on the fabric. The rule for which respondent contends is: That when an element of a patented machine or combination is relatively durable—even though not so durable as the entire patented device which the owner purchased—relatively expensive, relatively difficult to replace, and is an 'essential' or 'distinguishing' part of the patented combination, any replacement of that element, when it wears out or is otherwise spent, constitutes infringing 'reconstruction,' and, therefore, a new license must be obtained from, and another royalty paid to, the patentee for that privilege.
16
We cannot agree. For if anything is settled in the patent law, it is that the combination patent covers only the totality of the elements in the claim and that no element, separately viewed, is within the grant. See the Mercoid cases, supra, 320 U.S. at page 667, 64 S.Ct. at page 272; 320 U.S. at page 684, 64 S.Ct. at page 280.10 The basic fallacy in respondent's position is that it requires the ascribing to one element of the patented combination the status of patented invention in itself. Yet this Court has made it clear in the two Mercoid cases that there is no legally recognizable or protected 'essential' element, 'gist' or 'heart' of the invention in a combination patent. In Mercoid Corp. v. Mid-Continent Co., supra, the Court said:
17
'That result may not be obviated in the present case by calling the combustion stoker switch the 'heart of the invention' or the 'advance in the art.' The patent is for a combination only. Since none of the separate elements of the combination is claimed as the invention, none of them when dealt with separately is protected by the patent monopoly.' 320 U.S. at page 667, 64 S.Ct. at page 272.
18
And in Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., supra, the Court said:
19
'The fact that an unpatented part of a combination patent may distinguish the invention does not draw to it the privileges of a patent. That may be done only in the manner provided by law. However worthy it may be, however essential to the patent, an unpatented part of a combination patent is no more entitled to monopolistic protection than any other unpatented device.' 320 U.S. at page 684, 64 S.Ct. at page 280.
20
No element, not itself separately patented, that constitutes one of the elements of a combination patent is entitled to patent monopoly, however essential it may be to the patented combination and no matter how costly or difficult replacement may be. While there is language in some lower court opinions indicating that 'repair' or 'reconstruction' depends on a number of factors, it is significant that each of the three cases of this Court, cited for that proposition, holds that a license to use a patented combination includes the right 'to preserve its fitness for use so far as it may be affected by wear or breakage.' Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 336, 29 S.Ct. 503, 507, 53 L.Ed. 816; Heyer v. Duplicator Mfg. Co., supra, 263 U.S. at page 102, 44 S.Ct. at page 32; and Wilson v. Simpson, supra, 9 How. at page 123, 13 L.Ed. 66. We hold that maintenance of the 'use of the whole' of the patented combination through replacement of a spent, unpatented element does not constitute reconstruction.
21
The decisions of this Court require the conclusion that reconstruction of a patented entity, comprised of unpatented elements, is limited to such a true reconstruction of the entity as to 'in fact make a new article,' United States v. Aluminum Co. of America, supra, 148 F.2d at page 425, after the entity, viewed as a whole, has become spent. In order to call the monopoly, conferred by the patent grant, into play for a second time, it must, indeed, be a second creation of the patented entity, as, for example, in American Cotton Tie Co. v. Simmons, supra. Mere replacement of individual unpatented parts, one at a time, whether of the same part repeatedly or different parts successively, is no more than the lawful right of the owner to repair his property. Measured by this test, the replacement of the fabric involved in this case must be characterized as permissible 'repair,' not 'reconstruction.'
22
Reversed.
23
Mr. Justice BLACK, concurring.
24
I fully concur in the judgment of reversal and with the opinion of the Court but want to express some additional views because of the concurring opinion of my Brother BRENNAN and the dissenting opinion of my Brother HARLAN. The latter two opinions, in my judgment, attempt to introduce wholly unnecessary and undesirable confusions, intricacies and complexities into what has been essentially a very simple question under the opinions of this Court, and that is: How can a court decide whether a person who has bought and owns a patented commodity composed of a combination of unpatented elements is actually making a new one so as to infringe the patent, rather than merely replacing a worn-out part or parts necessary to continue the use of the commodity, which does not constitute patent infringement? I put the question as one of direct infringement because I agree with the other three opinions in this case that the petitioner Aro Manufacturing Co. here who cut out and sold fabrics to replace worn-out covers in patented automobile tops can be guilty of contributory infringement only if automobile owners who buy the fabrics and use them in their own cars are themselves guilty of direct infringements and liable for treable damages.1 The crucial question here therefore is one of direct, not contributory, infringement. For this reason it seems to me that most of the talk in the case about contributory infringement and misuse of patents is confusing and beside the point. For the same reason the emphasis in this Court, the District Court and the Court of Appeals on the recodification2 of the patent laws in 1952 seems to me to be out of place. The language and history of that Act show plainly: (1) that Congress wanted to continue in force, but not expand, the judge-made doctrine of contributory infringement under which a person who knowingly aids, encourages or abets the direct infringement of a patent is to be held liable as a contributory infringer;3 (2) that Congress did not want patentees to be barred from prosecuting their claims for direct infringement merely because they exercised their right to assert a claim in or out of court for contributory infringement;4 (3) that the long-existing scope of a patentee's monopoly rights was not to be expanded beyond what it had always been, that is, the exclusive right to make, use or sell a patented invention during the life of the patent.5 The present case, therefore, narrows down to this and no more: Is the making or the use of a new piece of fabric to replace the worn-out fabric cover of an automobile top attached to an automobile that the owner has bought and paid for as his own an infringement of a patent on that top? Note immediately that if it is an infringement it must be because the owner of the top, in doing nothing but replacing the worn-out fabric, 'makes' the patented invention which is the top with all its parts. Common sense and prior decisions of this Court require us to hold that an automobile owner does not 'make' a whole top when he merely replaces its worn-out fabric cover.
25
Let us first take a quick look at the top described in the patent. It is composed first and foremost of a metal frame, no part of which is, or could have been, patented. It also includes several other pieces of metal, one of them called a 'wiper,' which is simply a plain piece of metal that is not and could not have been patented. Again, there is a piece of fabric cut in a certain shape to fit and cover the unpatented frame. Of course this fabric could not be patented unless it had some peculiar novel quality of its own, but no such characteristic is or could have been claimed. The District Court held that this aggregation of nonpatentable parts was patentable as achieving a new result. The Court of Appeals, without passing on this question at all, merely took it for granted that a patentable 'discovery' has been made. I shall also act on that assumption although I am not sure in just what respect the aggregation of these common components could possibly have served a new purpose or have been the result of anything more than the simplest childlike mechanical skill. In fact, the patentee must have known all about the old-fashioned surrey with the fringe on top and with isinglass curtains you could roll right down in case of a change in the weather. The top is also reminiscent of the tops of Model T Fords which began to scare horses on country roads nearly half a century ago. A reading of the record indicates that the new discovery might be thought to inhere in the fact that (a) this top protects from rain better than any that had previously been manufactured, (b) it could be made rainproof from the inside rather than requiring some one to get outside and manipulate snaps, or (c) the folding material is fastened 'below the top of the tonneau' and 'a wiping arm automatically operated by the bow structure (is used) for wiping the inside of the folding material as the top is raised and pressing it against the top of the tonneau.' None of these alleged additions to the present stock of surrey and Tin Lizzie knowledge, however, gives us much aid in determining the real issue being decided here, which is whether replacing the fabric amounts to the 'making' of a new top and thus a direct infringement of the patent. It is of importance in considering this question that the District Court found, and the Court of Appeals agreed, that the only thing the defendant made was the fabric portions of convertible tops. Certainly I suppose it would not be claimed that the sale of unshaped woolen fabric—a staple article of commerce—would make a tailor or merchant guilty of contributory infringement if he sold it to the owner of a pair of patented trousers for patching purposes. But evidently the contention is that when petitioner here put his scissors or whatever cutting instrument he used on the fabric and shaped it so that it would fit the top, he was thereby aiding the top's owner to 'make' a new top, or at least to 'reconstruct' one from the ground up. Nothing in any of the prior cases of this Court indicates that such a contention should be sustained.
26
The case that may well be classified as the leading one on the subject of 'making' or 'reconstruction' as distinguished from 'repair' is Wilson v. Simpson, 9 How. 109, decided in 1850. That case involved a patent on a planing machine composed of unpatented parts described as the frame, the cogwheels, the shaft, and other elementary parts, which, when put together, constituted what was known as the 'Woodworth planing-machine.' Able counsel argued for the patentee that the cutting knives, which had to be replaced from time to time, could not be replaced without thereby infringing the patent. The contention was that the machine ceased to exist or have any 'material existence' the moment its knives wore out, and that for this reason replacement of the knives amounted to a 'making' of the whole patented invention which infringed the patentee's exclusive right to 'make, use, and vend.' The Court refused to accept this conceptualistic and misleading argument as to when a tangible machine ceases to have a 'material existence.' It did agree that 'when the material of the combination ceases to exist, in whatever way that may occur, the right to renew it depends upon the right to make the invention. If the right to make does not exist, there is no right to rebuild the combination.' Id., at page 123. But the Court then went on to enunciate what has been the accepted rule in this Court ever since with respect to component parts of the combination: 'When the wearing or injury is partial, then repair is restoration, and not reconstruction. * * * And it is no more than that, though it shall be a replacement of an essential part of a combination.' Ibid.
27
In further explanation the Court pointed out that '(f)orm may be given to a piece of any material,—wood, metal, or glass,—so as to produce an original result, or to aid the efficiency of one already known, and that would be the subject for a patent.' It went on to say that if that patented article should happen to be broken so that its parts could not be readjusted or so worn out and beyond repair as to be wholly useless, then a purchaser could not make another to replace it without infringing, but would have to buy a new one. This because the Court said that would amount to an 'entire reconstruction' of the patented article. 'If, however,' and this is of crucial importance with reference to the combination patent in the present case, 'this same thing is a part of an original combination, essential to its use, then the right to repair and replace recurs.' Id., at page 124.
28
The common-sense rule of Wilson v. Simpson was followed in Heyer v. Duplicator Mfg. Co., 263 U.S. 100, 44 S.Ct. 31, 68 L.Ed. 189. Involved there was a combination patent, a multiple copying machine, 'one element of which,' the Court said, 'is a band of gelatine to which is transferred the print to be multiplied and which yields copies up to about a hundred. This band is attached to a spool or spindle which fits into the machine. Anyone may make and sell the gelatine composition but the ground of recovery was that the defendant made and sold bands of sizes fitted for use in the plaintiff's machines and attached them to spindles, with intent that they should be so used. The main question is whether purchasers of these machines have a right to replace the gelatine bands from any source that they choose. If they have that right the defendant in selling to them does no wrong.' Id., 263 U.S. at page 101, 44 S.Ct. at page 31. A unanimous Court, speaking through Mr. Justice Holmes, recognized that the rule of Wilson v. Simpson disposed of this question, saying that '(s)ince Wilson v. Simpson, 9 How. 109, 123, 13 L.Ed. 66, it has been the established law that a patentee had not 'a more equitable right to force the disuse of the machine entirely, on account of the inoperativeness of a part of it, than the purchaser has to repair, who has, in the whole of it, a right of use." 263 U.S. at page 101, 44 S.Ct. at page 32. Like the bands of gelatine in Heyer, the fabric in the present case is a common article of commerce, and also like the gelatine it has to have a special form to fit into the combination.
29
None of this Court's cases relied upon by my Brothers HARLAN and BRENNAN justifies adoption of the supposed guides and standards referred to in their opinions. Deciding whether a patented article is 'made' does not depend on whether an unpatented element of it is perishable, or how long some of the elements last, or what the patentee's or a purchaser's intentions were about them, regardless of whether the application of such standards is considered a question of law, as it is by Mr. Justice BRENNAN, or a question of fact, as it is by Mr. Justice HARLAN. The holdings of prior cases in this Court have not actually rested on such minor and insignificant factors in determining when an article has been 'made' and when it has not. A case in which only a minimal component has been omitted from a 'making' of the combination, such as the extreme example of omission of a single bolt from a patented machine or a button from a patented garment, might call upon this Court to articulate some rather obvious refinements to this simple test of 'making.'6 But this is by no means such a case and it is dangerously misleading to suggest that so clear a case as this one requires the application of a Pandora's flock of insignificant standards, especially when it is recognized, as it must be upon analysis, that consistent application of the standards suggested would actually change the basic test from 'making' to something not satisfactorily defined but indisputably different. And surely the scope of a patent should never depend upon a psychoanalysis of the patentee's or purchaser's intentions, a test which can only confound confusion.7 The common sense of the whole matter is, as recognized in the Wilson case and again in the opinion of the Court today, that in none but the most extraordinary case—difficult even to imagine will a court ever have to invoke specially contrived evidentiary standards to determine whether there has actually been a new 'making' of the patented article.
30
Neither Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 29 S.Ct. 503, 53 L.Ed. 816, nor Cotton-Tie Co. v. Simmons, 106 U.S. 89, 1 S.Ct. 52, 27 L.Ed. 79, nor any other cases of this Court that have treated this subject, depart from this common-sense rule of Wilson v. Simpson. In fact, as Mr. Justice Holmes pointed out in Heyer v. Duplicator Mfg. Co., supra, the question in Leeds & Catlin did not concern 'a right to substitute worn out parts' and '(t)he authority of Wilson v. Simpson and the cases that have followed it was fully recognized (in Leeds & Catlin) and must be recognized here.' 263 U.S. at page 102, 44 S.Ct. at page 32. The Cotton-Tie case likewise contains no support for holding that replacing the fabric in this top amounts to a 'making' or even a 'remaking' of the whole convertible top. The patent involved there was a cotton bale tie. Marked on each, for whatever it was worth, was 'Licensed to use once only.' (106 U.S. 89, 1 S.Ct. 54.) After these ties had been used once and broken off the cotton bales, the old tie material, along with the buckles, was sold as scrap, then re-rolled, straightened, riveted together, and cut into proper lengths and attached to an old buckle. It was this making of completely new ties out of the discarded scrap material that was held to amount to a making of the patented device and therefore an infringement.8 Cf. Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425, 433—434, 14 S.Ct. 627, 630—631, 38 L.Ed. 500. Morgan Envelope, in addition to its distinction of the Cotton-Tie case, is notable for its explicit reaffirmance of Wilson v. Simpson and for its statement by a unanimous Court that '(t)he true distinction' is whether the component part of the combination is 'the subject of a separate patent.' 152 U.S. at page 435, 14 S.Ct. at page 631. I agree with my Brother WHITTAKER that this remains the true distinction today.9
31
In my judgment it would create mischievous results for a majority of this Court to create or approve ambiguous evidentiary standards which could only obfuscate the simple fact of whether a person is 'making' a patented article composed of old unpatentable elements. For example, there should be no attempt to decide whether there is a making by comparing the time that the different elements of such a patent normally will exist if let alone. The owner is under no obligation to let them alone. Every owner has the right to repair and patch each part of the property he bought and paid for in order to make it last as long as he can. Everyone knows that this patented top is likely to last as long as the car itself if it is repaired from time to time. An accident might wholly destroy the entire top and then it might have to be replaced by a new one, which if done without the patentee's consent would of course be an infringement. I cannot suppose, however, that if the bows upon which the fabric rests at the top, or the metal frames upon which it stands, or the metal wiper which helps to level off the curtain folds, or the snaps that may have to be used, should happen to become worn out or destroyed, that anyone could reasonably come to the conclusion that a replacement of one of these worn-out parts would be a complete rebuilding of the old top or the 'making' of a new one and therefore an infringement of the patent. Such a contention would seem little short of fantastic to me, and the same is true as to replacement of the fabric.
32
This case is of great importance in our competitive economy. The record shows that petitioner is but one of many small business enterprises filling a useful place in manufacturing the comparatively smaller parts of larger products like automobiles. It is quite right and in keeping with our patent system that small business enterprises should no more than large enterprises be allowed to infringe the patents of others. But businessmen are certainly entitled to know when they are committing an infringement. It is for that reason that the patent statutes require applicants to define with particularity and claim without ambiguity the subject matter which is regarded to be an invention. 35 U.S.C. §§ 112, 154, 35 U.S.C.A. §§ 112, 154. In the absence of suits like this how could a businessman even suspect that he might be infringing a patent by marketing an unpatented and unpatentable part of a combination like this fabric top? It has long been settled with respect to combination patents that the monopoly rights extend only to the patented combination as a whole and that the public is free to appropriate any unpatented part of it, 'however important.' Special Equipment Co. v. Coe, 324 U.S. 370, 376, 65 S.Ct. 741, 744, 89 L.Ed. 1006, and cases cited. And in the 1952 recodification Congress was very careful, in what is now 35 U.S.C. § 271(c), 35 U.S.C.A. § 271(c), to specify that a vendor is liable as a contributory infringer only if he has sold the component part 'knowing' that it is to be used in an infringement.10 But to what avail these congressional precautions if this Court, by its opinions, would subject small businessmen to the devastating uncertainties of nebulous and permissive standards of infringement under which courts could impose treble damages upon them for making parts, distinct, separable, minor parts, or even major parts of a combination patent, upon which parts no patent has been or legally could have been issued. The fact that subjection of a small business enterprise to treble damages for such activities can have disastrous or even lethal consequences is suggested by the observation of the District Court in this very case that petitioner had not made a supersedeas bond, whether because unable or unwilling to do so the court said it was not informed. The efforts of Congress to help small business enterprises keep their heads above water in the Small Business Act of 1953,11 which was enacted almost contemporaneously with the recodification of the patent laws, could be frustrated at least in large part by subjecting those engaged in industrial activities to the constantly overhanging threat of suits for patent infringements for the sale of unpatented articles. And I think it is indisputable that the unpredictability in any given case of the resolution of the intricate standards suggested by my Brothers HARLAN and BRENNAN would deter small businessmen from engaging even in activities that all members of this Court would ultimately agree do not constitute contributory infringement. In our own case these standards led to opposite conclusions when applied by three distinguished judges of the Court of Appeals and when applied by Mr. Justice BRENNAN.
33
The established policy in this Nation for more than a century has been that when an article described in a patent is sold and 'passes to the hands of the purchaser, it is no longer within the limits of the monopoly. It passes outside of it, and is no longer under the protection of the act of congress. * * * Contracts in relation to it are regulated by the laws of the State, and are subject to state jurisdiction.'12 In this day of advanced technology and mechanical appliances upon which so many people depend, this wise policy against permitting patentees to expand their control of commodities after they reach the hands of bona fide purchasers is all the more important. Congress surely did not intend for it to be left within the sole discretion of the patent monopolist whether an unpatented component part will be separately available to the purchaser for replacement in the combination or whether, when that part wears out, the purchaser will be forced to replace a larger subcombination of the patented product or perhaps even the entire aggregation. I have an idea it would greatly surprise and shock the owners of convertible automobiles throughout this country to learn that there is a serious contention made that if they buy a new fabric to replace the worn-out fabric on their convertible top, loose legal formulas like those suggested by my Brothers HARLAN and BRENNAN can be applied to make them liable for treble damages, attorneys' fees and heavy costs. No such doctrine should be allowed to gain a foothold through judicial decisions. If bona fide purchasers of goods throughout the Nation are to be subjected to any such phenomenal expansion of the right of patentees, Congress, not this Court, should do it. One royalty to one patentee for one sale is enough under our patent law as written. And this proposition can be stated with knowledge that there is not a single sentence, clause, phrase or word in the entire legislative history of the 1952 recodification which could have led Congress to believe that it was being asked by means of the provisions enacted to enlarge the scope of a patentee's exclusive right to 'make, use, and vend' the thing patented.
34
A fundamental error underlying the misleading standards suggested by my Brothers HARLAN and BRENNAN is the notion that in a case of this kind a court is obliged to search for the alleged 'heart' or 'core' of the combination patent. This misconception, which has unequivocally been rejected in our prior decisions,13 is nothing but an unwarranted transformation, and expansion of a combination patent, which was correctly described by Mr. Justice Jackson as conferring only a '* * * right in an abstruse relationship between things in which individually there is no right.'14 A patented combination is no more than that, a novel relationship brought to bear on what presumably are familiar elements already in the public domain. Such familiar elements are not removed from the public domain merely because of their use, however crucial, in the novel combination. Of course, if novelty should inhere in one of the parts as well as in the whole, then that novel 'heart' or 'core' can be separately patented and separately protected. But in the absence of such a separate patent, which in this case would presumably be some sort of patent on the utility of the shape of the fabric, the public has the right to make, use and vend each part subject only to the established limitation of contributory infringement: that a part may not be knowingly supplied for use by an unauthorized person in a new making of what is in effect the whole combination.
35
Finally, petitioners point out that there is a serious constitutional question involved in the claim that automobile owners can be mulcted for damages for replacing the worn-out fabric in their convertible tops. Article I, § 8 of the Constitution provides:
36
'The Congress shall have Power * * * to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' I have no doubt of the wide powers of the States to govern the sale of fabrics, clipped or unclipped, cut or uncut, cloth, oilcloth, isinglass or plastic. But it is difficult for me to think that shaping up a common piece of fabric with a common pair of scissors or other cutter can be exalted to that important category of 'Discoveries' that the Constitution authorizes Congress to promote by special federal legislation. Nor do I believe that a purpose should be attributed to Congress to allow the courts, by means of an incalculable weighing of a complex of nebulous standards, to divine whether persons should be given monopoly rights on account of the way they trim ordinary fabrics. If there is anything sure about the 1952 recodification it is that the purpose was to clarify not to confuse the law. The test applied in the opinion of the Court today will not confuse, is in accord with our prior decisions endorsed by Congress and, most important, is in keeping with the general purposes of this Nation to retain an economy in which competition is a general law of trade except where actual 'Discoveries' have been made.
37
Mr. Justice BRENNAN, concurring in the result.
38
I agree that the replacement of the top was 'repair' and not 'reconstruction,' but I cannot agree that the test suggested by my Brother WHITTAKER for determination of that question is the correct one. My Brother HARLAN'S dissent cogently states the reasons why I also think that is too narrow a standard of what constitutes impermissible 'reconstruction.' For there are circumstances in which the replacement of a single unpatented component of a patented combination short of a second creation of the patented entity may constitute 'reconstruction.' Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 29 S.Ct. 503, 53 L.Ed. 816; Davis Electrical Works v. Edison Electric Light Co., 1 Cir., 60 F. 276; cf. Williams v. Hughes Tool Co., 10 Cir., 186 F.2d 278. These holdings applied the long-established standard for determination of 'repair' or 'reconstruction.' Under that standard there is no single test to which all must yield; rather the determination is to be based upon the consideration of a number of factors. Wilson v. Simpson, 9 How. 109, 13 L.Ed. 66; Heyer v. Duplicator Mfg. Co., 263 U.S. 100, 44 S.Ct. 31, 68 L.Ed. 189.1 Appropriately to be considered are the life of the part replaced in relation to the useful life of the whole combination,2 the importance of the replaced element to the inventive concept,3 the cost of the component relative to the cost of the combination,4 the common sense understanding and intention of the patent owner and the buyer of the combination as to its perishable components,5 whether the purchased component replaces a worn-out part or is brought for some other purpose,6 and other pertinent factors.7
39
It is true that some decisions of this Court in patent misuse cases8 raised doubt as to the continuing vitality of this standard in actions such as this one for relief from contributory infringement. But the Congress swept away that doubt when it gave the standard statutory sanction in 1952.9 My Brother WHITTAKER'S test that '(m)ere replacement of individual unpatented parts, one at a time, whether of the same part repeatedly or different parts successively, is no more than the lawful right of the owner to repair his property' plainly would not heed the congressional mandate. Instead Congress meant, as I read the legislative history of the 1952 Act, that the courts should recognize, in actions for contributory infringement, the distinction between components stated in Wilson v. Simpson, supra, the leading case in this field:
40
'The other constituent parts of this invention, though liable to be worn out, are not made with reference to any use of them which will require them to be replaced. These, without having a definite duration, are contemplated by the inventor to last so long as the materials of which they are formed can hold together in use in such a combination. No replacement of them at intermediate intervals is meant or is necessary. They may be repaired as the use may require. With such intentions, they are put into the structure. So it is understood by a purchaser, and beyond the duration of them a purchaser of the machine has not a longer use.' 9 How. 125—126.
41
Giles S. Rich, the chief draftsman of § 271(c), when told that manufacturers of replacement parts for automobiles, tractors, and other machines had protested against the section in fear of being held contributory infringers under it, replied: 'Whether or not they would be liable would depend on the facts in each particular case. And I think that the best way to clear that up is to take up section (c) and deal with the matter specifically and point out to you the limitations that are there, which have to be met before anybody is held liable, and then leave it to you to decide whether a parts supplier should be held liable or not, depending on the kind of a part he may be supplying. If the part he is supplying is in substance the very thing which was invented, it seems to me personally, that he is an infringer, and he should not be let off on some little technicality that there is something minor in the whole apparatus that he is not supplying.' Hearings, H.R. 3760, 82d Cong., 1st Sess., supra, p. 153. He added: 'in each case you would have to look at the details and see what was invented, and in effect whether the alleged infringer is appropriating somebody else's invention, or whether he is not.' Hearings, supra, p. 157.
42
However, I disagree with my Brother HARLAN that we should refrain from making an independent application of the proper standard in this case because of the conclusion of both lower courts that the replacement of the top constituted 'reconstruction.' I would suppose that 'repair' or 'reconstruction' is so far a question of law as to relieve appellate review from the restraints of Federal Rule of Civil Procedure 52(a), 28 U.S.C.A. See United States v. E.I. Du Pont de Nemours & Co., 353 U.S. 586, 598, 77 S.Ct. 872, 879, 1 L.Ed. 1057. In no previous case presenting the question of 'repair' or 'reconstruction' has this Court believed itself restrained from making an independent determination. Wilson v. Simpson, supra; American Cotton-Tie Co. v. Simmons, supra; Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425, 14 S.Ct. 627, 38 L.Ed. 500; Leeds & Catlin Co. v. Victor Talking Machine Co., supra; Heyer v. Duplicator Mfg. Co., supra. And here the error of the two courts below is manifest. The life of the top was approximately three years in contrast to the several times longer life of the other components of the combination. The top was replaceable at a cost of from $30 to $70 depending on the fabric; in contrast the cost of other elements of the combination was approximately $400. These considerations of themselves suggest that the replacement was mere 'repair' of the worn component and not 'reconstruction' of the patented combination. Surely they support the inference that all concerned knew that the fabric of the top would become weather-beaten or unable to perform its protective function long before those other components, not so exposed and more durable as well, wore out. Its perishable nature coupled with its fractional cost as compared to the whole combination and its ready replaceability all point to the conclusion reached here. And particularly persuasive, I think, that this replacement was mere 'repair,' is the role of the top relative to other components in the inventive concept. Patentable novelty inhered not merely in the shape of the fabric; the record shows that a wiping arm which pressed the material in such way as to create a seal at the belt line of the vehicle played a significantly important role in the inventive concept. The claim for the combination is that it made possible an automatic top, made the top weathertight and prevented unauthorized access to the vehicle. The wiper arm, rather than the shape of the material alone, accomplished the inventive purposes of providing a top which was weathertight and prevented unauthorized access.10 The shape of the fabric was thus not the essence of the device and in all the circumstances it seems reasonable and sensible to treat the replacement of the top as 'repair.'
43
I, therefore, think that the judgment of the Court of Appeals must be reversed, except, however, as to the relief granted respondent in respect of the replacements made on Ford cars before July 21, 1955.
44
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice STEWART join, dissenting.
45
For more than a hundred years it has been the law that the owner of a device covered by a combination patent can, without infringing, keep the device in good working order by replacing, either himself or through any source he wishes, unpatented parts, but that he may not, without rendering himself liable for infringement, reconstruct the device itself, whether because of its deterioration or for any other reason, and even though all of the component parts of the device are themselves unpatented. Wilson v. Simpson, 9 How. 109, 13 L.Ed. 66; American Cotton-Tie Co. v. Simmons, 106 U.S. 89, 1 S.Ct. 52, 27 L.Ed. 79; Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425, 14 S.Ct. 627, 38 L.Ed. 500; Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 29 S.Ct. 503, 53 L.Ed. 816; Heyer v. Duplicator Mfg. Co., 263 U.S. 100, 44 S.Ct. 31, 68 L.Ed. 189. The underlying rationale of the rule is of course that the owner's license to use the device carries with it an implied license to keep it fit for the use for which it was intended, but not to duplicate the invention itself. Correlatively, one who knowingly participates in an impermissible reconstruction of a patented combination is guilty of contributory infringement. 'Direct' and 'contributory' infringements are now codified in § 271 of the Patent Act of 1952. 35 U.S.C. § 271, 35 U.S.C.A. § 271.1
46
In this case the District Court and the Court of Appeals upon full consideration have concurred in finding that Aro's replacement-supplying of the fabric portion of respondent's convertible automobile tops contributorily infringed the latter's territorial rights under the valid Mackie-Duluk combination patent, in that such activity constituted a deliberate participation on Aro's part in a forbidden reconstruction of the patented combination. In reversing, the Court holds that there can be no direct infringement (and hence, of course, no contributory infringement) of a combination patent by replacement of any of the components of the patented entity unless (1) such component is itself separately patented or (2) the entire entity is rebuilt at one time. Since the fabric cover component of the Mackie-Duluk top was not itself separately patented, and since it constituted but one part of the patented combination, the Court concludes that Aro's supplying of such covers for replacement on cars equipped with respondent's tops did not as a matter of law constitute contributory infringement.2
47
My Brother BRENNAN'S opinion, while disagreeing with that conclusion, would reverse because on its view of the record, untrammeled by the contrary findings and conclusions of the two lower courts, it is concluded that what here took place constituted 'repair' and not 'reconstruction' of the Mackie-Duluk tops.
48
I am unable to subscribe to either of these views.
I.
49
I believe that the narrow concept of what constitutes impermissible reconstruction, reflected in the opinion of the Court, departs from detablished principles—principles which, it will be shown, were approved by Congress when it enacted § 271 of the new Patent Act, over objections of the Department of Justice altogether comparable to the position which it now advances as amicus in the present case.
50
The all-important thing is to determine from the past decisions of this Court what the proper test of 'reconstruction' is, for I agree that 35 U.S.C. § 271(c), 35 U.S.C.A. § 271(c), limits contributory infringement to that which would be direct infringement, and that § 271(a), dealing with direct infringement, leaves intact the pre-existing case law. The cases cited above amply demonstrate that there is no single yardstick for determining whether particular substitutions of new for original unpatented parts of a patented combination amount to permissible repair or forbidden reconstruction. The matter is to be resolved 'on principles of common sense applied to the specific facts' of a given case, Heyer, supra, 263 U.S. at page 102, 44 S.Ct. at page 32. The single simple rule of 'reconstruction' which the Court finds in those cases can, in my view, only be divined at the expense of reconstructing the decisions themselves.
51
The leading case is Wilson v. Simpson, supra. There, in holding that the owner of a planing machine covered by a combination patent could replace from any source he desired the unpatented cutting knives thereof, the Court said, 9 How. at page 125:
52
'The right of the assignee (the owner of the machine) to replace the cutter-knives is not because they are of perishable materials, but because the inventor of the machine has so arranged them as a part of its combination, that the machine could not be continued in use without a succession of knives at short intervals. Unless they were replaced, the invention would have been but of little use to the inventor or to others. The other constituent parts of this invention, though liable to be worn out, are not made with reference to any use of them which will require them to be replaced. These, without having a definite duration, are contemplated by the inventor to last so long as the materials of which they are formed can hold together in use in such a combination. No replacement of them at intermediate intervals is meant or is necessary. They may be repaired as the use may require. With such intentions, they are put into the structure. So it is understood by a purchaser, and beyond the duration of them a purchaser of the machine has not a longer use. But if another constituent part of the combination is meant to be only temporary in the use of the whole, and to be frequently replaced, because it will not last as long as the other parts of the combination, its inventor cannot complain, if he sells the use of his machine, that the purchaser uses it in the way the inventor meant it to be used, and in the only way in which the machine can be used.'
53
In the Cotton-Tie case, supra, the question was whether combination patents for the making of ties for cotton bales, consisting of a metal buckle and band, were infringed by one who bought as scrap metal such ties and bands after severance from cotton bales, and resold them for further use as baling ties after piecing together several segments of the old bands and reconnecting the resulting single band with the original buckle. In holding that this was an impermissible reconstruction of the patented combination,3 the Court said:
54
'Whatever right to defendants could acquire to the use of the old buckle, they acquired no right to combine it with a substantially new band, to make a cotton-bale tie. They so combined it when they combined it with a band made of the pieces of the old band in the way described. What the defendants did in piecing together the pieces of the old band was not a repair of the band or the tie, in any proper sense. The band was voluntarily severed by the consumer at the cotton-mill because the tie had performed its function of confining he bale of cotton in its transit from the plantation or the press to the mill. Its capacity for use as a tie was voluntarily destroyed. As it left the bale it could not be used again as a tie. As a tie the defendants reconstructed it, although they used the old buckle without repairing that. The case is not like putting new cutters into a planing-machine, as in Wilson v. Simpson, 9 How. 109 (13 L.Ed. 66) in place of cutters worn out by use. The principle of that case was that temporary parts wearing out in a machine might be replaced to preserve the machine, in accordance with the intention of the vendor, without amounting to a reconstruction of the machine.' 106 U.S. at pages 93—94, 1 S.Ct. at page 56.
55
In Morgan Envelope, supra, the Court found no contributory infringement on the part of one supplying toilet paper rolls specially designed for use in a patented combination, comprising a dispenser and the paper rolls themselves. Remarking (152 U.S. at page 433, 14 S.Ct. at page 630) that there 'are doubtless many cases to the effect that the manufacture and sale of a single element of a combination, with intent that it shall be united to the other elements, and so complete the combination, is an infringement,' the Court found the situation before it distinguishable in that 'the element (paper roll) made by the alleged infringer is an article of manufacture perishable in its nature, which it is the object of the mechanism (the dispenser) to deliver, and which must be renewed periodically, whenever the device is put to use.' Ibid. On similar grounds the Court in Heyer, supra, found no contributory infringement in the intentional supplying of unpatented gelatine bands for use in a duplicating machine covered by a combination patent, of which one element was the gelatine band.
56
On the other hand, in Leeds & Catlin, supra, the intentional supplying of phonograph records for use on respondent's talking machines, which were protected by a combination patent covering both machine and records, was held to be contributory infringement, it being found that records were the 'operative ultimate tool of the invention,' that respondent's records were not inherently 'perishable' in nature, and that the supplying of the competitor's records was not to replace records 'deteriorated by use' or which had suffered 'breakage.' 233 U.S. at page 336, 29 S.Ct. at page 507.
57
These cases destroy the significance of two factors on which the Court heavily relies for its conclusion in the present case: first, that the fabric top was an unpatented element of the Mackie-Duluk invention, and, second, that Aro's tops constituted a replacement of but one part of the patented combination. For as was said in Leeds & Catlin (233 U.S. at page 333, 29 S.Ct. at page 505), '(i)t can make no difference as to the infringement or noninfringement of a combination that one of its elements or all of its elements are unpatented'; and in all of these cases the claimed infringing replacement involved only one of the elements of the patented combination. Further, thd different results reached in the cases, two finding 'reconstruction' and three only 'repair,' also vitiate the reasoning of the Court, in that they show that the issue of reconstruction vel non turns not upon any single factor, but depends instead upon a variety of circumstances, differing from case to case. The true rule was well put by this same Court of Appeals in its earlier decision in Goodyear Shoe Machinery Co. v. Jackson, 112 F. 146, 150:
58
'It is impracticable, as well as unwise, to attempt to lay down any rule on this subject, owing to the number and infinite variety of patented inventions. Each case, as it arises, must be decided in the light of all the facts and circumstances presented, and with an intelligent comprehension of the scope, nature, and purpose of the patented invention, and the fair and reasonable intention of the parties. Having clearly in mind the specification and claims of the patent, together with the condition of decay or destruction of the patented device or machine, the question whether its restoration to a sound state was legitimate repair, or a substantial reconstruction or reproduction of the patented invention, should be determined less by definitions or technical rules than by the exercise of sound common sense and an intelligent judgment.'
59
More particularly, none of the past cases in this Court or in the lower federal courts remotely suggests that 'reconstruction' can be found only in a situation where the patented combination has been rebuilt de novo from the ground up.4
60
The reference which the Court makes to the Mercoid cases, 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376; 320 U.S. 680, 64 S.Ct. 278, 88 L.Ed. 396, is, in my opinion, entirely inapposite, since those cases, as the Court recognizes, 365 U.S., at page 344, 81 S.Ct. at page 604, note 10, supra, dealt with the issue of patent misuse, an issue which specifically is not before the Court at this time.5 I realize that some of the language in the first Mercoid case (320 U.S. at pages 667—669, 64 S.Ct. at pages 272 273), and more particularly its disapproving remarks about Leeds & Catlin (id., 320 U.S. at page 668, 64 S.Ct. at page 272), may be said to cast doubt on what it appears to me the contributory infringement cases plainly establish. Yet I cannot believe that Mercoid is properly to be read as throwing into discard all the teaching of the repair-reconstruction cases. What was said in Mercoid about contributory infringement must be read in the context of Mercoid's claim, found to have been established, that Mid-Continent had misused its combination patent by attempting in effect to wield it as a weapon to monopolize the sale of an unpatented element, a claim which is not here made.
61
I think it significant that in stating (320 U.S. at page 668, 64 S.Ct. at page 272) that the doctrine of the Leeds & Catlin case 'must no longer prevail against the defense that a combination patent is being used to protect an unpatented part from competition,' the Court went on to say, at pages 668—669 of 320 U.S., at page 272 of 64 S.Ct.:
62
'That result obtains here though we assume for the purposes of this case that Mercoid was a contributory infringer and that respondents could have enjoined the infringement had they not misused the patent for the purpose of monopolizing unpatented material. Inasmuch as their misuse of the patent would have precluded them from enjoining a direct infringement (citing the Morton Salt case (Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 62 S.Ct. 402, 86 L.Ed. 363)) they cannot stand in any better position with respect to a contributory infringer. Where there is a collision between the principle of the Carbice case (Carbice Corp. v. American Patents Corp., 283 U.S. 27, 51 S.Ct. 334, 75 L.Ed. 819) and the conventional rules governing either direct or contributory infringement, the former prevails.' (Italics supplied.) Thus Mercoid, far from modifying the doctrine of the Wilson line of cases as to what constitutes contributory infringement, assumed that doctrine and defined the special circumstances when the court would refuse to give a patentee the benefit of that doctrine.6 Those circumstances are not present in this case.
63
As for my Brother BLACK'S opinion, the congressional action of 1952, reaffirming what I consider must be taken as the doctrine of the Wilson line of cases, also requires rejection of what he now conceives to be a more enlightened policy in this field of law.7
II.
64
My Brother BRENNAN'S opinion for reversal rests, as I understand it, not upon the view that the two courts below applied wrong legal standards in reaching their conclusion, but that "repair' or 'reconstruction' is so far a question of law as to relieve appellate review from the restraints of Federal Rule of Civil Procedure 52(a)' and to allow the 'making (of) an independent application of the proper standard' to the facts in this case. (Italics supplied.) For reasons larger than this particular litigation I cannot agree that it is either necessary or appropriate for us to substitute our particular judgment on this particular application of correct standards to the facts.
65
We do not sit in judgment on the decisions of the lower federal courts because we are endowed with some special measure of discernment, but because it is imperative that on matters of general concern, that is on matters of principle, there should be one authoritative and unifying expositor of federal law. I need not join issue on whether Rule 52(a) serves to constrict appellate review in cases like this, cf. Graver Tank & Mfg. Co., v. Linde Air Products Co., 336 U.S. 271, 275, 279, 69 S.Ct. 535, 537, 539, 93 L.Ed. 672, for the rule which I believe should limit us is based on the purposes which this Court can and should fulfill.
66
In this case there is no question but that the two courts below adverted to all the relevant standards but, having done so, they concluded that on the facts before them there was contributory infringement. I cannot see what else my Brother BRENNAN is doing but reaching a different conclusion of his own. I cannot understand how such a conclusion, even were it accepted by a majority of the Court, could provide greater guidance to either courts or litigants than would a mere statement of approbation for the standards espoused by the courts below.
67
Because the question of 'repair' or 'reconstruction' must be a mixed question of law and fact, it does not follow that we should review other than gross misapplications (certainly not present here), when the legal ingredient of this mixture is concededly correct. In the analogous area of determining the issue of patentable novelty, Courts of Appeal have consistently deferred to the judgment of the District Court (see the excellent statement of Judge Fahy in Standard Oil Development Co. v. Marzall, 86 U.S.App.D.C. 210, 181 F.2d 280, 283—284), and where they have departed from this judgment the reason has generally been because the District Court had failed to reach its conclusions by reference to correct standards. See Kwikset Locks, Inc., v. Hillgren, 9 Cir., 210 F.2d 483; cf. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 153, 154, 71 S.Ct. 127, 130, 131, 95 L.Ed. 162. Whether this practice be considered as compelled by the dictates of good sense or by Rule 52(a), surely particular judgments fairly and reasonably reached in two lower courts in light of correct legal standards deserve at least that same deference from us.
68
I would affirm.
1
There are 10 claims in the patent. Claims 1 through 9 of the patent each specifically begin: 'In a convertible automobile body, the combination of * * *.' Claim 10 does not contain the word 'combination' but nevertheless equally claims only a combination.
2
Among other elements in the claims are the automobile body structure or tonneau, a folding bow structure, a sealing strip, and a wiping arm.
3
Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 277, 69 S.Ct. 535, 538, 93 L.Ed. 672; Universal Oil Products Co. v. Globe Oil & Refining Co., 322 U.S. 471, 484, 64 S.Ct. 1110, 1116, 88 L.Ed. 1399; Milcor Steel Co. v. George Fuller Co., 316 U.S. 143, 145—146, 62 S.Ct. 969, 970—971, 86 L.Ed. 1332.
4
Mercoid Corp. v. Mic-Continent Inv. Co., 320 U.S. 661, 667, 64 S.Ct. 268, 272, 88 L.Ed. 376; Mercoid Corp. v. Minneapolis-Honeywell Regulator Co., 320 U.S. 680, 684, 64 S.Ct. 278, 280, 88 L.Ed. 396; McClain v. Ortmayer, 141 U.S. 419, 423 424, 12 S.Ct. 76, 77, 35 L.Ed. 800; Pennock v. Dialogue, 2 Pet. 1, 16, 7 L.Ed. 327.
5
Section 271(a) provides:
'Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.'
6
Section 271(c) is as follows:
'Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfring use, shall be liable as a contributory infringer.' (Emphasis added.)
7
Although these statements were made in the dissenting opinions of Mr. Justice Frankfurter and Mr. Justice Roberts, respectively, there is nothing in the majority opinion remotely suggesting any disagreement with the fundamental conclusion that there can be no contributory infringement in the absence of direct infringement.
8
The reviser's note on § 271(a) specifically stated that it is 'declaratory only.' 35 U.S.C.A. following § 271.
'The prior statute had no section defining or dealing with what constitutes infringement of a patent,' and § 271(a) was adopted 'for completeness.' Federico, Commentary on the New Patent Act, 35 U.S.C.A. preceding § 1, at p. 51.
9
None of this Court's later decisions dealing with the distinctions between 'repair' and 'reconstruction' have added to the exposition made in Wilson v. Simpson, supra, and that opinion has long been recognized as the Court's authoritative expression on the subject. Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425, 14 S.Ct. 627, 38 L.Ed. 500, and Heyer v. Duplicator Mfg. Co., 263 U.S. 100, 44 S.Ct. 31, 68 L.Ed. 189, held that an owner or licensee of a patented machine or combination does not infringe the patent by replacing an unpatented element of the combination which has only a temporary period of usefulness, so that replacement is necessary for continued utilization of the machine or combination as a whole. Those cases came clearly within the Wilson case. American Cotton-Tie Co. v. Simmons, 106 U.S. 89, 1 S.Ct. 52, 54, 27 L.Ed. 79, the only other repair-reconstruction case decided by this Court since Wilson, found infringement by one who bought up, as scrap metal, patented metal straps, used in tying cotton bales, after the straps had been used and severed (in unbinding the bales), and who then welded or otherwise reconnected the straps at the severed point and resold them for further use in baling cotton. The case is distinguishable on its facts, and the fact that the ties were marked 'Licensed to use once only,' was deemed of importance by the Court. Cf. Henry v. A. B. Dick Co., 224 U.S. 1, 32 S.Ct. 364, 56 L.Ed. 645.
10
Although the Mercoid cases involve the doctrine of patent misuse, which is not an issue in this case, they also specifically delimit the character of a combination patent monopoly and it is upon that matter that they are relevant here.
1
This elementary principle was brought to the attention of Congress by Mr. Giles S. Rich, the chief draftsman of the provisions on contributory infringement in the 1952 recodification:
'Mr. Rich. * * * I should state at the outset that wherever there is contributory infringement there is somewhere something called direct infringement, and to that direct infringement someone has contributed. It is a very different thing from a concept like contributory negligence.' Hearings before Subcommittee of House Judiciary Committee on H.R. 3760, 82d Cong., 1st Sess. 151 (1951).
2
If anyone is inclined despite other evidence to the contrary to attribute to Congress a purpose to accomplish any farreaching changes in the substantive law by this enactment, he should take note that just before the bill was passed in the Senate, Senator Saltonstall asked on the floor, 'Does the bill change the law in any way or only codify the present patent laws?' Senator McCarran, Chairman of the Judiciary Committee which had been in charge of the bill for the Senate, replied, 'It codifies the present patent laws.' 98 Cong.Rec. 9323 (July 4, 1952).
3
To this end, the 1952 Act provides (35 U.S.C. § 271, 35 U.S.C.A. § 271):
'(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
'(c) Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.'
The hearings and committee reports show that the only purpose of these provisions was to prevent this Court's decision in Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376, from being treated as having obliterated the law of contributory infringement:
'Mr. Rogers. Then I take it from your statements, that there is some difference of opinion among those engaged in the practice of patent law as to whether or not the Supreme Court in its decisions has done away with contributory infringement.
'Mr. Rich. There is a great difference of opinion on the part of the bar and also apparently on the part of the judiciary * * *.
'Mr. Rogers. Then in effect this recodification, particularly as to section 231 (from which came the present § 271), would point out to the court, at least that it was the sense of Congress that we remove this question of confusion as to whether contributory infringement existed at all, and state in positive law that there is such a thing as contributory infringement, or at least it be the sense of Congress by the enactment of this law that if you have in the Mercoid case done away with contributory infringement, then we reinstate it as a matter of substantive law of the United States and that you shall hereafter in a proper case recognize or hold liable one who has contributed to the infringement of a patent.
'That is the substantive law that we would write if we adopted this section 231 as it now exists. Is that not about right?
'Mr. Rich. That is a very excellent statement. * * *' Hearings, supra, note 1, at 159.
'* * * Considerable doubt and confusion as to the scope of contributory infringement has resulted from a number of decisions of the courts in recent years. The purpose of this section is to codify in statutory form principles of contributory infringement and at the same time eliminate this doubt and confusion.' H.R.Rep. No. 1923 on H.R. 7794, 82d Cong., 2d Sess. 9.
4
To protect a patentee's right to sue for contributory infringement, the 1952 Act provides:
'(d) No patent owner otherwise entitled to relief for infringement or contributory infringement of a patent shall be denied relief or deemed guilty of misuse or illegal extension of the patent right by reason of his having done one or more of the following: (1) derived revenue from acts which if performed by another without his consent would constitute contributory infringement of the patent; (2) licensed or authorized another to perform acts which if performed without his consent would constitute contributory infringement of the patent; (3) sought to enforce his patent rights against infringement or contributory infringement.' 35 U.S.C. § 271(d), 35 U.S.C.A. § 271(d).
This provision was designed specifically to prevent the Mercoid case from being interpreted to mean that any effort to enforce a patent against a contributory infringer in itself constitutes a forfeiture of patent rights:
'Mr. Rich. * * *
'Other decisions following Mercoid have made it quite clear that at least some courts are going to say that any effort whatever to enforce a patent against a contributory infringer is in itself misuse. The cases are cited in the old hearings. Therefore, we have always felt—we who study this subject particularly—that to put any measure of contributory infringement into law you must, to that extent and to that extent only, specifically make exceptions to the misuse doctrine, and that is the purpose of paragraph (d).' Hearings, supra, note 1, at 161 162.
'* * * The last paragraph of this section provides that one who merely does what he is authorized to do by statute is not guilty of misuse of the patent.' H.R.Rep. No. 1923, supra, note 3, at 9.
5
The 1952 Act carried out this purpose by providing:
'(a) Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.' 35 U.S.C. § 271(a), 35 U.S.C.A. § 271(a).
Although there was no statutory provision defining infringement prior to 1952, the definition adopted is consonant with the long-standing statutory prescription of the terms of the patent grant, which was contained in § 4884 of the Revised Statutes as follows:
'Every patent shall contain a short title or description of the invention or discovery, correctly indicating its nature and design, and a grant to the patentee * * * of the exclusive right to make, use, and vend the invention or discovery throughout the United States * * *.' (Emphasis supplied.)
This provision is now contained without substantial change in 35 U.S.C. § 154, 35 U.S.C.A. § 154.
6
This point was made by Mr. Rich in the course of the hearings as follows: 'If the part he is supplying is in substance the very thing which was invented, it seems to me personally, that he is an infringer, and he should not be let off on some little technicality that there is something minor in the whole apparatus that he is not supplying.' Hearings, supra, note 1, at 153. (Emphasis supplied.) Of course, as Mr. Rich well knew, 'the very thing' which is invented in any combination patent is the combination itself and not any unpatented component part of it—in this case, the whole convertible top, not the fabric used in it.
7
Cf. Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 679—680, 64 S.Ct. 268, 277—278, 88 L.Ed. 376 (Jackson, J., dissenting on other grounds).
8
See Transcript of Record, pp. 29—33, Cotton-Tie Co. v. Simmons, 106 U.S. 89, 1 S.Ct. 52, 27 L.Ed. 79.
9
I am perfectly content with the dissenting opinion's denomination of our interpretation as a 'reconstruction' of the cases in the sense in which I understand that term to be applied in these cases. I regret to say, however, that we cannot claim this interpretation to be a 'discovery' in the patent sense. It was anticipated by Judge Learned Hand's citation of Wilson v. Simpson for the proposition that '(t)he (patent) monopolist cannot prevent those to whom he sells from * * * reconditioning articles worn by use, unless they in fact make a new article.' United States v. Aluminum Co. of America, 2 Cir., 148 F.2d 416, 425.
10
If the wording of the statutory provision be thought to leave any doubt on this point, the intent of Congress is made manifest by the fact that the position of the word 'knowing' (originally 'knowingly') in subsection (c) was changed after the hearings for this very purpose. See Hearings, supra, note 1, at 13, 142, 164, 176.
11
67 Stat. 232, as amended, 15 U.S.C. §§ 631—651, 15 U.S.C.A. §§ 631—651.
12
Bloomer v. McQuewan, 14 How. 539, 549—550, 14 L.Ed. 532; see United States v. Univis Lens Co., 316 U.S. 241, 251, 62 S.Ct. 1088, 1093, 86 L.Ed. 1408, and cases collected in General Talking Pictures Corp. v. Western Electric Co., 305 U.S. 124, 128, 59 S.Ct. 116, 118, 83 L.Ed. 81, note 1 (dissenting opinion). This century-long mandate cannot be set aside because of what my Brother HARLAN now conceives to be a more enlightened policy in this field of law.
13
See Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 667—668, 64 S.Ct. 268, 272, 88 L.Ed. 376, and cases cited.
14
Id., 320 U.S. at page 679, 64 S.Ct. at page 277 (dissenting opinion).
1
The standard has been variously expressed. See, e.g., 'Whether the bounds of legitimate repair have been exceeded must be determined upon the facts of each case as it is presented.' Morrin v. Robert White Engineering Works, 2 Cir. 143 F. 519, 520. 'In the absence of a crucial test to which all must yield, the only aid comes from various minor or incidental considerations, and their combined effect.' Davis Electrical Works v. Edison Electric Light Co., 1 Cir., 60 F. 276, 280. 'The right, in our view, must depend in every case upon the special facts of the case as they show the relation of the two classes of parts—those supplied and those remaining in the original construction—to the patented unit. * * * there might be a structure where the putting in of a certain number of new parts would be 'reconstruction,' whereas the putting in of a smaller number would be 'repair,' or even where the putting in of one new part would be reconstruction but the putting in of two or three would not be, depending in each case upon whether, after the replacement, the structure as a whole could reasonably be said to be a new structure or the old one.' Automotive Parts Co. v. Wisconsin Axle Co., 6 Cir., 81 F.2d 125, 127. 'Each case, as it arises, must be decided in the light of all the facts and circumstances presented, and with an intelligent comprehension of the scope, nature, and purpose of the patented invention, and the fair and reasonable intention of the parties.' Goodyear Shoe Machinery Co. v. Jackson, 1 Cir., 112 F. 146, 150. 'The dividing line between repairs and a making over cannot be verbally located. What has been done can with more or less confidence be pronounced to be one or the other, but neither the one nor the other can be defined.' Hess-Bright Mfg. Co. v. Bearings Co., D.C., 271 F. 350, 352.
2
Wilson v. Simpson, supra; Heyer v. Duplicator Manufacturing Co., supra; Williams v. Barnes, 7 Cir., 234 F. 339; Micromatic Home Corp. v. Mid-West Abrasive Co., 6 Cir., 177 F.2d 934; Payne v. Dickinson, 3 Cir., 109 F.2d 52; El Dorado Foundry, Machine & Supply Co. v. Fluid Packed Pump Co., 8 Cir., 81 F.2d 782; Slocomb & Co., Inc., v. A. C. Layman Machine Co., D.C., 227 F. 94, affirmed, 3 Cir., 230 F. 1021. In the Slocomb case the Court said, 227 F. at page 98: 'If * * * patented mechanism be composed of various parts and elements the most expensive of which have an average life of twenty years, and other parts or features of comparatively trifling cost are subjected in the operation of the mechanism to such wear as to require renewal or replacement within a period of a few months, or of a year or two, it would seem reasonable and sensible to treat such renewal or replacement as involving repairs in contradistinction to reconstruction.'
3
Leeds & Catlin Co. v. Victor Talking Machine Co., supra; Davis Electrical Works v. Edison Electric Light Co., supra, 'in certain stages of use the essence of a device, though in appearance only a small portion of it, may be lost, and its renewal amount to reconstruction.' 60 F. at pages 279—280. Morrin v. Robert White Engineering Works, supra, 143 F. at page 519.
4
Heyer v. Duplicator Mfg. Co., supra; American Safety Razor Corp. v. Frings Bros. Co., 3 Cir., 62 F.2d 416; El Dorado Foundry, Machine & Supply Co. v. Fluid Packed Pump Co., supra; Slocomb & Co., Inc., v. Layman Machine Co., supra.
5
Westinghouse Elec. & Mfg. Co. v. Hesser, 6 Cir., 131 F.2d 406, 410: 'Where the perishable nature of the parts are recognized by the patentee, and where the parts are adapted to be removed from the patented combination and, from time to time, replaced, replacement of such parts is repair and not reconstruction.'
And as regards indicia of an understanding see El Dorado Foundry, Machine & Supply Co. v. Fluid Packed Pump Co., supra; Slocomb & Co., Inc., v. Layman Machine Co., supra; Electric Auto-Lite Co. v. P. & D. Mfg. Co., 2 Cir., 78 F.2d 700.
6
See Leeds & Catlin Co. v. Victor Talking Machine Co., supra; Connecticut Telephone & Elec. Co. v. Automotive Equipment Co., D.C., 14 F.2d 957, affirmed, 3 Cir., 19 F.2d 990.
7
Is the replaced part the dominant structural element of the combination? Southwestern Tool Co. v. Hughes Tool Co., 10 Cir., 98 F.2d 42; Automotive Parts Co. v. Wisconsin Axle Co., supra, 81 F.2d at page 127: 'if the new parts so dominate the structural substance of the whole as to justify the conclusion that it has been made anew, there is a rebuilding or reconstruction; and conversely, where the original parts, after replacement, are so large a part of the whole structural substance as to preponderate over the new, there has not been a reconstruction but only repair.'
Has there been physical destruction of the combination from use of the component? Cotton-Tie Co. v. Simmons, 106 U.S. 89, 1 S.Ct. 52, 27 L.Ed. 79.
8
See, e.g., Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 669, 64 S.Ct. 268, 273, 'The result of this decision, together with those which have preceded it, is to limit substantially the doctrine of contributory infringement. What residuum may be left we need not stop to consider.'
9
35 U.S.C. § 271, 35 U.S.C.A. § 271. The purpose of (c) of this section appears in the House Judiciary Committee Report, H.R.Rep.No.1923 on H.R. 7794, 82d Cong., 2d Sess., p. 9. 'The doctrine of contributory infringement has been part of our law for about 80 years. It has been applied to enjoin those who sought to cause infringement by supplying someone else with the means and directions for infringing a patent. One who makes a special device constituting the heart of a patented machine and supplies it to others with directions (specific or implied) to complete the machine is obviously appropriating the benefit of the patented invention. It is for this reason that the doctrine of contributory infringement, which prevents appropriating another man's patented invention, has been characterized as 'an expression both of law and morals.' Considerable doubt and confusion as to the scope of contributory infringement has resulted from a number of decisions of the courts in recent years. The purpose of this section is to codify in statutory form principles of contributory infringement and at the same time eliminate this doubt and confusion.' The legislative history makes it clear that paragraph (d) complements (c) with the view to avoid the application of the patent misuse doctrine to conduct such as that of the patent owner in the present case. See Hearings, H.R. 3760, 82d Cong., 1st Sess., Subcommittee of the House Judiciary Committee, 1951, pp. 161—162, 169—175.
10
This appears from the patent claims and from the testimony of respondent's patent and engineering experts. The following representation was made in connection with amended claims: 'The real invention is fastening the folding material considerably below the top of the tonneau and then using a wiping arm automatically operated by the bow structure for wiping the inside of the folding material as the top is raised and pressing it against the top of the tonneau.'
1
'(a) Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.
'(b) Whoever actively induces infringement of a patent shall be liable as an infringer.
'(c) Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.'
2
The Mackie-Duluk invention was described by the Court of Appeals as follows:
'Folding tops for vehicles consisting of bows of wood or metal covered with a flexible waterproof fabric * * * are, of course, as old as the automobile art which in the beginning only adopted with necessary modifications the much older art of collapsible tops for chaises, buggies and some other horse drawn vehicles. The rear panels of the folding tops of earlier days were fastened permanently at the bottom to the outside of the top of the rear portion of the body of the vehicle, and the quarters, the rear portions of the sides of the vehicle, if protected at all, were protected with flaps or curtains, sometimes integral with the top and sometimes not, fastened at the bottom to the outside of the top of the body with buttons, snaps or some equivalent means of fastening. Naturally, to prevent tearing, these quarter flaps had to be unfastened by hand when the top was lowered and when the top was put up fastened again by hand for neat appearance and also to prevent the entrance of rain. This manual fastening and unfastening of the bottoms of the quarter
flaps presented no great problem until the advent of the so-called convertible automobile with a folding top operated mechanically rather than manually. The problem presented by the quarter flaps of tops of this kind was first partially solved by fastening the bottom of the flap to the outside of the top of the body of the vehicle with 'releasable fastening means,' that is to say, with some sort of slide fastening device which would detach automatically when the top was lowered. The major part of the problem remained, however, for when the top was put up the flaps had to be fastened manually, which meant that the operator was required to get out of the car altogether, or at least to reach out, often, of course, in the rain. The object of the Mackie-Duluk patent was 'to provide an automatic fastening and sealing means at the top and sides of the tonneau of the convertible' which 'never has to be operated or touched by the driver of the car.' And, as we have already indicated, the District Court found that the patentees succeeded in attaining their object by devising a patentable combination of elements.
'The Mackie-Duluk device consisted of providing an elongated flap intergral with the quarter sections of the fabric top adapted to be permanently fastened at the bottom deep within the body of the car, at or perhaps below, but certainly not in front, of the axis of rotation of the bows, to a trough welded to the body of the car and provided with a drain to carry off water entering between the flap and the car body. In addition, to minimize the entrance of water between the body and the flap, they provided a 'wiper arm' so-called, which in effect acted as an additional, low rearward bow pressing the downwardly extending flap outwardly against the top of the body of the vehicle as the top is raised from its folded position to close, or substantially to close, any gap there might be between the inside of the top of the body of the car and the flap extending downward into the interior of the automobile body.' 270 F.2d at pages 202—203.
The District Court said:
'Mackie-Duluk was a substantial and enlightened step, filling a long-felt want, in a field in which defendants have produced, with one exception, only paper patents, the most emphasized being foreign, which did not even purport to do what Mackie-Duluk accomplished.' Id., at page 201.
3
While, as the Court remarks (365 U.S. at page 343, 81 S.Ct. at page 610, note 9), the Court there did refer to the fact that the original ties were stamped 'Licensed to use once only,' it is manifest that nothing really turned on that point.
4
Compare note 7, infra.
5
The District Court found against Aro's claim of patent misuse based on respondent's acquisition of territorial rights in the Mackie-Duluk patent. Aro did not appeal that finding.
7
This policy was before the Committee in the form of an objection to the proposed codification of the Wilson line of cases and its doctrine in the 1952 Act. Despite the objection Congress passed § 271 without amendment.
'Mr. Crumpacker: We have received protests from manufacturers of replacement parts for such things as automobiles, farm tractors, and the like, who evidently feel that the language used in this H.R. 3760 would make them contributory infringers of patents on the original article, the tractor or something of that sort.
'Mr. Rich (who was the principal spokesman for the group which drafted the present statute): Those were the most vociferous objectors to the old bills on the subject. Whether or not they would be liable would depend on the facts in each particular case. * * *' Hearings before Subcommittee of House Judiciary Committee on H.R. 3760, 82d Cong., 1st Sess., at p. 153 (1951).
6
It seems clear from the legislative history of the 1952 Act that Congress intended (1) to reaffirm the doctrine of contributory infringement as laid down in Wilson v. Simpson and reasserted in cases like Leeds & Catlin, (2) to give that doctrine precedence against a claim of patent misuse as conceived in the Mercoid cases, at least where the misuse is said to inhere simply in assertion of patent rights. Both the proponents of the statute and the Department of Justice which opposed it assumed that contributory infringement, as defined in the Wilson line of cases, was one thing, and misuse, as then most recently defined in Mercoid, another. See Hearings before Subcommittee of House Judiciary Committee on H.R. 3866, 81st Cong., 1st Sess. 53—59 (1949); Hearings before Subcommittee of House Judiciary Committee on H.R. 3760, 82d Cong., 1st Sess. 168—175 (1951). The opinion of the Court seems to reconfirm Mercoid to fuller effectiveness than it had even before the 1952 Act by treating it as if the test of whether there was contributory infringement at all was to be found in its language.
| 78
|
365 U.S. 320
81 S.Ct. 623
5 L.Ed.2d 580
TAMPA ELECTRIC COMPANY, Petitioner,v.NASHVILLE COAL COMPANY et al.
No. 87.
Argued Dec. 15, 1960.
Decided Feb. 27, 1961.
Mr. William C. Chanler, New York City, for petitioner.
Mr. Abe Fortas, Washington, D.C., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
We granted certiorari to review a declaratory judgment holding illegal under § 3 of the Clayton Act1 a requirements contract between the parties providing for the purchase by petitioner of all the coal it would require as boiler fuel at its Gannon Station in Tampa, Florida, over a 20-year period. 363 U.S. 836, 80 S.Ct. 1612, 4 L.Ed.2d 1723. Both the District court, 168 F.Supp. 456, and the Court of Appeals, 276 F.2d 766, Judge Weick dissenting, agreed with respondents that the contract fell within the proscription of § 3 and therefore was illegal and unenforceable. We cannot agree that the contract suffers the claimed anti-trust illegality2 and, therefore, do not find it necessary to consider respondents' additional argument that such illegality is a defense to the action and a bar to enforceability.
2
Petitioner Tampa Electric Company is a public utility located in Tampa, Florida. It produces and sells electric energy to a service area, including the city, extending from Tampa Bay eastward 60 miles to the center of the State, and some 30 miles in width. As of 1954 petitioner operated two electrical generating plants comprising a total of 11 individual generating units, all of which consumed oil in their burners. In 1955 Tampa Electric decided to expand its facilities by the construction of an additional generating plant to be comprised ultimately of six generating units, and to be known as the 'Francis J. Gannon Station.' Although every electrical generating plant in peninsular Florida burned oil at that time, Tampa Electric decided to try coal as boiler fuel in the first two units constructed at the Gannon Station. Accordingly, it contracted with the respondents3 to furnish the expected coal requirements for the units. The agreement, dated May 23, 1955, embraced Tampa Electric's 'total requirements of fuel * * * for the operation of its first two units to be installed at the Gannon Station * * * not less than 225,000 tons of coal per unit per year,' for a period of 20 years. The contract further provided that 'if during the first 10 years of the term * * * the Buyer constructs additional units (at Gannon) in which coal is used as the fuel, it shall give the Seller notice thereof two years prior to the completion of such unit or units and upon completion of same the fuel requirements thereof shall be added to this contract.' It was understood and agreed, however, that 'the Buyer has the option to be exercised two years prior to completion of said unit or units of determining whether coal or some other fuel shall be used in same.' Tampa Electric had the further option of reducing, up to 15%, the amount of its coal purchases covered by the contract after giving six months' notice of an intention to use as fuel a by-product of any of its local customers. The minimum price was set at $6.40 per ton delivered, subject to an escalation clause based on labor cost and other factors. Deliveries were originally expected to begin in March 1957, for the first unit, and for the second unit at the completion of its construction.
3
In April 1957, soon before the first coal was actually to be delivered and after Tampa Electric, in order to equip its first two Gannon units for the use of coal, had expended some $3,000,000 more than the cost of constructing oil-burning units, and after respondents had expended approximately $7,500,000 readying themselves to perform the contract, the latter advised petitioner that the contract was illegal under the antitrust laws, would therefore not be performed, and no coal would be delivered. This turn of events required Tampa Electric to look elsewhere for its coal requirements. The first unit at Gannon began operating August 1, 1957, using coal purchased on a temporary basis, but on December 23, 1957, a purchase order contract for the total coal requirements of the Gannon Station was made with Love and Amos Coal Company. It was for an indefinite period cancellable on 12 months' notice by either party, or immediately upon tender of performance by respondents under the contract sued upon here. The maximun price was $8.80 per ton, depending upon the freight rate. In its purchase order to the Love and Amos Company, Tampa estimated that its requirements at the Gannon Station would be 350,000 tons in 1958; 700,000 tons in 1959 and 1960; 1,000,000 tons in 1961; and would increase thereafter, as required, to 'about 2,250,000 tons per year.' The second unit at Gannon Station commenced operation 14 months after the first, i.e., October 1958. Construction of a third unit, the coal for which was to have been provided under the original contract, was also begun.
4
The record indicates that the total consumption of coal in peninsular Florida, as of 1958, aside from Gannon Station, was approximately 700,000 tons annually. It further shows that there were some 700 coal suppliers in the producing area where respondents operated, and that Tampa Electric's anticipated maximum requirements at Gannon Station, i.e., 2,250 tons annually, would approximate 1% of the total coal of the same type produced and marketed from respondents' producing area.
5
Petitioner brought this suit in the District Court pursuant to 28 U.S.C. § 2201, 28 U.S.C.A. § 2201, for a declaration that its contract with respondents was valid, and for enforcement according to its terms. In addition to its Clayton Act defense, respondents contended that the contract violated both §§ 1 and 2 of the Sherman Act which, it claimed, likewise precluded its enforcement. The District Court, however, granted respondents' motion for summary judgment on the sole ground that the undisputed facts, recited above, showed the contract to be a violation of § 3 of the Clayton Act. The Court of Appeals agreed. Neither court found it necessary to consider the applicability of the Sherman Act.
6
Decisions of District Court and Court of Appeals.
7
Both courts admitted that the contract 'does not expressly contain the 'condition" (276 F.2d 771) that Tampa Electric would not use or deal in the coal of respondents' competitors. Nonetheless, they reasoned, the 'total requirements' provision had the same practical effect, for it prevented Tampa Electric for a period of 20 years from buying coal from any other source for use at that station. Each court cast aside as 'irrelevant' arguments citing the use of oil as boiler fuel be Tampa Electric at its other stations, and by other utilities in peninsular Florida, because oil was not in fact used at Gannon Station, and the possibility of exercise by Tampa Electric of the option reserved to it to build oil-burning units at Gannon was too remote. Found to be equally remote was the possibility of Tampa's conversion of existing oil-burning units at its other stations to the use of coal which would not be covered by the contract with respondents. It followed, both courts found, that the 'line of commerce' (168 F.Supp. 460) on which the restraint was to be tested was coal—not boiler fuels. Both courts compared the estimated coal tonnage as to which the contract pre-empted competition for 20 years, namely, 1,000,000 tons a year by 1961, with the previous annual consumption of peninsular Florida, 700,000 tons. Emphasizing that fact as well as the contract value of the coal covered by the 20-year term, i.e., $128,000,000, they held that such volume was not 'insignificant or insubstantial' and that the effect of the contract would 'be to substantially lessen competition,' in violation of the Act. Both courts were of the opinion that in view of the executory nature of the contract, judicial enforcement of any portion of it could not be granted without directing a violation of the Act itself, and enforcement was, therefore, denied.4
8
In the almost half century since Congress adopted the Clayton Act, this Court has been called upon 10 times,5 including the present, to pass upon questions arising under § 3. Standard Fashion Co. v. Magrane-Houston Co., 1922, 258 U.S. 346, at page 356, 42 S.Ct. 360, at page 362, 66 L.Ed. 653, the first of the cases, held that the Act 'sought to reach the agreements embraced within its sphere in their incipiency, and in the section under consideration to determine their legality by specific tests of its own * * *.' In sum, it was declared, § 3 condemned sales or agreements 'where the effect of such sale or contract * * * would under the circumstances disclosed probably lessen competition, or create an actual tendency to monopoly.' 258 U.S. at pages 356—357, 42 S.Ct. at page 362. This was not to say, the Court emphasized, that the Act was intended to reach every 'remote lessening' of competition only those which were substantial—but the Court did not draw the line where 'remote' ended and 'substantial' began. There in evidence, however, was the fact that the activities of two-fifths of the Nation's 52,000 pattern agencies were affected by the challenged device. Then, one week later, followed United Shoe Machinery Corp. v. United States, 1922, 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708, which held that even though a contract does 'not contain specific agreements not to use the (goods) of a competitor,' if 'the practical effect * * * is to prevent such use,' it comes within the condition of the section as to exclusivity. 258 U.S. at page 457, 42 S.Ct. at page 365. The Court also held, as it had in Standard Fashion, supra, that a finding of domination of the relevant market by the lessor or seller was sufficient to support the inference that competition had or would be substantially lessened by the contracts involved there. As of that time it seemed clear that if 'the practical effect' of the contract was to prevent a lessee or buyer from using the products of a competitor of the lessor or seller and the contract would thereby probably substantially lessen competition in a line of commerce, it was proscribed. A quarter of a century later, in International Salt Co. v. United States, 1947, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20, the Court held, at least in tying cases, that the necessity of direct proof of the economic impact of such a contract was not necessary where it was established that 'the volume of business affected' was not 'insignificant or insubstantial' and that the effect was 'to foreclose competitors from any substantial market.' 332 U.S. at page 396, 68 S.Ct. at page 15. It was only two years later, in Standard Oil Co. v. United States, 1949, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371, that the Court again considered § 3 and its application to exclusive supply or, as they are commonly known, requirements contracts. It held that such contracts are proscribed by § 3 if their practical effect is to prevent lessees or purchasers from using or dealing in the goods, etc., of a competitor or competitors of the lessor or seller and thereby 'competition has been foreclosed in a substantial share of the line of commerce affected.' 337 U.S. at page 314, 69 S.Ct. at page 1602.
9
In practical application, even though a contract is found to be an exclusive-dealing arrangement, it does not violate the section unless the court believes it probable that performance of the contract will foreclose competition in a substantial share of the line of commerce affected. Following the guidelines of earlier decisions, certain considerations must be taken. First, the line of commerce, i.e., the type of goods, wares, or merchandise, etc., involved must be determined, where it is in controversy, on the basis of the facts peculiar to the case.6 Second, the area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies. In short, the threatened foreclosure of competition must be in relation to the market affected. As was said in Standard Oil Co. v. United States, supra:
10
'It is clear, of course, that the 'line of commerce' affected need not be nationwide, at least where the purchasers cannot, as a practical matter, turn to suppliers outside their own area. Although the effect on competition will be quantitatively the same if a given volume of the industry's business is assumed to be covered, whether or not the affected sources of supply are those of the industry as a whole or only those of a particular region, a purely quantitative measure of this effect is inadequate because the narrower the area of competition, the greater the comparative effect on the area's competitors. Since it is the preservation of competition which is at stake, the significant proportion of coverage is that within the area of effective competition.' 337 U.S. at page 299, note 5, 69 S.Ct. at page 1055.
11
In the Standard Oil case, the area of effective competition the relevant market—was found to be where the seller and some 75 of its competitors sold petroleum products. Conveniently identified as the Western Area, it included Arizona, California, Idaho, Nevada, Oregon, Utah and Washington. Similarly, in United States v. Columbia Steel Co., 1948, 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533, a § 1 Sherman Act case, this Court decided the relevant market to be the competitive area in which Consolidated marketed its products, i.e., 11 Western States. The Court found Consolidated's share of the nationwide market for the relevant line of commerce, rolled steel products, to be less than 1/2 of 1%, an 'insignificant fraction of the total market,' 334 U.S. at page 508, 68 S.Ct. at page 1114; and its share of the more narrow but only relevant market, 3%, was described as 'a small part,' 334 U.S. at page 511, 68 S.Ct. at page 1116, not sufficient to injure any competitor of United States Steel in that area or elsewhere.
12
Third, and last, the competition foreclosed by the contract must be found to constitute a substantial share of the relevant market. That is to say, the opportunities for other traders to enter into or remain in that market must be significantly limited as was pointed out in Standard Oil Co. v. United States, supra. There the impact of the requirements contracts was studied in the setting of the large number of gasoline stations—5,937 or 16% of the retail outlets in the relevant market—and the large number of contracts, over 8,000, together with the great volume of products involved. This combination dictated a finding that 'Standard's use of the contracts (created) just such a potential clog on competition as it was the purpose of § 3 to remove' where, as there, the affected proportion of retail sales was substantial. 337 U.S. at page 314, 69 S.Ct. at page 1062. As we noted above, in United States v. Columbia Steel Co., supra, substantiality was judged on a comparative basis, i.e., Consolidated's use of rolled steel was 'a small part' when weighed against the total volume of that product in the relevant market.
13
To determine substantiality in a given case, it is necessary to weigh the probable effect of the contract on the relevant area of effective competition, taking into account the relative strength of the parties, the proportionate volume of commerce involved in relation to the total volume of commerce in the relevant market area, and the probable immediate and future effects which pre-emption of that share of the market might have on effective competition therein. It follows that a mere showing that the contract itself involves a substantial number of dollars is ordinarily of little consequence.
14
The Application of § 3 Here.
15
In applying these considerations to the facts of the case before us, it appears clear that both the Court of Appeals and the District Court have not given the required effect to a controlling factor in the case—the relevant competitive market area. This omission, by itself, requires reversal, for, as we have pointed out, the relevant market is the prime factor in relation to which the ultimate question, whether the contract forecloses competition in a substantial share of the line of commerce involved, must be decided. For the purposes of this case, therefore, we need not decide two threshold questions pressed by Tampa Electric. They are whether the contract in fact satisfies the initial requirement of § 3, i.e., whether it is truly an exclusive-dealing one, and, secondly, whether the line of commerce is boiler fuels, including coal, oil and gas, rather than coal alone.7 We, therefore, for the purposes of this case, assume, but do not decide, that the contract is an exclusive-dealing arrangement within the compass of § 3, and that the line of commerce is bituminous coal.
16
Neither the Court of Appeals nor the District Court considered in detail the question of the relevant market. They do seem, however, to have been satisfied with inquiring only as to competition within 'Peninsular Florida.' It was noted that the total consumption of peninsular Florida was 700,000 tons of coal per year, about equal to the estimated 1959 requirements of Tampa Electric. It was also pointed out that coal accounted for less than 6% of the fuel consumed in the entire State.8 The District Court concluded that though the respondents were only one of 700 coal producers who could serve the same market, peninsular Florida, the contract for a period of 20 years excluded competitors from a substantial amount of trade. Respondents contend that the coal tonnage covered by the contract must be weighed against either the total consumption of coal in peninsular Florida, or all of Florida, or the Bituminous Coal Act area comprising peninsular Florida and the Georgia 'finger,' or, at most, all of Florida and Georgia. If the latter area were considered the relevant market, Tampa Electric's proposed requirements would be 18% of the tonnage sold therein. Tampa Electric says that both courts and respondents are in error, because the '700 coal producers who could serve' it, as recognized by the trial court and admitted by respondents, operated in the Appalachian coal area and that its contract requirements were less than 1% of the total marketed production of these producers; that the relevant effective area of competition was the area in which these producers operated, and in which they were willing to compete for the consumer potential.
17
We are persuaded that on the record in this case, neither peninsular Florida, nor the entire State of Florida, nor Florida and Georgia combined constituted the relevant market of effective competition. We do not believe that the pie will slice so thinly. By far the bulk of the overwhelming tonnage marketed from the same producing area as serves Tampa is sold outside of Georgia and Florida, and the producers were 'eager' to sell more coal in those States.9 While the relevant competitive market is not ordinarily susceptible to a 'metes and bounds' definition, cf. Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 611, 73 S.Ct. 872, 881, 97 L.Ed. 1277, it is of course the area in which respondents and the other 700 producers effectively compete. Standard Oil Co. v. United States, supra. The record shows that, like the respondents, they sold bituminous coal 'suitable for (Tampa's) requirements,' mined in parts of Pennsylvania, Virginia, West Virginia, Kentucky, Tennessee, Alabama, Ohio and Illinois. We take notice of the fact that the approximate total bituminous coal (and lignite) product in the year 1954 from the districts in which these 700 producers are located was 359,289,000 tons, of which some 290,567,000 tons were sold on the open market.10 Of the latter amount some 78,716,000 tons were sold to electric utilities.11 We also note that in 1954 Florida and Georgia combined consumed at least 2,304,000 tons, 1,100,000 of which were used by electric utilities, and the sources of which were mines located in no less than seven States.12 We take further notice that the production and marketing of bituminous coal (and lignite) from the same districts, and assumedly equally available to Tampa on a commercially feasible basis, is currently on a par with prior years.13 In point of statistical fact, coal consumption in the combined Florida-Georgia area has increased significantly since 1954. In 1959 more than 3,775,000 were there consumed, 2,913,000 being used by electric utilities including, presumably, the coal used by the petitioner.14 The coal continued to come from at least seven States.15 From these statistics it clearly appears that the proportionate volume of the total relevant coal product as to which the challenged contract pre-empted competition, less than 1%, is, conservatively speaking, quite insubstantial. A more accurate figure, even assuming pre-emption to the extent of the maximum anticipated total requirements, 2,250,000 tons a year, would be .77%.
18
It may well be that in the context of antitrust legislation protracted requirements contracts are suspect, but they have not been declared illegal per se. Even though a single contract between single traders may fall within the initial broad proscription of the section, it must also suffer the qualifying disability, tendency to work a substantial—not remote—lessening of competition in the relevant competitive market. It is urged that the present contract pre-empts competition to the extent of purchases worth perhaps $128,000,000,16 and that this 'is, of course, not insignificant or insubstantial.' While $128,000,000 is a considerable sum of money, even in these days, the dollar volume, by itself, is not the test, as we have already pointed out.
19
The remaining determination, therefore, is whether the pre-emption of competition to the extent of the tonnage involved tends to substantially foreclose competition in the relevant coal market. We think not. That market sees an annual trade in excess of 250,000,000 tons of coal and over a billion dollars—multiplied by 20 years it runs into astronomical figures. There is here neither a seller with a dominant position in the market as in Standard Fashions, supra; nor myriad outlets with substantial sales volume, coupled with an industry-wide practice of relying upon exclusive contracts, as in Standard Oil, supra; nor a plainly restrictive tying arrangement as in International Salt, supra. On the contrary, we seem to have only that type of contract which 'may well be of economic advantage to buyers as well as to sellers.' Standard Oil Co. v. United States, supra, 337 U.S. at page 306, 69 S.Ct. at page 1058. In the case of the buyer it 'may assure supply,' while on the part of the seller it 'may make possible the substantial reduction of selling expenses, give protection against price fluctuations, and * * * offer the possibility of a predictable market.' Id., 337 U.S. at pages 306 307, 69 S.Ct. at page 1058. The 20-year period of the contract is singled out as the principal vice, but at least in the case of public utilities the assurance of a steady and ample supply of fuel is necessary in the public interest. Otherwise consumers are left unprotected against service failures owing to shutdowns; and increasingly unjustified costs might result in more burdensome rate structures eventually to be reflected in the consumer's bill. The compelling validity of such considerations has been recognized fully in the natural gas public utility field. This is not to say that utilities are immunized from Clayton Act proscriptions, but merely that, in judging the term of a requirements contract in relation to the substantiality of the foreclosure of competition, particularized considerations of the parties' operations are not irrelevant. In weighing the various factors, we have decided that in the competitive bituminous coal marketing area involved here the contract sued upon does not tend to foreclose a substantial volume of competition.
20
We need not discuss the respondents' further contention that the contract also violates § 1 and § 2 of the Sherman Act, for if it does not fall within the broader proscription of § 3 of the Clayton Act it follows that it is not forbidden by those of the former. Times-Picayune Pub. Co. v. United States, supra, 345 U.S. at pages 608—609, 73 S.Ct. at page 880.
21
The judgment is reversed and the case remanded to the District Court for further proceedings not inconsistent with this opinion.
22
It is so ordered.
23
Judgment reversed and case remanded to the District Court for further proceedings.
24
Mr. Justice BLACK and Mr. Justice DOUGLAS are of the opinion that the District Court and the Court of Appeals correctly decided this case and would therefore affirm their judgments.
1
'It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods * * * for use, consumption, or resale within the United States * * * on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods * * * of a competitor or competitors of the * * * seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.' 15 U.S.C. § 14, 15 U.S.C.A. § 14.
2
In addition to their claim under § 3 of the Clayton Act, respondents argue the contract is illegal under the Sherman Act, 15 U.S.C. §§ 1, 2, 15 U.S.C.A. §§ 1, 2.
The Facts.
3
The original contract was with Potter Towing Company, and by subsequent agreements with Tampa Electric responsibility thereunder was assumed by respondent West Kentucky Coal Company.
4
Cf. Kelly v. Kosuga, 358 U.S. 516, 79 S.Ct. 429, 3 L.Ed.2d 475.
Application of § 3 of the Clayton Act.
5
For discussion of previous cases, see Standard Oil Co. v. United States, 337 U.S. 293, 300—305, 69 S.Ct. 1051, 1055—1058, 93 L.Ed. 1371.
6
See International Boxing Club of New York, Inc. v. United States, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270.
7
In support of these contentions petitioner urges us to consider that it remains free to convert existing oil-burning units at its other plants to coal-burning units, the fuel for which it would be free to purchase from any seller in the market; also that just as it is permitted to use oil at its other plants, so, too, it may construct all future Gannon units as oil burners; and that in any event it is free to draw a maximum of 15% of its Gannon fuel requirements from by-products of local customers. Petitioner further argues that its novel reliance upon coal in fact created new fuel competition in an area that theretofore relied almost exclusively upon oil and, to a lesser extent, upon natural gas.
Relevant Market of Effective Competition.
8
Oil and, to a lesser extent, natural gas are the primary fuels consumed in Florida.
9
Peabody Coal Company offered to supply petitioner with coal from its mines in western Kentucky, for use in the units at another of its Florida stations, and that offer prompted a renegotiation of the price petitioner was paying for the oil then being consumed at that station.
10
U.S. Bureau of the Census. 1 U.S. Census of Mineral Industries: 1954, Series: MI-12B, p. 4 (1957).
11
Id., at 12B—6.
12
1,569,000 tons from counties in West Virginia, Virginia, Kentucky, Tennessee and North Carolina; 412,000 tons from counties in Alabama, Georgia and Tennessee; the balance was produced in other counties in West Virginia, Virginia and western Kentucky. Id., at 12B—10.
13
United States Dept. of Interior, Bureau of Mines, II Minerals Yearbook (Fuels), 1959.
14
United States Dept. of Interior, Bureau of Mines, Mineral Market Report, M.M.S. No. 3035, p. 23 (1960). These statistics were taken from sources cited by respondents.
15
1,787,000 tons from certain counties in West Virginia, Virginia, Kentucky, Tennessee and North Carolina; 1,321,000 tons from counties in Alabama, Georgia and elsewhere in Tennessee; 665,000 tons from the western Kentucky fields; 2,000 tons from other counties in West Virginia and Virginia. Ibid.
Effect on Competition in the Relevant Market.
16
In this connection we note incidentally that in Appalachian Coals, Inc., v. United States, 1933, 288 U.S. 344, 369, 53 S.Ct. 471, 477, 77 L.Ed. 825, cited by respondents, Chief Justice Hughes quoted testimony showing that in 1932 it was nothing those days 'for one interest or one concern to buy several million tons of coal.' At note 7. The findings of the District Court, 1 F.Supp. 339, showed that one utility consumed 2,485,000 tons of coal a year. Other concerns had requirements running from 30,000 to 250,000 tons annually, while a textile manufacturer used 600,000 tons. 288 U.S. at page 370, note 8, 53 S.Ct. at page 478. The Chief Justice also stated in his opinion that, within 24 counties in Kentucky, Tennessee (in both of which respondents operate) and their competitive States of Virginia and West Virginia, 'there are over 1,620,000 acres of coal bearing land, containing approximately 9,000,000,000 net tons of recoverable coal * * *.' 288 U.S. at page 369, 53 S.Ct. at page 477.
| 78
|
365 U.S. 399
81 S.Ct. 567
5 L.Ed.2d 633
Frank WILKINSON, Petitioner,v.UNITED STATES.
No. 37.
Argued Nov. 17, 1960.
Decided Feb. 27, 1961.
Rehearing Denied April 17, 1961.
See 365 U.S. 890, 81 S.Ct. 1024.
Mr. Rowland Watts, Baltimore, Md., for petitioner.
Mr. Kevin T. Maroney, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioner was convicted for having unlawfully refused to answer a question pertinent to a matter under inquiry before a subcommittee of the House Committee on Un-American Activities at a hearing in Atlanta, Georgia, on July 30, 1958.1 His conviction was affirmed by the Court of Appeals, which held that our decision in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115, was 'controlling.' 272 F.2d 783. We granted certiorari, 362 U.S. 926, 80 S.Ct. 755, 4 L.Ed.2d 745 to consider the petitioner's claim that the Court of Appeals had misconceived the meaning of the Barenblatt decision. For the reasons that follow, we are of the view that the Court of Appeals was correct, and that its judgment must be affirmed.
I.
2
The following circumstances were established by uncontroverted evidence at the petitioner's trial:
3
The Committee on Un-American Activities is a standing committee of the House of Representatives, elected at the commencement of each Congress.2 The Committee, or any subcommittee thereof, is authorized to investigate '(i) the extent, character, and objects of un-American propaganda activities in the United States, (ii) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (iii) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.'3
4
In the spring of 1958 the Committee passed a resolution providing for a subcommittee hearing to be held in Atlanta, Georgia, 'relating to the following subjects and having the legislative purposes indicated:
5
'1. The extent, character and objects of Communist colonization and infiltration in the textile and other basic industries located in the South, and Communist Party propaganda activities in the South, the legislative purpose being:
6
'(a) To obtain additional information for use by the Committee in its consideration of Section 16 of H.R. 9352, relating to the proposed amendment of Section 4 of the Communist Control Act of 1954, prescribing a penalty for knowingly and wilfully becoming or remaining a member of the Communist Party with knowledge of the purposes or objectives thereof; and
7
'(b) To obtain additional information, adding to the Committee's overall knowledge on the subject so that Congress may be kept informed and thus prepared to enact remedial legislation in the National Defense, and for internal security, when and if the exigencies of the situation require it.
8
'2. Entry and dissemination within the United States of foreign Communist Party propaganda, the legislative purpose being to determine the necessity for, and advisability of, amendments to the Foreign Agents Registration Act designed more effectively to counteract the Communist schemes and devices now used in avoiding the prohibitions of the Act.
9
'3. Any other matter within the jurisdiction of the Committee which it, or any subcommittee thereof, appointed to conduct this hearing, may designate.'
10
The subcommittee which was appointed pursuant to this resolution convened in Atlanta on July 29, 1958. At the opening of the proceedings on that day, the Chairman of the Committee orally summarized the purposes of the hearings. The petitioner was present and heard the Chairman's statement.
11
The first witness to appear was Amendo Penha, who testified that he had been a member of the Communist Party from 1950 to 1958, having joined the Party at the request of the Federal Bureau of Investigation. He stated that he had served as a member of the National Textile Commission of the Party, which, he said, was set up to control and supervise the infiltration and colonization of the textile industry, particularly in the South. He described the 'colonizer' system, which, he said, involves sending hard-core Party members into plants in jobs where they have close contact with rank-and-file workers. Penha described in some detail his trips throughout the South in compliance with the instructions of the National Textile Commission, and identified a number of individuals as 'colonizers.' Another witness, a Deputy Collector of Customs, described the influx of Communist propaganda sent from abroad into the United States and particularly into the South. Several other witnesses were then interrogated, some as to their activities as alleged Communist colonizers, others as to their connection with certain allegedly Communist-controlled publications. A number of these witnesses declined to answer most of the questions put to them.
12
On the following day the first witness before the subcommittee was Carl Braden. Although interrogated at length he declined to answer questions relating to alleged Communist activity.4 The next witness was the petitioner. After being sworn and stating his name he declined to give his residence address, stating that, 'As a matter of conscience and personal responsibility, I refuse to answer any questions of this committee.' When asked his occupation, he made the same response. He was then asked the question which was to become the subject of the present indictment and conviction: 'Mr. Wilkinson, are you now a member of the Communist Party?' He declined to answer the question, giving the same response as before.
13
The Committee's Staff Director then addressed the petitioner at length, in explanation 'of the reasons, the pertinency, and the relevancy of that question and certain other questions which I propose to propound to you.'5
14
In response the petitioner stated 'I am refusing to answer any questions of this committee.' He was then directed by the Subcommittee Chairman to answer the question as to his Communist Party membership. This time he responded as follows:
15
'I challenge, in the most fundamental sense, the legality of the House Committee on Un-American Activities. It is my opinion that this committee stands in direct violation by its mandate and by its practices of the first amendment to the United States Constitution. It is my belief that Congress had no authority to establish this committee in the first instance, nor to instruct it with the mandate which it has.
16
'I have the utmost respect for the broad powers which the Congress of the United States must have to carry on its investigations for legislative purposes. However, the United States Supreme Court has held that, broad as these powers may be, the Congress cannot investigate into an area where it cannot legislate, and this committee tends, by its mandate and by its practices, to investigate into precisely those areas of free speech, religion, peaceful association and assembly, and the press, wherein it cannot legislate and therefore it cannot investigate.'
17
The hearing continued. The Staff Director read part of the record of an earlier hearing in California, where a witness had testified to knowing the petitioner as a Communist. The petitioner was then asked whether this testimony was true. He refused to answer this and several further questions addressed to him. There was introduced into the record a reproduction of the petitioner's registration at an Atlanta hotel a week earlier, in which he had indicated that his business firm association was the 'Emergency Civil Liberties Committee.'
18
The subsequent indictment and conviction of the petitioner were based upon his refusal, in the foregoing context, to answer the single question 'Are you now a member of the Communist Party?'
II.
19
The judgment affirming the petitioner's conviction is attacked here from several different directions. It is contended that the subcommittee was without authority to interrogate him, because its purpose in doing so was to investigate public opposition to the Committee itself and to harass and expose him. It is argued that the petitioner was wrongly convicted because the question which he refused to answer was not pertinent to a question under inquiry by the subcommittee, so that a basic element of the statutory offense was lacking. It is said that in any event the pertinency of the question was not made clear to the petitioner at the time he was directed to answer it, so that he was denied due process. Finally, it is urged that the action of the subcommittee in subpoenaing and questioning him violated his rights under the First Amendment to the Constitution.
20
In considering these contentions the starting point must be to determine the subject matter of the subcommittee's inquiry. House Rule XI, which confers investigative authority upon the Committee and its subcommittees, is quoted above. Because of the breadth and generality of its language, Rule XI cannot be said to state with adequate precision the subject under inquiry by a subcommittee at any given hearing. This the Court had occasion to point out in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273. See also Barenblatt v. United States, 360 U.S. 109, 116—117, 79 S.Ct. 1081, 1087—1088, 3 L.Ed.2d 1115. But, as the Watkins opinion recognized, Rule XI is only one of several possible points of reference. The Court in that case said that '(t)he authorizing resolution, the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves' might reveal the subject under inquiry. 354 U.S. at page 209, 77 S.Ct. at page 1190. Here, as in Barenblatt, other sources do supply the requisite concreteness.
21
The resolution authorizing the subcommittee hearing in Atlanta was explicit. It clearly set forth three concrete areas of investigation: Communist infiltration into basic industry in the South, Communist Party propaganda in the South, and foreign Communist Party propaganda in the United States.6 The pattern of interrogation of the witnesses who appeared on the first day of the hearing confirms that the subcommittee was pursuing those three subjects of investigation. The Staff Director's statement to the petitioner explicitly referred to the second of the three subjects—Communist Party propaganda in the South. We think that the record thus clearly establishes that the subcommittee at the time of the petitioner's interrogation was pursuing at least two related and specific subjects of investigation: Communist infiltration into basic southern industry, and Communist Party propaganda activities in that area of the country.
22
If these, then, were the two subjects of the subcommittee's inquiry, the questions that must be answered in considering the petitioner's contentions are several. First, was the subcommittee's investigation of these subjects, through interrogation of the petitioner, authorized by Congress? Second, was the subcommittee pursuing a valid legislative purpose? Third, was the question asked the petitioner pertinent to the subject matter of the investigation? Fourth, was he contemporaneously apprised of the pertinency of the question? Fifth, did the subcommittee's interrogation violate his First Amendment rights of free association and free speech?
23
The question of basic congressional authorization was clearly decided in Barenblatt v. United States, supra. There we said, after reviewing the genesis and subsequent history of Rule XI, that '(I)t can hardly be seriously argued that the investigation of Communist activities generally, and the attendant use of compulsory process, was beyond the purview of the Committee's intended authority under Rule XI.' 360 U.S. at pages 120—121, 79 S.Ct. at page 1089. The subjects under inquiry here surely fall within 'the investigation of Communist activities generally.'
24
The petitioner argues, however, that the subcommittee was inspired to interrogate him by reason of his opposition to the existence of the Un-American Activities Committee itself, and that its purpose was unauthorized harassment and exposure. He points to the Chairman's opening statement which mentioned activity against the Committee, to the fact that he was subpoenaed to appear before the subcommittee soon after he arrived in Atlanta to stir up opposition to the Committee's activities, and to the statement of the Staff Director indicating the subcommittee's awareness of his efforts to develop a 'hostile sentiment' to the Committee and to 'bring pressure upon the United States Congress to preclude these particular hearings.'
25
But, just as in Barenblatt, supra, we could find nothing in Rule XI to exclude the field of education from the Committee's compulsory authority, we can find nothing to indicate that it was the intent of Congress to immunize from interrogation all those (and there are many) who are opposed to the existence of the Un-American Activities Committee.
26
Nor can we say on this record that the subcommittee was not pursuing a valid legislative purpose. The Committee resolution authorizing the Atlanta hearing, quoted above, expressly referred to two legislative proposals, an amendment to § 4 of the Communist Control Act of 1954, 50 U.S.C.A. § 843 and amendments to the Foreign Agents Registration Act of 1938, 22 U.S.C.A. § 611 et seq. A number of other sources also indicate the presence of a legislative purpose. The Chairman's statement at the opening of the hearings contained a lengthy discussion of legislation.7 The Staff Director's statement to the petitioner also discussed legislation which the Committee had under consideration.8 All these sources indicate the existence of a legislative purpose. And the determination that purposes of the kind referred to are unassailably valid was a cornerstone of our decision in Barenblatt, supra: 'That Congress has wide power to legislate in the field of Communist activity in this Country, and to conduct appropriate investigations in aid thereof, is hardly debatable. The existence of such power has never been questioned by this Court, and it is sufficient to say, without particularization, that Congress has enacted or considered in this field a wide range of legislative measures, not a few of which have stemmed from recommendations of the very Committee whose actions have been drawn in question here. In the last analysis this power rests on the right of self-preservation * * *.' 360 U.S. at pages 127—128, 79 S.Ct. at page 1093.
27
The petitioner's contention that, while the hearing generally may have been pursuant to a valid legislative purpose, the sole reason for interrogating him was to expose him to public censure because of his activities against the Committee is not persuasive. It is true that the Staff Director's statement reveals the subcommittee's awareness of the petitioner's opposition to the hearings and indicates that the petitioner was not summoned to appear until after he had arrived in Atlanta as the representative of a group carrying on a public campaign to abolish the House Committee. These circumstances, however, do not necessarily lead to the conclusion that the subcommittee's intent was personal persecution of the petitioner. As we have noted, a prime purpose of the hearings was to investigate Communist propaganda activities in the South. It therefore was entirely logical for the subcommittee to subpoena the petitioner after he had arrived at the site of the hearings, had registered as a member of a group which the subcommittee believed to be Communist dominated, and had conducted a public campaign against the subcommittee. The fact that the petitioner might not have been summoned to appear had he not come to Atlanta illustrates the very point, for in that event he might not have been thought to have been connected with a subject under inquiry—Communist Party propaganda activities in that area of the country.
28
Moreover, it is not for us to speculate as to the motivations that may have prompted the decision of individual members of the subcommittee to summon the petitioner. As was said in Watkins, supra, 'a solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function. Their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly's legislative purpose is being served.' 354 U.S. at page 200, 77 S.Ct. at page 1186. See also Barenblatt, supra, 360 U.S. at page 132, 79 S.Ct. at page 1096.
29
It is to be emphasized that the petitioner was not summoned to appear as the result of an indiscriminate dragnet procedure, lacking in probable cause for belief that he possessed information which might be helpful to the subcommittee. As was made clear by the testimony of the Committee's Staff Director at the trial, the subcommittee had reason to believe at the time it summoned the petitioner that he was an active Communist leader engaged primarily in propaganda activities.9 This is borne out by the record of the subcommittee hearings, including the content of the Staff Director's statement to the petitioner and evidence that at a prior hearing the petitioner had been identified as a Communist Party member.
30
The petitioner's claim that the question he refused to answer was not pertinent to a subject under inquiry merits no extended discussion. Indeed, it is difficult to imagine a preliminary question more pertinent to the topics under investigation than whether petitioner was in fact a member of the Communist Party. As was said in Barenblatt, 'petitioner refused to answer questions as to his own Communist Party affiliations, whose pertinency of course was clear beyond doubt.' 360 U.S. at page 125, 79 S.Ct. at page 1092. The contention that the pertinency of the question was not made clear to the petitioner at the time he was directed to answer it is equally without foundation. After the Staff Director gave a detailed explanation of the question's pertinency, the petitioner said nothing to indicate that he entertained any doubt on this score.10
31
We come finally to the claim that the subcommittee's interrogation of the petitioner violated his rights under the First Amendment. The basic issues which this contention raises were thoroughly canvassed by us in Barenblatt. Substantially all that was said there is equally applicable here, and it would serve no purpose to enlarge this opinion with a paraphrased repetition of what was in that opinion thoughtfully considered and carefully expressed. See 360 U.S. at pages 125—134, 79 S.Ct. at pages 1092—1097.
32
It is sought to differentiate this case upon the basis that 'the activities in which petitioner was believed to be participating consisted of public criticism of the Committee and attempts to influence public opinion to petition Congress for redress—to abolish the Committee.' But we cannot say that, simply because the petitioner at the moment may have been engaged in lawful conduct, his Communist activities in connection therewith could not be investigated. The subcommittee had reasonable ground to suppose that the petitioner was an active Communist Party member, and that as such he possessed information that would substantially aid it in its legislative investigation. As the Barenblatt opinion makes clear, it is the nature of the Communist activity involved, whether the momentary conduct is legitimate or illegitimate politically, that establishes the Government's overbalancing interest. 'To suggest that because the Communist Party may also sponsor peaceable political reforms the constitutional issues before us should now be judged as if that Party were just an ordinary political party from the standpoint of national security, is to ask this Court to blind itself to world affairs which have determined the whole course of our national policy since the close of World War II * * *.' 360 U.S. at pages 128—129, 79 S.Ct. at page 1094.
33
The subcommittee's legitimate legislative interest was not the activity in which the petitioner might have happened at the time to be engaged, but in the manipulation and infiltration of activities and organizations by persons advocating overthrow of the Government. 'The strict requirements of a prosecution under the Smith Act * * * are not the measure of the permissible scope of a congressional investigation into 'overthrow,' for of necessity the investigatory process must proceed step by step.' 360 U.S. at page 130, 79 S.Ct. at page 1095.
34
We conclude that the First Amendment claims pressed here are indistinguishable from those considered in Barenblatt, and that upon the reasoning and the authority of that case they cannot prevail.
35
Affirmed.
36
Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
37
In July 1958 the House Un-American Activities Committee announced its intention to conduct a series of hearings in Atlanta, Georgia, ostensibly to obtain information in aid of the legislative function of the House of Representatives.1 Petitioner, a long-time opponent of the Committee,2 decided to go to Atlanta for the purpose of lending his support to those who were fighting against the hearings. He arrived in Atlanta and registered in a hotel there on July 23 as a representative of the Emergency Civil Liberties Committee, a New York organization which was working for the abolition of the Un-American Activities Committee. Within an hour of his registration, petitioner was served with a subpoena requiring his appearance before the Committee. When he appeared in response to this subpoena, petitioner was told that he had been subpoenaed because the Committee was informed that 'you were sent to this area by the Communist Party for the purpose of developing a hostile sentiment to this committee and to its work for the purpose of undertaking to bring pressure upon the United States Congress to preclude these particular hearings.'3 A number of questions were then put to petitioner, all of which related to his personal beliefs and associations, but petitioner refused to answer any of these questions on the ground that they violated his rights under the First Amendment. For this, he was convicted under 2 U.S.C. § 192, 2 U.S.C.A. § 192 and sentenced to jail for 12 months. guishable.' Unlike the majority, however, I regard this recognition of the unlimited sweep of the decision in the Barenblatt case a compelling reason, not to reaffirm that case, but to overrule it.
38
In my view, the majority by its decision today places the stamp of constitutional approval upon a practice as clearly inconsistent with the Constitution, and indeed with every ideal of individual freedom for which this country has so long stood, as any that has ever come before this Court. For, like Mr. Justice DOUGLAS, I think it clear that this case involves nothing more nor less than an attempt by the Un-American Activities Committee to use the contempt power of the House of Representatives as a weapon against those who dare to criticize it. The majority does not and, in reason, could not deny this for the conclusion is all but inescapable for anyone who will take the time to read the record.5 They say instead that it makes no difference whether the Committee was harassing petitioner solely by reason of his opposition to it or not because 'it is not for us to speculate as to the motivations that may have prompted the decision of individual members of the subcommittee to summon the petitioner.' The clear thrust of this sweeping abdication of judicial power is that the Committee may continue to harass its opponents with absolute impunity so long as the 'protections' of Barenblatt are observed. Since this is to be the rule under which the Committee will be permitted to operate, I think it necessary in the interest of fairness to those who may in the future wish to exercise their constitutional right to criticize the Committee that the true nature of those 'protections' be clearly set forth.
39
The first such 'protection' relates to the question of whom the Committee may call before it. Is there any limitation upon the power of the Committee to subpoena and compel testimony from anyone who attacks it? On this point, the majority, relying upon the fact that at a previous hearing the Committee was told by a paid informant that petitioner was a Communist and upon statements by the Committee's counsel to the effect that the Committee had information that petitioner had been sent to Atlanta by the Communist Party, says simply: 'It is to be emphasized that the petitioner was not summoned to appear as the result of an indiscriminate dragnet procedure, lacking in probable cause for belief that he possessed information which might be helpful to the subcommittee.' Significantly, the majority does not say just how much its 'emphasis' on this point is worth, if anything. Thus, for all that appears in the majority opinion, there is no assurance that the Committee will be required to produce any information at all as a prerequisite to the exercise of its subpoena and contempt powers. Assuming for the sake of argument, however, that such a requirement will be imposed, it then becomes relevant to inquire as to just how much this requirement will mean in terms of genuine protection for those who in good faith wish to criticize the Committee.
40
That inquiry is, to my mind, satisfactorily settled by a look at the facts of this case. So far as appears from this record, the only information the Committee had with regard to petitioner was the testimony of an informant at a previous Committee hearing. The only evidence to the effect that petitioner was in fact a member of the Communist Party that emerges from that testimony is a flat conclusory statement by the informant that it was so.6 No testimony as to particular happenings upon which such a conclusion could rationally be based was given at that hearing. When this fact is considered in conjunction with the fact that petitioner was not accorded the opportunity to cross-examine the informant7 or the protection of the statute permitting inspection of statements given to the F.B.I. by informants,8 it seems obvious to me that such testimony is almost totally worthless for the purpose of establishing probable cause. For all we know, the informant may have had no basis at all for her conclusion and, indeed, the possibility of perjury cannot, in view of its frequent recurrence in these sorts of cases,9 be entirely discounted. Thus, in my view, the 'protection' afforded by a requirement of some sort of probable cause, even if imposed, is almost totally worthless. In the atmosphere existing in this country today, the charge that someone is a Communist is so common that hardly anyone active in public life escapes it. Every member of this Court has, on one occasion or another, been so designated. And a vast majority of the members of the other two branches of Government have fared no better. If the mere fact that someone has been called a Communist is to be permitted to satisfy a requirement of probable cause, I think it plain that such a requirement is wholly without value. To impose it would only give apparent respectability to a practice which is inherently in conflict with our concepts of justice and due process.
41
The other such 'protection' afforded to critics of the Un-American Activities Committee under these decisions is included in the majority's so-called balancing test. Under that test, we are told, this Court will permit only those abridgments of personal beliefs and associations by Committee inquiry that the Court believes so important in terms of the need of the Committee for information that such need outweighs the First Amendment rights of the witness and the public.10 For my part, I need look no further than this very case to see how little protection this high-sounding slogan really affords. For in this case the majority is holding that the interest of the Committee in the information sought outweighs that of the witness and the public in free discussion while, at the same time, it disclaims any power to determine whether the Committee is in fact interested in the information at all. The truth of the matter is that the balancing test, at least as applied to date, means that the Committee may engage in any inquiry a majority of this Court happens to think could possibly be for a legitimate purpose whether that 'purpose' be the true reason for the inquiry or not. And under the tests of legitimacy that are used in this area, any first-year law school student worth his salt could construct a rationalization to justify almost any question put to any witness at any time.
42
Thus, in my view, the conclusion is inescapable that the only real limitation upon the Committee's power to harass its opponents is the Committee's own self-restraint, a characteristic which probably has not been predominant in the Committee's work over the past few years. The result of all this is that from now on anyone who takes a public position contrary to that being urged by the House Un-American Activities Comittee should realize that he runs the risk of being subpoenaed to appear at a hearing in some far off place, of being questioned with regard to every minute detail of his past life, of being asked to repeat all the gossip he may have heard about any of his friends and acquaintances, of being accused by the Committee of membership in the Communist Party, of being held up to the public as a subversive and a traitor, of being jailed for contempt if he refuses to cooperate with the Committee in its probe of his mind and associations, and of being branded by his neighbors, employer and erstwhile friends as a menace to society regardless of the outcome of that hearing. With such a powerful weapon in its hands, it seems quite likely that the Committee will weather all criticism, even though justifiable, that may be directed toward it. For there are not many people in our society who will have the courage to speak out against such a formidable opponent. But cf. Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148. If the present trend continues, this already small number will necessarily dwindle as their ranks are thinned by the jails. Government by consent will disappear to be replaced by government by intimidation because some people are afraid that this country cannot survive unless Congress has the power to set aside the freedoms of the First Amendment at will.
43
I can only reiterate my firm conviction that these people are tragically wrong. This country was not built by men who were afraid and it cannot be preserved by such men.11 Our Constitution, in unequivocal terms, gives the right to each of us to say what we think without fear of the power of the Government. That principle has served us so well for so long that I cannot believe it necessary to allow any governmental group to reject it in order to preserve its own existence. Least of all do I believe that such a privilege should be accorded the House Un-American Activities Committee. For I believe that true Americanism is to be protected, not by committees that persecute unorthodox minorities, but by strict adherence to basic principles of freedom that are responsible for this Nation's greatness. Those principles are embodied for all who care to see in our Bill of Rights. They were put there for the specific purpose of preventing just the sort of governmental suppression of criticism that the majority upholds here. Their ineffectiveness to that end stems, not from any lack of precision in the statement of the principles, but from the refusal of the majority to apply those principles as precisely stated. For the principles of the First Amendment are stated in precise and mandatory terms and unless they are applied in those terms, the freedoms of religion, speech, press, assembly and petition will have no effective protection. Where these freedoms are left to depend upon a balance to be struck by this Court in each particular case, liberty cannot survive. For under such a rule, there are no constitutional rights that cannot be 'balanced' away.
44
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
45
When petitioner was summoned before a subcommittee of the House Committee on Un-American Activities in Atlanta, Georgia, the Staff Director for the Committee made the following statement to him:
46
'It is the information of the committee or the suggestion of the committee that in anticipation of the hearings here in Atlanta, Georgia, you were sent to this area by the Communist Party for the purpose of developing a hostile sentiment to this committee and to its work for the purpose of undertaking to bring pressure upon the United States Congress to preclude these particular hearings. Indeed it is the fact that you were not even subpenaed for these particular hearings until we learned that you were in town for that very purpose and that you were not subpenaed to appear before this committee until you had actually registered in the hotel here in Atlanta.
47
'Now, sir, if you will tell this committee whether or not, while you are under oath, you are now a Communist, we intend to pursue that area of inquiry and undertake to solicit from you information respecting your activities as a Communist on behalf of the Communist Party, which is tied up directly with the Kremlin; your activities from the standpoint of propaganda; your activities from the standpoint of undertaking to destroy the Federal Bureau of Investigation and the Committee on Un-American Activities, because indeed this committee issued a report entitled 'Operation Abolition,' in which we told something, the information we then possessed, respecting the efforts of the Emergency Civil Liberties Committee, of which you are the guiding light, to destroy the F.B.I. and discredit the director of the F.B.I. and to undertake to hamstring the work of this Committee on Un-American Activities.
48
'So if you will answer that principal question, I intend to pursue the other questions with you to solicit information which would be of interest—which will be of vital necessity, indeed—to this committee in undertaking to develop legislation to protect the United States of America under whose flag you, sir, have protection.
49
'Now please answer the question: Are you now a member of the Communist Party?'
50
Petitioner answered, 'I am refusing to answer any questions of this committee.'
51
After a further explanation he was directed to answer. He replied:
52
'I have the utmost respect for the broad powers which the Congress of the United States must have to carry on its investigations for legislative purposes. However, the United States Supreme Court has held that, broad as these powers may be, the Congress cannot investigate into an area where it cannot legislate, and this committee tends, by its mandate and by its practices, to investigate into precisely those areas of free speech, religion, peaceful association and assembly, and the press, wherein it cannot legislate and therefore it cannot investigate.'1
53
The Committee2 is authorized by the Resolution governing it to make investigations of 'the extent, character, and objects of un-American propaganda activities in the United States.'
54
If it is 'un-American' to criticize, impeach, and berate the Committee and to seek to have it abolished, then the Committee acted within the scope of its authority in asking the questions. But we take a dangerous leap when we reach the conclusion that criticism of the Committee was within the scope of the Resolution.
55
Criticism of government finds sanctuary in several portions of the First Amendment. It is part of the right free speech. It embraces freedom of the press. Can editors be summoned before the Committee and be made to account for their editorials denouncing the Committee, its tactics, its practices, its policies? If petitioner can be questioned concerning his opposition to the Committee, then I see no reason why editors are immune. The list of editors will be long as is evident from the editorial protests against the Committee's activities,3 including its recent film, Operation Abolition.4
56
The First Amendment rights involved here are more than freedom of speech and press. Bringing people together in peaceable assemblies is in the same category. De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278. 'The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.' Id., 299 U.S. at page 364, 57 S.Ct. at page 260. The right to petition 'for a redress of grievances' is also part of the First Amendment; it too is fundamental to 'the very idea of a government, republican in form.' United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588. Chief Justice Hughes, speaking for the Court in the De Jonge case involving communist activities no more nor less lawful than those charged here, said:
57
'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.' De Jonge v. State of Oregon, supra, 299 U.S. at page 365, 57 S.Ct. at page 260.
58
These are reasons why I would construe the Resolution narrowly so as to exclude criticism of the Committee. We have customarily done just that, insisting that if 'an inquiry of dubious limits' is to be found in an Act or Resolution, Congress should unequivocally authorize it. United States v. Rumely, 345 U.S. 41, 46, 73 S.Ct. 543, 546, 97 L.Ed. 770; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Watkins v. United States, 354 U.S. 178, 198, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273.
59
The indictment charged only the failure to answer the one question, 'Are you now a member of the Communist Party?' That question in other contexts might well have been appropriate. We have here, however, an investigation whose central aim was finding out what criticism a citizen was making of the Government. That was the gist of the case presented to the jury.5
60
We cannot allow this man to go to prison for 12 months unless we hold that an investigation of those who criticize the Un-American Activities Committee was both authorized and constitutional. I cannot read the Resolution as authorizing that kind of investigation without assuming that the Congress intended to flout the First Amendment.
61
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, dissenting.
62
For the reasons stated in my Brother DOUGLAS' dissenting opinion in Braden v. United States, 365 U.S. 431, at page 446, 81 S.Ct. 584, at page 593, 5 L.Ed.2d 653, which I joined, I believe that the Committee failed to lay an adequate foundation at the hearing for questions which, it was claimed, concerned the exercise of rights protected by the First Amendment.
63
I also dissent because on these facts the inference is inescapable that the dominant purpose of these questions was not to gather information in aid of law making or law evaluation but rather to harass the petitioner and expose him for the sake of exposure. A scant 19 months before the hearing in question petitioner was summoned before this very Committee and refused to answer questions on substantially the same grounds as those he claimed in this instance. Nor did his conduct in the interim afford any basis for a hope that he might have repented, an inference which, by contrast, was possible in Flaxer v. United States, 358 U.S. 147, 151, 79 S.Ct. 191, 193, 3 L.Ed.2d 183, cited by the Government. For petitioner continued to proclaim his hostility to the Committee and his belief that it had no power to probe areas of free expression. He was not even called to testify at these hearings in Atlanta until the Committee learned that he was to be present in Atlanta to express his opposition to the Committee's work, as, of course, he had a right to do. In fact, the Committee's Staff Director came perilously close to admitting, on cross-examination by petitioner's counsel, that petitioner was called to the stand only because of his opposition to the Committee's activities.
64
It is particularly important that congressional committees confine themselves to the function of gathering information when their investigation begins to touch the realm of speech and opinion. On this record, I cannot help concluding that the Committee had no reasonable prospect that petitioner would answer its questions, and accordingly that the Committee's purpose could not have been the legitimate one of fact gathering. I am forced to the view that the questions asked of petitioner were therefore not within the Committee's power. Cf. Barenblatt v. United States, 360 U.S. 109, 166, 79 S.Ct. 1081, 1113, 3 L.Ed.2d 1115 (dissenting opinion); Uphaus v. Wyman, 360 U.S. 72, 82, 79 S.Ct. 1040, 1047, 3 L.Ed.2d 1090 (dissenting opinion). I would reverse.
1
The applicable statute is 2 U.S.C. § 192, 2 U.S.C.A. § 192. It provides: 'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.' 2 U.S.C. § 192, 2 U.S.C.A. § 192.
2
Rule X of the Standing Rules of the House of Representatives, as amended by the Legislative Reorganization Act of 1946, c. 753, § 121, 60 Stat. 812, 822, 823.
3
Rule XI of the Standing Rules (60 Stat. 823, 828). These Standing Rules were specifically adopted by the House, at the beginning of the 85th Congress in 1957 (H.Res. No. 5, 85th Cong., 1st Sess.).
4
See Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653.
5
'Now, sir, I should like to make an explanation to you of the reasons, the pertinency, and the relevancy of that question and certain other questions which I propose to propound to you; and I do so for the purpose of laying a foundation upon which I will then request the chairman of this subcommittee to order and direct you to answer those questions.
'The Committee on Un-American Activities has to major responsibilities which it is undertaking to perform here in Atlanta.
'Responsibility number 1, is to maintain a continuing surveillance over the administration and operation of a number of our internal security laws. In order to discharge that responsibility the Committee on Un-American Activities must undertake to keep abreast of techniques of Communists' operations in the United States and Communist activities in the United States. In order to know about Communist activities and Communist techniques, we have got to know who the Communists are and what they are doing.
'Responsibility number 2, is to develop factual information which will assist the Committee on Un-American Activities in appraising legislative proposals before the committee.
'There are pending before the committee a number of legislative proposals which undertake to more adequately cope with the Communist Party and the Communist conspiratorial operations in the United States. H.R. 9937 is one of those. Other proposals are
pending before the committee not in legislative form yet, but in the form of suggestions that there be an outright outlawry of the Communist Party; secondly, that there be registrations required of certain activities of Communists; third, that there be certain amendments to the Foreign Agents Registration Act because this Congress of the United States has found repeatedly that the Communist Party and Communists in the United States are only instrumentalities of a Kremlin-controlled world Communist apparatus. Similar proposals are pending before this committee.
'Now with reference to pertinency of this question to your own factual situation, my I say that it is the information of this committee that you now are a hard-core member of the Communist Party; that you were designated by the Communist Party for the purpose of creating and manipulating certain organizations, including the Emergency Civil Liberties Committee, the affiliate organizations of the Emergency Civil Liberties Committee, including a particular committee in California and a particular committee in Chicago, a committee—the name of which is along the line of the committee for cultural freedom, or something of that kind. I don't have the name before me at the instant.
'It is the information of the committee or the suggestion of the committee that in anticipation of the hearings here in Atlanta, Georgia, you were sent to this area by the Communist Party for the purpose of developing a hostile sentiment to this committee and to its work for the purpose of undertaking to bring pressure upon the United States Congress to preclude these particular hearings. Indeed it is the fact that you were not even subpenaed for these particular hearings until we learned that you were in town for that very purpose and that you were not subpoenaed to appear before this committee until you had actually registered in the hotel here in Atlanta.
'Now, sir, if you will tell this committee whether or not, while you are under oath, you are now a Communist, we intend to pursue that area of inquiry and undertake to solicit from you information respect-
ing your activities as a Communist on behalf of the Communist Party, which is tied up directly with the Kremlin; your activities from the standpoint of propaganda; your activities from the standpoint of undertaking to destroy the Federal Bureau of Investigation and the Committee on Un-American Activities, because indeed this committee issued a report entitled 'Operation Abolition,' in which we told something, the information we then possessed, respecting the efforts of the Emergency Civil Liberties Committee, of which you are the guiding light, to destroy the F.B.I. and discredit the director of the F.B.I. and to undertake to hamstring the work of this Committee on Un-American Activities.'
6
By contrast, the authorizing resolution that was before the Court in Watkins incorporated by reference the full breadth and generality of Rule XI itself. That resolution simply empowered the Committee Chairman to appoint subcommittees 'for the purpose of performing any and all acts which the Committee as a whole is authorized to do.' See 354 U.S. at page 211, note 50, 77 S.Ct. at page 1192.
7
'* * * (T)he Committee on Un-American Activities is continuously in the process of accumulating factual information respecting Communists, the Communist Party, and Communist activities which will enable the committee and the Congress to appraise the administration and operation of the Smith Act (18 U.S.C.A. § 2385) the Internal Security Act of 1950 (50 U.S.C.A. § 781 et seq.), the Communist Control Act of 1954 (50 U.S.C.A. § 841 et seq.), and numerous provisions of the Criminal Code relating to espionage, sabotage, and subversion. In addition, the committee has before it numerous proposals to strengthen our legislative weapons designed to protect the internal security of this Nation.
'In the course of the last few years, as a result of hearings and investigations, this committee has made over 80 separate recommendations for legislative action. Legislation has been passed by the Congress embracing 35 of the committee recommendations and 26 separate proposals are currently pending in the Congress on subjects covered by other committee recommendations. Moreover, in the course of the last few years numerous recommendations made by the committee for administrative action have been adopted by the executive agencies of the Government.'
8
See note 5, supra.
9
The trial testimony on this score was as follows: 'In essence the information of which the committee was possessed was that Mr. Wilkinson was a member of the communist party, that he had been identified by a creditable witness under oath before the committee a short time or within a year or so prior to the Atlanta hearings, identified as a Communist. It was also the information of the committee that Mr. Wilkinson had been designated by the Communist hierarchy in the nation to spearhead or to lead the infiltration into the South of a group known as the Emergency Civil Liberties Committee which itself had been cited by the Internal Security Subcommittee as a communist operation or a communist front. It was the information of the committee that Mr. Wilkinson's assignments, including setting up rallies and meetings over the country for the purpose of engendering sentiment against the Federal Bureau of Investigation, against the security program of the government, and against the Committee on Un-American Activities and its activities. Mr. Wilkinson had in the course of the relatively recent past prior to his appearance in Atlanta been sent into Atlanta by the communist operation for the purpose of conducting communist activities in the South and more specifically in the Atlanta area. What I'm telling you now is only a general summary, you understand.'
10
Since both the pertinency of the question and the fact that its pertinency was brought home to the petitioner are so indisputably clear, we need not consider the Government's contention that the record does not show that the petitioner ever did or said anything that could be understood as an objection upon grounds of lack of pertinency. See Watkins v. United States, 354 U.S. 178, 214—215, 77 S.Ct. 1173, 1193, 1 L.Ed.2d 1273; Barenblatt v. United States, 360 U.S. 109, 124, 79 S.Ct. 1081, 1091, 3 L.Ed.2d 1115.
1
In my dissenting opinion in Barenblatt v. United States, 360 U.S. 109, 153—166, 79 S.Ct. 1081, 1107—1113, 3 L.Ed.2d 1115, I set out the evidence from the Committee's own reports which indicates the Committee's real purpose in conducting this kind of hearing.
2
During the past several years, the petitioner appears to have been associated with at least three different organizations that had as their primary aim the abolition of the Un-American Activities Committee. In addition to his association with the Emergency Civil Liberties Committee, which is shown by this record, petitioner seems to have been associated with similar organizations in Los Angeles and Chicago. At least he was accused of such associations when he was called before a previous hearing of the Committee in 1956. See Hearings before the House Committee on Un-American Activities, 84th Cong., 2d Sess., at Los Angeles, California, December 5—8, 1956, entitled 'Communist Political Subversion, Part I,' pp. 6747—6753.
3
Significantly, the petitioner was never told, nor does the record disclose for our consideration here, either the source or the nature of the alleged information referred to.
On these facts, which are undisputed in the record, the majority upholds petitioner's conviction as 'indistinguishable' from that upheld in Barenblatt v. United States.4 On this point, I find myself only partially in disagreement with the majority. I think this case could and should be distinguished from Barenblatt on the ground urged by Mr. Justice DOUGLAS—that the resolution authorizing the Un-American Activities Committee does not authorize that Committee to interrogate a person for criticizing it. I therefore join in the dissent filed by Mr. Justice DOUGLAS on that ground. On the other hand, I must agree with the majority that so far as petitioner's constitutional claims are concerned, Barenblatt is 'indistin-
4
360 U.S. 109, 79 S.Ct. 1081.
5
I agree with the majority that, in a sense, '(t)hese circumstances, however, do not necessarily lead to the conclusion that the subcommittee's intent was personal persecution of the petitioner' (emphasis supplied), but I am satisfied that the evidence, though not absolutely conclusive, is overwhelming.
6
The 'evidence' relied upon by the Committee is contained in the following colloquy between the informant, a Mrs. Schneider, and the Committee counsel, a Mr. Arens:
'Mr. Arens. Was it (the Citizens Committee To Preserve American Freedoms) Communist-controlled?
'Mrs. Schneider. Yes.
'Mr. Arens. Who was the ringleader in that organization?
'Mrs. Schneider. I didn't work in that organization, and I don't know who the ringleader was. My contact on that occasion was with Frank Wilkinson, I believe.
'Mr. Arens. Did you know him as a Communist?
'Mrs. Schneider. Yes.' Hearings before the House Committee on Un-American Activities, op. cit., supra, n. 2, at 6730.
7
This, of course, is the established practice in hearings before the House Committee on Un-American Activities.
8
18 U.S.C. § 3500, 18 U.S.C.A. § 3500.
9
See, e.g., Communist Party of United States v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003; Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1.
10
The test is stated by the majority in its opinion in Barenblatt in the following terms: 'Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.' 360 U.S. at page 126, 79 S.Ct. at page 1093, Cf. American Communications Ass'n, CIO v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919.
11
Mr. Justice Brandeis made this very point in his concurring opinion in Whitney v. People of State of California, where he said: 'Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.' 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095. Mr. Justice Brandeis doubtless had in mind, and indeed made specific reference to, the famous words in Thomas Jefferson's first inaugural address: 'If there be any among us who would wish to dissolve this union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.'
1
The Washington Post on January 4, 1961, made a similar criticism of the House Committee on Un-American Activities:
'The Committee often functions as a kind of public pillory to punish men by publicity for offenses which the Constitution forbids Congress to make punishable by law. It 'exposes' men who express opinions or indulge in associations of which the Committee disapproves, carelessly calling them—or allowing witnesses under the cloak of congressional immunity to call them—Communists or Communist-sympathizers or Communist dupes.
'The Committee, as a consequence of this conduct, sometimes operates as a serious restraint on freedom of expression and freedom of association. It makes Americans fearful of uttering opinions for which they may be called to account by the Committee and fearful of joining organizations which the Committee may consider subversive.'
2
The ultimate mandate of the parent Committee at the time of the subcommittee hearing was to be found in paragraph 17(b), Rule XI, Rules of the House of Representatives, H.Res. 5, 85th Cong., 1st Sess., 60 Stat. 828. It provides: 'The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (i) the extent, character, and objects of un-American propaganda activities in the United States, (ii) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (iii) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.' The record in this case also contains the mandate of the subcommittee (see note 5, infra), but the terms of the parent Committee's mandate are of course controlling. Of the purposes of the Committee, only the investigation of 'un-American propaganda' activities seems even arguably to authorize the questions asked and the inquiry pursued in this case.
3
See note 1, supra.
4
The Washington Post said editorially on December 28, 1960:
'In his letters printed elsewhere in this newspaper today, Rep. Francis Walter asserts that the film Operation Abolition 'contains absolutely no distortions' and that the staff member who had admitted it contained such defects 'had not himself used the word 'distortions." In a television show over KCOP—TV, Los Angeles, a teaching assistant at the University of California referred to distortions in the film. William Wheeler, an investigator for the House Un-American Activities Committee, taking part in the program asked. 'What are you trying to prove by this?' The following exchange then took place:
'Mr. White: That the film has inaccuracies and distortions.
'Mr. Wheeler: I've admitted that.
'Mr. White: You've admitted that?
'Mr. Wheeler: Certainly.
'Mr. Walter offers some carefully selected quotes from the San Francisco press to refute this newspaper's assertion that the San Francisco police 'reacted with altogether needless ferocity.' Like the film Operation Abolition itself, he omits all the material showing the other side of the picture. For instance, San Francisco Chronicle reporter George Draper wrote:
"I did not see any of the kids actually fighting with the police. Their resistance was more passive. They would simply go limp and be manhandled out of the building * * * I saw one slightly built lad being carried by two husky officers. One held the boy's shirt, the other had him by the feet. He was struggling, but he was no match for the two bigger men. Then from nowhere appeared a third officer. He ran up to the slender boy firmly held by the other two officers and clubbed him three times on the head. You could hear the hollow smack of the club striking. The boy went limp and was carried out.'
'Nor does Mr. Walter mention the report of another eyewitness, Mel Wax a special correspondent of the New York Post.
"Never, in 20 years as a reporter, have I seen such brutality. * * * San Francisco police hurled women down the staircase, spines bumping on each marble stair.'
'To Mr. Walter, it is an admitted but 'decidedly minor' distortion in the film that Harry Bridges was represented as being on the scene just before the rioting broke out when, in point of fact, he did not arrive until after it was all over. 'Honest' this error may have been; but it was more than unfortunate. For it contributed considerably to the deceptive and distorted message of the film that the student demonstration was inspired and led by Communists.
'Communists may have tried to claim the credit which Mr. Walter accords them. Unquestionably the affair got out of hand, and no one condones the rowdiness that ensued. But the truth is that the demonstration was inspired by distaste for the Un-American Activities Committee. And it was led by students who intended nothing more than an orderly protest—an inalienable political right in the United States.'
5
At the trial committee counsel was cross-examined as follows:
'Q. Mr. Arens, you stated before the committee that Mr. Wilkinson had come to Atlanta to stir up hostility to the committee, that he was doing everything he could to prevent these hearings from being held in Atlanta? A. Yes, sir.
'Q. And that you did not subpoena him until you discovered that he had arrived here for that purpose? A. That's correct, sir.
'Q. Now, you state that within the three general categories under which the committee was holding hearings here of colonization in the textile industry, entry and dissemination of foreign propaganda and Communist party propaganda activity in the South, you are stating that Mr. Wilkinson stirring up hostility to the House Committee on Un-American Activities comes within the category of Communist party propaganda activity which justified the House Committee to subpoena him and question him, is that correct? I just want to understand your position. A. Yes, in general I agree with you, yes.'
| 23
|
365 U.S. 312
81 S.Ct. 645
5 L.Ed.2d 574
Thomas D. CLANCY et al., Petitioners,v.UNITED STATES.
No. 88.
Argued Jan. 10, 1961.
Decided Feb. 27, 1961.
Messrs. Paul P. Waller, Jr., and John F. O'Connell, East St. Louis, Ill., for petitioners.
Mr. Daniel M. Friedman, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case presents an important question under 71 Stat. 595, 18 U.S.C. § 3500, 18 U.S.C.A. § 3500, the statute sometimes referred to as the Jencks Act, as it deals with the problems presented in our decision by that name. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. Petitioners were charged with making false statements (18 U.S.C. § 1001, 18 U.S.C.A. § 1001), with attempting to evade the wagering excise tax (26 U.S.C. § 7201, 26 U.S.C.A. § 7201), and with conspiring to defraud the United States of internal revenue taxes (18 U.S.C. § 371, 18 U.S.C.A. § 371). They were found guilty and the judgments of conviction were affirmed. 7 Cir., 276 F.2d 617. The case is here on a writ of certiorari. 363 U.S. 836, 80 S.Ct. 1611, 4 L.Ed.2d 1723.
2
At the trial Minton, a government agent, testified concerning an interview with petitioner, Kastner, at which he was present. Minton testified 'I did not take any notes at the time, but afterwards I returned to the office and made a memorandum of the interview.' Counsel for Kastner asked the court for the production of that memorandum pursuant to the Jencks Act.1
3
Other government witnesses testified to conversations they had had with Clancy, Kastner, and a third partner in petitioners' wagering business. One of the witnesses, Agent Buescher, testified he had taken no notes during these interviews, but had 'compiled a memorandum' from notes taken at the time of the interview by the second witness, Agent Mochel. Both Buescher and Mochel testified that they had signed the later memoranda of the conversations. Counsel for petitioners requested production of the memoranda, and the requests were refused.
4
The trial court, though directing delivery to the defense of notes made by the witnesses at the time of the interviews, refused the requests for the memoranda, saying that written statements were not covered by the Jencks Act unless they were made 'contemporaneously' with the interview. The Government now concedes that this was an erroneous ruling, as indeed it was. Each of these statements related 'to the subject matter as to which the witness has testified.'2 Each was a 'statement' as that word is defined in the Act.3 The requirement that it be contemporaneous applies only to 'a substantially verbatim recital of an oral statement' made to a government agent.4 By the terms of the Act,5 'a written statement made by said witness and signed or otherwise adopted or approved by him' is also included. These statements fell in that category and should have been produced. Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428. And see United States v. Sheer, 7 Cir., 278 F.2d 65, 67—68. As the Senate Report on the bill that became the Jencks Act states:6
5
'The committee believes that legislation would clearly be unconstitutional if it sought to restrict due process. On the contrary, the proposed legislation, as reported, reaffirms the decision of the Supreme Court in its holding that a defendant on trial in a criminal prosecution is entitled to reports and statements in possession of the Government touching the events and activities as to which a Government witness has testified at the trial.
6
'The purpose of the proposed legislation is to establish a procedural device that will provide such a defendant with authenticated statements and reports of Government witnesses which relate directly upon his testimony.'
7
The Government, however, contends that as to Agent Minton the error was harmless. It also asserts—though the record is silent and counsel for petitioners deny it—that verbatim carbon copies of the reports of Agents Bueschner and Mochel were delivered to the defense at the trial. But since its version of what transpired is contested, the Government urges that the most we do is to remand the case to the District Court to determine whether verbatim copies of the reports were delivered to the defense at the trial. If they were so delivered, the Government argues, the court's denial of their production was harmless error.
8
We do not follow that suggestion. We deal with the record as we find it, which gives no support to the Government's assertion that verbatim reports were delivered to the defense. Moreover, the Government's assertion is not a positive statement of the prosecution. Those who present the case here say with candor that they speak only 'according to our information,' which admittedly falls short of a assertion that the copies were delivered to the defense at the trial. Since the defense earnestly denies the statement, we can only conclude that on the record before us petitioners were denied an inspection of the documents to which they were entitled.
9
We put to one side Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304, where a failure to produce a document was considered to be harmless error under the particular circumstances of that case. We do not reach the harmless error point because, if applicable, it is relevant only to the report of one of the agents, not to those of the other two. Since the production of at least some of the statements withheld was a right of the defense, it is not for us to speculate whether they could have been utilized effectively. As we said in Jencks v. United States, supra, 353 U.S. 667, 77 S.Ct. 1013:
10
'Flat contradiction between the witness' testimony and the version of the events given in his report 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.'
11
Accordingly we conclude that at least as respects some of these statements reversible error was committed and that petitioners are entitled to a new trial. There are other questions raised that we do not reach, as we have no way of knowing whether they will arise on a new trial.
12
Reversed.
13
Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, dissenting.
14
Petitioners were convicted of tax evasion and conspiracy to defraud the United States in the operation of a horse race booking enterprise. During the trial the defense asked for the production, under the Jencks Act, of certain signed memoranda of interviews of petitioners by government agents. The request was refused at the time. The Government, in its brief filed November 14, 1960, agrees that this refusal was error. It insists, however, that verbatim copies of the memoranda were delivered to the defense attorneys at a later stage in the trial during the cross-examination of one of the Government's agents. It requested, 'unless petitioners agree with the (Government's) version of the facts,' a remand of the case in order that the trial court might determine this sole question.
15
The attorneys for the petitioners made no reply to this claim of the Government until Thursday, January 5, 1961. In their reply brief on that date they categorically denied that verbatim copies had been delivered. This statement was later supported by affidavit of the attorneys.
16
The case came on for argument on Tuesday, January 10. The Government advised that the government employees involved in the case had not been available until the previous day and hence counter affidavits had not been obtainable. However, it offered to produce affidavits of the agents, as well as the Assistant United States Attorney who tried the case, that would support its claim. In explaining the situation that confronted it, the government counsel stated that he had personally talked by telephone to the United States Attorney after petitioners' brief was filed. This conversation, he said, together with that had with the Assistant United States Attorney who tried the case, confirmed the earlier conclusion that the Government's contention was correct. However, since both the United States Attorney and his assistant made reference to the Government's witness (Agent Mochel, who had written the memoranda in controversy), government counsel also made every effort to reach Mochel and was successful on January 9. Mochel advised that when he was on the witness stand during the trial he had the carbon copies of his memoranda in his pocket and that upon request he took them out and handed them either (1) directly to petitioners' counsel, or (2) to the Assistant United States Attorney trying the case, who passed them on to petitioners' counsel in the courtroom. This was verified by the Assistant United States Attorney who, however, candidly admitted that he was somewhat 'hazy' as to what documents were actually passed by him to counsel. The record indicates that he had made available to petitioners' counsel a large number of documents, including the original notes of the agents. The Government insists that this factual situation creates 'sufficient doubt' to require a hearing by the trial judge and a determination of whether or not the memoranda in controversy were actually delivered to petitioners' counsel.
17
This Court, of course, cannot determine these conflicting factual assertions on an affidavit basis. In view of the lateness of petitioners' denial, however, the Government was not afforded sufficient time to supplement the record on the point. The original record lodged here indicates that Agent Mochel, in his testimony, made reference to 'memoranda' and, in context, the indications are that the 'memoranda' in controversy were at that time in the hands of petitioners' counsel, who were questioning him. Under these circumstances it appears to me that justice does require that we remand the case solely for determination of this point. If the verbatim copies were not delivered, no harm will have been done, for the trial court could then set aside the judgments of conviction and grant a new trial. On the other hand, if the copies were actually delivered there could have been no predudicial error and the judgments of conviction should stand.
18
The Court, however, refuses to order this done. It reverses the case on this technicality, regardless of the fact that the Government has persuasive evidence that petitioner's counsel actually had access to the very documents on which its reversal is based. The Court indicates that the Government's claim is outside the record. However, if the memoranda were in fact made available, as the Government claims, they were delivered during the trial and the record does have fleeting references that support such a conclusion. It would be a simple matter for these references to be made more complete at a hearing. In my view it is only fair that the Government should be given this opportunity. Moreover, I note that the Court has granted just such relief in many cases. See Campbell v. United States, 1961, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428; United States v. Shotwell Mfg. Co., 1957, 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234; Communist Party of United States v.Subversive Activities Control Board, 1956, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003.
1
18 U.S.C. 3500, 18 U.S.C.A. § 3500, provides in relevant part:
'(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 Cogernment 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 testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall ordr it to be delivered directly to the defendant for his examination and use.
'(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.'
2
18 U.S.C. § 3500(b), 18 U.S.C.A. § 3500 (b), supra, note 1.
3
18 U.S.C. § 3500(e), 18 U.S.C.A. § 3500 (e), supra, note 1.
4
18 U.S.C. § 3500(e)(2), 18 U.S.C.A. § 3500(e)(2), supra, note 1.
5
18 U.S.C. § 3500(e)(1), 18 U.S.C.A. § 3500(e)(1), supra, note 1.
6
S. Rep. No. 569, 85th Cong., 1st Sess., p. 2.
| 01
|
365 U.S. 431
81 S.Ct. 584
5 L.Ed.2d 653
Carl BRADEN, Petitioner,v.UNITED STATES.
No. 54.
Argued Nov. 17, 1960.
Decided Feb. 27, 1961.
Rehearing Denied April 17, 1961.
See 365 U.S. 890, 81 S.Ct. 1024.
Mr. Leonard B. Boudin, New York City and Mr. John M. Coe, Pensacola, Fla., for petitioner.
Mr. J. Walter Yeagley, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case is a companion to Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633. The petitioner was the witness immediately preceding Wilkinson at the hearing of a subcommittee of the House Un-American Activities Committee, in Atlanta, Georgia, on July 30, 1958. He refused to answer many of the questions directed to him, basing his refusal upon the grounds that the questions were not pertinent to a question under inquiry by the subcommittee and that the interrogation invaded his First Amendment rights. He was subsequently indicted and, after a jury trial, convicted for having violated 2 U.S.C. § 192, 2 U.S.C.A. § 192 in refusing to answer six specific questions which had been put to him by the subcommittee.1 The Court of Appeals affirmed, 5 Cir., 272 F.2d 653, relying on Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115, and we granted certiorari, 362 U.S. 960, 80 S.Ct. 878, 4 L.Ed.2d 876.
2
The principal issues raised by the petitioner are substantially identical to those considered in Wilkinson, and extended discussion is not required in resolving them. Based upon the same record that was brought here in Wilkinson, we conclude for the reasons stated there that the subjects under subcommittee investigation at the time the petitioner was interrogated were Communist infiltration into basic southern industry and Communist Party propaganda activities in the southern part of the United States. We conclude for the same reasons that the subcommittee's investigation of these subjects was authorized by Congress, that the interrogation was pertinent to a question under subcommittee inquiry,2 and that the petitioner was fully apprised of its pertinency.3
3
In asserting a violation of his First Amendment rights, the petitioner here points out that he was asked, not simply whether he was or had been a Communist Party member, as in Wilkinson and Barenblatt, supra, but whether he was a member 'the instant you affixed your signature to that letter.' The letter in question, which had admittedly been signed by the petitioner and his wife, urged opposition to certain bills in Congress. The petitioner emphasizes that the writing of such a letter is not only legitimate but constitutionally protected activity, and points to other evidence in the record to indicate that he had been active in other completely legitimate causes.4 Based upon these circumstances, he argues that the subcommittee did not have a proper legislative purpose in calling him before it, but that it was bent rather on persecuting him for publicly opposing the subcommittee's activities. He contends that under such circumstances an inquiry into his personal and associational conduct violated his First Amendment freedoms. On these grounds, the petitioner would differentiate the constitutional issues here from those that were before the Court in Barenblatt, supra.
4
But Barenblatt did not confine congressional committee investigation to overt criminal activity, nor did that case determine that Congress can only investigate the Communist Party itself. Rather, the decision upheld an investigation of Communist activity in education. Education, too, is legitimate and protected activity. Communist infiltration and propaganda in a given area of the country, which were the subjects of the subcommittee investigation here, are surely as much within its pervasive authority as Communist activity in educational institutions. The subcommittee had reason to believe that the petitioner was a member of the Communist Party, and that he had been actively engaged in propaganda efforts. It was making a legislative inquiry into Communist Party propaganda activities in the southern States. Information as to the extent to which the Communist Party was utilizing legitimate organizations and causes in its propaganda efforts in that region was surely not constitutionally beyond the reach of the subcommittee's inquiry. Upon the reasoning and authority of Barenblatt, 360 U.S., at pages 125—134, 79 S.Ct. at pages 1092—1097, we hold that the judgment is not to be set aside on First Amendment grounds.
5
The petitioner in this case raises two additional issues that were not considered either in Barenblatt, supra, or in Wilkinson, supra. First, he says that it was error for the trial court not to leave it for the jury to determine whether the questions asked by the subcommittee were pertinent to the subject under inquiry. Secondly, he asserts that he could not properly be convicted, because in refusing to answer the subcommittee's questions he relied upon his understanding of the meaning of previous decisions of this Court. We think that both of these contentions have been foreclosed by Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692.
6
At the trial the district judge determined as a matter of law that the questions were pertinent to a matter under inquiry by the subcommittee,5 leaving to the jury the question whether the pertinence of the questions had been brought home to the petitioner. It is to be noted that counsel made no timely objection to this procedure and, indeed, affirmatively acquiesced in it.6 But we need not base rejection of the petitioner's contention here on that ground, for, in any event, it was proper for the court to determine the question as a matter of law. This is precisely what was held in Sinclair v. United States, where the Court said at 279 U.S. 299, 49 S.Ct. 273: 'The reasons for holding relevancy and materiality to be questions of law * * * apply with equal force to the determination of pertinency arising under section 102 (the predecessor of 2 U.S.C. § 192, 2 U.S.C.A. § 192). The matter for determination in this case was whether the facts called for by the question were so related to the subjects covered by the Senate's resolutions that such facts reasonably could be said to be 'pertinent to the question under inquiry.' It would be incongruous and contrary to well-established principles to leave the determination of such a matter to a jury.'
7
During his interrogation the petitioner was asked: 'Now do I understand that you have refused to answer the question as to whether or not you are now a member of the Communist Party solely upon the invocation of the provisions of the first amendment, but that you have not invoked the protection of the fifth amendment to the Constitution. Is that correct?' He gave the following answer: 'That is right, sir. I am standing on the Watkins, Sweezy, Konigsberg, and other decisions of the United States Supreme Court which protect my right, and the Constitution as they interpret the Constitution of the United States, protecting my right to private belief and association.'
8
It is now argued that because he relied upon his understanding of this Court's previous decisions he could not be convicted under the statute for failing to answer the questions. An almost identical contention was also rejected in Sinclair v. United States, supra, 279 U.S. at page 299, 49 S.Ct. at page 274: 'There is no merit in appellant's contention that he is entitled to a new trial because the court excluded evidence that in refusing to answer he acted in good faith on the advise of competent counsel. The gist of the offense is refusal to answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There was no misapprehension as to what was called for. The refusal to answer was deliberate.
9
The facts sought were pertinent as a matter of law, and section 102 made it appellant's duty to answer. He was bound rightly to construe the statute. His mistaken view of the law is no defense.'7
10
Here, as in Sinclair, the refusal to answer was deliberate and intentional.
11
Affirmed.
12
Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
13
The petitioner in this case, as is shown by the facts set forth in the dissenting opinion of Mr. Justice DOUGLAS, in which I concur, has for some time been at odds with strong sentiment favoring racial segregation in his home State of Kentucky. A white man himself, the petitioner has nonetheless spoken out strongly against that sentiment. This activity, which once before resulted in his being charged with a serious crime,1 seems also to have been the primary reason for his being called before the Un-American Activities Committee. For the occasion of that Committee's compelling petitioner to go from Rhode Island, where he was vacationing, to Atlanta for questioning appears from the record to have been the circulation of two letters, both in the nature of petitions to Congress, urging that certain legislative action be taken which, in the view of the signers of the petitions, would help those working against segregation. One of these petitions, signed by petitioner and his wife, asked those who read it to urge their representatives in Congress to vote against proposed legislation which would have empowered the States to enact antisedition statutes because, in the view of the signers, those statutes could too readily be used against citizens working for integration. The other petition, bearing the signature of 200 southern Negroes, was sent directly to the House of Representatives and requested that body not to allow the Un-American Activities Committee to conduct hearings in the South because, so the petition charged, 'all of its (the Committee's) activities in recent years suggest that it is much more interested in harassing and labeling as 'subversive' any citizen who is inclined to be liberal or an independent thinker.' The record shows that the Committee apparently believed that petitioner had drafted both of these petitions and that he had circulated them, not—as would appear from the face of the petitions—for the purpose of furthering the cause of integration, but for the purpose of furthering the interests of the Communist Party, of which the Committee claimed to have information that he was a member,2 by fomenting racial strife and interfering with the investigations of the Un-American Activities Committee.
14
When petitioner appeared in response to this subpoena, he was asked a number of questions regarding his personal beliefs and associations, culminating in the question of whether he was a member of the Communist Party at 'the instant' he affixed his signature to the petition urging defeat of the statute authorizing state antisedition laws. Petitioner refused to answer these questions on the grounds, first, that the Committee had no power to ask the questions it put to him, and, secondly, that he could properly refuse to answer such questions under the First Amendment. For this refusal to answer he, like Frank Wilkinson who followed him on the witness stand at the Atlanta hearing,3 was convicted under 2 U.S.C. § 192, 2 U.S.C.A. § 192 and sentenced to 12 months in jail.4 And, as was the case with the conviction of Wilkinson, the majority here affirms petitioner's conviction '(u)pon the reasoning and authority' of Barenblatt v. United States.5
15
Again I must agree with the majority that insofar as the conviction is attacked on constitutional grounds,6 the decision in Barenblatt constitutes ample authority for its action, even though it cannot be denied that the Committee's conduct constitutes a direct abridgment of the right of petition. Indeed, I think the majority might well have, with equal justification, relied upon a much earlier decision of this Court, that in Beauharnais v. People of State of Illinois.7 For it was there that a majority of this Court first applied to the right of petition the flexible constitutional rule upon which the decision in this case is based—the rule that the right of petition, though guaranteed in precise and mandatory terms by the First Amendment, may be abandoned at any time Government can offer a reason for doing so that a majority of this Court finds sufficiently compelling. Ironically, the need there asserted by the State of Illinois and accepted by a majority of this Court as sufficiently compelling to warrant abridgment of the right of petition was the need to protect Negroes against what was subsequently labeled 'libel * * * of a racial group,'8 although it was actually nothing more than the circulation of a petition seeking governmental and public support for a program of racial segregation.9 Thus, the decision in Beauharnais had all the outward appearances of being one which would aid the underprivileged Negro minority.10 This decision, however, is a dramatic illustration of the shortsightedness of such an interpretation of that case. For the very constitutional philosophy that gave birth to Beauharnais today gives birth to a decision which may well strip the Negro of the aid of many of the white people who have been willing to speak up in his behalf. If the House Un-American Activities Committee is to have the power to interrogate everyone who is called a Communist,11 there is one thing certain beyond the peradventure of a doubt—no legislative committee, state or federal, will have trouble finding cause to subpoena all persons anywhere who take a public stand for or against segregation. The lesson to be learned from these two cases is, to my mind, clear. Liberty, to be secure for any, must be secure for all—even for the most miserable merchants of hated and unpopular ideas.
16
Both Barenblatt and Beauharnais are offspring of a constitutional doctrine that is steadily sacrificing individual freedom of religion, speech, press, assembly and petition to governmental control. There have been many other such decisions and the indications are that this number will continue to grow at an alarming rate. For the presently prevailing constitutional doctrine, which treats the First Amendment as a mere admonition, leaves the liberty-giving freedoms which were intended to be protected by that Amendment completely at the mercy of Congress and this Court whenever a majority of this Court concludes, on the basis of any of the several judicially created 'tests' now in vogue,12 that abridgment of these freedoms is more desirable than freedom itself. Only a few days ago, the application of this constitutional doctrine wiped out the rule forbidding prior censorship of movies in an opinion that leaves the door wide open to, if indeed it does not actually invite, prior censorship of other means of publication.13 And the Blackstonian condemnation of prior censorship had long been thought, even by those whose ideas of First Amendment liberties have been most restricted, to be the absolute minimum of the protection demanded by that Amendment.14
17
I once more deny, as I have found it repeatedly necessary to do in other cases, that this Nation's ability to preserve itself depends upon suppression of the freedoms of religion, speech, press, assembly and petition.15 But I do believe that the noble-sounding slogan of 'self-preservation'16 rests upon a premise that can itself destroy any democratic nation by a slow process of eating away at the liberties that are indispensable to its healthy growth. The very foundation of a true democracy and the foundation upon which this Nation was built is the fact that government is responsive to the views of its citizens, and no nation can continue to exist on such a foundation unless its citizens are wholly free to speak out fearlessly for or against their officials and their laws. When it begins to send its dissenters, such as Barenblatt, Uphaus, Wilkinson, and now Braden, to jail, the liberties indispensable to its existence must be fast disappearing. If self-preservation is o be the issue that decides these cases, I firmly believe they must be decided the other way. Only by a dedicated preservation of the freedoms of the First Amendment can we hope to preserve our Nation and its traditional way of life.
18
It is already past the time when people who recognize and cherish the life-giving and life-preserving qualities of the freedoms protected by the Bill of Rights can afford to sit complacently by while those freedoms are being destroyed by sophistry and dialectics. For at least 11 years, since the decision of this Court in American Communications Ass'n, C.I.O. v. Douds,17 the forces of destruction have been hard at work. Much damage has already been done. If this dangerous trend is not stopped now, it may be an impossible task to stop it at all. The area set off for individual freedom by the Bill of Rights was marked by boundaries precisely defined. It is my belief that the area so set off provides an adequate minimum protection for the freedoms indispensable to individual liberty. Thus we have only to observe faithfully the boundaries already marked for us. For the present, however, the two cases decided by this Court today and the many others like them that have been decided in the past 11 years have all but obliterated those boundaries.18 There are now no limits to congressional encroachment in this field except such as a majority of this Court may choose to set by a value-weighing process on a case-by-case basis.
19
I cannot accept such a process. As I understand it, this Court's duty to guard constitutional liberties is to guard those liberties the Constitution defined, not those that may be defined from case to case on the basis of this Court's judgment as to the relative importance of individual liberty and governmental power. The majority's approach makes the First Amendment, not the rigid protection of liberty its language imports, but a poor flexible imitation. This weak substitute for the First Amendment is, to my mind, totally unacceptable for I believe that Amendment forbids, among other things, any agency of the Federal Government—be it legislative, executive or judicial—to harass or punish people for their beliefs, or for their speech about, or public criticism of, laws and public officials. The Founders of this Nation were not then willing to trust the definition of First Amendment freedoms to Congress or this Court, nor am I now. History and the affairs of the present day show that the Founders were right. There are grim reminders all around this world that the distance between individual liberty and firing squads is not always as far as it seems. I would overrule Barenblatt, its forerunners and its progeny, and return to the language of the Bill of Rights. The new and different course the Court is following is too dangerous.
20
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.
21
At the bottom of this case are this Court's decisions in Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, holding that Congress did not entrust to the States protection of the Federal Government against sedition, and Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, holding that racial segregation of students in public schools is unconstitutional. I had supposed until today that one could agree or disagree with those decisions without being hounded for his belief and sent to jail for concluding that his belief was beyond the reach of government.
22
On June 17, 1957, we decided Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273, defining and curtailing the authority of Congressional Committees who sought the aid of the courts in holding witnesses in contempt.1 We said in a six-to-one decision that 'when First Amendment rights are threatened, the delegation of power to the committee must be clearly revealed in its charter' (id., 354 U.S. at page 198, 77 S.Ct. at page 1184); that 'there is no congressional power to expose for the sake of exposure' (id., 354 U.S. at page 200, 77 S.Ct. at page 1185); that the meaning of 'un-American' in the Resolution defining the Committee's authority is so vague that it is 'difficult to imagine a less explicit authorizing resolution' (id., 354 U.S. at page 202, 77 S.Ct. at page 1187); that before a witness chooses between answering or not answering he is entitled 'to have knowledge of the subject to which the interrogation is deemed pertinent' (id., 354 U.S. at pages 208—209, 77 S.Ct. at page 1190); that in that case th Resolution and the statement of the Committee's chairman were 'woefully inadequate to convey sufficient information as to the pertinency of the questions to the subject under inquiry.' Id., 354 U.S. 215, 77 S.Ct. 1193.
23
Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311, decided the same day as the Watkins case, reversed a conviction arising out of a state investigation into 'subversive activities' where a teacher was asked questions concerning his relation to Marxism. The Chief Justice in his opinion stated:
24
'Equally manifest as a fundamental principle of a democratic society is political freedom of the individual. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. Mere unorthodoxy or dissent from the prevailing mores is not to be condemned. The absence of such voices would be a symptom of grave illness in our society.' Id., 354 U.S. 250—251, 77 S.Ct. 1212.
The concurring opinion stated:
25
'Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society's good—if understanding be an essential need of society—inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people's well-being, except for reasons that are exigent and obviously compelling.' Id., 354 U.S. 261 262, 77 S.Ct. 1217.
26
On June 8, 1959—two years after the Watkins and Sweezy decisions—we decided Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115, where a divided Court gave only slight consideration to the type of pertinency claim that was raised in Watkins, Sweezy and the present case, in part because it could rely on the petitioner's failure to raise that objection before the Committee. See Barenblatt v. United States, supra, 360 U.S. 123—125, 79 S.Ct. 1091—1092.
27
Petitioner, who was called as a witness by the Committee in July 1958, which was even before Barenblatt was decided, refused to answer, relying on the Watkins and Sweezy decisions 'as they interpret the Constitution of the United States, protecting my right to private belief and association.'
28
I think he was entitled to rely on them. The Act under which he stands convicted states that a witness is guilty if he 'wilfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry.' 2 U.S.C. § 192, 2 U.S.C.A. § 192. A refusal to answer was held in Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 274, 73 L.Ed. 692, not to be justified because one acted in good faith, the Court saying, 'His mistaken view of the law is no defense.' Yet no issue concerning the First Amendment was involved in the Sinclair case. When it is involved, as it is here, the propriety of the question in terms of pertinency should be narrowly resolved.
29
The Resolution under which the Committee on Un-American Activities acted in this case2 is precisely the same as the one involved in Watkins v. United States, supra. We said concerning it, 'It would be difficult to imagine a less explicit authorizing resolution. Who can define the meaning of 'un-American'? What is that single, solitary 'principle of the form of government as guaranteed by our Constitution'? * * * At one time, perhaps, the resolution might have been read narrowly to confine the Committee to the subject of propaganda. The events that have transpired in the fifteen years before the interrogation of petitioner make such a construction impossible at this date.' 354 U.S. at page 202, 77 S.Ct. at page 1187, 1 L.Ed.2d 1273.
30
We emphasized the need, when First Amendment rights were implicated, to lay a foundation before probing that area. The authority of the Committee must then 'be clearly revealed in its charter.' Id., 354 U.S. at page 198, 77 S.Ct. at page 1184. The 'specific legislative need' must be disclosed. Id., 354 U.S. at page 205, 77 S.Ct. at page 1188. The pertinency of the questions and the subject matter under inquiry must be made known 'with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense.' Id., 354 U.S. at page 209, 77 S.Ct. at page 1190.
31
After Watkins anyone was entitled to rely on those propositions for protection of his First Amendment rights. The conditions and circumstances under which the questions were asked petitioner plainly did not satisfy the requirements specified in Watkins.
32
The setting of the six questions3 which were asked petitioner and which he refused to answer shows nothing more than an exercise by him of First Amendment rights of speech and press and of petition to Congress. It was not shown that these activities were part of a matrix for the overthrow of government. It was not shown—unless the bare word of the Committee is taken as gospel—that these constitutional activities had any relation whatever to communism, subversion, or illegal activity of any sort or kind. It was not shown where and how the Committee was ever granted the right to investigate those who petition Congress for redress of grievances.
33
Petitioner and his wife were field secretaries of an organization known as the Southern Conference Educational Fund. Prior to the committee hearing at Atlanta, Georgia, they wrote a letter4 on the letterhead of the Southern Conference urging people to write their Congressmen and Senators to oppose three bills pending before the Congress which would, to use their words, 'nullify' a decision of this Court 'declaring state sedition laws inoperative.' They added 'We are especially concerned about this because we know from our own experience how such laws can be used against people working to bring about integration in the South. Most of these state statutes are broad and loosely worded, and to the officials of many of our Southern states integration is sedition. You can imagine what may happen if every little prosecutor in the South is turned loose with a state sedition law.'
34
Also prior to the Committee hearing in Atlanta, a group of Negroes petitioned Congress against the proposed Atlanta investigation of the House Committee on Un-American Activities. That petition stated:
35
'We are informed that the Committee on Un-American Activities of the House of Representatives is planning to hold hearings in Atlanta, Georgia, at an early date.
36
'As Negroes residing in Southern states and the District of Columbia, all deeply involved in the struggle to secure full and equal rights for out people, we are very much concerned by this development.
37
'We are acutely aware of the fact that there is at the present time a shocking amount of un-American activity in our Southern states. To cite only a few examples, there are the bombings of the homes, schools, and houses of worship of not only Negroes but also of our Jewish citizens; the terror against Negroes in Dawson, Ga.; the continued refusal of boards of registrars in many Southern communities to allow Negroes to register and vote; and the activities of White Citizens Councils encouraging open defiance of the United States Supreme Court.
38
'However, there is nothing in the record of the House Committee on Un-American Activities to indicate that, if it comes South, it will investigate these things. On the contrary, all of its activities in recent years suggest that it is much more interested in harassing and labeling as 'subversive' any citizen who is inclined to be liberal or an independent thinker.
39
'For this reason, we are alarmed at the prospect of this committee coming South to follow the lead of Senator Eastland, as well as several state investigating committees, in trying to attach the 'subversive' label to any liberal white Southerner who dares to raise his voice in support of our democratic ideals.
40
'It was recently pointed out by four Negro leaders who met with President Eisenhower that one of our great needs in the South is to build lines of communication between Negro and white Southerners. Many people in the South are seeking to do this. But if white people who support integration are labeled 'subversive' by congressional committees, terror is spread among our white citizens and it becomes increasingly difficult to find white people who are willing to support our efforts for full citizenship. Southerners, white and Negro, who strive today for full democracy must work at best against tremendous odds. They need the support of every agency of our Federal Government. It is unthinkable that they should instead be harassed by committees of the United States Congress.
41
'We therefore urge you to use your influence to see that the House Committee on Un-American Activities stays out of the South—unless it can be persuaded to come to our region to help defend us against those subversives who oppose our Supreme Court, our Federal policy of civil rights for all, and our American ideals of equality and brotherhood.'
42
Petitioner was charged by the Committee with preparing that petition; counsel for the Committee later stated that the purpose of the petition was 'precluding or attempting to preclude or softening the very hearings which we proposed to have here.' The Committee said that it was not concerned with integration. It said that 'A number of names on that letter were names of those who had been closely associated with the Communist Party. Their interest and major part does not lie with honest integration. Their interest lies with the purposes of the Communist Party. And that is what we are looking into * * *.'
43
Two of the questions which petitioner refused to answer pertained to the Southern Conference, the first one being 'Did you participate in a meeting here at that time?' And the second one was 'Who solicited quarters to be made available to the Southern Conference Educational Fund?'
44
Two other questions which petitioner refused to answer related to the Emergency Civil Liberties Committee. The first of these was 'Are you connected with the Emergency Civil Liberties Committee?' The second one was 'Did you and Harvey O'Connor in the course of your conferences there in Rhode Island, develop plans and strategy outlining work schedules for the Emergency Civil Liberties Committee?' The Committee counsel charged that Mr. O'Connor was 'a hard-core member of the communist conspiracy, head of the Emergency Civil Liberties Committee.'
45
A fifth question which petitioner refused to answer related to the letter I have previously mentioned5 which he and his wife sent to the people urging them to write their Senators and Congressmen opposing three bills that would reinstate state sedition laws. The question relating to this letter was 'Were you a member of the Communist Party the instant you affixed your signature to that letter?'
46
The sixth and final question which petitioner refused to answer concerned the Southern Newsletter. Counsel asked if petitioner had 'anything to do' with that letter. Petitioner replied 'I think you are now invading freedom of the press * * *. I object to your invasion of the freedom of the press, and I also decline to answer the questions on the same grounds. You are not only attacking integrationists, you are attacking the press.'
47
There is nothing in the record to show that the Southern Conference or the Emergency Civil Liberties Committee or the Southern Newsletter had the remotest connection with the Communist Party. There is only the charge of the Committee that there was such a connection. That charge amounts to little more than innuendo. This is particularly clear with respect to the question relating to petitioner's membership in the Communist Party. Having drawn petitioner's attention to the letter he had written,6 counsel for the Committee demanded to know if petitioner was a Communist 'the instant you affixed your signature to that letter.' No foundation at all had been laid for that question, and from the record no purpose for it appears, save the hope of the Committee to link communism with that letter which supported this Court's decision in Commonwealth of Pennsylvania v. Nelson, supra. This Court, passing on the pertinency issue in Barenblatt v. United States, supra, 360 U.S. 123—125, 79 S.Ct. 1091—1092, 3 L.Ed.2d 1115, was careful to emphasize that Barenblatt 'had heard the Subcommittee interrogate the witness Crowley along the same lines as he, petitioner, was evidently to be questioned, and had listened to Crowley's testimony identifying him as a former member of an alleged Communist student organization * * *.' (Emphasis added.) No such foundation was ever laid here.
48
One would be wholly warranted in saying, I think, in light of the Watkins and Sweezy decisions that a Committee's undisclosed information or unsupported surmise would not justify an investigation into matters that on their face seemed well within the First Amendment.7 If Watkins and Sweezy decided anything, they decided that before inroads in the First Amendment domain may be made, some demonstrable connection with communism must first be established and the matter be plainly shown to be within the scope of the Committee's authority. Otherwise the Committee may roam at will, requiring any individual to disclose his association with any group or with any publication which is unpopular with the Committee and which it can discredit by calling it communistic.
1
The indictment was in six counts, each count setting out a specific question which the petitioner had refused to answer. He was convicted on all six counts, and concurrent sentences were imposed.
2
The questions which were the subjects of the six counts of the indictment were as follows:
'And did you participate in a meeting here at that time?
'Who solicited the quarters to be made available to the Southern Conference Educational Fund?
'Are you connected with the Emergency Civil Liberties Committee?
'Did you and Harvey O'Connor, in the course of your conference there in Rhode Island, develop plans and strategies outlining work schedules for the Emergency Civil Liberties Committee?
'Were you a member of the Communist Party the instant you affixed your signature to that letter?
'I would just like to ask you whether or not you, being a resident of Louisville, Kentucky, have anything to do there with the Southern Newsletter?'
The full transcript of the petitioner's interrogation by the subcommittee, introduced in the District Court, makes intelligible the relevance of these questions. Since concurrent sentences were imposed on the several counts, we need specifically consider here only the question covered by the fifth count, going to the petitioner's Communist Party membership. See Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 1087, 3 L.Ed.2d 1115; Claassen v. United States, 142 U.S. 140, 147, 12 S.Ct. 169, 170, 35 L.Ed. 966.
3
As in Wilkinson, by the resolution authorizing the subcommittee's investigation by the statements of the Chairman and other members of the subcommittee, by the tenor of interrogation of prior witnesses, and by a lengthy explanatory statement addressed contemporaneously to the petitioner.
4
For example, the petitioner points out that the 'Southern Conference Educational Fund' with which he had been associated had been active in promoting racial integration in the South. The transcript of the subcommittee hearings makes clear, however, that these activities as such were not under investigation. As a member of the subcommittee stated:
'What I am interested in, is what are you doing on behalf of the Communist Party? We are not going to be clouded, so far as I am concerned, by talking about integration and segregation. This committee is not concerned in that. This committee is concerned in what you are doing in behalf of the Communist conspiracy.'
At another point the following colloquy occurred:
'Mr. Braden: Two hundred Negro leaders in the South petitioned the Congress of the United States last week in connection with this hearing in Atlanta.
'Mr. Jackson: After looking at some of the names on this list, the letters went into the circular files of many members, because it was quite obvious that a number of names on that letter were names of those that had been closely associated with the Communist Party. Their interest and major part does not lie with honest integration. Their interest lies with the purposes of the Communist Party. And that is what we are looking into, and let us not be clouding this discussion and this hearing this morning by any more nonsense that we are here as representatives of the United States Government to further, or to destroy, or to have anything to do with, integration.'
5
'You will note that each count in the indictment alleges that the refusal was with reference to a question pertinent to the matter under inquiry. You will not concern yourselves with this allegation as it involves a matter of law which it is the Court's duty to determine and which has been determined. I have determined as a matter of law that the committee had the right to ask these questions and the defendant had the duty to answer these questions under the conditions that I will later explain.'
6
In his opening statement to the jury, counsel for the petitioner said: 'As the counsel for the government has properly stated, the question of whether or not those questions were pertinent to the subject matter under inquiry has been ruled to be a question of law for the Court. But whether or not the defendant Carl Braden at the time he refused to answer those questions knew that they were pertinent to the subject matter under inquiry is a question of fact which will be submitted by the Court to you gentlemen.' Not until after the concluding arguments and the instructions to the jury did counsel claim for the first time that the question of actual pertinency was not for the court to decide.
7
This was reaffirmed in United States v. Murdock, 290 U.S. 389, 397, 54 S.Ct. 223, 226, 78 L.Ed. 381, where it was said: 'The applicable statute did not make a bad purpose or evil intent an element of the misdemeanor of refusing to answer, but conditioned guilt or innocence solely upon the relevancy of the question propounded. Sinclair was either right or wrong in his refusal to answer, and if wrong he took the risk of becoming liable to the prescribed penalty.' See also Watkins v. United States, 354 U.S. 178, 208, 77 S.Ct. 1173, 1189, 1 L.Ed.2d 1273.
1
In 1954 petitioner and his wife were indicted and petitioner was convicted of sedition by the State of Kentucky, for which he received a sentence of imprisonment for 15 years. This prosecution grew out of events surrounding petitioner's helping a Negro family to purchase a home in an all-white suburb of Louisville. The charges against petitioner and his wife were eventually dismissed following this Court's decision in Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. See Braden v. Commonwealth of Kentucky, Ky., 291 S.W.2d 843. For the prosecution's version of this case, see the testimony of the State Attorney General and the Commonwealth Attorney for Louisville (the latter having served as prosecutor in the case) before the Subcommittee to Investigate the Administration of the Internal Security Act and other Internal Security Laws of the Senate Committee on the Judiciary, 85th Cong., 1st Sess., pp. 2—23. For the Bradens' version of the case, see Anne Braden, The Wall Between.
2
So far as appears from the record, the evidence relied upon by the Committee to substantiate its claim that petitioner is or has been a member of the Communist Party is no stronger here than it was in Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633, the companion case. Here, as there, the Committee appears to have been relying upon a flat conclusory statement made by an informant, this time before a Senate Internal Security Subcommittee. See Hearings before the Subcommittee, op. cit., supra, n. 1, at 37.
3
See Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633.
4
Petitioner was convicted on six counts and given concurrent sentences on each, but the majority, properly I think, states that 'we need specifically consider here only the question covered by the fifth count * * *.' The fifth count related to the question referred to above dealing with petitioner's possible Communist Party membership at 'the instant' he affixed his signature to the petition urging defeat of the statute authorizing state antisedition laws.
5
360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.
6
As indicated by my concurrence in the dissent of Mr. Justice DOUGLAS noted above, I think the issue of the pertinency of the questions asked here should be controlled by the decision in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273, rather than by the decision in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.
7
343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919.
8
Id., 343 U.S. at page 263, 72 S.Ct. at page 734.
9
See the petition itself, reprinted as an Appendix to my dissenting opinion in that case. Id., 343 U.S. at page 276, 72 S.Ct. at page 740.
10
Mr. Justice DOUGLAS and I did not think so. See, id., 343 U.S. at page 275, 72 S.Ct. at page 740: 'If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark:
"Another such victory and I an undone."
11
And I think the decision in this case, as well as that in Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633, demonstrates conclusively that the Committee is to have at least that much power.
12
These 'tests' include whether the law in question 'shocks the conscience,' offends 'a sense of justice,' runs counter to the 'decencies of civilized conduct,' is inconsistent with 'an ordered concept of liberty,' offends 'traditional notions of fair play and substantial justice,' is contrary to 'the notions of justice of English-speaking peoples,' or is unjustified 'on balance.' See Rochin v. People of State of California, 342 U.S. 165, 175—176, 72 S.Ct. 205, 211, 96 L.Ed. 183 (concurring opinion); Uphaus v. Wyman, 364 U.S. 388, 392—393, 81 S.Ct. 153, 159—160, 5 L.Ed.2d 148 (dissenting opinion). Significantly, in none of these 'tests' does the result to be obtained depend upon the question whether there has been an abridgment of rights protected by the plain language of the Bill of Rights.
13
Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391.
14
See, e.g., Levy, Legacy of Suppression, at 13—15, 173, 185, 186, 190, 202—220, 241, 248, 258, 262, 263, 283, 288, 289, 293, 307 and 309.
15
See, e.g., American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 452—453, 70 S.Ct. 674, 710—711, 94 L.Ed. 925 (dissenting opinion); Dennis v. United States, 341 U.S. 494, 580, 71 S.Ct. 857, 902, 95 L.Ed. 1137 (dissenting opinion); Barenblatt v. United States, 360 U.S. 109, 145—153, 162, 79 S.Ct. 1081, 1102 1107, 1111, 3 L.Ed.2d 1115 (dissenting opinion); Flemming v. Nestor, 363 U.S. 603, 628, 80 S.Ct. 1367, 1382, 4 L.Ed.2d 1435 (dissenting opinion); Uphaus v. Wyman, 364 U.S. 388, 400—401, 81 S.Ct. 153, 154, 5 L.Ed.2d 148 (dissenting opinion).
16
The use of this slogan is becoming commonplace in the opinions of this Court. Thus, in Dennis v. United States, 341 U.S. 494, at 509, 71 S.Ct. 857, at page 867, 95 L.Ed. 1137, it was said: 'Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.' Then, in Barenblatt v. United States, 360 U.S. 109, at pages 127—128, 79 S.Ct. 1081, at page 1093, 3 L.Ed.2d 1115, we are told: 'In the last analysis this power rests on the right of self-preservation, 'the ultimate value of any society," a statement which is reiterated today in Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633.
17
339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, decided in 1950. And see Uphaus v. Wyman, 364 U.S. 388, 392, 81 S.Ct. 153, 159, 5 L.Ed.2d 148 (dissenting opinion).
18
See, e.g., American Communication Ass'n, C.I.O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education of New York City, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494; Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435; Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148; and Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391.
1
In that case the witness testified freely about himself but balked at talking about others:
'I am not goint to plead the fifth amendment, but I refuse to answer certain questions that I believe are outside the proper scope of your committee's activities. I will answer any questions which this committee puts to me about myself. I will also answer questions about those persons whom I knew to be members of the Communist Party and whom I believe still are. I will not, however, answer any questions with respect to others with whom I associated in the past. I do not believe that any law in this country requires me to testify about persons who may in the past have been Communist Party members or otherwise engaged in Communist Party activity but who to my best knowledge and belief have long since removed themselves from the Communist movement.
'I do not believe that such questions are relevant to the work of this committee nor do I believe that this committee has the right to undertake the public exposure of persons because of their past activities. I may be wrong, and the committee may have this power, but until and unless a court of law so holds and directs me to answer, I most firmly refuse to discuss the political activities of my past associates.'
2
The Resolution provides in relevant part:
'The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (1) the extent, character, and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.'
3
Petitioner was convicted on each of six counts of an indictment and sentenced to serve 12 months on each count, the sentences to run concurrently. Therefore if any one of the counts can be sustained an affirmance would be necessary. See Claassen v. United States, 142 U.S. 140, 147, 12 S.Ct. 169, 170, 35 L.Ed. 966.
4
'Dear Friend:
'We are writing to you because of your interest in the Kentucky 'sedition' cases, which were thrown out of Court on the basis of a Supreme Court decision (Commonwealth of Pennsylvania v. Nelson, supra) declaring state sedition laws inoperative.
'There are now pending in both houses of Congress bills that would nullify this decision. We understand there is real danger that these bills will pass.
'We are especially concerned about this because we know from our own experience how such laws can be used against people working to bring about integration in the South. Most of these state statutes are broad and loosely worded, and to the officials of many of our Southern states integration is sedition. You can imagine what may happen if every little local prosecutor in the South is turned loose with a state sedition law.
'It is small comfort to realize that such cases would probably eventually be thrown out by the Supreme Court. Before such a case reaches the Supreme Court, the human beings involved have spent several years of their lives fighting off the attack, their time and talents have been diverted from the positive struggle for integration, and money needed for that struggle has been spent in a defensive battle.
'It should also be pointed out that these bills to validate state sedition laws are only a part of a sweeping attack on the U.S. Supreme Court. The real and ultimate target is the Court decisions outlawing segregation. Won't you write your two senators and your congressman asking them to oppose S. 654, S. 2646, and H.R. 977. Also ask them to stand firm against all efforts to curb the Supreme Court. It is important that you write—and get others to write—immediately as the bills may come up at any time.
'Cordially yours,
'Carl and Anne Braden,
'Field Secretaries.'
5
Supra, note 4.
6
See supra, note 4.
7
'The consequences that flow from this situation are manifold. In the first place, a reviewing court is unable to make the kind of judgment made by the Court in United States v. Rumely, supra (345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770). The Committee is allowed, in essence, to define its own authority, to choose the direction and focus of its activites. In deciding what to do with the power that has been conferred upon them, members of the Committee may act pursuant to motives that seem to them to be the highest. Their decisions, nevertheless, can lead to ruthless exposure of private lives in order to gather data that is neither desired by the Congress nor useful to it. Yet it is impossible in this circumstance, with constitutional freedoms in jeopardy, to declare that the Committee has ranged beyond the area committed to it by its parent assembly because the boundaries are so nebulous.' 354 U.S. at page 204, 77 S.Ct. at page 1188.
| 23
|
365 U.S. 381
81 S.Ct. 632
5 L.Ed.2d 620
Bernard WILSON, Petitioner,v.Donald F. SCHNETTLER, Arthur E. Doll, and Robert E. Waltz.
No. 182.
Argued Dec. 15, 1960.
Decided Feb. 27, 1961.
Rehearing Denied April 17, 1961.
See 365 U.S. 890, 81 S.Ct. 1025.
Mr. James J. Doherty, Skokie, Ill., for petitioner.
Mr. Daniel M. Friedman, Washington, D.C., for respondents.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Respondents, who are federal narcotics agents, arrested petitioner without a warrant in Cook County, Illinois, and, in the course of an incidental search, found narcotic drugs on his person which they seized. Respondents then delivered petitioner to the Cook County authorities who confined him in the county jail. In due course, the county grand jury returned an indictment charging petitioner with possessing the narcotics in violation of an Illinois statute. Soon after his arraignment and plea of 'not guilty,' petitioner moved the court for an order suppressing the use of the narcotics as evidence in his impending criminal trial. After a full hearing, including the taking of evidence (not contained in this record), the court denied the motion.
2
Before the case was reached for trial, petitioner brought the present action against respondents in the Federal District Court in Chicago to impound the narcotics (though he did not allege that respondents have possession of them) and to enjoin their use, and the respondents from testifying, at the trial of the criminal case in the state court. The very meager complaint alleged, in addition to the facts we have stated, only a few of the facts relating to petitioner's arrest,1 and that he believes 'respondents will be called to testify in (the state criminal) case that the petitioner unlawfully had in his possession the narcotic drugs seized by the respondents * * *.' It concluded with a prayer for the relief stated.
3
Respondents moved to dismiss the complaint for failure to state a claim upon which relief could be granted. After a hearing, the District Court granted the motion and dismissed the action. On appeal, the Seventh Circuit affirmed. 275 F.2d 932. To consider petitioner's claim that the judgment is repugnant to controlling rules and decisions of this Court, we granted certiorari. 363 U.S. 840.
4
We have concluded that the action was properly dismissed and that the judgment must be affirmed.
5
Although the complaint alleged that the arrest was made without a warrant, there was no allegation that it was made without probable cause. In the absence of such an allegation the courts below could not, nor can we, assume that respondents arrested petitioner without probable cause to believe that he had committed or was committing a narcotics offense. And if they had such probable cause, the arrest, though without a warrant, was lawful and the subsequent search of petitioner's person and the seizure of the found narcotics were validly made incidentally to a lawful arrest. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652; Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543; Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145; Giordenello v. United States, 357 U.S. 480, 483, 78 S.Ct. 1245, 1248, 2 L.Ed.2d 1503; Draper v. United States, 358 U.S. 307, 310—311, 79 S.Ct. 329, 331—332, 3 L.Ed.2d 327.2 For this reason alone the complaint failed to state a claim upon which relief could be granted.
6
Nor did the complaint allege, even in conclusional terms, that petitioner does not have a plain and adequate remedy at law in the state court to redress any possible illegality in the arrest and incidental search and seizure. Indeed, the allegations of the complaint affirmatively show that petitioner does have such a remedy in the Illinois court and that he has actually prosecuted it there, but only to the point of an adverse interlocutory order. That court, whose jurisdiction first attached, retains jurisdiction over this matter to the exclusion of all other courts certainly to the exclusion of the Federal District Court—until its duty has been fully performed, Harkrader v. Wadley, 172 U.S. 148, 164, 19 S.Ct. 119, 125, 43 L.Ed. 399;3 Peck v. Jenness, 7 How. 612, 624—625, 12 L.Ed. 841,4 and it can determine this matter as well as, if not better than, the federal court. If, at the criminal trial, the Illinois court adheres to its interlocutory order on the suppression issue to petitioner's prejudice, he has an appeal to the Supreme Court of that State, and a right if need be to petition for 'review by this Court of any federal questions involved.' Douglas v. City of Jeannette, Pa., 319 U.S. 157, 163, 63 S.Ct. 877, 881, 87 L.Ed. 1324. It is therefore clear that petitioner has a plain and adequate remedy at law in the criminal case pending against him in the Illinois court.
7
There is still another cardinal reason why it was proper for the District Court to dismiss the complaint. We live in the jurisdiction of two sovereignties. Each has its own system of courts to interpret and enforce its laws, although in common territory. These courts could not perform their respective functions without embarrassing conflicts unless rules were adopted to avoid them. Such rules have been adopted. One of them is that an accused 'should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial.' Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S.Ct. 309, 310, 66 L.Ed. 607. Another is that federal courts should not exercise their discretionary power 'to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent * * *.' Douglas v. City of Jeannette, supra, 319 U.S. at page 163, 63 S.Ct. at page 881.
8
By this action, petitioner not only seeks to interfere with and embarrass the state court in his criminal case, but he also seeks completely to thwart its judgment by relitigating in a trial de novo in a federal court the very issue that he has already litigated in the state court. 'If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law—with its far-flung and undefined range—would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court (and, we may add, in the ruling of motions to suppress evidence, and in ruling the competency of witnesses and their testimony)—all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.' Stefanelli v. Minard, 342 U.S. 117, 123 124, 72 S.Ct. 118, 121—122, 96 L.Ed. 138.
9
Notwithstanding all of this, petitioner contends that the averments of his complaint were sufficient to entitle him to the relief prayed under the principles announced in Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233. But it is plain that the averments of this complaint do not invoke or even approach the principles of the Rea case. That case did not hold, as petitioner's contention assumes, that narcotic drugs lawfully seized by federal officers are inadmissible, or that such officers may not testify about their seizure, in state prosecutions. Such a concept would run counter to the express command of Congress that federal officers shall cooperate with the States in such investigations and prosecutions. See 21 U.S.C. § 198(a), 21 U.S.C.A. § 198(a). Indeed, the situation here is just the reverse of the situation in Rea. There, the accused had been indicted in a federal court for the unlawful acquisition of marihuana, and had moved in that court, under Rule 41(e) of the Federal Rules of Criminal Procedure (18 U.S.C. Rule 41(e), 18 U.S.C.A.), for an order suppressing the use of the marihuana as evidence at the trial. After hearing, the District Court, finding that the accused's arrest and search had been made by federal officers under an illegal warrant issued by a United States Commissioner, granted the motion to suppress. The effect of that order, under the express provisions of that Rule, was that the suppressed property 'shall not be admissible in evidence at any hearing or trial.' Cf. Reina v. United States, 364 U.S. 507, 510—511, 81 S.Ct. 260, 262—263, 5 L.Ed.2d 249. Despite that order, one of the arresting federal officers thereafter caused the accused to be rearrested and charged, in a state court, with possession of the same marihuana in violation of the State's statute, and threatened to make the State's case by his testimony and the use of the marihuana that the federal court had earlier suppressed under Rule 41(e). Thereupon, to prevent the thwarting of the federal suppression order, petitioner moved the federal court to enjoin that conduct. That court denied the motion and its judgment was affirmed on appeal. On certiorari, this Court, acting under its supervisory power over the federal rules, which extends 'to policing (their) requirements and making certain that they are observed,' 350 U.S. at page 217, 76 S.Ct. at page 294, reversed the judgment, because 'A federal agent (had) violated (and was about further to violate) the federal Rules governing searches and seizures—Rules prescribed by this Court and made effective after submission to the Congress. See 327 U.S. 821 et seq.' 350 U.S. at page 217, 76 S.Ct. at page 294.
10
How different are the facts in the present case! Here there is no allegation or showing that any proceedings ever were taken against petitioner under any federal rule or in any federal court. There has been no finding that petitioner's arrest was unlawful or that the search of his person which yielded the narcotics was not incident to a lawful arrest and therefore proper. The state court's finding—the only court involved and the only finding on the matter—is the other way. Nor is there even any allegation in the complaint that the arrest was not made upon probable cause, although it is admitted that the search was made incident to the arrest.
11
It is clear that the complaint was properly dismissed.
12
Affirmed.
13
Mr. Justice STEWART, concurring.
14
I could not base affirmance of the judgment upon the ground that the petitioner's motion was technically deficient in failing to recite the talismanic phrase 'without probable cause.' Nor do I think the District Court lacked power to issue the requested injunction, either by reason of 28 U.S.C. § 2283, 28 U.S.C.A. § 2283, or the rule formulated in Harkrader v. Wadley, 172 U.S. 148, 164, 19 S.Ct. 119, 125, 43 L.Ed. 399. It seems to me that Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, established that District Courts do have such power.*
15
But I join in affirming the judgment. The petitioner has failed to state a case warranting equitable relief under the standards of Stefanelli v. Minard, 342 U.S. 117, 122, 72 S.Ct. 118, 121, 96 L.Ed. 138, and Douglas v. City of Jeannette, Pa., 319 U.S. 157, 163, 63 S.Ct. 877, 881, 87 L.Ed. 1324. As the Court's opinion points out, the factors which justified the issuance of an injunction in Rea are not present here.
16
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BRENNAN concur, dissenting.
17
The trial judge on respondents' motion1 dismissed an 'amended petition for declaratory judgment' that made the following allegations: Petitioner was arrested by two of the respondents, agents of the Federal Bureau of Narcotics, who acted without a warrant. He was searched by these agents at the time of his arrest and narcotics were seized from him. Though imprisoned, he was neither taken before a Federal Commissioner nor charged with a crime against the United States. Instead, he was indicted for the possession of those same narcotics under the laws of Illinois. He unsuccessfully attempted to exclude the use of these narcotics as evidence or the testimony of the arresting agents by a motion made in the state court where 'the law of the forum was applied and the Federal rules of Criminal Procedure were not applied.' Petitioner based jurisdiction of the federal court on 'the supervisory powers of Federal Courts over federal law enforcement agencies.' Alleging that 'the respondents will be called to testify in such case that the petitioner unlawfully had in his possession the narcotic drugs seized by the respondents,' he asked, first, a declaratory judgment as to whether the federal agents had acted illegally in the arrest and incidental search of petitioner and, second, in the event that the search had been illegal, the impounding of the seized narcotics and an injunction against the respondents' testifying 'in respect to the narcotic drugs so seized' in the state proceedings.
18
These allegations, liberally construed, entitle petitioner to a hearing, and, if they are supported by evidence, to the relief he seeks. In Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, we held that an injunction would issue to prevent the use by federal agents in a state proceeding of the fruits of an illegal search. 'The obligation of the federal agent is to obey the Rules (of Criminal Procedure). They are drawn for innocent and guilty alike. They prescribe standards for law enforcement. They are designed to protect the privacy of the citizen, unless the strict standards set for searches and seizures are satisfied. That policy is defeated if the federal agent can flout them and use the fruits of his unlawful act either in federal or state proceedings.' Id., 350 U.S. at pages 217—218, 76 S.Ct. at page 294.
19
Under Rule 41(e), Federal Rules of Criminal Procedure, the federal court is instructed to hear and determine a motion to suppress made by 'A person aggrieved by an unlawful search and seizure (where) * * * the property was illegally seized without warrant.'2 Implicit in that duty is the judicial enforcement of the provisions of the Fourth Amendment and Acts of Congress which limit the power of arrest and search. Judicial enforcement is no less to be invoked after the federal agents have acted than it is before they have acted, i.e., when they apply to the courts for a warrant. That, as I understand, is the teaching of the Rea case.
20
It is said that petitioner has failed to allege that the arrest in question was made without probable cause, and thus illegal under federal law. See 26 U.S.C. § 7607(2), 26 U.S.C.A. § 7607(2). It is said that he has failed to point out in what way his 'legal remedy' (i.e., the hearing on the motion to exclude in the state court) was inadequate. It is said that a federal court, in the exercise of discretion to grant or to deny declaratory relief, should refuse to act in these circumstances, especially since the grant of it would interfere with a state prosecution. I believe that none of these objections is well taken.
21
If it should appear at a hearing that the arrest and incidental search were legal under federal law, then petitioner would have no case. But surely his failure to make the magic allegation that the arrest was 'without probable cause' should not cause him to be summarily cut off.3 At most, the defect complained of would justify his being required to amend his pleading.
22
Petitioner's failure to allege the inadequacy of his 'legal remedy' may be as easily disposed of. He is invoking, in this proceeding, the 'supervisory powers' of the federal courts over the administration of federal law enforcement. That power is lodged in the federal courts. Congress could have entrusted the enforcement of all federal laws to state tribunals, as has India. But the First Congress made the decision to create a federal judicial system, complete unto itself. Some federal laws are enforceable in state tribunals. See e.g., Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967. But the Federal Rules of Criminal Procedure are not among them. Since the federal agents have chosen to avoid the federal courts, the issue as to compliance with the Federal Rules cannot be litigated in any way other than by this proceeding. In the state trial the issue will not be whether the federal agents have acted within the limits of their federal authority, but whether, under the state constitution, the search was a reasonable one.4 Under the Supremacy Clause state law must give way where, for example, a state procedure violates the Federal Constitution. Yet under the decision of this Court in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, not even the duty of excluding evidence, because it was seized in violation of the command of the Fourth Amendment, is imposed on state courts as a requirement of federal law. The proper forum—indeed the only one available for litigation of compliance with that requirement—is the federal court.
23
We should also overrule the objection5 based on the policy of 28 U.S.C. § 2283, 28 U.S.C.A. § 2283, which restrains a federal court from intermeddling with state proceedings, especially state criminal proceedings. Section 22836 prohibits, in certain circumstances, the grant by a federal court of 'an injunction to stay proceedings in a State court.' What we said about the relief sought in Rea v. United States, supra, is applicable here:
24
'The District Court is not asked to enjoin state officials nor in any way to interfere with state agencies in enforcement of state law. * * * No injunction is sought against a state official. The only remedy asked is against a federal agent who, we are told, plans to use his illegal search and seizure as the basis of testimony in the state court.' Id., 350 U.S. at pages 216—217, 76 S.Ct. at page 294.
25
In this case, as in Rea, the interference, if any, is an indirect one and only incidental to placing federal officers under federal standards of behavior. If the considerations which led to decisions like Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, were not controlling in Rea v. United States, supra, they should not be controlling in this case.
26
The rationale of Rea v. United States, supra, was that the federal courts had a specific duty of supervising compliance of federal law enforcement officers with the Federal Rules of Criminal Procedure. 'A federal agent has violated the federal Rules governing searches and seizures—Rules prescribed by this Court and made effective after submission to the Congress. See 327 U.S. 821 et seq. The power of the federal courts extends to policing those requirements and making certain that they are observed.' Id., 350 U.S. at page 217, 76 S.Ct. at page 294. The Rea case is now distinguished because in that case other contacts with the federal courts existed beyond the bare fact that federal officers were the actors in the illegal search. The additional contacts in the Rea case were three: (1) The search was made under a purported warrant of the federal courts. (2) An indictment based on the acquisition of the seized narcotics was filed in the federal court, although subsequently dismissed. (3) A motion to suppress was made in the federal court, while the indictment was pending, and was granted.
27
Those factual differences should not lead to a different result in this case. The decisive factor, indeed the only relevant one in this case, as in Rea, is that federal law enforcement officers are the actors in an illegal search and seizure.
28
If the officers in Rea had acted without any warrant, the result would not have been different. The victim of the search could certainly have obtained an order of suppression against the use of the evidence in the federal courts. Rule 41(e) specifically so provides. The motion to suppress might have been made before an indictment was filed. Again, the victim would be entitled to an order regarding the use of the evidence in federal courts. See Go-Bart Importing Co. v. United States, 282 U.S. 344, 358, 51 S.Ct. 153, 158, 75 L.Ed. 374. The federal agents would not be 'flouting' the Rules any the less if, in either of these two situations, they had, after the issue of the order under Rule 41(e), prepared to use the suppressed evidence in a state court.
29
To be sure, no federal indictment was ever filed in this case; and the state proceeding was commenced prior to the issue of any order by a federal court on the legality of the search and seizure made by the federal law officers. That fact affords no reason why the victim of lawless federal police may not apply to a federal court for relief. When the Court relies on this circumstance it repudiates the very basis of the Rea decision, viz.: that the substantive command of the Federal Rules of Criminal Procedure has been 'flouted' by federal officers.
30
Under the Fourth Amendment, the judiciary has a special duty of protecting the right of the people to be let alone, except as warrants issue on a showing of probable cause. This special relation of federal courts to the control of federal officials who lawlessly invade the privacy of individual citizens reaches far back into history. It had, at first, an ominous note, as the courts themselves were the instrument of oppression. It was before a colonial court that James Otis, Jr., made his plea against the infamous 'writs of assistance.'7 Since then the courts have played an honorable role in the protection of privacy. Warrants, which were at the start only a form of judicial protection extended to officials, have become the means for protecting the individual. A judicial officer has been interposed between the suspicious official and the citizen.8 The role of the courts has been active. In Weeks v. United States, 232 U.S. 383, 391—392, 34 S.Ct. 341, 344, 58 L.Ed. 652, this Court said:
31
That case forged the doctrine, now firmly entrenched, that the federal courts will not admit illegally seized property as evidence.9 It is this doctrine which was the core of the substantive command whose procedural outlines are reflected in Rule 41(e). It is this doctrine that we unsympathetically reject today.
32
Our cases reflect the belief that federal judges have a distinct mission to perform in actively protecting the right of privacy of the individual. We said in Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436:
33
'Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.'
34
This particular view reflected the deeplying assumption that the command of the Fourth Amendment implies continuous supervision by the judiciary over law enforcement officers, quite different from the passive role which courts play in some spheres. The rule that a search, otherwise legal, may be illegal for failure to apply to a magistrate for a warrant was expressed in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, and McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. We stated that 'search warrants are to be obtained and used wherever reasonably practicable.' Trupiano v. United States, supra, 334 U.S. at page 709, 68 S.Ct. at page 1234. We have occasionally retreated, as United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877; and Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, show. But we returned to the basic philosophy of the Fourth Amendment in Rea v. United States, supra. When I wrote for the Court in that case saying that '(t)he obligation of the federal agent is to obey the Rules,' I thought we meant obedience to the substantive law for which those rules offer a procedural matrix.10 350 U.S. at page 217, 76 S.Ct. at page 294. It is difficult for me to believe that that protection is limited to those situations where the federal officers invoke the 'process' of the federal court. Rule 41(e) provides a remedy by way of suppression where 'the property was illegally seized without warrant,' as it was in this case, if the allegations are supported by evidence.
35
When we forsake Rea v. United States and tell the federal courts to keep hands off, we wink at a new form of official lawlessness. Federal officials are now free to violate the Federal Rules that were designed to protect the individual's privacy, provided they turn the evidence unlawfully obtained over to the States for prosecution. This is an evasion of federal law that has consequences so serious that I must dissent. This case may be inconsequential in the tides of legal history. But the rule we fashion is an open invitation to federal officials to 'flout' federal law, to make such searches as they desire, to forget about the search warrants required by the Fourth Amendment, to break into homes willynilly, and then to repair to state courts. There the Federal Rules do not apply; there the exclusionary rule of Weeks v. United States, supra, does not apply. See Wolf v. People of State of Colorado, supra. There evidence, unlawfully obtained by the standards that govern federal officials, may be used against the victim. A few States have exclusionary rules as strict as those commanded by the Fourth Amendment.11 Many permit the use in state prosecutions of evidence which would be barred if tendered in federal prosecutions.12 The tender regard which is expressed for federal-state relations will in ultimate effect be a tender regard for federal officials who flout federal law. Today we lower federal law enforcement standards by giving federal agents carte blanche to break down doors, ransack homes, search and seize to their heart's content—so long as they stay away from federal courts and do not try to use the evidence there. This is an invitation to lawlessness which I cannot join.
1
In this respect, the complaint alleged only that at the hearing on the motion to suppress 'the following facts and circumstances were developed:
'(a) The respondents testified that they had a certain building under surveillance where they had information that narcotic drugs were being sold.
'(b) That the respondents saw your petitioner approach the said building and enter the same; that a short time later they observed your petitioner leave the building whereupon they arrested him.
'(c) That they could not state under oath whether he had the narcotic drugs in his possession before he entered the building under surveillance or not; that when they arrested him, they did not have a warrant for his arrest.'
2
Article II, § 6, of the Illinois Constitution, S.H.A., protects against unreasonable searches and seizures in substantially the same language as the Fourth Amendment. That State's interpretation of its constitutional provision and its exclusionary rule, similar to the one followed in the federal courts, makes the Illinois law accord with the principles established by this Court for the federal system. See, e.g., People v. La Bostrie, 14 Ill.2d 617, 620—623, 153 N.E.2d 570, 572 574; People v. Tillman, 1 Ill.2d 525, 529—530, 116 N.E.2d 344, 346 347.
3
'When a state court and a court of the United States may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed and the jurisdiction involved is exhausted; and this rule applies alike in both civil and criminal cases.' Harkrader v. Wadley, supra, 172 U.S. at page 164, 19 S.Ct. at page 125.
4
'It is a doctrine of law too long established to require a citation of authorities, that * * * where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. These rules have their foundation, not merely in comity, but on necessity. For if one may enjoin, the other may retort by injunction, and thus the parties be without remedy; being liable to a process for contempt in one, if they dare to proceed in the other.' Peck v. Jenness, supra, 7 How. at pages 624—625.
1
The motion to dismiss specified three grounds. Of them, only two are before this Court, i.e., failure to state a cause of action and lack of jurisdiction over the subject matter.
*
The dissenters in Rea agreed that this power exists. See 350 U.S. at page 219, 76 S.Ct. at page 295.
2
Rule 41(e) reads: '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 the 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) the 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.'
3
The Court of Appeals did not proceed on any such narrow grounds. It speaks of the 'allegedly illegal arrest and search,' and places its decision on the '(d)ecisive factual differences (which) distinguish the Rea case from the instant proceeding.' 275 F.2d 932, 933.
4
Since petitioner has alleged that the Illinois court did not apply the standards imposed by the federal courts, we may leave aside questions which might be raised by the state court incorporation of a federal standard to guide their determinations under state law. Cf. Standard Oil Co. of Calif. v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611; People v. Grod, 385 Ill. 584, 586, 53 N.E.2d 591, 593 (the state and federal constitutional provisions are said to be 'in effect the same)'.
5
Respondents stress the fact that petitioner's prayer asks for a 'declaratory judgment' and quote language from decisions of this Court that speak of a judicial discretion to deny such relief. See, e.g., Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240—241, 57 S.Ct. 461, 463—464, 81 L.Ed. 617; Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 495, 62 S.Ct. 1173, 1175—1176, 86 L.Ed. 1620; Public Service Comm. of Utah v. Wycoff Co., 344 U.S. 237, 241—245, 73 S.Ct. 236, 239 241, 97 L.Ed. 291. Such cases are not applicable. The judicial discretion to deny declaratory relief is in the penumbra of the constitutional requirement of 'case or controversy.' There is no such issue here. Discretion, if it exists at all, must stem from the general equity notions based on the availability of other remedies. Indeed, petitioner's request for declaratory relief is no more than an inartistic demand that the federal judge entertain the motion and 'receive evidence on any issue of fact necessary to the decision of the motion.' Rule 41(e). That it is denominated a request for declaratory judgment is mere surplusage.
6
See, e.g., Harkrader v. Wadley, 172 U.S. 148, 19 S.Ct. 119, 43 L.Ed. 399; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714.
7
See Boyd v. United States, 116 U.S. 616, 624—625, 6 S.Ct. 524, 528—529, 29 L.Ed. 746; Harris v. United States, 331 U.S. 145, 155, 157—159 (dissenting opinion), 67 S.Ct. 1098, 1104—1106, 91 L.Ed. 1399; Frank v. State of Maryland, 359 U.S. 360, 374, 376—381 (dissenting opinion), 79 S.Ct. 804, 812, 813—816, 3 L.Ed.2d 877.
8
This same evolution whereby the judiciary became the protectors of privacy took place in England. '(F)or these warrants are judicial acts, and must be granted upon examination of the fact.' 2 Hale, History of the Pleas of the Crown (1st Am. ed. 1847), 150.
'The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power andauthority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our Federal system with the enforcement of the laws.'
9
See, e.g., Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153; Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1737, 4 L.Ed.2d 1669; Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688.
10
It is said that the present proceeding is not one under Rule 41(e), since there are no federal 'proceedings' within the meaning of the enabling statute. 18 U.S.C. § 3771, 18 U.S.C.A. § 3771. But the policy remains the same, and the analogy of an independent suit based on the same rights is clear. Nor can it be said that 21 U.S.C. § 198(a), 21 U.S.C.A. § 198(a), creates any exemption for federal officers from the stand ards otherwise imposed on them. Cooperate they may, but they may not break the law to do so.
11
See, e.g., Texas Code of Crim.Proc., Art. 727a, as amended by Acts 1953, 53d Leg., p. 669, c. 253, § 1, Vernon's Ann. C.C.P. art. 727a; People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513.
12
See, e.g., People v. Gonzales, 356 Mich. 247, 97 N.W.2d 16.
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365 U.S. 458
81 S.Ct. 650
5 L.Ed.2d 678
Burton N. PUGACH, Petitioner,v.Hon. Isidore DOLLINGER, District Attorney of Bronx County, et al.
No. 111.
Supreme Court of the United States
Argued Jan. 16, 1961.
February 27, 1961
Mr. George Todaro, Miss Frances Kahn, New York City, for petitioner.
Messrs. Walter E. Dillon and Irving Anolik, New York City, for respondents.
PER CURIAM.
1
The judgment is affirmed on the authority of Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, and Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138.
2
Mr. Justice BRENNAN would also affirm but solely on the authority of Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed.138.
3
Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE concurs, dissenting.
4
In Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, a pawnbroker was convicted as an accomplice in a robbery. Records of his telephone conversations, gotten by police eavesdropping, were admitted in evidence against him during his trial in the state court. He claimed that such evidence was inadmissible under 47 U.S.C. § 605, 47 U.S.C.A. § 605.1 This Court rejected that claim without even stopping to see if indeed there had been a violation of the federal statute. The rationale of that rejection was that, 'Where a state has carefully legislated so as not to render inadmissible evidence obtained and sought to be divulged in violation of the laws of the United States, this Court will not extend by implication the statute of the United States so as to invalidate the specific language of the state statute.' Id., 344 U.S. 202, 73 S.Ct. 235.
5
The later decision of this Court in Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126, swept away that rationale, and Schwartz v. State of Texas, supra, today stands alone as an aberration from the otherwise vigorous enforcement this Court has given to the congressional policy embodied in 47 U.S.C. § 605, 47 U.S.C.A. § 605. For in Benanti, in setting aside a federal conviction, we held that the proscription of wiretapping contained in § 605 forbade wiretapping by an authorized executive officer of the State, acting under the explicit terms of a state statute and pursuant to a warrant issued by the state judiciary. '(K)eeping in mind (the) comprehensive scheme of interstate regulation and the public policy underlying Section 605 as part of that scheme, we find that Congress, setting out a prohibition in plain terms, did not mean to allow state legislation which would contradict that section and that policy.' Id., 355 U.S. 105—106, 78 S.Ct. 161. It seems incongruous to me that this sweeping congressional purpose should now be held to make a detour around the precincts of a state court. This is especially true where, as here, officials have shown such an avid taste for violating the law. See Dash, Schwartz and Knowlton, The Eavesdroppers, pp. 68—69. In such circumstances, redress—other than by an exclusionary rule—against the criminal acts of those who bear the badge of the law is neither easy nor generous. Cf. Wolf v. People of State of Colorado, 33, U.S. 25, 41, 42—44, 69 S.Ct. 1359, 1369—1370, 93 L.Ed. 1782 (dissenting opinion).
6
Yet today a majority of this Court summarily holds that Schwartz v. State of Texas, supra, is still the law, and petitioner is left only with the consoling knowledge that Congress meant to protect the privacy of his telephone conversations,2 while the benefits of the congressional intendment are denied him.
7
Petitioner is charged, in a New York state court, with the commission of several serious crimes. His complaint in the instant proceeding alleged that 'on or about June 15th, 1959, and thereafter' agents of the District Attorney and of the New York police force tapped his telephone wires pursuant to a state court warrant and 'obtained certain information.' That information, and other evidence to which it led, was divulged to the grand jury, which indicted petitioner, and to the press. But more importantly there was the allegation that the Defendants intend to use the evidence obtained by use of the aforesaid illegal wire taps and the information obtained through the illegal use of the aforesaid wire taps upon the trial' which petitioner imminently faces. The prayer asked that the defendants be enjoined 'from proceeding * * * upon the indictments * * * on any grounds in which they may use wire tapping evidence, or on any grounds or investigations resulting from or instituted as a result of the aforesaid illegal wire taps.'
8
There is no doubt, that, once the wiretap evidence is put in during the impending trial, petitioner is without remedy for the prejudice it does him in that trial, either in the state courts, People v. Variano, 5 N.Y.2d 391, 185 N.Y.S.2d 1, 157 N.E.2d 857, or, under Schwartz v. State of Texas, supra, in the federal courts.
9
In Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, the petitioner was charged with a violation of the state gambling laws. He sought to enjoin the use, at his trial, of evidence obtained by a police invasion of his home, an invasion admittedly in violation of the command of the Fourth Amendment. Relief was denied in the exercise of equitable discretion, three factors being relied on. First, the petitioner, it was said, could show no irreparable injury, for, at worst, he would go to jail on the evidence sought to be suppressed. Second, it was supposed that the federal court was being asked 'to intervene piecemeal to try collateral issues.' 342 U.S. at page 123, 72 S.Ct. at page 121. Third, and overriding the first two, was the traditional reluctance of a federal court to meddle in state court proceedings, and especially in state court criminal proceedings.
10
The strongest expression of that reluctance is found in the general prohibition of federal injunctions 'to stay proceedings in a State court.' 28 U.S.C. § 2283, 28 U.S.C.A. § 2283. Although that provision bars an injunction operating on a party, after commencement of the state court proceedings, as wel as an injunction directly against the state court, Harkrader v. Wadley, 172 U.S. 148, 19 S.Ct. 119, 43 L.Ed. 399; Ex parte Young, 209 U.S. 123, 161—162, 28 S.Ct. 441, 454, 52 L.Ed. 714, it is not directly involved here. Here the thrust of the relief is only to enjoin the use of wire-tap evidence, not to enjoin the action itself. Hence there is no bar to maintaining the action. Cf. Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233. Where, as here, the relief sought is the adjudication of collateral matters which cannot be adjudicated in the state proceedings under state law, there is no occasion to invoke the statute. 'That provision is an historical mechanism (Act of March 2, 1793, 1 Stat. 334, 335) for achieving harmony in one phase of our complicated federalism by avoiding needless friction between two systems of courts having potential jurisdiction over the same subject-matter.' Hale v. Bimco Trading Co., 306 U.S. 375, 378, 59 S.Ct. 526, 527, 83 L.Ed. 771. (Emphasis added.) Hence I do not reach the questions that would be raised if we had before us the alternative of enjoining the state action3 or withholding all relief.
11
Can the dangers of allowing this early resort to the federal court outweigh the wrong of subjecting petitioner to the risk of conviction and imprisonment on the strength of criminally obtained and criminally presented evidence? This is not a case where there is piecemeal resort from one court to another. This remedy is the only one which is available to protect a federal right.4 It is not a case where an appeal is properly delayed, so that the asserted error may be seen in the context of the whole trial, as no review at all is available. For the same reason, this is no case for the exercise of equitable discretion. If the federal question is not now protected, it can never become the basis for relief. that the other proceeding offers no remedy, the rationale of equitable discretion disappears. It becomes no more than the legal language which clothes the denial of a right in the guise of a mere procedural decision. Unless and until Schwartz v. State of Texas, supra, is overruled, the exercise of equitable discretion to deny preliminary relief from the threatened use of wire-tap evidence is wholly unjustified. Unless and until Schwartz is overruled, the beneficent effect of § 605 will be stultified by the admission of tainted evidence in state trials. The privacy of the individual, history assures us, can never be protected where its violation by state officers meets with reward rather than punishment.
1
'* * * and 'no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person' * * *.' See Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 276, 82 L.Ed. 314; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298; Benanti v. United States, supra; cf. Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312; Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134.
2
Schwartz v. State of Texas, supra, stands for no more than a refusal, as a matter of federal law, to void a conviction said to be based on wire-tap evidence. The witness who divulges wire-tap information is no less guilty of a federal crime. See Schwartz v. State of Texas, supra, 344 U.S. 201, 73 S.Ct. 234. Nor, after Benanti, does the fact that New York purported to authorize this police wire tap save it from illegality. See In re Telephone Communications, 9 Misc.2d 121, 170 N.Y.S.2d 84; Matter of Interception of Telephone Communications, 23 Misc.2d 543, 198 N.Y.S.2d 572. As I indicated in my dissent in Schwartz v. State of Texas, supra, 344 U.S. 205, 73 S.Ct. 236, I am of the opinion that a wire tap is a search within the meaning of the Fourth Amendment, so that, in the absence of illegality under § 605, I would have to consider if the New York wiretap procedure meets the constitutional test of reasonableness. But under § 605, all wire taps are forbidden.
3
28 U.S.C. § 2283, 28 U.S.C.A. § 2283, provides for three classes of exception: (1) as expressly authorized by Act of Congress, (2) where necessary in aid of jurisdiction, and (3) to protect or effectuate its judgments. Cf. Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100. Injunction against the commencement of state court criminal proceedings has long been the first line of defense for federally secured rights. As respects federally secured civil rights see, e.g., Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; cf. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324. As respects federally secured economic rights see, e.g., Hynes v. Grimes Packing Co., 337 U.S. 86, 69 S.Ct. 968, 93 L.Ed. 1231; Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402.
4
Judge Clark, dissenting in this case below, said: 'In sum it is beyond dispute that there is a general, indeed universal, custom of federal law violation. Now this is a distressing situation, made not less so that in the eyes of many worthy citizens it is required by the asserted exigencies of successful law administration. But it is not an unusual situation. For actually it is a clash between federal and state governmental policies. As such it is a recurring struggle in our history and quite possibly a necessary one to a federal form of government. In the past we have found ways of meeting and solving the problem. Of course there are several forms of remedy; but the one to which there seems continual return when other remedies fail is the resort to the equity powers of the federal courts to enjoin repeated violations of the criminal law.' 277 F.2d at pages 748 749. The doctrine of equitable discretion properly involves no more than a choice among remedies, an orderly management of judicial procedures. Doubtless there are times when equity should leave parties to their remedy 'at law,' i.e., to their remedy in the ordinary course of the threatened proceeding. But once it is established
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365 U.S. 301
81 S.Ct. 653
5 L.Ed.2d 670
Theodore GREEN, Petitioner,v.UNITED STATES.
Nos. 70 and 179.
Argued Jan. 10, 1961.
Decided Feb. 27, 1961.
Rehearing Denied April 17, 1961.
See 365 U.S. 890, 81 S.Ct. 1024.
Mr. James Vorenberg, Boston, Mass., for petitioner.
Mr. Robert Kramer, Washington, D.C., for respondent.
Judgment of the Court and opinion of Mr. Justice FRANKFURTER, joined by Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice WHITTAKER, announced by Mr. Justice HARLAN.
1
Defendant, the petitioner here, in 1952 was convicted in the United States District Court for Massachusetts on a three-count indictment charging him with (1) entering a bank with intent to commit a felony, in violation of 18 U.S.C. § 2113 (a), 18 U.S.C.A. § 2113(a); (2) robbing the bank, also in violation of 18 U.S.C. § 2113(a), 18 U.S.C.A. § 2113(a); and (3) assaulting or putting in jeopardy the lives of persons by use of a dangerous weapon while committing the robbery, in violation of 18 U.S.C. § 2113(d), 18 U.S.C.A. § 2113(d). Five days later, after defendant's counsel had completed motions in arrest of judgment and for new trial, the district judge asked, 'Did you want to say something?' whereupon counsel at some length invoked the trial judge's discretionary leniency. The defendant's age, family status, and physical condition were mentioned, as was the fact that he was then serving a sentence in a state penitentiary which would delay the time from which his federal punishment would run. Thereupon the trial judge, presumably relying upon a presentence probation report, observed that the defendant was a hardened criminal, that he had in the past committed other armed robberies, and that there was no warrant to believe that rehabilitation was possible. He then pronounced sentence as follows:
2
'Theodore Green, the Court orders that on this indictment you be sentenced as follows: 'On Count 1 of the indictment 20 years, on Count 2 of the indictment that you be imprisoned for 20 years, and on Count 3 of the indictment that you be imprisoned for the period of 25 years, said prison sentence to run concurrent and to begin upon your release from prison upon the sentence you are now receiving under order of the State Court.' Subsequently, defendant was permitted to bring his appeal in forma pauperis which was dismissed by the Court of Appeals 'for want of diligent prosecution.' In two other later actions, defendant unsuccessfully brought proceedings under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, to vacate his sentence.
3
These two cases, here consolidated, arise out of two separate actions brought, some seven years after conviction, under Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., in an effort to set aside the sentence which petitioner asserts to be illegal. In No. 70, petitioner claims that the failure of the judge to inquire of the defendant if he had anything to say on his own behalf prior to sentencing rendered the subsequent sentence illegal under Federal Criminal Rule 32(a).1 In No. 179, petitioner questions the legality of the twenty-five-year sentence for aggravated bank robbery2 when immediately prior to its imposition the judge had imposed a twenty-year sentence under another count of the indictment for the same offense without the elements of aggravation.
4
If Rule 32(a) constitutes an inflexible requirement that the trial judge specifically address the defendant, e.g., 'Do you, the defendant, Theodore Green, have anything to say before I pass sentence?' then what transpired in the present case falls short of the requirement, even assuming that this inadequacy in the circumstances now before us would constitute an error per se rendering the sentence illegal.
5
The design of Rule 32(a) did not begin with its promulgation; its legal provenance was the common-law right of allocution. As early as 1689, it was recognized that the court's failure to ask the defendant if he had anything to say before sentence was imposed required reversal. See Anonymous, 3 Mod. 265, 266, 87 Eng.Rep. 175 (K.B.). Taken in the context of its history, there can be little doubt that the drafters of Rule 32(a) intended that the defendant be personally afforded the opportunity to speak before imposition of sentence. We are not unmindful of the relevant major changes that have evolved in criminal procedure since the seventeenth century—the sharp decrease in the number of crimes which were punishable by death, the right of the defendant to testify on his own behalf, and the right to counsel. But we see no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself. We are buttressed in this conclusion by the fact that the Rule explicitly affords the defendant two rights: 'to make a statement in his own behalf,' and 'to present any information in mitigation of punishment.' We therefore reject the Government's contention that merely affording defendant's counsel the opportunity to speak fulfills the dual role of Rule 32(a). See Taylor v. United States, 9 Cir., 1960, 285 F.2d 703.
6
However, we do not read the record before us to have denied the defendant the opportunity to which Rule 32(a) entitled him. The single pertinent sentence—the trial judge's question 'Did you want to say something?'—may well have been directed to the defendant and not to his counsel. A record, certainly this record, unlike a play, is unaccompanied with stage directions which may tell the significant cast of the eye or the nod of the head. It may well be that the defendant himself was recognized and sufficiently apprised of his right to speak and chose to exercise this right through his counsel. Especially is this conclusion warranted by the fact that the defendant has raised this claim seven years after the occurrence. The defendant has failed to meet his burden of showing that he was not accorded the personal right which Rule 32(a) guarantees, and we therefore find that his sentence was not illegal.
7
However, to avoid litigation arising out of ambiguous records in order to determine whether the trial judge did address himself to the defendant personally, we think that the problem should be, as it readily can be, taken out of the realm of controversy. This is easily accomplished. Trial judges before sentencing should, as a matter of good judicial administration, unambiguously address themselves to the defendant. Hereafter trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.
8
In No. 179 petitioner contends that his sentence was rendered illegal because the district judge, after sentencing him to twenty years for bank robbery under Count 2, proceeded under Count 3 to sentence him to twenty-five years for the aggravated version of the same crime. The claim is that since the two counts did not charge separate offenses, the judge's power to sentence expired with the imposition of sentence under Count 2 and that five years should be remitted from petitioner's concurrent sentence.
9
The Government concedes that Count 3 did not charge a separate offense, see Holiday v. Johnston, 313 U.S. 342, 349, 550, 61 S.Ct. 1015, 1017, 85 L.Ed. 1392, and there is every indication that the district judge was of this view. In his charge to the jury he stated:
10
'The third count is a different type of count. That is not a separate offense. I will speak to you later of the manner in which you will handle the third count. That is not a separate offense * * *. That is not a separate count, to repeat, that is an aggravation of the second count, robbing the bank.'
11
Although petitioner is technically correct that sentences should not have been imposed on both counts, the remedy which he seeks does not follow. This is not a case where sentence was passed on two counts stating alternative means of committing one offense; rather, the third count involved additional characteristics which made the offense an aggravated one—namely, putting persons in jeopardy of life by use of a dangerous weapon. Plainly enough, the intention of the district judge was to impose the maximum sentence of twenty-five years for aggravated bank robbery, and the formal defect in his procedure should not vitiate his considered judgment.3
12
Affirmed.
13
Mr. Justice STEWART, concurring.
14
I join in affirming the judgments. Rule 32(a) does not seem to me clearly to require a district judge in every case to volunteer to the defendant an opportunity personally to make a statement, when the defendant has a lawyer at his side who speaks fully on his behalf. But I do think the better practice in sentencing is to assure the defendant an express opportunity to speak for himself, in addition to anything that his lawyer may have to say. I would apply such a rule prospectively, in the exercise of our supervisory capacity. See Couch v. United States, 98 U.S.App.D.C. 292, 235 F.2d 519.
15
Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
16
I agree that Federal Criminal Rule 32(a) makes it mandatory for a federal judge before imposing sentence to afford every convicted defendant an opportunity to make, in person and not merely through counsel, a statement in his own behalf presenting any information he wishes in mitigation of punishment and that failure to afford this opportunity to the defendant personally makes a sentence illegal. I agree too that the governing legal question in determining whether such an opportunity has been afforded under Rule 32(a) is 'whether the trial judge did address himself to the defendant personally,' since it would be wholly artificial to regard this opportunity as having been afforded in the absence of a specific and personal invitation to speak from the trial judge to the defendant.1 The very essence of the ancient common-law right called 'allocution' which Mr. Justice FRANKFURTER recognizes as underlying Rule 32(a) has always been the putting of the question to the defendant by the trial judge.2
17
I think the record in this case clearly shows that the defendant was denied this opportunity, that the sentence imposed upon him therefore was illegal and for this reason that the cause should, in accordance with Federal Criminal Rule 35, be sent back to the District Court for resentencing after compliance with Rule 32(a). Mr. Justice FRANKFURTER refuses to take this course, stating that 'we do not read the record before us to have denied the defendant the opportunity' to talk to the judge about his sentence. This conclusion apparently rests on the view that the trial judge's single question deemed pertinent to this subject "Did you want to say something?'—may well have been directed to the defendant and not to his counsel.' The opinion goes on to imply that maybe when the judge asked 'you' the question he cast his eye or nodded his head in the defendant's direction, maybe the defendant saw the eye cast or the head nod, and therefore it 'may well be that the defendant himself was recognized and sufficiently apprised of his right to speak and chose to exercise this right through his counsel.' On this chain of perhaps possible, but purely imaginary happenings, plus the seemingly irrelevant fact that the defendant 'raised this claim seven years after the occurrence,' it is said that the petitioner 'has failed to meet his burden of showing that he was not accorded the personal right which Rule 32(a) guarantees, and we therefore find that his sentence was not illegal.'
18
A careful examination of the record reveals the utter implausibility of these imaginative suggested additions to the transcript. The trial judge's bare question 'Did you want to say something?' follows immediately upon a lengthy statement covering three printed pages by the counsel for a codefendant arguing that his motion for a new trial should be granted because of the weakness of the evidence, inconsistencies in testimony, and lack of credibility of a government witness. The colloquy in the four pages preceding that likewise does not touch upon the question of sentencing. Even if it is assumed that the trial judge might have been so thoughtless as to address so unspecific a question to a layman at that point in the proceedings, can it seriously by believed that under such circumstances the defendant would have understood the question to be inviting him to speak on the subject of mitigating factors to be considered in sentencing even if the judge had nodded in his direction when asking 'Did you want to say something?' Moreover, the answer 'Yes, sir' and the succeeding statement came not from the defendant, but from his counsel (who was not the preceding speaker). The obvious implication is the fact explicitly admitted twice in the Government's brief in this case: that the question was addressed to defendant's counsel and not to defendant himself.3
19
I am forced to conclude that the actual holding in this case makes Rule 32(a) mean for less for this particular defendant than the Rule is declared to mean at least for defendants tried in the future. Judges are warned that hereafter their records must leave no doubt that a 'defendant has been issued a personal invitation to speak prior to sentencing.' This, I think, is the correct meaning of the Rule as it was adopted, and this defendant just like all others should be accorded his right under it. He should not be denied that right either because of his criminal record or because of fears conjured up about the number of prisoners who might raise the same question in the event of a decision in this defendant's favor. Bad men, like good men, are entitled to be tried and sentenced in accordance with law, and when it is shown to us that a person is serving an illegal sentence our obligation is to direct that proper steps be taken to correct the wrong done, without regard to the character of a particular defendant or to the possible effect on others who might also want to challenge the legality of their sentences as they have the right to do 'at any time' under Rule 35. If it has any relevance at all, the fact that there may be other prisoners in this country's jails serving illegal sentences would seem to me to make it all the more imperative that we grant appropriate relief in this case rather than search for some obviously dubious excuse to deny this petitioner's claim.
20
I do not understand why it is necessary or legally correct to defeat this prisoner's claim by invoking what appears to be a wholly new doctrine of burden of proof. What, may I ask, is the burden a defendant must meet to show he was not accorded the personal opportunity to address the judge before a sentence is imposed? Is it proof beyond a reasonable doubt, by a preponderance of the evidence, by the overwhelming weight of the evidence, or what? I suppose from Mr. Justice FRANKFURTER'S opinion that it was the duty of this defendant to show under some standard that when the judge said 'Did you want to say something?' he neither pointed his finger, cast his eye nor nodded his head in the defendant's direction, and that it was incumbent upon the defendant to make this proof even though the Government admitted that the question had been addressed to his counsel and not to the defendant himself. It would seem to me, even in the absence of the Government's admission as to the factual occurrence, that since when the question was asked defendant's counsel immediately made a statement, the fair inference is that if there was any 'significant cast of the eye or * * * nod of the head,' it was directed toward counsel who responded and not toward the defendant who said nothing. Yet it is said that defendant's claim must be defeated because he failed to overcome an inference, without basis in logic or law, of a fact which has been expressly disclaimed by the Government in this case.
21
The language of Mr. Justice FRANKFURTER'S opinion does not jibe with the harsh result reached in refusing to accord to petitioner the benefit of Rule 32(a). As he points out, that Rule embodies the practice of the English-speaking world for three centuries or more, based as he properly says upon the belief that, 'The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.' A rule so highly prized for so sound a reason for so long a time deserves to be rigorously enforced by this Court, not merely praised in resounding glittering generalities calculated to soften the blow of nonenforcement.
22
I would remand this case for resentence after compliance with Rule 32(a).
1
Rule 32(a) in pertinent part provides:
'Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.'
2
'Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.' 18 U.S.C. § 2113(d), 18 U.S.C.A. § 2113(d).
3
Petitioner further complains of an improper charge to the jury on Count 3. Rule 35 does not encompass all claims that could be made by direct appeal attacking the conviction, but rather is limited to challenges that involve the legality of the sentence itself.
1
'After being convicted, the defendant is usually so crushed as to hesitate to make demands lest they bring increased punishment. The rule (Rule 32(a)) contemplates no such demand, and clearly, without the necessity of any demand at that stage of the trial, the defendant's legal rights should be accorded to him by the court.' Mixon v. United States, 5 Cir., 214 F.2d 364, 366 (Rives, J., concurring).
2
An extensive and detailed review of the English and American common law and statutory cases on this subject led one author to begin his conclusion with the following sentence: 'Today, as always, allocution is an authoritative address by the court to the prisoner as he stands at the bar for sentence.' Barrett, Allocution, 9 Mo.L.Rev. 115, 232, at 254.
3
'* * * (R. No. 70, pp. 4—18). Then the court asked defense counsel if he wanted to say something. In response, counsel spoke for leniency in sentencing (R. No. 70, pp. 18—19).' Brief for the United States, p. 11. (Emphasis supplied.)
'Before sentencing, the court specifically addressed counsel: 'Did you want to say something?" Brief for the United States, p. 31. (Emphasis supplied.)
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365 U.S. 467
81 S.Ct. 659
5 L.Ed.2d 710
MICHIGAN NATIONAL BANK, Appellant,v.STATE OF MICHIGAN et al.
No. 155.
Argued Jan. 18 and 19, 1961.
Decided March 6, 1961.
Rehearing Denied April 3, 1961.
See 365 U.S. 874, 81 S.Ct. 900.
Mr. Victor W. Klein, Detroit, Mich., for appellants.
Mr. William D. Dexter, Lansing, Mich., for appellees.
Mr. Justice CLARK delivered the opinion of the Court.
1
The State of Michigan levies 'on the privilege of ownership' a 5 1/2-mill tax per dollar on the value of each common share of stock in national banks1 located in the State. It requires federal and state savings and loan associations in the State to pay, in addition to other taxes not here involved, for its shareholders an intangibles tax of 2/5 a mill on each dollar of the paid-in value of their shares.2 In addition, state associations also pay a franchise tax of 1/4 mill per dollar of their capital and legal reserves.3 Appellant Michigan National Bank, with banking offices in eight Michigan cities, brought this suit to recover taxes paid under protest for the year 1952, claiming that the levy under Michigan's Act No. 9 resulted in a tax on national bank shares at least eight times greater than that levied on 'other moneyed capital in the hands of individual citizens' in the State, in violation of § 5219 of the Revised Statutes of the United States.4 Initially its attack referred to moneyed capital in the hands of insurance and finance companies, credit unions and individuals, as well as savings and loan associations. Before trial in the Michigan Court of Claims, however, its claim was limited to the latter only, asserting that these institutions were in substantial competition with a phase of the national banking business, i.e., residential mortgage loans, and were preferentially taxed. The resulting tax discrimination, appellant says, renders Act No. 9 invalid under the controlling decisions of this Court. Michigan's highest court has upheld the statute against this claim. 358 Mich. 611, 101 N.W.2d 245. We noted probable jurisdiction, 364 U.S. 810, 81 S.Ct. 51, 5 L.Ed.2d 40. We have concluded that in practical operation, Michigan's tax structure does not have a discriminatory effect and is, therefore, valid. This determination obviates the necessity of our considering the voluminous and confusing statistics relevant to the issue of whether or not there exists competition between banks and savings and loan associations in the State.
2
The sole authorization upon which Michigan's Act No. 9 may rest is § 5219. First Nat. Bank of Guthrie Center v. Anderson, 1926, 269 U.S. 341, 46 S.Ct. 135, 70 L.Ed. 295; Des Moines Nat. Bank v. Fairweather, 1923, 263 U.S. 103, 44 S.Ct. 23, 68 L.Ed. 191. That authorization is qualified by a proviso that a state tax on national bank shares shall not be 'at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks.' We have assumed, without deciding, that the national banks located in Michigan and savings and loan associations there are in competition in a substantial phase of the business carried on by national banks, i.e., residential mortgage loans. The sole question here is whether Act No. 9 effects a tax discrimination between national banks and savings and loan associations.
Background Relating To The Problem.
3
Michigan first authorized the organization of savings and loan associations in 1887.5 They operate today under the same law as 'cooperative' or mutual associations which accumulate capital only through the sale of shares to members, and by retention of a permitted surplus and a reserve from profits. They may make loans only on first mortgage real estate notes and can neither carry on a banking business nor received deposits6 Their reserves must equal 10% of liabilities to their members and the associations' surplus is limited to 5% of assets.7 Earnings above the permitted reserves and surplus must be paid to members currently and at stated periods. The Congress authorized the organization of federal savings and loan associations in 1933 in the Home Owners' .loan Act, 48 Stat. 128, as amended, 12 U.S.C. §§ 1461—1468, 12 U.S.C.A. §§ 1461—1468. They operate along the same general lines as state associations. The shares of members in both are insured by the Federal Savings and Loan Insurance Corporation.8
4
National banks, of course, engage in the general banking business as authorized by the National Bank Act.9 Prior to 1916 they were not permitted to make real estate mortgage loans except on certain farm lands. In that year the Congress authorized the banks to make residential loans for a term of not over a year and to the extent of 50% of the value of the mortgaged property.10 This term was first enlarged in 1927 to five years11 and then to 10 years in 1935 by 49 Stat. 706, which also authorized an increase to 60% as the maximum proportion of property value permitted to be loaned. In 1934, national banks were authorized to purchase F.H.A. guaranteed mortgages.12 Ten years later that authority was enlarged to include V.A. loans which the Comptroller of the Currency by decision found to be in the same category as F.H.A. mortgages.13 It was not until this time that national banks became any significant factor in the residential mortgage field. By 1952 the ratio of their deposits to their total assets had more than doubled, amounting to 92% of their assets,14 having totaled only 41% thereof at the time of the passage of § 5219.
5
Michigan National was organized in 1941 with 150,000 shares of $10 par value and total resources of about $68,000,000. In 1952 it had outstanding 500,000 shares of the same par value (all of the increase having been issued as dividends) and resources of some $306,000,000. In 1952 its gross earnings on its capital account were 91%, which, after all expenses and taxes (except dividends and federal income tax), remained at over 31%. The 16 building and loan associations' average net earnings for the same year (before dividends and federal income taxes) amounted to 3.4% of their capital, approximately their normal annual earning. A $1,000 investment in Michigan National's stock (58.8 shares) in 1941 was worth $6,691.20 (157.5 shares) by 1952, an annual average increase in value of 61%. This does not include $1,308.80 in cash dividends paid over the same period.
6
Background and Construction of the Legislation.
7
1. Section 5219.
8
Congress enacted the Section in 186415 and this Court has passed on it over 55 times in the near century of the Section's existence. During that period the Court has kept clearly in view, as was said in the last case in which it wrote, that 'the various restrictions (§ 5216) * * * places on the permitted methods of taxation are designed to prohibit only those systems of state taxation which discriminate in practical operation against national banking associations or their shareholders as a class.' Tradesmens Nat. Bank of Oklahoma City v. Oklahoma Tax Comm., 1940, 309 U.S. 560, 567, 60 S.Ct. 688, 692, 84 L.Ed. 947. Reverting to one of the first and controlling cases dealing with the Section, Mercantile Nat. Bank of New York v. Mayor, etc., of New York, 1887, 121 U.S. 138, 7 S.Ct. 826, 30 L.Ed. 895,16 we find that Mr. Justice Matthews declared for a unanimous Court that the purpose of the Congress in passing the provision was 'to prohibit the States from imposing such a burden as would prevent the capital of individuals from freely seeking investment in institutions which it was the express object of the law to establish and promote.' At page 154 of 121 U.S., at page 835 of 7 S.Ct. The Court further held deposits in savings banks to be moneyed capital but approved their total exemption from state taxes, along with other enumerated property, on the ground that the State had shown 'just reason' so to do. In essence the case stands for the proposition that the State cannot, by its tax structure, create 'an unequal and unfriendly competition' with national banks. This case followed in the light of Hepburn v. School Directors, 1874, 23 Wall. 480, 23 L.Ed. 112, where Chief Justice Waite had pointed out that the taxable value of the stock in a national bank is not necessarily determined by its nominal or par value but rather by 'the amount of moneyed capital which the investment represents for the time being.' 'Therefore some plan must be devised to ascertain what amount of money at interest is actually represented by a share of stock.' At page 484 of 23 Wall.
9
The question of tax equivalence thus posed has echoed and re-echoed through the cases. A year subsequent to the decision in Mercantile Bank, supra, the same point was raised in Bank of Redemption v. City of Boston, 1888, 125 U.S. 60, 8 S.Ct. 772, 31 L.Ed. 689, where the exemption of deposits in savings banks was approved in an opinion which again was written by Mr. Justice Matthews. The Court, in comparing the tax levied on the two institutions, i.e., national banks and savings banks, said: 'But shares of the national banks, while they constitute the capital stock of the corporations, do not represent the whole amount of the capital actually employed by them. They have deposits, too, shown in the present record to amount, in Massachusetts, to $132,042,332. The banks are not assessed for taxation on any part of these, although these deposits constitute a large part of the actual capital profitably employed by the banks in the conduct of their banking business. But it is not necessary to establish the exact equality in result of the two modes of taxation.' At page 67 of 125 U.S., at page 776 of 8 S.Ct. A quarter of a century later, Mr. Justice Pitney in Amoskeag Savings Bank of Manchester, N.H. v. Purdy, 1913, 231 U.S. 373, 34 S.Ct. 114, 58 L.Ed. 274, in commenting on the factors to be considered in determining the burden of the tax, said: 'There are other considerations to be weighed in determining the actual burden of the tax, one of which is the mode of valuing bank shares—by adopting 'book values' (capital, surplus, undivided profits)—which may be more or less favorable than the method adopted in valuing other kinds of personal property.' At page 392 of 231 U.S., at page 122 of 34 S.Ct. The point was made even more clearly by Mr. Justice Brandeis in First Nat. Bank of Shreveport v. Louisiana Tax Comm., 1933, 289 U.S. 60, 53 S.Ct. 511, 77 L.Ed. 1030, where he said: 'There is a fundamental difference between banks, which make loans mainly from money of depositors, and the other financial institutions, which make loans mainly from the money supplied otherwise than by deposits.' At page 64 of 289 U.S., at page 512 of 53 S.Ct. And so, we are taught that in determining the burden of the tax—its discriminatory character—we look to its effect, not its rate. See Amoskeag Savings Bank, supra; City of Convington v. First Nat. Bank, 1905, 198 U.S. 100, 25 S.Ct. 562, 49 L.Ed. 963, and Tradesmens Nat. Bank of Oklahoma City v. Oklahoma Tax Comm., supra, the last case of this Court on the point.
10
2. Michigan's Act No. 9.
11
Act No. 9, we have stated, levies a tax of 5 1/2 mills on the book value of each share of stock in national banks, while the separately imposed tax on all savings and loan association shares, exclusive of other taxes, is 2/5 of a mill on the paid-in value of the shares plus, on state associations only, 1/4 of a mill on the value of the paid-in capital and legal reserves. It appears from the record that prior to the enactment of this tax an inequity in the State's tax structure was thought to exist between state and national banks. Upon study of the problem and the recommendation of the Taxation Committee of the Michigan Bankers Association, the State Legislature decided to tax all banks 'exactly alike.' It embodied the proposal of the Association into Act No. 9. While we have no legislative history in the record before us, according to the amicus curiae brief of the Bankers Association filed in the trial court, the sponsors of Act No. 9 thought it would be 'reasonable from the viewpoint of the public, equitable from the viewpoint of the competitors, and practical from the viewpoint of the banks themselves.' The opinion of responsible officials of this Association, filed in this case some seven years after Act No. 9 had been in effect and the taxes therein provided paid without protest, save for appellant and four other banks, was: 'Actual experience with the taxation system shows that it has produced a reasonable amount of revenue to the State; that it has not created any competitive disadvantage among the various types of institutions; and that it has proven to be simple to administer.'
12
Michigan's Supreme Court has also held that no discrimination in the tax was proven. While the basis of this holding is not too clear, we take it that the finding of total tax equality as between the national banks and the associations, insofar as Act No. 9 was concerned, meant that, in the court's view, the Michigan Legislature, in fixing the rate (5 1/2 mills) on the banks, had either (1) taken into consideration the moneyed capital on hand in each type of institution, i.e., deposits, which were not present as to savings and loan associations, or (2) if such method of valuation of bank stock was not permissible, that the Legislature intended to exempt from taxation any difference between the taxes levied on national banks and savings and loan associations because of the functions of the latter as repositories for the 'small savings and accumulations of the industrious and thrifty.' Such differences, the Michigan Supreme Court said (358 Mich. 611, 101 N.W.2d 259), were 'justified as partial exemptions,' under Mercantile Bank, supra, and subsequent cases. While we are not bound by either of these interpretations placed on Act No. 9 by Michigan's highest court, 358 Mich. 611, 639—640, 101 N.W.2d 245, 259—260, we do accept as controlling its interpretation that, in fixing the rate on national bank shares, the Legislature took into account the moneyed capital controlled thereby.
13
We believe that, granted satisfaction of the other qualifications of § 5219, a State's tax system offends only if in practical operation it discriminates against national banks or their shareholders as a class. That is to say, we could not strike down Act No. 9, as interpreted by Michigan's highest court, unless it were manifest that an investment in national bank shares was placed at a disadvantage by the practical operation of the State's law. According to our cases, discussed above, that clearly appears to have been the purpose of the Congress in enacting § 5219.17 We have made a comprehensive examination of the record and fail to find such a discriminatory effect to be manifest in Michigan's tax system.
14
As has been repeatedly indicated in our decisions, a dollar invested in national bank shares controls many more dollars of moneyed capital, the measuring rod of § 5219. On the other hand, the same dollar invested in a savings and loan share controls no more moneyed capital than its face value. The bank share has the power and control of its proportionate interest in all of the money available to the bank for investment purposes. In the case of Michigan National, this control is more than 21 times greater than the share's proportionate interest in the capital stock, surplus and undivided profits would indicate. As to all national banks in the United States, the record shows that capital accounts amounting to about $7,000,000,000 control some $100,000,000,000 of deposits (92% of the total assets of all these banks) or an amount 14 times greater. Savings and loan associations have no similar assets of that character, their only source of moneyed capital being the share accounts of members and, at least in the case here, the relatively small amount of retained earnings and surplus permitted under law.
15
Relating the statistics to the immediate problem, the capital, surplus and undivided profits of Michigan National totaled about $13,000,000, to which the 5 1/2-mill tax was applied. The tax amounted to $68,181. The 16 savings and loan associations with which appellant was in competition had a paid-in share value of $134,000,000, to which was applied the 2/5-mill tax. The resultant tax was about $53,260. Had the same tax rate (2/5-mill) been applied to the moneyed capital, i.e., deposits, of Michigan National ($283,000,000), the product would have more than equaled the tax revenue from the application of the 5 1/2-mill rate against its capital account. In fact, it would have amounted to about $113,000, or 1.7 times the 1952 tax bill on appellant's shares. Similar results could be obtained as to all national banks in Michigan. Their total capital accounts, $166,700,000, when taxed at the 5 1/2-mill rate, yield some $917,000 in taxes. The 2/5-mill rate, if applied to their total deposits, $3,516,000,000, results in $1,406,000 in taxes. This is more than 1.5 times the 1952 taxes assessed under Act No. 9.
16
While it is obvious that the taxable value of the shares in these two types of financial institutions is determined by different methods18 and that they are being taxed at different rates, it does not follow that § 5219 is automatically violated. '(I)t is not a valid objection to a tax on national bank shares that other moneyed capital in the state (is) * * * taxed at adifferent rate or assessed by a different method unless it appears that the difference in treatment results in fact in a discrimination unfavorable to the holders of the shares of national banks.' Tradesmens Nat. Bank of Oklahoma City v. Oklahoma Tax Comm., supra, 309 U.S. at page 567, 60 S.Ct. at page 692, 84 L.Ed. 947. Cf. Amoskeag Savings Bank of Manchester, N.H. v. Purdy, supra; City of Covington v. First Nat. Bank, supra. We must remember the interpretation placed on Act No. 9 by Michigan's Supreme Court. It held in effect that the Legislature had taken into account, in fixing the different rates on national bank stock and savings and loan shares, the additional moneyed capital controlled by the former. Since Michigan National's share owner's investment has the equivalent profit-making power of an amount 21 times greater than itself and the investor in savings and loan share accounts has no similarly multiplied power, the national bank share would not be 'unfavorably' treated unless it was taxed in excess of 21 times the levy on savings and loan share accounts. Cf. Bank of Redemption v. City of Boston, supra, 125 U.S. at page 67, 8 S.Ct. at page 776, 31 L.Ed. 689. Here the ratio is only 13.8 to one, and if the additional franchise tax upon state associations is included, the proportion drops to 8.5 to one. This is not to say that the value of the bank's deposits is a factor in the computation of the tax to be paid under the Michigan statutes. However, the deposits are relevant to the determination of whether or not the tax, as computed under the statutes, is a greater burden than that placed on 'other moneyed capital.'19
17
It is said, however, that this method would be contrary to State of Minnesota v. First Nat. Bank, 1927, 273 U.S. 561, 47 S.Ct. 468, 71 L.Ed. 774. It was argued in that case that an equivalence of tax between national banks and other moneyed capital existed because, if the tax rate applicable to other moneyed capital was applied to the assets of the bank without deducting liabilities, the ultimate tax would be approximately the same. However, Mr. Justice (later Chief Justice) Stone, writing for the Court, rejected that argument because it 'ignores the fact that the tax authorized by § 5219 is against the holders of the bank shares and is measured by the value of the shares, and not by the assets of the bank without deduction of its liabilities * * *.' 273 U.S. at page 564, 47 S.Ct. at page 469. However, that case was decided on the authority of First Nat. Bank of Hartford, Wis. v. City of Hartford, 273 U.S. 548, 47 S.Ct. 462, 71 L.Ed. 767, which Mr. Justice Stone also wrote and handed down the same day. There the comparison between the widespread capital exempted and that of national banks which was taxed, led to the invalidation of Wisconsin's tax statute. The error the Court found was that Wisconsin 'construed the decisions of this Court as requiring equality in taxation only of moneyed capital invested in businesses substantially identical with the business carried on by national banks.' 273 U.S. at page 555, 47 S.Ct. at page 464. While Minnesota's Act, as construed, was not so broad, it taxed capital (including state bank shares) other than that invested in national bank shares at a lower rate. Since both national and state banks were permitted to deduct deposits, it followed that it would have been discriminatory to tax one at a lower rate than the other. However, implicit in the ruling is the proposition that if the same base is employed in the valuation of the shares of the competing institutions, as here, and the practical effect of the different rate does not result in a discrimination against moneyed capital in the hands of national banks, when compared with other competing moneyed capital, it does not violate § 5219. '(T)he bank share tax must be compared with * * * the tax on capital invested by individuals in the shares of corporations whose business competes with that of national banks.' State of Minnesota v. First Nat. Bank, supra, 273 U.S. at page 564, 47 S.Ct. at page 469. In short, resulting discrimination in the effect of the tax is the test.
18
Moreover, these cases were both handed down prior to congressional enactment of the Home Owners' Loan Act of 1933,20 which is 'in pari materia' with § 5219 and appears 'to throw a cross light' (L. Hand in United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, 429) on Michigan's savings and loan tax statute. The 1933 Act, permitting the creation of federal savings and loan associations, contained a provision respecting local taxation which stated in part:
19
Unless Congress had recognized that States taxing national bank shares were free, in spite of § 5219, to exempt their own savings and loan associations from local taxation, it would have used language similar or referring to § 5219, as it did in other federal statutes creating different types of thrift institutions.21 To insure that the federal creatures received the same benefits, if any, as state agencies, Congress tied the taxation limitations to state action affecting the latter rather than to § 5219. Although the federal statute was enacted prior to Michigan's savings and loan tax statute, its accommodation to such state measures, actual or potential, illustrates the assimilation by Congress of state savings and loan associations to their federal analogues, and not to the very different national fiscal institutions which national banks are. Furthermore, the power of the State to grant liberal tax treatment to its own associations, viewed even without the light of congressional action, is amply supported by the exemption doctrine of Mercantile Bank, supra, recognized as still vital long after Michigan's law of 1887 under which the savings and loan associations of that State are organized. These considerations weigh heavily in evaluating Michigan's enactment under § 5219.
20
Under this standard, Michigan's tax structure does not, in practical effect, result in any discrimination. Its system looks to the moneyed capital controlled by the shareholder. If it is a share in a bankn—either federal or state—the legislature considers the deposits available for investment and fixes a rate commensurate with that increased earning and investment power of the shareholder. The resulting tax is not on the assets of the bank, nor on deposits, but on the control the shareholder has in the moneyed capital market. Thus, controlling some 21 times the cash value of his share, a Michigan National shareholder pays the higher rate. On the other hand, a savings and loan shareholder controls no deposits. He has only the cash value of his share (and the comparatively minute reserves allowed by law), insofar as the moneyed capital market is concerned. Consequently he pays the lower rate. As the Michigan Bankers Association has indicated, this approach is realistic from a business standpoint, does not result in discrimination, is economically sound and is fair to each type of taxpayer. If it results, as it did in 1952, in giving Michigan National a tax advantage, it cannot complain.
21
It may be that at some future time, although the statistics indicate it to be improbable,22 the bank deposits may fall to such a level that the 5 1/2-mill rate would be violative of § 5219. But here we are concerned with only one year, 1952, and for that year the tax levied does not approach the permissible maximum. Such a possibility, however, may account for the action of the Legislature in setting the taxes at the lower than maximum levels now applied.
22
Having assumed the element of competition between Michigan National and the savings and loan associations, a prerequisite to the application of § 5219, and in the light of both the clear doctrine of our earlier cases and the phenomenal growth and earning power of appellant despite Act No. 9, we cannot say that its burden in 1952 was so heavy as would 'prevent the capital of individuals from freely seeking investment' in its shares.
23
We have considered appellant's other points and have concluded each is without merit.
24
Affirmed.
25
Mr. Justice STEWART took no part in the consideration or decision of this case.
26
Mr. Justice WHITTAKER, with whom Mr. Justice DOUGLAS joins, dissenting.
27
I respectfully but resolutely dissent. Exposition of my reasons will require a rather full and careful statement of the facts and the applicable law.
28
A State is without power to tax national bank shares except as Congress consents and then only in conformity with the conditions of such consent. See, e.g., First National Bank of Guthrie Center v. Anderson, 269 U.S. 341, 347, 46 S.Ct. 135, 136, 70 L.Ed. 295, and Des Moines National Bank v. Fairweather, 263 U.S. 103, 106, 44 S.Ct. 23, 24, 68 L.Ed. 191. By § 5219 of the Revised Statutes of the United States (Act of June 3, 1864, c. 106, 13 Stat. 111, as amended by the Act of February 10, 1868, 15 Stat. 34, the Act of March 4, 1923, 42 Stat. 1499, and the Act of March 25, 1926, 44 Stat. 223), Congress has consented that:
29
'The legislature of each State may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several States may (1) tax said shares, or (2) include dividends derived therefrom in the taxable income of an owner or holder thereof, or (3) tax such associations on their net income, or (4) according to or measured by their net income, provided the following conditions are complied with:
30
'1. (a) The imposition by any State of any one of the above four forms of taxation shall be in lieu of the others * * *.'
31
'(b) In the case of a tax on said shares the tax imposed shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks * * *.'
32
Prusuant to that consent, Michigan passed its Intangibles Tax Act (Act 301, Public Acts of 1939; Mich.Comp.Laws, 1948, § 205.132; Mich.Stat.Ann., 1950, § 7.556(2)) imposing, upon the owners an annual tax (1) of 3% of the income from, but not less than 1/10 of 1% of the face or par value of, national bank shares, and (2) of 4 cents per $100 of the 'paid-in value' of savings and loan association shares. By another statute, Michigan imposed, in addition, a privilege tax of 2 1/2 cents per $100 on the value of the capital and legal reserves of state (but not federal) savings and loan associations (Mich.Comp.Laws, 1948, § 450.304a; Mich.Stat.Ann. § 21.206)—thus making a total tax of 6 1/2 cents per $100 of the value of state, and 4 cents per $100 of the value of federal, savings and loan shares.
33
In obedience to that Intangibles Tax Act, appellant, Michigan National Bank, having offices and doing business in seven cities in Michigan,1 paid to the State, on behalf of its shareholders, the taxes thereby imposed on its shares for the year 1952. Thereafter, by Act No. 9 of the Public Acts of Michigan for 1953 (§ 205.132a, Mich.Comp.Laws, 1948, 1956 Supp.; Mich.Stat.Ann., 1959 Cum.Supp., § 7.556(2a)), the State amended its Intangibles Tax Act as respects bank shares, but without touching the provisions respecting savings and loan association shares, to provide, in pertinent part, as follows: Acting under the provisions of the amended statute ('Act 9'), the State imposed an additional tax upon the owners of appellant's 'shares' for the year 1952 of $49,929.27. After paying that additional tax under protest, appellant brought this action in the Michigan Court of Claims for its recovery. The ground of its suit was that the State's action in taxing the 'shares' of national banks at a rate of 55 cents per $100 of their value, while taxing the 'shares' of savings and loan associations at a rate of 6 1/2 cents per $100 of their value, taxed the former 'at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks,' and therefore violated § 5219. After trial, the Michigan Court of Claims held that the assessment and collection of the additional tax did not violate § 5219 and entered judgment for the State.
34
On appeal, the Michigan Supreme Court, (358 Mich. 611, 101 N.W.2d 246), though conceding that Act 9 placed the shares of 'both State and national banks in a special and more heavily taxed category' than the shares of savings and loan associations, held, inter alia, (1) that because savings and loan associations are 'different in character, purpose and organization from national banks,' operate 'in a narrow, restricted field,' and are not permitted to receive deposits, they could not, as a matter of law, come 'into competition with the business of national banks' within the meaning of § 5219, (2) that inasmuch as Michigan lawfully might entirely exempt some entities or activities from taxation without offending § 5219, it may prefer the shares of savings and loan associations, by granting their owners a lower tax rate than it grants to the owners of shares of national banks, without thereby violating § 5219, and (3) that when the value of the total assets, rather than the value of the shares, of the two types of financial institutions is considered (thus putting out of consideration the liability of the banks to repay their deposits and other debts), the ratio of the total dollar tax burden to total assets is approximately the same in Michigan—.091 for banks and .089 for savings and loan associations—and this, it said, 'establishes that there was practical equality of the total tax imposed upon building and loan associations and upon national banks.' It therefore affirmed the judgment, 358 Mich. 611, 101 N.W.2d 245, and we noted probable jurisdiction of the bank's appeal. 364 U.S. 810, 81 S.Ct. 51, 5 L.Ed.2d 40.
35
This Court today substantially adopts the latter conclusion, and on that basis affirms the judgment. In doing so, I must say, with respect, that the Court ignores both the provisions of § 5219 and Michigan's mode, plainly expressed in its Act 9, of valuing national bank shares and the shares of savings and loan associations for the purposes of its tax upon them, and effectively defaces and departs from a long line of this Court's decisions, hammered out, case by case, over the course of nearly a century, that are squarely in point and specifically decisive of every question in the case.
36
The admitted difference in the rates of tax—55 cents per $100 of the value of national bank shares as opposed to 6 1/2 cents per $100 of the value of savings and loan shares—leaves, of course, no doubt that the former are taxed 'at a greater rate than' the latter—more than eight times greater. Therefore, the only questions that can possibly be open here under § 5219 are (1) whether savings and loan shares are 'other moneyed capital in the hands of individual citizens,' (2) whether that moneyed capital is 'coming into competition with (some substantial phase3 of) the business of national banks,' and (3) whether it is 'substantial in amount when compared with the capitalization of national banks.' The latter being an element that this Court has held to be implicit in the statute. First National Bank of Hartford, Wis. v. City of Hartford, 273 U.S. 548, 558, 47 S.Ct. 462, 465, 71 L.Ed. 767.
37
Surely it cannot now be doubted that shares owned by individual citizens in a savings and loan association, which engages in the business of making residential mortgage loans for profit, are 'other moneyed capital in the hands of individual citizens,' within the meaning of § 5219. This Court has long since settled the question. The term 'include(s) shares of stock or other interests owned by individuals in all enterprises in which the capital employed in carrying on its business is money, where the object of the business is the making of profit by its use as money.' Mercantile Nat. Bank of City of New York v. Mayor etc. of City of New York, 121 U.S. 138, 157, 7 S.Ct. 826, 836, 30 L.Ed. 895. 'By its terms the (statute) excludes from moneyed capital only those personal investments which are not in competition with the business of national banks.' First National Bank of Hartford, Wis. v. City of Hartford, supra, 273 U.S. at page 557, 47 S.Ct. at page 465. See also State of Minnesota v. First National Bank of St. Paul, 273 U.S. 561, 564, 47 S.Ct. 468, 469, 71 L.Ed. 774; First National Bank of Guthrie Center v. Anderson, supra, 269 U.S. at page 348, 46 S.Ct. at page 138 and cases cited.
38
Whether such moneyed capital is being used in 'competition with (some substantial phase of) the business of national banks' and is 'substantial in amount when compared with the capitalization of national banks' are mixed questions of law and fact, 'and in dealing with (them) we may review the facts in order correctly to apply the law.' First National Bank of Hartford, Wis. v. City of Hartford, supra, 273 U.S. at page 552, 47 S.Ct. at page 463.
39
Here the relevant facts are not in dispute. The uncontroverted evidence shows that, as a part or phase of its general banking business conducted in seven cities in Michigan, appellant is extensively engaged in the business of making residential mortgage loans. In those cities, there are 16 savings and loan associations which are also extensively engaged in that business. Competition between them and appellant for such loans is keen and continuous. Both appellant and those loan associations extensively advertise for and solicit such loans from all classes and in every economic strata of the people in those communities. They make these loans on the same kinds of residential properties and in the same areas—one type of institution often refinancing and retiring a loan of the other. The rates, terms and conditions of the loans, being competitive, are substantially the same, and in many cases—particularly in the cases of F.H.A. and V.A. loans—they are of precisely the same terms and on exactly the same forms—forms prepared and furnished by the Federal Government.
40
Directed specifically to the question whether moneyed capital of savings and loan associations was being used, in significant amounts, in 'competition with (some substantial phase of) the business of national banks' in Michigan, the uncontroverted evidence shows that in the year in question, 1952, the savings and loan associations in Michigan held $433,000,000 of residential mortgage loans, while the national banks in that State held $301,000,000 of such loans—which constituted 30% of their total loans and discounts. In the same year, the 16 savings and loan associations that were most directly competing with appellant made 6,498 residential mortgage loans aggregating about $32,000,000 (of which $6,273,000 were F.H.A. and V.A. and $26,058,000 were conventional loans) which brought their total holdings in such loans to $97,000,000. Whereas, in the same year, appellant made 2,728 residential mortgage loans aggregating about $18,500,000 (of which $10,869,000 were F.H.A., $456,000 were V.A. and $7,245,000 were conventional loans) which brought its total holdings in such loans to $60,000,000. Those loans amounted to 40% of appellant's total loans and discounts, constituted 20% of its assets and yielded 26% of its income.
41
Upon the question whether the moneyed capital of savings and loan associations that was used in making residential mortgage loans in Michigan was 'substantial in amount when compared with the capitalization of national banks' in that State, the uncontroverted evidence shows that in the year in question the savings and loan associations in Michigan held a total of $433,000,000 of such loans, whereas the total capitalization of all national banks in that State was $166,724,000. And the 16 savings and loan associations that were most directly competing with appellant held, in the same period, $97,000,000 of such loans, whereas appellant's capitalization was $13,038,000.
42
Certainly these undisputed facts establish that 'moneyed capital' of savings and loan associations was being used in very significant 'competition with (a substantial phase of) the business of national banks' in Michigan, and that such competition was 'substantial in amount when compared with the capitalization of national banks' in that State.
43
It thus seems altogether clear to me that these uncontroverted facts establish every essential element of appellant's case. It cannot be denied that the plain words of § 5219 prohibit the States from taxing the shares of national banks 'at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with (some substantial phase4 of) the business of national banks.' Yet, here Michigan taxed national bank shares at a rate of 55 cents per $100 of value, but it taxed savings and loan shares at a rate of only 6 1/2 cents per $100 of value. Did it not plainly thus tax national bank shares 'at a greater rate' than it taxed savings and loan shares? Certainly the latter were 'other moneyed capital in the hands of individual citizens of such State.' See, e.g., Mercantile Bank of City of New York v. Mayor, etc. of City of New York, supra, 121 U.S. at page 157, 7 S.Ct. at page 836; First National Bank of Hartford, Wis. v. City of Hartford, supra, 273 U.S. at page 557, 47 S.Ct. at page 465. Does not the uncontroverted evidence, which we have summarized in some detail, show that such 'other moneyed capital' was used in Michigan in very significant 'competition with (a substantial phase of) the business of national banks' and that such competition was 'substantial in amount when compared with the capitalization of national banks' in Michigan? Do not these facts establish every element of appellant's case? Respondents do not, nor does the Court, point to any essential element that is missing. Why, then, is appellant not entitled to recover?
44
The only reasons advanced by respondents are those it successfully urged upon the Michigan Supreme Court. Every one of those contentions is opposed to the plain terms of § 5219 on the facts of this record, and also has been specifically decided adversely to respondents, on similar facts, by this Court, as I shall show.
45
First. Respondents argue that, because they may not receive 'deposits,' create 'checkbook money' or engage in 'banking,' but must operate 'in a narrow, restricted field,' savings and loan associations are so 'different in character, purpose and organization from national banks' that—regardless of the actual facts shown in this record—they cannot, as a matter of law, come 'into competition with the business of national banks' within the meaning of § 5219.
46
This argument, upon analysis, comes down to the contention that the restriction of § 5219 was directed only against discrimination in favor of state banks. For they, so the argument runs, are the only state-created institutions that lawfully may engage in 'banking business' similarly to national banks and hence, respondents conclude, only the moneyed capital of state banks can constitute 'other moneyed capital * * * coming into competition with the business of national banks,' within the meaning of § 5219.
47
A similar question arose in First National Bank of Guthrie Center v. Anderson, 269 U.S. 341, 46 S.Ct. 135, 138. There '(t)he defendants took the position (in the state court) that the congressional restriction (of § 5219) was directed only against discrimination in favor of state banking associations.' This Court said the contention was '* * * untenable by reason of settled rulings to the contrary * * *.' Id., 269 U.S. at page 349, 46 S.Ct. at page 139. After summarizing its earlier cases, the Court declared that '(t)he purpose of the restriction is to render it impossible for any State, in taxing the shares, to create and foster an unequal and unfriendly competition with national banks, by favoring shareholders in state banks or individuals interested in private banking or engaged in operations and investments normally common to the business of banking. Mercantile National Bank of City of New York v. Mayor, etc. of City of New York, 121 U.S. 138, 155, 7 S.Ct. 826, 30 L.Ed. 895; Des Moines National Bank v. Fairweather, supra, (263 U.S. 103), 116, 44 S.Ct. 23.' 269 U.S. at pages 347—348, 46 S.Ct. at page 138. (Emphasis added.) And it held that 'Moneyed capital is brought into such competition (not only) where it is invested in shares of state banks or in private banking * * * (but) also where it is employed, substantially as in the loan and investment features of banking, in making investments, by way of loan, discount or otherwise, in notes, bonds or other securities with a view to sale or repayment and reinvestment. Mercantile National Bank v. New York, surpa, (121 U.S.) 155, 157, (7 S.Ct. 826); Palmer v. McMahon, 133 U.S. 660, 667—668, 10 S.Ct. 324, 33 L.Ed. 772; Talbot (Talbott) v. Board of Com'rs Silver Bow County, 139 U.S. 438, 447, 11 S.Ct. 594, 35 L.Ed. 210.' 269 U.S. at page 348, 46 S.Ct. at page 138. (Emphasis added.)
48
Respondents' contention that 'other moneyed capital' does not come into competition with the business of national banks unless it is employed in a business substantially identical with all phases of the business carried on by national banks was squarely met and rejected by this Court, in words about as plain as it is possible to conceive, in First National Bank of Hartford, Wis. v. City of Hartford, supra. There, the Wisconsin Supreme Court 'apparently construed the decisions of this Court as requiring equality in taxation only of moneyed capital invested in businesses substantially identical with the business carried on by national banks. Consequently, since that class of business must under the Wisconsin statutes be carried on in corporate form and capital invested in it is taxed at the same rate as national bank shares, other moneyed capital, as defined in § 5219, within the state, it thought, was not favored.' 273 U.S. at pages 555—556, 47 S.Ct. at pages 464—465. That view, if logically pursued, would mean that 'other moneyed capital' invested in businesses engaged in some but not all of the activities of national banks could not be considered in determining the question of competition. In rejecting that contention, this Court said:
49
'But this Court has recently had occasion, in reviewing the earlier decisions dealing with this subject, to point out that the requirement of approximate equality in taxation is not limited to investment of moneyed capital in shares of state banks or to competing capital employed in private banking. The restriction applies as well where the competition exists only with respect to particular features of the business of national banks or where moneyed capital 'is employed, substantially as in the loan and investment features of banking, in making investments by way of loan, discount or otherwise, in notes, bonds or other securities, with a view to sale or repayment and reinvestment.' First National Bank v. Anderson, supra, 348 (46 S.Ct. 138). In so doing, it followed the holding in Mercantile Bank v. New York, 121 U.S. 138, 157, 7 S.Ct. 826, 836 (30 L.Ed. 895), * * *.' 273 U.S. at page 556, 47 S.Ct. at page 465. (Emphasis added.)
50
The Court then proceeded to declare the law in such clear and ringing terms as have settled the question for the intervening 34 years—from 1927 until today. It said:
51
'Competition may exist between other moneyed capital and capital invested in national banks, serious in character and therefore well within the purpose of § 5219, even though the competition be with some but not all phases of the business of national banks. Section 5219 is not directed merely at discriminatory taxation which favors a competing banking business. Competition in the sense intended arises not from the character of the business of those who compete but from the manner of the employment of the capital at their command. No decision of this Court appears to have so qualified § 5219 as to permit discrimination in taxation in favor of moneyed capital such as is here contended for. To so restrict the meaning and application of § 5219 would defeat its purpose. It was intended to prevent the fostering of unequal competition with the business of national banks by the aid of discriminatory taxation in favor of capital invested by institutions or individuals engaged either in similar businesses or in particular operations or investments like those of national banks. * * * Our conclusion is that § 5219 is violated wherever capital, substantial in amount when compared with the capitalization of national banks, is employed either in a business or by private investors in the same sort of transactions as those in which national banks engage and in the same locality in which they do business.' 273 U.S. at pages 557—558, 47 S.Ct. at page 465. (Emphasis added.) Identical conclusions were again announced by the Court on the same day in State of Minnesota v. First National Bank of St. Paul, 273 U.S. 561, 47 S.Ct. 468.5
52
Here, there is no question about the fact that the making of residential mortgage loans was a substantial phase of the business of national banks in Michigan. Such loans amounted to $301,000,000 and constituted 30% of their total loans and discounts. Nor can there by any question about the fact that moneyed capital of savings and loan associations was being used in significant competition with the residential mortgage loan phase of the business of national banks in Michigan. Those loan associations held $433,000,000 of such loans. That amount was certainly substantial 'when compared with the capitalization of national banks' in Michigan of $166,724,000. These facts, under the rule of the Hartford and Minnesota cases, would seem to leave no doubt that appellant's shares were discriminatorily taxed in violation of § 5219.
53
Second. Respondents argue that savings and loan associations are similar in character and purpose to the, now largely historical, small mutual savings banks that were common in the last century. On that assumption, they argue that inasmuch as this Court has held that taxation of national bank shares at a greater rate than was assessed against such mutual savings banks did not offend § 5219 (see, e.g., Mercantile Bank of City of New York v. Mayor, etc., of City of New York, 1887, 121 U.S. 138, 7 S.Ct. 826, 30 L.Ed. 895; Davenport Nat. Bank v. Davenprot Board of Equalization, 1887, 123 U.S. 83, 8 S.Ct. 73, 31 L.Ed. 94; Bank of Redemption v. City of Boston, 1888, 125 U.S. 60, 8 S.Ct. 772, 31 L.Ed. 689; Aberdeen Bank v. Chehalis County, 1897, 166 U.S. 440, 17 S.Ct. 629, 41 L.Ed. 1069), it should follow that the taxation of national bank shares at a greater rate than savings and loan shares does not offend the statute.
54
That argument, too, was specifically answered by the Hartford case. With unmistakable reference to those cases, the Court said: 'Some of the cases dealing with the technical significance of the term competition in this field were decided before national banks were permitted to invest in mortgages as they are now. Act of December 23, 1913, c. 6, § 24, 38 Stat. 251, 273; Act of September 7, 1916, c. 461, 39 Stat. 752, 754; Act of February 25, 1927, § 24.6 And others go no further than to hold that in the absence of allegation and proof of competition with national banking capital, it cannot be said that an offending discrimination exists.' 273 U.S. at page 558, 47 S.Ct. at page 465. Then, squarely rejecting the theory of respondents' argument, the Court said:
55
'With the great increase in investments by individuals and the growth of concerns engaged in particular phases of banking shown by the evidence in this case and in State of Minnesota v. First National Bank of St. Paul, 273 U.S. 561, 47 S.Ct. 468, 71 L.Ed. (774), today decided, discrimination with respect to capital thus used could readily be carried to a point where the business of national banks would be seriously curtailed. Our conclusion is that § 5219 is violated wherever capital, substantial in amount when compared with the capitalization of national banks, is employed either in a business or by private investors in the same sort of transactions as those in which national banks engage and in the same locality in which they do business.' 273 U.S. at page 558, 47 S.Ct. at page 465.
56
Surely nothing more need be said.
57
Third. Respondents argue that inasmuch as this Court has held that a State may entirely exempt some entities or activities from taxation—i.e., churches, charities, small mutual savings banks, municipal bonds, and the like—without offending § 5219 (see, e.g., Hepburn v. School Directors, 23 Wall. 480, 23 L.Ed. 112; Adams v. Nashville, 95 U.S. 19, 24 l.Ed. 369; Mercantile Nat. Bank of City of New York v. Mayor, etc., of City of New York, surpa; Davenport Nat. Bank v. Davenport Board of Equalization, supra; Bank of Redemption v. City of Boston, supra; Aberdeen Bank v. Chehalis County, supra), it follows that a State may prefer the shares of savings and loan associations, by granting their owners a lower tax rate than it grants to the owners of shares of national banks—even though the former are used in significant competition with a substantial phase of the business of the latter without thereby violating § 5219.
58
Despite the strongest of implications to the contrary, we have no occasion here to consider whether the State might, under conditions shown by this record, entirely exempt the shares of savings and loan associations from taxation, while taxing the shares of national banks, for it has not done so. The State taxes savings and loan shares, although at only about 1/8 of the rate it levies on national bank shares.
59
In these circumstances, respondents' argument runs in the very teeth of this Court's holding in the Hartford case that 'Competition in the sense intended (by § 5219) arises not from the character of the business of those who compete but from the manner of the employment of the capital at their command' (273 U.S. at page 557, 47 S.Ct. at page 465), and 'that § 5219 is violated wherever capital, substantial in amount when compared with the capitalization of national banks, is employed either in a business or by private investors in the same sort of transactions as those in which national banks engage and in the same locality in which they do business.' 273 U.S. at page 558, 47 S.Ct. at page 465. A more direct and conclusive answer cannot readily be perceived.
60
Fourth. Respondents argue, and the Court agrees, that when the value of the total assets, rather than the value of the shares, of the two types of financial institutions is considered, the ratio of the total dollar tax burden to total assets is approximately the same in Michigan—.091 for banks and .089 for savings and loan associations—and therefore national bank shares are not really taxed at a greater rate than savings and loan shares.
61
This brings us to the heart of our disagreement with the Court. After correctly observing the 'There are other considerations (than rates) to be weighed in determining the actual burden of the tax, one of which is the mode of valuing bank shares—by adopting 'book values' (capital, surplus and undivided profits)—which may be more or less favorable than the method adopted in valuing other kinds of personal property,' Amoskeag Savings Bank of Manchester, N.H. v. Purdy, 231 U.S. 373, 392, 34 S.Ct. 114, 122, 58 L.Ed. 274; see also Hepburn v. School Directors, 23 Wall. 480, 484, 24 L.Ed. 369; Tradesmens National Bank v. Oklahoma Tax Comm., 309 U.S. 560, 567, 60 S.Ct. 688, 692, 84 L.Ed. 947, and that it is not the rate alone but the practical effect of the tax that determines whether there is discrimination, the Court says: '(I)t is obvious that the taxable value of the shares in these two types of financial institutions is determined by different methods * * *.' This conclusion is demonstrably wrong. In plain and simple terms Act 9 provides that the value of bank shares 'shall be determined by dividing such capital account (capital, surplus and undivided profits) by the number of shares of such common stock * * *.' (see note 2), and the shares of savings and loan associations are valued at the 'paid-in value'. In each case, therefore, corporate liabilities are deducted and the tax is imposed upon the book value of the shares. Hence, it could hardly be plainer 'that the taxable value of the shares in these two types of financial institutions is determined by' exactly the same, not 'different,' methods. One cannot profitably elaborate a truth so simple.
62
Then, the Court comes to the real basis of its decision. It says '(Michigan's) system looks to the moneyed capital controlled by the shareholder. If it is a share in a bank—either federal or state—the legislature considers the deposits available for investments and fixes a rate commensurate with that increased earning and investment power of the shareholder'; that 'a dollar invested in national bank shares controls many more dollars of moneyed capital, the measuring rod of § 5219. On the other hand, the same dollar invested in a savings and loan share controls no more moneyed capital than its face value. The bank share has the power and control of its proportionate interest in all of the money available to the bank for investment purposes. In the case of Michigan National, this control is more than 21 times greater than the share's proportionate interest in the capital stock, surplus and undivided profits'; that 'Since Michigan National's share owner's investment has the equivalent profit-making power of an amount 21 times greater than itself and the investor in savings and loan share(s) * * * has no similarly multiplied power, the national bank share would not be 'unfavorably' treated unless it was taxed in excess of 21 times the levy on savings and loan share(s) * * *. Here the ratio is only 13.8 to one * * *.' (Emphasis added.)
63
I respectfully submit that this is an egregious error. Nothing in the Michigan statute provides or contemplates that the amount of capital 'controlled' by the shares of a national bank, or the amount of the bank's 'deposits,' is a relevant factor in determining the value of bank shares for the purposes of this tax. Nor are 'increased (values) to the shareholder,' by reason of capital 'controlled' by the bank or its 'deposits,' made relevant factors. Quite specifically to the contrary, Act 9 provides that "Capital account' as referred to herein shall be determined by adding the common capital, surplus and undivided profits accounts * * *, and the dollar amount of the capital account represented by each share of its common stock shall be determined by dividing such capital account by the number of shares of such common stock * * *.' How could it more plainly be said that bank shares must be valued, for the purposes of this tax, solely upon their book value without regard to the bank's 'deposits' or to the capital 'controlled by the shareholder'? It is surely clear that the Michigan tax is not imposed upon national banks or upon their assets; instead, it is imposed upon the owners of the bank's shares, measured solely by the value of those shares—'determined by dividing (the) capital account by the number of shares of such common stock.' See note 2.
64
Respondents' argument, and the Court's decision, put out of consideration the liability of national banks to repay their deposits and other debts, and would impose the tax on their gross assets, in direct opposition to the plain terms of the Michigan statute.
65
Precisely the same argument was rejected by this Court in State of Minnesota v. First National Bank of St. Paul, supra:
66
'Petitioner argues that in its actual operation, the tax on national bank shares is no greater than the tax on credits, since under the statute individuals are taxed at the rate of three mills upon the full value of their credits without deducting their liabilities, whereas in taxing bank shares, the liabilities of the banks are deducted from their assets in ascertaining the forty per cent. valuation of their shares. Therefore, it is urged, if bank shares were taxed at the same rate without deducting the bank's liabilities in ascertaining the value of their shares, the amount of the tax would be approximately the same. This argument ignores the fact that the tax authorized by § 5219 is against the holders of the bank shares and is measured by the value of the shares, and not by the assets of the bank without deduction of its liabilities, (Des Moines National Bank v. Fairweather, 263 U.S. 103, 44 S.Ct. 23, 68 L.Ed. 191), * * *.' 273 U.S. at page 564, 47 S.Ct. at page 469.
67
It would indeed be novel, even in the absence of the contrary provisions of Act 9, to add liabilities to assets in determining book value of corporae shares—a simple contradiction in terms. It is likewise idle to observe the obvious fact that savings and loan associations have no 'deposits,' and hence no deposit liabilities to deduct,7 or to argue that they, in valuing their shares for the purposes of this tax, should be allowed to deduct the amounts paid in by their 'shareholders' for their 'shares,' as the resulting figure would be zero, and the effect would be to tax those shares only in fiction. Nothing in either Act 9 or in § 5219 authorizes such double talk.
68
Here, Michigan values national bank shares and savings and loan association shares, for the purposes of this tax, by exactly the same method, i.e., the value of the shares. Yet it taxes bank shares at a rate of 55 cents per $100 of their value, while taxing savings and loan shares at 6 1/2 cents per $100 of their value. Does not that conduct violate the provision of § 5219 that national bank shares 'shall not be (taxed) at a greater rate than is assessed upon other moneyed capital * * * coming into competition with the business of national banks'?
69
If the Court's argument, that a tax upon the bank's 'deposits' at the rate applied to the shares of savings and loan associations would produce a greater tax than results from application of the higher bank share rate to the value of its shares, has any relevance to any issue in this case, it can only be to demonstrate that including 'deposits' in the valuation of bank shares would be to tax not just the bak's 'shares,' as authorized by § 5219, but both the 'shares' and the 'deposits' of the bank, and not at the lower rate applicable to savings and loan shares but at the eight times higher one applicable to the shares of national banks. Similarly, the Court's argument that appellant, despite this tax discrimination, has phenomenally prospered seems wholly irrelevant, for the criterion of § 5219 is not whether national banks may prosper, despite state tax discrimination, but is rather than their shares 'shall not be (taxed) at a greater rate than is assessed upon other moneyed capital * * * coming into competition with the business of national banks.' But, if the Court's argument has any relevance, it should be observed that Michigan national banks have not increased assets proportionately to savings and loan associations in that State since the passage of Act 9 in 1953, for the amount of residential mortgage loans then held by such associations in that State of $433,000,000 has now grown to $1,700,000,000.
70
Finally, respondents argue that Congress, in restricting state taxation of federal savings and loan associations to a rate not 'greater than that imposed by such authorized on other similar local mutual or cooperative thrift and home financing institutions,' 12 U.S.C. § 1464(h), 12 U.S.C.A. § 1464(h), evidenced its understanding and intention that savings and loan shares might be taxed at a lower rate than the shares of national banks, and thus impliedly repealed or modified § 5219 so far as competition with the business of national banks from that source is concerned.
71
There is no basis for an assumption that Congress, in so restricting state taxation of federal savings and loan associations, intended, so lightly and collaterally, to repeal or modify § 5219 by implication. It is obvious that, by § 1464(h), Congress only restricted state taxation of federal savings and loan associations to a rate not greater than that assessed by the State against similar state associations. Therefore, if, as seems entirely clear from § 5219 and our cases, a State may not tax national bank shares at a greater rate than it taxes state savings and loan association shares, when the latter are used in significant competition with a substantial phase of the former's business, it accordingly may not tax national bank shares at a greater rate than it taxes the shares of federal savings and loan associations which are similarly competing with a substantial phase of the business of national banks. For it may not, in such circumstances, lawfully prefer either over national bank shares with which they so compete. In other words, by § 1464(h), Congress restricted the States from taxing federal savings and loan associations at a greater rate than state savings and loan associations, and by § 5219 it restricted the States from taxing national bank shares at a greater rate than they assess 'upon other moneyed capital * * * coming into competition with the business of national banks.' Hence, if a State taxes national bank shares at a greater rate than it assesses against the 'moneyed capital' of savings and loan associations—state or federal—which is used in significant competition with a substantial phrase of the business of such banks, it violates § 5219. That is exactly what Michigan has done here.
72
The proper interpretation and application of § 5219 to particular fact situations has been hammered out by the decisions of this Court, case by case, over the course of nearly a century. They have squarely met and decided, adversely to respondents, every question in this case. Finally, the Hartford and Minnesota cases brought a settled peace to this field that has endured until today—for 34 years. The obvious reason, I submit, is that they are right. There is, I respectfully submit, no call or reason to depart or deface those cases. And doing either will only again unsettle the law in a field where certainty of the applicable rules is nearly as important as their substance.
73
Under the law, settled for at least the last 34 years, appellant has proved every element of its case, and is entitled to recover. I would therefore reverse the judgment.
1
Act No. 9 of the Public Acts of Michigan for 1953 (Mich.Comp.Laws, 1948, 1956 Supp., § 205.132a) provides in pertinent part:
'For the calendar year 1952 * * * and for each year thereafter, or a portion thereof, there is hereby levied upon each resident or nonresident owner of shares of stock of national banking associations located in this state * * * and there shall be collected from each such owner an annual specific tax on the privilege of ownership of each such share of stock, whether or not it is income producing, equal in the case of a share of common stock to 5 1/2 mills upon each dollar of the capital account of such association * * * represented by such share, and equal in the case of a share of preferred stock to 5 1/2 mills upon the par value of such share.'
2
Mich.Comp.Laws, 1948, 1956 Supp., § 205.132, provides in pertinent part:
'For the calendar year 1952, and for each year thereafter or portion thereof there is hereby levied upon each resident or non-resident owner of intangible personal property * * * and there shall be collected from such owner an annual specific tax on the privilege of ownership of each item of such property owned by him. * * * (T)he tax on shares of stock in * * * savings and loan associations shall be 1/25 of 1 per cent of the paid-in value of such shares.'
3
Mich.Comp.Laws, 1948, § 450.304a, provides:
'Every building and loan association organized or doing business under the laws of this state shall * * *, for the privilege of exercising its franchise and of transacting its business within this state, pay to the secretary of state an annual fee of 1/4 mill upon each dollar of its paid-in capital and legal reserve.'
The Michigan tax structure was amended, in 1954, to provide that federal savings and loan associations also pay a privilege tax equal to 1/4 mill on capital and legal reserves. Mich.Comp.Laws, 1948, 1956 Supp., § 489.371.
4
R.S. § 5219, as amended, 12 U.S.C. § 548, 12 U.S.C.A. § 548, provides in pertinent part:
'The legislature of each State may determine and direct, subject to the provisions of this section, the manner and place of taxing all the shares of national banking associations located within its limits. The several States may (1) tax said shares * * *, provided the following conditions are complied with;
'(b) In the case of a tax on said shares the tax imposed shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State coming into competition with the business of national banks: Provided, That bonds, notes, or other evidences of indebtedness in the hands of individual citizens not employed or engaged in the banking or investment business and representing merely personal investments not made in competition with such business, shall not be deemed moneyed capital within the meaning of this section.'
5
Mich.Pub.Acts 1887, No. 50.
6
Mich.Comp.Laws, 1948, § 489.37.
7
Mich.Comp.Laws, 1948, § 489.24.
8
48 Stat. 1257, as amended, 12 U.S.C. § 1726, 12 U.S.C.A. § 1726.
9
12 U.S.C. §§ 21—200, 12 U.S.C.A. §§ 21—200.
10
39 Stat. 754.
11
44 Stat. 1232—1233.
12
48 Stat. 1263.
13
Home Loans Partially Guaranteed Under G.I. Act, Comptroller of the Currency Press Release, Dec. 12, 1944.
14
In accounting terminology, bank deposits are liabilities. However, they are a source of assets and for convenience will be referred to as assets hereafter.
15
13 Stat. 111. It has been amended four times (15 Stat. 34, R.S. § 5219, 42 Stat. 1499, 44 Stat. 223), none of which changes are of any import here. In the 1958 edition of the United States Code it appears as § 548 of Title 12.
16
Also see an earlier case, often cited, People of State of New York ex rel. Williams v. Weaver, 1879, 100 U.S. 539, 25 L.Ed. 705, which held that it was the actual incidence and practical burden of the tax which the Section sought out. This position is treated in detail by Professor Woosley in his work, State Taxation of Banks (1935).
17
For a discussion of the effect of the cases, see Powell, Indirect Encroachment on Federal Authority by the Taxing Powers of the States, 31 Harv.L.Rev. 321, 367 (1918). He concludes that the cases lead 'to a disregard of formal legal discrimination where there is in fact no substantial economic discrimination.' To the same effect, see Woosley, op. cit., supra, note 16, at pp. 24—25.
18
The taxable value of a national bank share of common stock under Act No. 9 is determined by dividing the 'capital account' (common capital, surplus and undivided profits) by the number of shares of common stock outstanding. A share account in a savings and loan association, on the other hand, is valued according to its 'paid-in value.' That this latter figure includes neither surplus nor undivided profits is obvious from an inspection of the tax return of a savings and loan institution and its financial statement. For example, the Industrial Savings and Loan Association's intangibles tax return for 1952 shows that its paid-in share value was $5,970,000. The Association's monthly report for December 1952 shows that there were some $283,000 in undivided profits and $202,000 in legal reserves which were not included in the computation of paid-in value for tax purposes.
19
It is argued that this disregards the fact that bank deposits are liabilities and must be repaid. This contention is without substance for the savings share accounts must, by law, be purchased by the savings and loan association upon a member's withdrawal. Mich.Comp.Laws, 1948, § 489.6. In this respect, therefore, the share accounts and deposits are identical. Both must be repaid.
20
48 Stat. 128, as amended, 12 U.S.C. §§ 1461—1468, 12 U.S.C.A. §§ 1461—1468.
'* * * no State * * * shall impose any tax on such (federal) associations or their franchise, capital, reserves, surplus, loans, or income greater than that imposed by such authority on other similar local mutual or cooperative thrift and home financing institutions.' 48 Stat. 134.
21
42 Stat. 1469, 12 U.S.C. § 1261, 12 U.S.C.A. § 1261 (National Agricultural Credit Corporations); 39 Stat. 380, 12 U.S.C. § 932, 12 U.S.C.A. § 932 (joint-stock land banks).
22
From its organization in 1941 to the end of 1951, Michigan National's total assets grew from $67,600,000 to $272,500,000, an average annual increase of some $20,500,000. By 1957, its assets totaled $481,000,000, showing an average annual growth of almost $34,800,000 during the years since Act No. 9 was passed. Similarly, deposits increased, on the average, by $18,800,000 each year between 1941 and 1951. Since that time, they have grown at the average rate of $30,700,000 a year.
1
Appellant's main bank is located in the City of Lansing. It maintains branch banks in the Cities of Battle Creek, Flint, Grand Rapids, Marshall, Port Huron and Saginaw.
'For the calendar year 1952 * * * and for each year thereafter, * * * there is hereby levied upon each * * * owner of shares of stock of national banking associations located in this state and banks and trust companies organized under the laws of this state, and there shall be collected from each such owner an annual specific tax * * * equal in the case of a share of common stock to 5 1/2 mills upon each dollar of the capital account of such association, bank or trust company represented by such share, and equal in the case of a share of preferred stock to 5 1/2 mills upon the par value of such share.'2
2
Act 9 contains a further relevant provision which, in pertinent part, reads:
"Capital account' as referred to herein shall be determined by adding the common capital, surplus and undivided profits accounts * * *, and the dollar amount of the capital account represented by each share of its common stock shall be determined by dividing such capital account by the number of shares of such common stock * * *.'
3
In First National Bank of Hartford, Wis. v. City of Hartford, 273 U.S. 548, 556, 557, 47 S.Ct. 462, 465, this Court held the phrase 'some substantial phase,' in the context here used, to be implicit in § 5219.
4
See note 3.
5
Since this Court's decisions in First National Bank of Hartford, Wis. v. City of Hartford, supra, and State of Minnesota v. First National Bank of St. Paul, supra, in 1927, several proposals to limit state taxes on national bank shares to such as are imposed by the State on state banks—thus permitting other competing moneyed capital, including that of savings and loan associations, to be taxed at a lower rate by the State—have been made to and rejected by Congress. Hearings before the Senate Banking and Currency Committee on S. 1573, 70th Cong., 1st Sess. (1928); Hearings on H.R. 8727 before the House Committee on Banking and Currency, 70th Cong., 1st Sess. (1928); S. 3009, 73d Cong., 2d Sess.; H.R. 9045, 73d Cong., 2d Sess.
6
A historical review of § 24, Federal Reserve Act (12 U.S.C. § 371, 12 U.S.C.A. § 371), which prescribed the authority of national banks to make real estate mortgage loans, reveals that, prior to 1916, national banks were not authorized to loan money on the security of real estate, with the exception of certain farm land. By the Act of September 7, 1916 (39 Stat. 754), Congress first authorized national banks to make residential mortgage loans, but limited them to an amount not exceeding 50% of the actual value of the property and to run for a term not longer than one year. By the Act of February 25, 1927 (44 Stat. 1232), Congress authorized such residential mortgage loans to run for a period of five years. By the Act of June 27, 1934 (48 Stat. 1263), Congress authorized national banks to make mortgage loans under Title II, National Housing Act (12 U.S.C. § 1701 et seq., 12 U.S.C.A. § 1701 et seq.), commonly known as F.H.A. mortgages. By the Act of August 23, 1935 (49 Stat. 706), amending § 24 of the Federal Reserve Act, national banks were authorized to make conventional residential mortgage loans in amounts not exceeding 60% of the apraised value of the property for a term of 10 years if 40% of the principal be amortized in that term. By decision of the Comptroller of the Currency in 1944, national banks were authorized to participate in the V.A. (or G.I.) home loan program. By the 1950 Amendment to § 24 (64 Stat. 80), national banks were authorized to make Title I, F.H.A. home improvements loans. It thus appears that, by 1952, national banks were authorized to make F.H.A. mortgage and home modernization loans and also V.A. mortgage loans identical to those made by savings and loan associations, and conventional mortgage loans comparable to those made by such associations.
7
The Michigan Supreme Court itself has recognized 'that investors in savings and loan associations are subscribers to, or purchasers of, stock therein. * * *'—and are not 'depositors' or 'creditors' thereof. Michigan Savings & Loan League v. Municipal Finance Commission of State of Michigan, 1956, 347 Mich. 311, 322, 79 N.W.2d 590, 595.
| 910
|
365 U.S. 514
81 S.Ct. 684
5 L.Ed.2d 741
Paul EGANv.CITY OF AURORA, ILL. et al.
No. 121.
March 6, 1961.
Joseph Keig, Sr., Edwin R. Armstrong and Sol R. Friedman, for petitioner.
William C. Murphy, for respondents.
PER CURIAM.
1
Petitioner, Mayor of the City of Aurora, brought this suit in the District Court against the City and certain of its officials for damages for deprivation of rights secured to him by the Constitution. He alleges unlawful action by the city and by individuals who are or who purport to be its officials (see 42 U.S.C. § 1983, 42 U.S.C.A. § 1983) and a conspiracy (see 42 U.S.C. § 1985, 42 U.S.C.A. § 1985). The District Court granted the motions to dismiss, 174 F.Supp. 794, and the Court of Appeals affirmed, 275 F.2d 377, both decisions being prior to our opinion in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.
2
The dismissal as to the City of Aurora was correct, for we held in Monroe v. Pape, supra, that a municipality was not a 'person' within the meaning of 42 U.S.C. § 1983, 42 U.S.C.A. § 1983. Insofar as any right claimed stems from petitioner's status as major under Illinois law it is precluded from assertion here by Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497. But as we read the complaint, the rights which petitioner claims he was deprived of are those that derive from the Fourteenth Amendment, particularly the right of free speech and assembly. The opinion of the Court of Appeals is not explicit as respects the grounds for dismissing the complaint under 42 U.S.C. § 1985, 42 U.S.C.A. § 1985. See Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397; Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253. The Court of Appeals, in affirming the judgment of the District Court on grounds other than the ones relied on by that court, seems to have decided the case on a construction of 42 U.S.C. § 1983, 42 U.S.C.A. § 1983, that apparently is inconsistent with the view we took in Monroe v. Pape, supra.
3
Accordingly we grant the petition for certiorari, affirm the judgment in favor of the City of Aurora, vacate the judgment of the Court of Appeals in favor of the individual respondents and remand the cause as respects them to the Court of Appeals for reconsideration in light of this opinion.
4
Judgment affirmed in part, vacated in part, and cause remanded.
| 12
|
365 U.S. 505
81 S.Ct. 679
5 L.Ed.2d 734
Julius SILVERMAN et al., Petitioners,v.UNITED STATES.
No. 66.
Argued Dec. 5, 1960.
Decided March 6, 1961.
Mr. Edward Bennett Williams, Washington, D.C., for petitioners.
Mr. John F. Davis, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioners were tried and found guilty in the District Court for the District of Columbia upon three counts of an indictment charging gambling offenses under the District of Columbia Code. At the trial police officers were permitted to describe incriminating conversations engaged in by the petitioners at their alleged gambling establishment, conversations which the officers had overheard by means of an electronic listening device. The convictions were affirmed by the Court of Appeals, 107 U.S.App.D.C. 144, 275 F.2d 173, and we granted certiorari to consider the contention that the officers' testimony as to what they had heard through the electronic instrument should not have been admitted into evidence. 363 U.S. 801, 80 S.Ct. 1237, 4 L.Ed.2d 1145.
2
The record shows that in the spring of 1958 the District of Columbia police had reason to suspect that the premises at 408 21st Street, N.W., in Washington, were being used as the headquarters of a gambling operation. They gained permission from the owner of the vacant adjoining row house to use it as an observation post. From this vantage point for a period of at least three consecutive days in April 1958, the officers employed a so-called 'spike mike' to listen to what was going on within the four walls of the house next door.
3
The instrument in question was a microphone with a spike about a foot long attached to, it together with an amplifier, a power pack, and earphones. The officers inserted the spike under a baseboard in a second-floor room of the vacant house and into a crevice extending several inches into the party wall, until the spike hit something solid 'that acted as a very good sounding board.' The record clearly indicates that the spike made contact with a heating duct serving the house occupied by the petitioners thus converting their entire heating system into a conductor of sound. Conversations taking place on both floors of the house were audible to the officers through the earphones, and their testimony regarding these conversations, admitted at the trial over timely objection, played a substantial part in the petitioners' convictions.1
4
Affirming the convictions, the Court of Appeals held that the trial court had not erred in admitting the officers' testimony. The court was of the view that the officers' use of the spike mike had violated neither the Communications Act of 1934, 47 U.S.C. § 605, 47 U.S.C.A. § 605, cf. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, nor the petitioners' rights under the Fourth Amendment, cf. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652.
5
In reaching these conclusions the court relied primarily upon our decisions in Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, and On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270. Judge Washington dissented, believing that, even if the petitioners' Fourth Amendment rights had not been abridged, the officers' conduct had transgressed the standards of due process guaranteed by the Fifth Amendment. Cf. Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561.
6
As to the inapplicability of § 605 of the Communications Act of 1934, we agree with the Court of Appeals. That section provides that '* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *.' While it is true that much of what the officers heard consisted of the petitioners' share of telephone conversations, we cannot say that the officers intercepted these conversations within the meaning of the statute.
7
Similar contentions have been rejected here at least twice before. In Irvine v. People of State of California, 347 U.S. 128, 131, 74 S.Ct. 381, 382, 98 L.Ed. 561 the Court said: 'Here the apparatus of the officers was not in any way connected with the telephone facilities, there was no interference with the communications system, there was no interception of any message. All that was heard through the microphone was what an eavesdropper, hidden in the hall, the bedroom, or the closet, might have heard. We do not suppose it is illegal to testify to what another person is heard to say merely because he is saying it into a telephone.' In Goldman v. United States, 316 U.S. 129, 134, 62 S.Ct. 993, 995, 86 L.Ed. 1322, it was said that 'The listening in the next room to the words of (the petitioner) as he talked into the telephone receiver was no more the interception of a wire communication, within the meaning of the Act, than would have been the overhearing of the conversation by one sitting in the same room.'
8
In presenting here the petitioners' Fourth Amendment claim, counsel has painted with a broad brush. We are asked to reconsider our decisions in Goldman v. United States, supra, and On Lee v. United States, supra. We are told that re-examination of the rationale of those cases, and of Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, from which they stemmed, is now essential in the light of recent and projected developments in the science of electronics. We are favoured with a description of 'a device known as the parabolic microphone which can pick up a conversation three hundred yards away.' We are told of a 'still experimental technique whereby a room is flooded with a certain type of sonic wave,' which, when perfected, 'will make it possible to overhear everything said in a room without ever entering it or even going near it.' We are informed of an instrument 'which can pick up a conversation through an open office window on the opposite side of a busy street.'2
9
The facts of the present case, however, do not require us to consider the large questions which have been argued. We need not here contemplate the Fourth Amendment implications of these and other frightening paraphernalia which the vaunted marvels of an electronic age may visit upon human society. Nor do the circumstances here make necessary a re-examination of the Court's previous decisions in this area. For a fair reading of the record in this case shows that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners. As Judge Washington pointed out without contradiction in the Court of Appeals: 'Every inference, and what little direct evidence there was, pointed to the fact that the spike made contact with the heating duct, as the police admittedly hoped it would. Once the spike touched the heating duct, the duct became in effect a giant microphone, running through the entire house occupied by appellants.' 107 U.S.App.D.C. at page 150, 275 F.2d at page 179.
10
Eavesdropping accomplished by means of such a physical intrusion is beyond the pale of even those decisions in which a closely divided Court has held that eavesdropping accomplished by other electronic means did not amount to an invasion of Fourth Amendment rights. In Goldman v. United States, supra, the Court held that placing a detectaphone against an office wall in order to listen to conversations taking place in the office next door did not violate the Amendment. In On Lee v. United States, supra, a federal agent, who was acquainted with the petitioner, entered the petitioner's laundry and engaged him in an incriminating conversation. The agent had a microphone concealed upon his person. Another agent, stationed outside with a radio receiving set, was tuned in on the conversation, and at the petitioner's subsequent trial related what he had heard. These circumstances were held not to constitute a violation of the petitioner's Fourth Amendment rights.
11
But in both Goldman and On Lee the Court took pains explicitly to point out that the eavesdropping had not been accomplished by means of an unauthorized physical encroachment within a constitutionally protected area. In Goldman there had in fact been a prior physical entry into the petitioner's office for the purpose of installing a different listening apparatus, which had turned out to be ineffective. The Court emphasized that this earlier physical trespass had been of no relevant assistance in the later use of the detectaphone in the adjoining office. 316 U.S. at pages 134—135, 62 S.Ct. at pages 995—996. And in On Lee, as the Court said, '* * * no trespass was committed.' The agent went into the petitioner's place of business 'with the consent, if not by the implied invitation, of the petitioner.' 343 U.S. at pages 751—752, 72 S.Ct. at page 971.
12
The absence of a physical invasion of the petitioner's premises was also a vital factor in the Court's decision in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944. In holding that the wiretapping there did not violate the Fourth Amendment, the Court noted that '(t)he insertions were made without trespass upon any property of the defendants. They were made in the basement of the large office building. The taps from house lines were made in the streets near the houses.' 277 U.S. at page 457, 48 S.Ct. at page 565. 'There was no entry of the houses or offices of the defendants.' 277 U.S. at page 464, 48 S.Ct. at page 568. Relying upon these circumstances, the Court reasoned that '(t)he intervening wires are not part of (the defendant's) house or office any more than are the highways along which they are stretched.' 277 U.S. at page 465, 48 S.Ct. at page 568.
13
Here, by contrast, the officers overheard the petitioners' conversations only by usurping part of the petitioners' house or office—a heating system which was an integral part of the premises occupied by the petitioners, a usurpation that was effected without their knowledge and without their consent. In these circumstances we need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls.3 Inherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law. See Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697; On Lee v. United States, supra, 343 U.S. at page 752, 72 S.Ct. at page 971; Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59; McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 192, 93 L.Ed. 153.
14
The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Entick v. Carrington, 19 Howell's State Trials 1029, 1066; Boyd v. United States, 116 U.S. 616, 626—630, 6 S.Ct. 524, 530—532, 29 L.Ed. 746.4 This Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard.
15
A distinction between the detectaphone employed in Goldman and the spike mike utilized here seemed to the Court of Appeals too fine a one to draw. The court was 'unwilling to believe that the respective rights are to be measured in fractions of inches.' But decision here does not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area. What the Court said long ago bears repeating now: 'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746. We find no occasion to re-examine Goldman here, but we decline to go beyond it, by even a fraction of an inch.
16
Reversed.
17
Mr. Justice DOUGLAS, concurring.
18
My trouble with stare decisis in this field is that it leads us to a matching of cases on irrelevant facts. An electronic device on the outside wall of a house is a permissible invasion of privacy according to Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, while an electronic device that penetrates the wall, as here, is not. Yet the invasion of privacy is as great in one case as in the other. The concept of 'an unauthorized physical penetration into the premises,' on which the present decision rests seems to me to be beside the point. Was not the wrong in both cases done when the intimacies of the home were tapped, recorded, or revealed? The depth of the penetration of the electronic device—even the degree of its remoteness from the inside of the house—is not the measure of the injury. There is in each such case a search that should be made, if at all, only on a warrant issued by a magistrate. I stated my views in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, and adhere to them. Our concern should not be with the trivialities of the local law of trespass, as the opinion of the Court indicates. But neither should the command of the Fourth Amendment be limited by nice distinctions turning on the kind of electronic equipment employed. Rather our sole concern should be with whether the privacy of the home was invaded. Since it was invaded here, and since no search warrant was obtained as required by the Fourth Amendment and Rule 41 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., I agree with the Court that the judgment of conviction must be set aside.
19
Mr. Justice CLARK and Mr. Justice WHITTAKER, concurring.
20
In view of the determination by the majority that the unauthorized physical penetration into petitioners' premises constituted sufficient trespass to remove this case from the coverage of earlier decisions, we feel obliged to join in the Court's opinion.
1
Alleging that the conversations thus overheard had been the basis for a search warrant under which other incriminating evidence was discovered at 408 21st Street, N.W., the petitioners sought unsuccessfully to suppress the evidence obtained upon execution of the warrant. It is the Government's position that there were ample grounds to support the search warrant, even without what was overheard by means of the spike mike. We deal here only with the admissibility at the trial of the officers' testimony as to what they heard by means of the listening device, leaving a determination of the warrant's validity to abide the event of a new trial.
2
See Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, 85th Cong., 2d Sess., on Wiretapping, Eavesdropping, and the Bill of Rights; Hearings before Subcommittee No. 5 of the Committee on the Judiciary, House of Representatives, 84th Cong., 1st Sess., on Wiretapping; Dash, Schwartz and Knowlton, The Eavesdroppers (Rutgers University Press, 1959), pp. 346—358.
3
See Fowler v. Koehler, 43 App.D.C. 349.
4
William Pitt's eloquent description of this right has been often quoted. The late Judge Jerome Frank made the point in more contemporary language: 'A man can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizable hunk of liberty—worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a man's castle.' United States v. On Lee, 2 Cir., 193 F.2d 306, 315—316 (dissenting opinion).
| 01
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365 U.S. 534
81 S.Ct. 735
5 L.Ed.2d 760
Harold D. ROGERS, Petitioner,v.Mark S. RICHMOND, Warden.
No. 40.
Argued Nov. 8 and 9, 1960.
Decided March 20, 1961.
Messrs. Louis H. Pollak and Jacob D. Zeldes, Bridgeport, Conn., for petitioner.
Messrs. Abraham S. Ullman, New Haven, Conn., and Robert C. C. Zampano, East Haven, Conn., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This case has a long history. It must be told with some particularity in order to unravel issues ensnarled in protracted litigation in both state and federal courts, turning essentially on the admissibility of confessions.
2
The Trial.—Petitioner was found guilty of murder by a jury in the Superior Court, New Haven County, Connecticut. The undisputed evidence leading to the conviction may be briefly told. On January 9, 1954. New Haven, Connecticut, police arrested petitioner on charges of committing attempted robbery and other crimes on that day at a local hotel. At the time of his arrest petitioner had in his possession a revolver. Subsequent ballistic tests tended to show that this weapon, which had been reported stolen from the home of petitioner's nephew, was used in a fatal shooting during a liquor store robbery in West Haven, Connecticut, on November 21, 1953, the same day its disappearance was discovered.
3
Petitioner was lodged in the New Haven County Jail pending trial on the charges that prompted his arrest. On January 30, 1954, he was transported without court order from the jail to the office of the State's Attorney for questioning in connection with the West Haven killing. The interrogation commenced at approximately 2 p.m. of that day and continued throughout the afternoon and evening. During the interrogation petitioner was allowed to smoke, was brought a sandwich and coffee, and was at no time subjected to violence or threat of violence.
4
After petitioner had been intermittently questioned without success by a team of at least three police officers from 2 p.m. to 8 p.m., New Haven Assistant Chief of Police Eagan was called in to conduct the investigation. When petitioner persisted in his denial that he had done the shooting, Chief Eagan pretended, in petitioner's hearing, to place a telephone call to police officers, directing them to stand in readiness to bring in petitioner's wife for questioning. After the passage of approximately one hour, during which petitioner remained silent. Chief Eagan indicated that he was about to have petitioner's wife taken into custody. At this point petitioner announced his willingness to confess and did confess in a statement which was taken down in shorthand by an official court reporter.
5
The following morning the Coroner of New Haven County issued an order that petitioner be held incommunicado at the jail. When a lawyer associated with counsel whom petitioner had previously retained to defend him on the attempted robbery charge called at the jail to see petitioner, he was turned away on the authority of the Coroner's order. Petitioner was then transported to the County Court House for interrogation by the Coroner, who had been informed of his confession of the previous night. There he was put on oath to tell the truth but warned that he might refuse to say anything further and advised that he might obtain the assistance of counsel. Petitioner again confessed to the shooting in a statement recorded by the same official court reporter.
6
Petitioner's defense at the trial was directed toward discrediting the confessions as the product of coercion. In accordance with Connecticut practice, see, e.g., State v. Willis, 71 Conn. 293, 41 A. 820; State v. Guastamachio, 137 Conn. 179, 75 A.2d 429, the trial judge heard the evidence bearing on admissibility of the confessions without the jury present. At this hearing petitioner testified that shortly after the commencement of the interrogation he asked to see a lawyer but was never permitted to do so. He also testified, with reference to Chief Eagen's pretense of bringing petitioner's wife in for questioning, that this move took the form of a threat to do so unless he confessed and that in making this threat Chief Eagan told him that he would be 'less than a man' if he failed to confess and thereby caused her to be taken into custody. According to petitioner his wife suffered from arthritis, and he confessed to spare her being transported to the scene of the interrogation.
7
The State met petitioner's account with the testimony of Chief Eagan. He testified that petitioner made no request to see a lawyer during his presence in the room. However, it will be recalled that Chief Eagan did not arrive until the questioning had run a course of six hours and that petitioner claimed to have requested counsel during that period. Chief Eagan also denied that he had framed his remarks about bringing petitioner's wife in for questioning as a threat or that he had suggested that petitioner would be 'less than a man,' etc.
8
On the basis of the evidence summarized, the trial judge concluded that the confessions were voluntary and allowed them to go to the jury for consideration of the weight to be given them under all the circumstances that led to them. Conviction of petitioner for murder followed.
9
Review by the Connecticut Supreme Court.—On appeal, the Supreme Court of Errors of Connecticut, finding no error in the trial judge's admission of the confessions, affirmed the conviction, State v. Rogers, 143 Conn. 167, 120 A.2d 409.
10
First Federal Habeas Corpus Proceeding,—In August of 1956, after satisfying the rule of Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, petitioner sought a federal writ of habeas corpus, basically on the ground that since the confessions were secured under circumstances rendering them constitutionally inadmsisible, he was denied due process of law under the Fourteenth Amendment. The United States District Court for the District of Connecticut held a hearing based on the evidence offered by the parties. This evidence included excerpts from the record of the state proceedings as well as testimony of petitioner and various state officials. Neither petitioner nor respondent submitted the entire transcript of the state proceedings and the district judge did not call for it. Petitioner again testified that before he confessed he had requested an opportunity to confer with his lawyer. His testimony was flatly contradicted by three police officers called by the State's Attorney, none of whom had testified at the trial.
11
On the testimony before him, the district judge made findings which differed from those of the state trial judge in several important respects. He accepted petitioner's testimony that during the police interrogation he had asked to see his lawyer before he yielded to Chief Eagan's efforts to have him confess. He also found that the confession before the Coroner was the product of fear that repudiation of the earlier confession would lead the police to take his wife and foster children into custody. Accordingly, he concluded that 'The confessions were the result of pressure overcoming Rogers' powers of resistance and were not voluntary on his part,' United States ex rel. Rogers v. Cummings, D.C., 154 F.Supp. 663, 665. He therefore set aside the judgment of conviction.
12
First Court of Appeals Review.—On appeal, the United States Court of Appeals for the Second Circuit vacated the District Court's judgment, finding that it was error to hold a hearing de novo on issues of basic evidentiary fact that had been considered and adjudicated by the state courts. Relying on Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, the Court of Appeals concluded that the district judge should have called for the entire state record before reaching his decision. It held
13
'that in the case now before us the nature of the issues presented and proper regard for the delicate balance of federal-state relationships required the District Judge to obtain and examine the State proceedings * * *. Only on an adequate state record can the District Court determine if a vital flaw exists which warrants correction by extrinsic evidence.' United States ex rel. Rogers v. Richmond, 2 Cir., 252 F.2d 807, 810, 811.
14
The Court of Appeals remanded the case to the District Court with the following instructions:
15
'Unless the judge below shall find in the record thus before him material which he deems to constitute 'vital flaws' and 'unusual circumstances' within the meaning of Brown v. Allen, we hold that he should make the necessary constitutional determinations exclusively on the basis of the historical facts as found by the State trial court.' 252 F.2d at page 811.
16
Certiorari Proceeding.—The petitioner sought certiorari here and we denied the petition with this per curiam opinion:
17
'The petition for writ of certiorari is denied. We read the opinion of the Court of Appeals as holding that while the District Judge may, unless he finds a vital flaw in the State Court proceedings, accept the determination in such proceedings, he need not deem such determination binding, and may take testimony. See Brown v. Allen, 344 U.S. 443, 506, et seq., 73 S.Ct. 397, 97 L.Ed. 469.' Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361.
18
Second Federal Habeas Corpus Proceeding.—On remand, the district judge had before him the entire transcript of the state proceedings and on the basis of it dismissed the petition. United States ex rel. Rogers v. Richmond, D.C., 178 F.Supp. 69. While he adhered to his belief in petitioner's testimony in the first habeas corpus hearing, he now considered himself obliged to accept the state court's 'Findings,' rather than his own, on all points of historical fact 'unless some vital flaw or unusual circumstance exists or some other basis appears for consideration of testimony outside the record.' 178 F.Supp. at pages 71—72. The district judge found no such 'flaw' or 'circumstance' to permit retrial of the issue of the voluntariness of the confessions. He thus stated his position:
19
'The issue of whether request for counsel was made and the issue of voluntary character of the confessions were fully and conscientiously tried by an experienced judge. Subsequent disagreement with his weighing of essentially similar evidence is not in itself sufficient under the limitations now imposed in the interest of proper balance in our dual court system, to permit consideration of the matter heard at the trial of the issue de novo here.' 178 F.Supp. at page 73.
20
On this basis the district judge could not find that the confessions were the product of coercion.
21
Second Court of Appeals Review.—The Court of Appeals for the Second Circuit affirmed this judgment, one judge dissenting. United States ex rel. Rogers v. Richmond, 271 F.2d 364. The court held that the district judge was correct in restricting himself to the state court's 'findings' regarding petitioner's request to see his lawyer before confessing, and agreed with him that the facts in the record did not justify the conclusion that peititioner's confessions were not voluntary.
22
Because issues concerning the appropriate procedure for dealing with petitions for federal habeas corpus in relation to state convictions were urged, we brought the case here. 361 U.S. 959, 80 S.Ct. 605, 4 L.Ed.2d 541.
23
A critical analysis of the Connecticut proceedings leads to disposition of the case on a more immediate issue. For it compels the conclusion that the trial judge in admitting the confessions as 'voluntary,' and the Supreme Court of Errors in affirming the conviction into which the confessions entered, failed to apply the standard demanded by the Due Process Clause of the Fourteenth Amendment for determining the admissibility of a confession.
24
Our decisions under that Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not be coercion prove its charge against an accused out of his own mouth. See Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166; Rochin v. People of California, 342 U.S. 165, 172—174, 72 S.Ct. 205, 209—210, 96 L.Ed. 183; Spano v. People of State of New York, 360 U.S. 315, 320—321, 79 S.Ct. 1202, 1205 1206, 3 L.Ed.2d 1265; Blackburn v. State of Alabama, 361 U.S. 199, 206—207, 80 S.Ct. 274, 279—280, 4 L.Ed.2d 242. And see Watts v. State of Indiana, 338 U.S. 49, 54—55, 69 S.Ct. 1347, 1350, 1357, 93 L.Ed. 1801. To be sure, confessions cruelly extorted may be and have been, to an unascertained extent, found to be untrustworthy. But the constitutional principle of excluding confessions that are not voluntary does not rest on this consideration. Indeed, in many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions involving the use of confessions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed. Despite such verification, confessions were found to be the product of constitutionally impermissible methods in their inducement. Since a defendant had been subjected to pressures to which, under our accusatorial system, an accused should not be subjected, we were constrained to find that the procedures leading to his conviction had failed to afford him that due process of law which the Fourteenth Amendment guarantees.
25
In the present case, while the trial judge ruled that each of petitioner's confessions was 'freely and voluntarily made and accordingly was admissible in evidence,' he reached that conclusion on the basis of considerations that undermine its validity. He found that the pretense of bringing petitioner's wife in for questioning 'had no tendency to produce a confession that was not in accord with the truth.' Again, in his charge to the jury, he thus enunciated the reasoning which had guided him in admitting the confessions for its consideration:
26
'No confession or admission of an accused is admissible in evidence unless made freely and voluntarily and not under the influence of promises or threats. The fact that a confession was procured by the employment of some artifice or deception does not exclude the confession if it was not calculated, that is to say, if the artifice or deception was not calculated to procure an untrue statement. The motive of a person in confessing is of no importance provided the particular confession does not result from threats, fear or promises made by persons in actual or seeming authority. The object of evidence is to get at the truth, and a trick or device which has no tendency to produce a confession except one in accordance with the truth does not render the confession inadmissible * * *. The rules which surround the use of a confession are designed and put into operation because of the desire expressed in the law that the confession, if used, be probably a true confession.'
27
The same view—that the probable reliability of a confession is a circumstance of weight in determining its voluntariness entered the opinion of the Supreme Court of Errors of Connecticut in sustaining the trial judge's admission of the confession:
28
'If we concede that this (petitioner's claims of illegal removal from jail and incommunicado detention) was all true and that such conduct was unlawful, it does not, standing alone, render the defendant's confessions inadmissible. The question is whether, under these and other circumstances of the case, that conduct induced the defendant to confess falsely that he had committed the crime being investigated. Unless it did, it cannot be said that its illegality vitiated his confessions.' 143 Conn. at page 173, 120 A.2d at page 412.
And again:
29
'Proper court authorization should have been secured before the defendant was removed from the jail. There is nothing about his illegal removal, however, to demonstrate that he was thereby forced to make an untrue statement. The same can be said concerning the refusal to admit counsel to see the defendant on the morning of January 31 before he was brought before the coroner.' 143 Conn. at pages 173—174, 120 A.2d at page 412.
30
Concerning the feigned phone call that petitioner's wife be brought in to headquarters, the Supreme Court concluded:
31
'Here again, the question for the court to decide was whether this conduct induced the defendant to make an involuntary and hence untrue statement.' 143 Conn. at page 174, 120 A.2d at page 412.
32
From a fair reading of these expressions, we cannot but conclude that the question whether Rogers' confessions were admissible into evidence was answered by reference to a legal standard which took into account the circumstance of probable truth or falsity.1 And this is not a permissible standard under the Due Process Clause of the Fourteenth Amendment. The attention of the trial judge should have been focused, for purposes of the Federal Constitution, on the question whether the behavior of the State's law enforcement officials was such as to overbear petitioner's will to resist and bring about confessions not freely self-determined—a question to be answered with complete disregard of whether or not petitioner in fact spoke the truth. The employment instead, by the trial judge and the Supreme Court of Errors, of a standard infected by the inclusion of references to probable reliability resulted in a constitutionally invalid conviction, pursuant to which Rogers is now detained 'in violation of the Constitution.'2 A defendant has the right to be tried according to the substantive and procedural due process requirements of the Fourteenth Amendment. This means that a vital confession, such as is involved in this case, may go to the jury only if it is subjected to screening in accordance with correct constitutional standards. To the extent that in the trial of Rogers evidence was allowed to go to the jury on the basis of standards that departed from constitutional requirements, to that extent he was unconstitutionally tried and the conviction was vitiated by error of constitutional dimension.3
33
It is not for this Court, any more than for a Federal District Court, in habeas corpus proceedings, to make an independent appraisal of the legal significance of facts gleaned from the record after such a conviction. We are barred from speculating—it would be an irrational process—about the weight attributed to the impermissible consideration of truth and falsity which, entering into the Connecticut trial court's deliberations concerning the admissibility of the confessions, may well have distorted, by putting in improper perspective, even its findings of historical fact. Any consideration of this 'reliability' element was constitutionally precluded, precisely because the force which it carried with the trial judge cannot be known.
34
As a matter of abstract logic it is arguable that Rogers may not have been deprived of a constitutional right, nor held in custody in violation of the Constitution, within 28 U.S.C. § 2241(c)(3), 28 U.S.C.A. § 2241(c)(3), solely because the Connecticut trial court applied an impermissible constitutional standard in admitting his confession—that Rogers was not so deprived, or so held, unless 'in fact' his confession was coerced, a 'fact' to be ascertained from the state record on direct review here, or de novo by a federal district judge in habeas corpus proceedings. Such a view ignores both the volatile and amorphous character of 'fact' as fact is found by courts, and the distributive functions of the dual judicial system in our federalism for the finding of fact and the application of law to fact. In coerced confession cases coming directly to this Court from the highest court of a State in which review may be had, we look for 'fact' to the undisputed, the uncontested evidence of record. See Watts v. State of Indiana, 338 U.S. 498 50—52, 69 S.Ct. 1347, 1348—1349, 1357, 93 L.Ed. 1801. This is all that we may look to, in the absence of detailed state-court findings of historical fact, because this Court cannot sit as a trial tribunal to hear and assess the credibility of witnesses. Of course, so-called facts and their constitutional significance may be so blended that they cannot be severed in consideration. And in any event, there must be a foundation in fact for the legal result. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. With due regard to these considerations, it would be manifestly unfair, and afford niggardly protection for federal constitutional rights, were we to sustain a state conviction in which the trial judge or trial jury—whichever is charged by state law with the duty of finding fact pertinent to a claim of coercion—passes upon that claim under an erroneous standard of constitutional law.4 In such a case, to look to the wholly undisputed evidence, in the event conflicting evidence is presented, would deprive the state criminal defendant of the benefit of whatever credit his testimony might have been given by the state judge or the state jury, had the judge or jury employed a proper legal standard. Nor, in a case where specific findings are made concerning the allegedly coercive circumstances, can those findings be fairly looked to for the 'facts,' since findings of fact may often be (to what extent, in a particular case, cannot be known) influenced by what the finder is looking for. Historical facts 'found' in the perspective framed by an erroneous legal standard cannot plausibly be expected to furnish the basis for correct conclusions if and merely because a correct standard is later applied to them.
35
Of course, where the issue of coercion is raised not on direct review in this Court but by petition for habeas corpus in a Federal District Court, one alternative method of proceeding impossible on direct review is available. The District Court might conceivably hold a hearing de novo on the issue of coercion. But such a procedure would neither adequately protect the federal rights of state criminal defendants nor duly take account of the large leeway which must be left to the States in their administration of their own criminal justice. A state defendant should have the opportunity to have all issues which may be determinative of his guilt tried by a state judge or a state jury under appropriate state procedures which conform to the requirements of the Fourteenth Amendment. Where he has not had that opportunity he should not be required to establish in a Federal District Court, before a federal district judge who must consider the issue of the voluntariness of the confession in a certain abstraction from the whole, living complex of a criminal trial, and perhaps many years after the occurrence of the events surrounding the confession, facts establishing coercion. On the other hand, the State, too, has a weighty interest in having valid federal constitutional criteria applied in the administration of its criminal law by its own courts and juries. To require a federal judge exercising habeas corpus jurisdiction to attempt to combine within himself the proper functions of judge and jury in a state trial—to ask him to approximate the sympathies of the defendant's peers or to make the rulings which the state trial judge might make, within the exercise of his discretion concerning the admission of evidence at the borderline of constitutional permissibility—is potentially to prejudice state defendants claiming federal rights and to pre-empt functions that belong to state machinery in the administration of state criminal law.
36
In view, therefore, of the constitutionally inadequate test applied by the Connecticut courts for determining whether the confessions were voluntarily given, we need not, on this record, consider whether the circumstances of the interrogation and the manner in which it was pressed barred admissibility of the confessions as a matter of federal law.5 In the case before us, the state trial court misconstrued the applicable law of the Constitution and was sustained in doing so by Connecticut's Supreme Court. It was error for the court below to affirm the District Court's denial of petitioner's application for habeas corpus. The case is remanded to the Court of Appeals to be held in order to give the State opportunity to retry petitioner, in light of this opinion, within a reasonable time. In default thereof the petitioner is to be discharged.
37
Reversed.
38
Mr. Justice STEWART, whom Mr. Justice CLARK joins, dissenting.
39
Although the matter is not free from doubt, I accept the Court's conclusion that both state courts gave some weight to the probable truth of the confessions in determining that they were voluntary.* But I cannot accept the proposition that the petitioner is entitled to his release by way of federal habeas corpus merely because of the state courts' failure properly to verbalize the correct Fourteenth Amendment test of admissibility. Cf. Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872.
40
The writ can be extended to Rogers only if he is 'in custody in violation of the Constitution or laws or treaties of the United States.' 28 U.S.C. § 2241(c) (3), 28 U.S.C.A. § 2241(c)(3). See Johnson v. Zerbst, 304 U.S. 458, 465—468, 58 S.Ct. 1019, 1023 1024, 82 L.Ed. 1461; Hawk v. Olson, 326 U.S. 271, 274—276, 66 S.Ct. 116, 118—119, 90 L.Ed. 61. In the context of the present case this means that the writ should be granted, if, and only if, a coerced confession was in fact admitted at the trial. See Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. I think, as did the District Court, that in deciding that question the appropriate inquiry for the habeas corpus court is not what test of admissibility the State applied or purported to apply, but whether a confession was admitted which was in fact involuntary under Fourteenth Amendment standards.
41
I would, therefore, remand the case to the District Court for a plenary hearing to determine this question. Where, as here, the state trial court's determination of admissibility was at least partly affected by the impermissible factor of probable reliability, I think there can be no question of the federal court's duty to hold such a hearing. While the state court's failure to enunciate the correct standard was not itself an error of constitutional dimensions, it did make impossible the federal court's unquestioning reliance on the trial court's findings of fact. Even the most narrow view of what was said in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, would require a plenary hearing in these circumstances.
1
We find support for this conclusion in a line of Connecticut cases, some of which are cited by the Supreme Court of Errors in Rogers. See State v. Willis, 71 Conn. 293, 307—312, 41 A. 820, 824—826; State v. Cross, 72 Conn. 722, 727, 46 A. 148, 150; State v. DiBattista, 110 Conn. 549, 563, 148 A. 664, 669; State v. Palko, 121 Conn. 669, 680, 186 A. 857, 662; State v. Tomassi, 137 Conn. 113, 127—128, 75 A.2d 67, 74; State v. Guastamachio, 137 Conn. 179, 182, 75 A.2d 429, 431; State v. Lorain, 141 Conn. 694, 700, 109 A.2d 504, 507. But see State v. Wakefield, 88 Conn. 164, 90 A. 230; State v. Castelli, 92 Conn. 58, 101 A. 476; State v. Zukauskas, 132 Conn. 450, 45 A.2d 289; State v. Buteau, 136 Conn. 113, 68 A.2d 681; State v. Malm, 142 Conn. 113, 111 A.2d 685, containing no reference to a 'truth-falsity' test.
Connecticut case law regarding the admissibility of confessions allegedly secured under circumstances which render them involuntary, or by means of promises, 'artifices,' 'deception' or illegal police practices not amounting to coercion, is not free from uncertainty. We need not now endeavor to ascertain the extent to which, or the circumstances under which, Connecticut courts generally look to reliability as the criterion, alone or in conjunction with other criteria, of admissibility. If petitioner in the present case has been convicted through the use of a constitutionally impermissible standard, it is indifferent that Connecticut law, in its operation in other cases, may be unimpeachable. What that law does reveal of relevance here is that conceptions of probable truth or probable falsity have had and appear still to have a place in the reasoning of Connecticut judges in classes of cases having similarities to Rogers and relied on therein. Without meaning to consider the validity of such reasoning, under the Fourteenth Amendment, in any applications, but the one now before us, we do derive from its currency in a continuing line of Connecticut decisions confirmation of our conclusion that the language of the trial judge and of the Supreme Court of Errors in the Rogers case is not the product of mere verbal inadvertence or unreflective phraseology, but an accurate embodiment of the mode of reasoning which led to holding that petitioner's confessions were admissible as 'voluntary.'
2
28 U.S.C. § 2241(c)(3), 28 U.S.C.A. § 2241(c)(3).
3
Determination of the admissibility of confessions is, of course, a matter of local procedure. But whether the question of admissibility is left to the jury or is determinable by the trial judge, it must be determined according to constitutional standards satisfying the Due Process Clause of the Fourteenth Amendment. If the question of admissibility is left to the jury, they must not be misdirected by wrong constitutional standards; if the question is decided by the trial judge, he must not misdirect himself.
4
A different question was implicitly presented in Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872. In that case the trial judge permitted the confessions to go to the jury under instructions which told it to disregard them if it found that they were not voluntarily made, and which adequately defined the 'voluntariness' required by due process. See Lyons v. State of Oklahoma, 322 U.S. 596, 601, 64 S.Ct. 1208, 1211, 88 L.Ed. 1481. Thus, there was no flaw in the verdict as rendered. An erroneous legal standard for determining the admissibility of allegedly coerced confessions was interjected into the proceeding only at the level of the Supreme Court of California. Had the State Supreme Court, under similar circumstances reversed the conviction, not on the basis of local law but solely by reason of a misinterpretation of this Court's principles governing coerced confessions, and had the case been brought here for review on certiorari, the jury's verdict would have had to be reinstated. In any event, the question presented in Stroble was not faced squarely, and in illuminating isolation, in that case. Compare Lee v. State of Mississippi, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330, with Stroble.
5
We do not deal in this case with a situation in which the record—taking all of petitioner's evidence, and the inferences reasonably to be drawn from it, in the light most favorable to him nevertheless fails to make out a claim of coercion. Since the issue of voluntariness might fairly have gone either way on the whole of the testimony, petitioner has clearly been prejudiced by the application of an erroneous standard to his federal claim by the state trial judge in allowing the confessions to go to the jury.
*
In Connecticut the jury plays no part in determining the voluntariness of a confession. Connecticut follows the orthodox rule of leaving the determination of admissibility exclusively to the trial judge. State v. McCarthy, 133 Conn. 171, 177, 49 A.2d 594, 597; State v. Guastamachio, 137 Conn. 179, 182, 75 A.2d 429, 431; State v. Lorain, 141 Conn. 694, 699, 109 A.2d 504, 507. Compare Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522. If a confession is admitted, the jury is left to weigh its truthfulness as it weighs other evidence. There is no claim in this case of any error in the instructions to the jury.
| 01
|
365 U.S. 525
81 S.Ct. 723
5 L.Ed.2d 754
Stephen Franklin REYNOLDS, Petitioner,v.H. G. COCHRAN, Jr., Director of Division of Corrections, Florida.
No. 115.
Argued March 2, 1961.
Decided March 20, 1961.
Mr. Claude Pepper, Tallahassee, Fla., for petitioner.
Mr. George R. Georgieff, Tallahassee, Fla., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
In 1956 petitioner was convicted of grand larceny in the Criminal Court of Polk County, Florida, and sentenced to serve two years in prison. In December 1957, with time for good behavior, petitioner was released from prison and discharged from custody as an absolutely free man. Some two months after his release and discharge, the Polk County prosecutor filed an information against petitioner charging that he 'has been convicted of two (2) felonies under the laws of the State of Florida, contrary to Section 775.09, Florida Statutes, 1957 (F.S.A.)1 * * * and against the peace and dignity of the State of Florida.' The two convictions referred to were the 1956 conviction for grand larceny and a 1934 conviction for robbery for which petitioner had also completely served his sentence. Upon the filing of this information, petitioner was promptly arrested, arraigned and, according to the judgment of the trial court, 'did then and there freely and voluntarily plead guilty to the Information filed.' The court then proceeded to find petitioner 'guilty of the offense of Second Offender' and ordered that for 'said offense, (he) be confined in the State Prison of Florida at hard labor for a term of Ten (10) Years.'2 Petitioner later brought this original petition for habeas corpus in the Supreme Court of Florida challenging his confinement under this judgment on the ground that it was not authorized by the Florida second-offender statute and that it violated both the State and the Federal Constitutions in several different respects. Despite the fact that none of the charges made by petitioner were denied by the State, the Florida court dismissed his petition without a hearing.3 We granted certiorari to consider the correctness of this peremptory denial of the petition in view of the serious nature of the charges made.4
2
Since it is conceded by the State that the federal questions presented here were properly raised and passed on below, and since it is clear that for the purposes of this proceeding the facts set forth by petitioner must be accepted as true,5 we go directly to the charges made in the petition. Those charges were clearly stated by petitioner himself in the following excerpt from his rather crudely drawn application for habeas corpus: his attorney was to arrive this morning this date being the 20th day day of February 1958, that after being so informed 'the trial court so stated to your petitioner 'you do not need counsel in this case.' Counsel would not be of any assistance you your petitioner, 'No point in calling a Doctor to a man already dead.'
3
'The trial court then proceeded to read off two (2) convictions from your petitioners record and then asked, You are guilty of these two convictions, are you not? Petitioner saying yes your Honor, but the court, I find, you guilty of being a 'second offender' and sentence you Stephen Franklin Reynolds to ten (10) years in State Prison * * *.'
4
On the basis of these facts, petitioner contends, among other things, that his confinement is not authorized by the Florida second-offender statute because he had already served the sentences imposed upon each of his prior convictions,6 and that such confinement violates the state and federal constitutional prohibitions against ex post facto laws and against double jeopardy. It would, of course, be entirely inappropriate under the circumstances of this case for this Court to consider the questions posed under state law. Nor do we find it necessary to consider these particular questions raised under the Federal Constitution beyond the observation that they certainly cannot fairly be characterized as frivolous.7 For we think it clear that this case must be reversed for a hearing in order to afford petitioner an opportunity to prove his allegations with regard to another constitutional claim—that he was deprived of due process by the refusal of the trial judge to grant his motion for a continuance in order that he might have the assistance of the counsel he had retained in the proceeding against him.8
5
In Chandler v. Fretag,9 we made it emphatically clear that a person proceeded against as a multiple offender has a constitutional right to the assistance of his own counsel in that proceeding. Under the facts of this case, as alleged in the petition filed before the Florida Supreme Court, the decision in Chandler is squarely in point and controlling. Under those facts, the statement of this Court in Powell v. State of Alabama,10 which provided the basis of our holding in Chandler,11 is wholly applicable: 'If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.'
6
The State seeks to avoid the application of the holding in Chandler on the basis of a contention that even if it was error for the trial judge to deny petitioner's motion for a continuance, that error was harmless under the facts of this case. The argument offered in support of this contention is that since petitioner admitted the only fact at issue in the proceeding—that he had been convicted of a previous felony in 1934 as charged in the information—a lawyer would have been of no use to him. We find this argument totally inadequate to meet the decision in Chandler. Even assuming, which we do not, that the deprivation to an accused of the assistance of counsel when that counsel has been privately employed could ever be termed 'harmless error,'12 it is clear that such deprivation was not harmless under the facts as presented in this case. In the first place, petitioner asked for a continuance to enable him to consult with counsel before he admitted the truth of the charge of prior felony conviction. Thus, if petitioner had been allowed the assistance of his counsel when he first asked for it, we cannot know that counsel could not have found defects in the 1934 conviction that would have precluded its admission in a multiple-offender proceeding.13
12
It is significant that in Chandler we did not require any showing that the defendant there would have derived any particular benefit from the assistance of counsel.
13
The proof of prior convictions in a second-offender proceeding may raise difficult evidentiary problems. See, e.g., Shargaa v. State, Fla., 102 So.2d 809. Moreover, it can be presumed that if an accused second offender were able to make a successful collateral attack upon his first conviction, § 775.09 would not be applied. Cf. Fields v. State, Fla., 85 So.2d 609.
Secondly, and perhaps even more importantly, the State's contention that this factual issue was the only issue in the proceeding seems to constitute an oversimplification of the matter. For, in addition to the constitutional issues mentioned above, able counsel appointed to represent petitioner in this Court has also pointed out that the proceeding involved a difficult question of statutory construction under Florida law. Counsel has pointed out, for example, that the Florida Supreme Court has never had occasion to pass upon the question whether the second-offender statute may be applied to reimprison a person who has completely satisfied the sentence imposed upon his second conviction and has been discharged from custody. In one case in which that question was argued, the Florida court found that it was not properly presented by the facts of the case before it and then went on to say: 'On this question there is a difference of opinion among the members of the Court but, as it is not ripe for determination under the record here, no useful purpose could be served by discussing it.'14 Moreover, another decision of that court has indicated that the statute permitting the filing of an information against a second offender 'at any time'15 would not necessarily be interpreted so mechanically as to allow the second-offender statute to hang over a defendant's head to the end of his natural life.16
We of course express no opinion as to how his question of statutory construction should eventually be decided by the Florida courts. But its mere existence dramatically illustrates that even in the most routine-appearing proceedings the assistance of able counsel may be of inestimable value. Plainly, such assistance might have been of great value to petitioner here. The allegations of his petition for habeas corpus indicated, if true, that he had been denied the assistance of counsel he had retained. He is entitled to a hearing to establish the truth of those allegations. The case must therefore be and is reversed and remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
1
'A person who, after having been convicted within this state of a felony or an attempt to commit a felony, or under the laws of any other state, government or country, of a crime which, if committed within this state would be a felony, commits any felony within this state is punishable upon conviction of such second offense as follows: If the subsequent felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then such person must be sentenced to imprisonment for a term no less than the longest term nor more than twice the longest term prescribed upon a first conviction. * * *' Fla.Stat., 1957, § 775.09, F.S.A.
2
The theory used by the State in its proceedings against petitioner, as disclosed by the quoted recitals of the information and judgment, seems to be completely at variance with that upon which multiple-offender proceedings are normally based. For normally the punishment provided for in a multiple-offender statute is viewed as increased punishment for the last offense in the sequence. Here, on the other hand, the theory seems to have been that petitioner, by virtue of his convictions for two previous offenses, has committed a third and entirely separate offense—to quote the judgment, 'the offense of Second Offender.' Because of the disposition we make of this case on other grounds, however, we need not reach the questions posed as to the constitutionality of confinement based upon such a theory. In any event, prior opinions of the Supreme Court of Florida indicate that there might be room for considerable doubt whether § 775.09 authorizes confinement on such a theory. See Cross v. State, 96 Fla. 768, 119 So. 380; Washington v. Mayo, Fla., 91 So.2d 621.
3
The Supreme Court of Florida issued no opinion, the case being disposed of with the following order: 'The abovenamed petitioner has filed a petition for writ of habeas corpus to be issued to the respondent in the above entitled cause, and upon consideration thereof, it is ordered that said petition be and the same is hereby denied.'
4
363 U.S. 801, 80 S.Ct. 1239, 4 L.Ed.2d 1146.
5
Cash v. Culver, 358 U.S. 633, 634, 79 S.Ct. 432, 434, 3 L.Ed.2d 557; Hawk v. Olson, 326 U.S. 271, 273, 66 S.Ct. 116, 117, 90 L.Ed. 61.
'Your petitioner would show this Honorable Court that at the time of his arrest he was living in Valusia County, DeLand Florida, that he was arrested without a warrant, that he was arrested on strength of a pick up order from Sheriff Office, Bartow, Polk County, Florida, that the arresting officer, a deputy sheriff of Volusia County did not know why he was arresting your petitioner and did not have a warrant to make a legal arrest, further that your petitioner was taken against his will across five (5) county lines. The said county lines being Volusia, Seminole, Orange, Osceala, into Polk County all of State of Florida, without his knowing why he was arrested or the arresting officer knowing why or what charge he was making arrest for; Your petitioner, was taken across the afore said counties by the arresting officer, a deputy sheriff of Volusia County, Florida.
'Your petitioner contends that once he was in the clutches of the Criminal Court of Record in and for Polk County Florida; he was a convicted person before he was ever tried.
'To support the above statement your petitioner would show that he was forced to go before the court against his will; that once before the court your petitioner informed the court that he then had legal counsel on the way to represent him in what ever charge may be; a better description of afore said known by Mrs. Sadie M. Bradley, 317 West Minncasata Avenue, DeLand Volusia County, Florida, and, D.C. Laird; attorney at Law, Lakeland Polk Florida. That petitioner had been arrested on the 18th day of February 1958 in Valusia County, and
6
Section 775.09, set forth in n. 1, supra, is supplemented by a provision which, on its face at least, appears to condone imposition of second-offender penalties even at such a late date: 'If at any time after sentence or conviction it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth either in § 775.09 or § 775.10 the prosecuting attorney of the county in which such conviction was had, shall file an information accusing said person of such previous convictions, whereupon the court in which such conviction was had shall cause said person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegations contained in such information and of his right to be tried as to the truth thereof, according to law, and shall require such offender to say whether he is the same person as charged in such information or not.' Fla.Stat.1957, § 775.11, F.S.A. (Emphasis supplied.)
7
The problem presented by these questions is rather dramatically stated by petitioner himself in his petition for habeas corpus: 'In the instant case how can your petitioner know when in his life he is no longer subject to have his liberty translated to imprisonment, even after expiration of the present sentence, can be again be imprisoned without committing another crime as in the instant case?? Surely this Honorable Court will not condone this practice * * *.'
8
As in Chandler v. Fretag, note 9, infra, the petitioner here also alleged a denial of due process in that he was not given pretrial notice of the charge against him. But as in Chandler, we find it unnecessary to pass upon this contention. See 348 U.S. 3, 5—6, note 4, 75 S.Ct. 1, 2—3, 99 L.Ed. 4.
9
348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4.
10
287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158.
11
348 U.S. at pages 9—10, 75 S.Ct. at pages 4—5.
14
Milan v. State, Fla., 102 So.2d 595, 596.
15
See note 6, supra.
16
In Ard v. State, 91 So.2d 166, the Florida Supreme Court held that the second-offender statute did nto apply to a person who had concededly committed two felonies but who had been on probation for five years between the date of his conviction of the second felony and the filing of the second-offender information.
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365 U.S. 551
81 S.Ct. 728
5 L.Ed.2d 773
Mike MILANOVICH et al., Petitioners,v.UNITED STATES of America.
No. 79.
Argued Feb. 20, 1961.
Decided March 20, 1961.
Messrs. J. Hubbard Davis, Norfolk, Va., and Raymond W. Bergan, Washington, D.C., for petitioners.
Mr. J. F. Bishop, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioners ars husband and wife. They were both convicted in a Federal District Court for stealing several thousand dollars in currency from a commissary store at a United States Naval Base. The wife was convicted also on a separate count for receiving and concealing the stolen currency.1 Both petitioners were sentenced to prison on the larceny conviction, the husband for a term of five years, and the wife for a ten-year term. In addition, the wife received a five-year concurrent sentence on the receiving count.
2
Throughout the trial counsel for the petitioners consistently maintained the position that a thief could not be convicted of receiving from himself.2 Although directing an acquittal on the receiving count in the husband's case, the trial judge overruled a similar motion on behalf of the wife. Counsel then clearly indicated his intention to request that the jury be instructed that it could not find the wife guilty of both stealing and receiving.3 The trial judge responded by pointing out that the Fourth Circuit had decided, in Aaronson v. United States, 175 F.2d 41, that it is possible that as long as the person did not actually participate in the actual taking of the goods, that same person may be found guilty of receiving and concealing and may also be found guilty as an accessory before the fact or as an aider and an abetter of the actual charge of theft. Faced with this controlling Fourth Circuit authority, counsel did not engage in the futile exercise of submitting a more formal request for such instructions.
3
When the case reached the Court of Appeals, that court put aside its decision in the Aaronson case, in the light of this Court's decision in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, which had been announced in the meantime. In Heflin we held that a defendant could not be convicted and cumulatively sentenced under 18 U.S.C. § 2113, 18 U.S.C.A. § 2113, for both robbing a bank and receiving the proceeds of the robbery. Relying on that decision, the court set aside the sentence imposed upon the wife for receiving. 275 F.2d 716. It was the court's view that 'in the absence of a contrary indication by Congress, a defendant charged with offenses under statutes of this character may not be convicted and punished for stealing and also for receiving the same goods.' 275 F.2d at page 719. Although Heflin involved a different section of the criminal code, the court found 'no differences between the two statutes or their legislative histories justifying divergent interpretations in respect to the issue before us.'
4
In this view we think that the Court of Appeals was correct. As the court recognized, the question is one of statutory construction, not of common law distinctions. Compare Metcalf v. State, 98 Fla. 457, 124 So. 427; Smith v. State, 59 Ohio St. 350, 52 N.E. 826; Jenkins v. State, 62 Wis. 49, 21 N.W. 232; Regina v. Hilton, Bell C.C. 20, 169 Eng.Rep. 1150, with Allen v. State, 76 Tex.Cr.R. 416, 175 S.W. 700; Regina v. Perkins, 2 Den.C.C. 458, 169 Eng.Rep. 582; Regina v. Coggins, 12 Cox C.C. 517. With respect to the receiving statute before us in Heflin, we decided that 'Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the * * * robbers themselves,' 358 U.S. at page 420, 79 S.Ct. at page 454. We find nothing in the language or history of the present statute which leads to a different conclusion here. As in Heflin, the provision of the statute which makes receiving an offense came into the law later than the provision relating to robbery.4
5
It is now contended that setting aside the sentence on the receiving count was not enough—that the conviction on the larceny count must also be reversed, and the case remanded for a new trial. The argument is that although the evidence was sufficient to support a conviction for either larceny or reciving,5 the judge should have instructed the jury that a guilty verdict could be returned upon either count but not both. It is urged that since it is now impossible to say what verdict would have been returned by a jury so instructed, and thus impossible to know what sentence would have been imposed, a new trial is in order. This was the view of Chief Judge Sobeloff, dissenting in the Court of Appeals. 275 F.2d at page 721.
6
We think that the point is well taken. In Heflin we were nt concerned with the correctness of jury instructions, since that case arose out of a collateral proceeding to correct an illegal sentence where the petitioner was asking only that the cumulative punishment imposed for receiving be set aside. In this case, by contrast, a direct review of the conviction brings here the entire record of the trial. We hold, based on what has been said as to the scope of the applicable statute, that the trial judge erred in not charging that the jury could convict of either larceny or receiving, but not of both.
7
Though setting aside the shorter concurrent sentence imposed upon the wife for receiving, the Court of Appeals left standing a ten-year prison term for larceny, double the punishment that had been imposed upon the husband for the identical offense. Yet there is no way of knowing whether a properly instructed jury would have found the wife guilty of larceny or of receiving (or, conceivably, of neither). Thus we cannot say that the mere setting aside of the shorter concurrent sentence sufficed to cure any prejudice resulting from the trial judge's failure to instruct the jury properly. It may well be, as the Court of Appeals assumed, that the jury, if given the choice, would have rendered a verdict of guilty on the larceny count, and that the trial judge would have imposed the maximum ten-year sentence on that count alone. But for a reviewing court to make those assumptions is to usurp the functions of both the jury and the sentencing judge.
8
We find no merit in the petitioenrs' argument as to the trial court's conduct with respect to cautionary instructions to the witnesses for the Government. Accordingly, the judgment as to Mike Milanovich is affirmed. For the Mreasons stated, the judgment as to Virginia Milanovich is set aside, and her case remanded to the District Court for proceedings consistent with this opinion.
9
It is so ordered.
10
Judgment as to Mike Milanovich affirmed; judgment as to Virginia Milanovich set aside and her case remanded.
11
Mr. Justice FRANKFURTER, whom Mr. Justice CLARK, Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.
12
This is a prosecution brought under 18 U.S.C. § 641, 18 U.S.C.A. § 641,1 upon an indictment containing several counts. One charged the defendant Virginia Milanovich, petitioner herein, with the theft of government property; another charged her with receiving the stolen property with an intent to convert it to her own use. Both counts were allowed to go to the jury which explicitly found the defendant guilty on each of the two counts.
13
This was the evidence on which the jury must have based their verdict against the defendant. She and her husband, as owners of an automobile, transported three others under an arrangement whereby the three were to break into a United States naval commissary building with a view to stealing government funds. Defendant and her husband were to remain outside for the return of their accomplices after the accomplishment of the theft. In fact, for one reason or another, husband and wife drove off without awaiting the return of their friends. Not finding the automobile where they had left it, the thieves buried the booty. No share of the stolen money ever touched the hand of petitioner or was in any sense received by her until seventeen days later when, after she had removed some of the booty from the base, it was soon after discovered by FBI agents during a legal search of the premises. Since she herself was not an active participant in the breaking in and thieving, she was amenable to § 641 because she, as an accessory, was legally deemed a principal under 18 U.S.C. § 2, 18 U.S.C.A. § 2.2 On this basis the trial judge submitted the case to the jury and the jury was enabled to find her guilty of the substantive offense of stealing government property, as well as to return a verdict of guilty on the receiving charge. The trial judge then sentenced the defendant on each of the counts. Because of the extensive criminal record of the defendant he imposed a sentence of ten years on the thieving count and five years on the receiving count, the sentences to run concurrently.
14
The Court of Appeals, drawing on our decision in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, deemed it necessary to set aside the sentence imposed on the receiving count. It read Heflin as holding that the crime of receiving was solely directed to those who were not convicted of stealing; the latter conviction was therefore invalidated. The Court, likewise relying on Heflin, today holds that since the jury should have been instructed that they had power to return a verdict of guilty on only one count, the proceedings against the defendant must start all over again, since a reviewing court cannot predict what the jury would have done under proper instructions.
15
Both of these conclusions rest, I believe, on a wholly unwarranted reliance on Heflin. They disregard the only issue that was before the Court in that case, and thereby misconceive its holding. Today's decision reflects the common-law doctrine of merger and the consequences of such merger on the requirements of criminal procedure—specifically, what separate counts may be laid in an indictment and the duty of a trial judge in charging the jury the kind of a verdict they may return to an indictment of multiple counts.
16
It is hornbook law that a thief cannot be charged with committing two offenses—that is, stealing and receiving the goods he has stolen. E.g., Cartwright v. United States, 5 Cir., 146 F.2d 133; State v. Tindall, 213 S.C. 484, 50 S.E.2d 188; see 2 Wharton, Criminal Law and Procedure, § 576; State of Montana v. Webber, 112 Mont. 284, 116 P.2d 679, 136 A.L.R. 1087. And this is so for the commonsensical, if not obvious, reason that a man who takes property does not at the same time give himself the property he has taken. In short, taking and receiving, as a contemporaneous indeed a coincidental—phenomenon, constitute one transaction in life and, therefore, not two transactions in law. It also may well be that a person who does not himself take but is a contemporaneous participant as an aider and abettor in the taking is also a participant in a single transaction and therefore has committed but a single offense. Regina v. Coggins, 12 Cox C.C. 517; Regina v. Perkins, 2 Den.C.C. 458, 169 Eng.Rep. 582; Rex v. Owen, 1 Moody C.C. 96, 168 Eng.Rep. 1200. In such a case, the jury must be told that the taking and receiving, being but a single transaction, constitute, of course, only one crime. See Commonwealth v. Haskins, 128 Mass. 60. (This, of course, does not bar Congress from outlawing and punishing as separate offenses the severable ingredients of one compound transaction. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405.)
17
The case before us presents a totally different situation—not a coincidental or even a contemporaneous transaction, in the loosest conception of contemporaneity. Here we have two clearly severed transactions. The case against the defendant—and the only case—presented two behaviors or transactions by defendant clearly and decisively separated in time and in will. The intervening seventeen days between defendant's accessorial share in the theft and her conduct as a recipient left the amplest opportunities for events outside her control to frustrate her hope of sharing in the booty, or ample time for her to change her criminal purpose and avail herself of a locus poenitentiae. Two larcenies, separated in time, would not be merged; what legal difference between the two situations here?
18
It surely is fair to say that in the common understanding of men such disjointed and discontinuous behaviors by Mrs. Milanovich (1) bringing thieves to the scene of their projected crime and departing without further ado before the theft had been perpetrated, and (2) taking possession seventeen days later of part of the booty—cannot be regarded as a single, merged transaction in any intelligible use of English. And that which makes no sense to the common understanding surely is not required by any fictive notions of law or even by the most sentimental attitude toward criminals. I venture to believe that not a single case concerned with a situation comparable to that now before the Court can be found in the law reports of England, of any of the States of this country, or of the federal courts, in which it was held or suggested that two disjointed, decisively separated manifestations of conduct constitute as a matter of law a single, fused transaction. An ample canvass of the reports has certainly not revealed the existence of such a case, and one reads the opinion of the Court in vain to find a suggestion that any such precedent is available.
19
One can say with confidence that Heflin is no warrant for the conclusion pronounced by the Court. There was not the remotest suggestion in the petition that brought that case here, in the briefs that were submitted before argument, in the oral argument, or in the opinion which formulated the decision, that the case was concerned with the power of the court to submit the several counts to the jury and the right of the jury to convict on separate counts for conduct charging separate transactions clearly separated in fact. In Heflin, (358 U.S. 415, 79 S.Ct. 454) the jury convicted defendant on separate counts of bank robbery and receiving stolen money. We held that we could find 'no purpose of Congress to pyramid penalties for lesser offenses following the robbery,' and therefore ruled against the cumulation of punishments, but found no impropriety in submitting both counts to the jury. I find not a word, not a hint, not a subtle innuendo suggesting that the case dealt with criminal procedure—that is, with submission of different counts to a jury, with the appropriateness of the judge's charge to the jury, or with the right of a jury to bring in separate verdicts on separate counts on the basis of evidence justifying such submission and such verdicts.
20
Heflin is one of a recent series of cases having to do with what the Court in Prince v. United States, 352 U.S. 322, 325, 77 S.Ct. 403, 405, 1 L.Ed.2d 370, called 'fragmentation of crimes for purposes of punishment.' Beginning with Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905, these cases concerned the propriety of cumulative sentences within different statutory frameworks.3 'It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment * * * (when) Congress does not fix the punishment for a federal offense clearly and without ambiguity * * *.' Bell v. United States, supra, 349 U.S. at pages 83—84, 75 S.Ct. at page 622. In not one of these cases will there be found a word having to do with how crimes should be charged, how submitted to the jury, or what verdicts the jury may return. Heflin, like the rest of these cases, was concerned with the duty of the trial judge in sentencing after the jury was through with its job. Indeed, in all these cases, there were several counts on which the jury found a verdict and the issue arose not as to the propriety of leaving all the counts to the jury, but what sentence should be imposed after the verdict had been returned.
21
To draw from Heflin the doctrine that an aider and abettor to a theft who at an appreciably later time receives some of the stolen goods may not be charged on separate counts for both transactions, or that a judge may not leave both counts for a jury verdict of guilt on either one or both, when no such question was in issue or adverted to in Heflin, is to disregard the whole philosophy of our law based on precedents. It is to base reliance on a case for a new doctrine when that case affords no sustenance for it.
22
I agree with the District Court in the imposition of two sentences to run concurrently.4
23
Mr. Justice CLARK, whom Mr. Justice WHITTAKER joins, dissenting.
24
My duty here is to help fashion rules which will assure that every person charged with an offense receives a fair and impartial trial. But that obligation does not require my ferreting out of the record technical grounds for reversing a particular conviction, grounds which could not possibly have affected the jury's verdict of guilt as a factual determination. If the Government perseveres, the Court's order contemplates a new trial for one of five safecrackers who beyond any evidentiary doubt is guilty of aiding and abetting in looting a government safe of about $14,000, and of thereafter receiving part of the proceeds. The case was tried before a jury for $10 days with scrupulous adherence to proper procedure. Judge Hoffman gave a clear and, I think, correct charge to which petitioner made no objection on the ground upon which the Court now bases its reversal. Nor did petitioner offer a proposed instruction covering that issue. Furthermore, the motion for new trial, as set forth in the record, urged no such ground as error. Nonetheless, the Court reverses, saying that 'counsel for the petitioners consistently maintained the position' throughout the trial 'that a thief could not be convicted of receiving from himself.' Judge Hoffman did not try the case, nor was it submitted to the jury, on that theory. The record shows, as my Brother FRANKFURTER points out, that beyond question Mrs. Milanovich took no part in the actual physical looting of the safe, and first received any of the stolen money more than two weeks later, not from herself, but from where the safecrackers had buried it. It was on that theory, to which petitioner made no objection, that Judge Hoffman submitted the case to the jury.
25
With all deference I must point out that in support of its view as to Mrs. Milanovich the Court has quoted merely an excerpt from a statement of this petitioner's counsel, 365 U.S. at page 552, 81 S.Ct. at page 729, note 2, made in chambers on his motion to require the United States Attorney to elect as between the two counts of aiding and abetting, and receiving. Admittedly, this motion was not well taken. However, during that presentation counsel stated: 'we will ask the Court to instruct the jury' that it cannot find petitioner guilty on both counts. (Emphasis supplied.) But, after the motion to elect was denied, no such instruction was offered nor was there made on that ground any objection to the charge omitting such instruction. Now petitioners have chosen to abandon a claim of error in the denial of their motion to elect, and rely instead upon error in the charge, although no objection had been made on that ground.
26
Moreover, the charge as given could not possibly have prejudiced Mrs. Milanovich on sentence. She was found guilty both of aiding and abetting, and of thereafter receiving part of the stolen loot. She now stands, after the action of the Court of Appeals, sentenced only on the aiding and abetting count. Each count carried the same possible penalty, and, even if the case had been submitted to the jury as is now required, it seems rather unreal for us to consider as anything more than so remotely possible as to be highly improbable, that in sentencing this petitioner on the single count the trial judge, who would nonetheless have heard all the evidence on both counts, would be more likely to impose a lesser sentence than the 10 years already given.
27
The Court does not mention the dilemma which its ruling produces. It says the jury should have been instructed that a guilty verdict could be returned on either count, but not both. This would require the jury to return a not guilty verdict on one count. Here, where the jury had in fact found Mr. Milanovich guilty of both offenses, it could yet be required to return a false verdict, i.e., false in fact even if true in law, on one of them. Except for its imperfect analogy to the case of factually inconsistent counts charging lesser-included offenses of the main count (as in first degree murder), in which the trial judge gives the jury instructions to be applied successively, the rule suggested today is unheard of in our jurisprudence. For here the jury is invited to consider counts not factually inconsistent, and in such sequences as it chooses, with no more reason to convict on one rather than another except its election on how to characterize the grounds supporting petitioner's imprisonment. Since such a result is required by the present disposition, it would have been better to rule that the prosecutor must elect between the counts, as petitioner originally wished.
28
As I see the case, however, the jury could not on the evidence here have found the petitioner not guilty, as a matter of fact, on the aiding and abetting count, and guilty on the receiving one. To be guilty of receiving she must have had knowledge of the stolen character of the money taken from the safe. In this case the only means through which the fact of this requisite knowledge was demonstrated was the clear and convincing proof given by her partners in the crime whose testimony beyond any peradventure proved her guilty of both offenses. How, I ask, could she have been harmed by the jury finding her guilty of both offenses rather than choosing between the two?
29
To me it is clear that where the evidence is sufficient the jury should be left free, as it always has been, to find the fact of guilt. If in law the verdicts so found, although proper determinations of fact, are not all enforceable, the dilemma is adequately resolved by requiring the trial judge to forego sentencing on the unenforceable verdicts.
30
For these reasons, and those of my Brother FRANKFURTER, whom I join, I dissent.
1
The statute under which the petitioners were convicted is 18 U.S.C. § 641, 18 U.S.C.A. § 641. It provides:
'Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
'Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
'Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.'
2
'(W)e feel, sir—for the jury to be considering both receiving and stealing—that both charges are inconsistent and if the evidence is to be believed that these people are participants, then they cannot be guilty of receiving, and if they are guilty of receiving, they cannot be guilty of participating.'
3
'Your Honor, we will ask the Court to instruct the jury that inasmuch as they are inconsistent counts that they can only come back, if they come back with a verdict of guilty, as to one or the other, but not both.'
4
The paragraph making it an offense to steal government property had its genesis in the Act of March 2, 1863, c. 67, 12 Stat. 696, 698. The paragraph as to receivers originated in the Act of March 3, 1875, c. 144, § 2, 18 Stat. 479.
5
It is acknowledged here that the evidence was sufficient to support a jury finding that both petitioners aided and abetted the larceny, and thus were guilty as principals under 18 U.S.C. § 2, 18 U.S.C.A. § 2. It is also conceded that the evidence was sufficient to support the wife's conviction for receiving and concealing the stolen property (a substantial amount of silver currency having been found in a suitcase in her home two weeks after the robbery).
1
'Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
'Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
'Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.'
2
'(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
'(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.'
3
In Bell, the defendant pleaded guilty to an indictment under the Mann Act, 18 U.S.C.A. § 2421, which charged him in two counts with transporting two women, respectively, for immoral purposes on one trip. This Court held that Congress did not intend to make 'simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported.' 349 U.S., at pages 82—83, 75 S.Ct. at page 622.
In Prince, two counts of an indictment charging, respectively, entering a bank with intent to rob and robbery were submitted to the jury, which returned verdicts of guilty on both. The Court held that the sentences could not be cumulated and remanded the case to the District Court for resentencing, but made no reference to the fact that two counts were laid and found by the jury.
In Callanan v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312, defendant was convicted on separate counts for conspiracy and extortion. In view of the historic distinctiveness of a conspiracy from the substantive offense which is its object, we held that Congress had made allowable consecutive sentences under the applicable statute.
4
I agree with this Court that the husband's claim of trial error is without merit.
| 01
|
365 U.S. 517
81 S.Ct. 719
5 L.Ed.2d 749
LAURENS FEDERAL SAVINGS AND LOAN ASSOCIATION, Petitioner,v.SOUTH CAROLINA TAX COMMISSION et al.
No. 126.
Argued March 2, 1961.
Decided March 20, 1961.
Mr. Frank K. Sloan, Columbia, S.C., for petitioner.
Mr. James M. Windham, Columbia, S.C., for respondents.
Mr. Justice BLACK delivered the opinion of the Court.
1
The question presented is whether the State of South Carolina has power to require a Federal Savings and Loan Association located in that State to pay documentary stamp taxes on promissory notes executed by the Association in favor of a Federal Home Loan Bank to cover loans from the Bank to the Association.
2
Petitioner is a Federal Savings and Loan Association organized under the Home Owners' Loan Act of 19331 and doing business in Laurens, South Carolina. It is also a member, with borrowing privileges, of the Federal Home Loan Bank of Greensboro, North Carolina, which was established under the Federal Home Loan Bank Act of 1932.2 For the purpose of making mortgage money available in the community which it serves, petitioner Federal Savings and Loan Association has since August 12, 1953, secured 'advances,' or loans, from the Federal Home Loan Bank of Greensboro totalling $5,675,000, for which petitioner executed written promissory notes to the Bank as required by the 1932 Act. The State assessed against petitioner documentary stamp taxes on these notes of $2,270 under a state statute imposing a stamp tax on promissory notes at the rate of four cents on each $100.3 Petitioner paid these taxes under protest and then brought the present action in the state court for refund of the payment,4 claiming that the imposition of the taxes constituted an unlawful attempt by the State to tax the 'advances' of the Federal Home Loan Bank of Greensboro in violation of the provision of the 1932 Act exempting such banks from state taxation. This provision states, in pertinent part:
3
'The bank, including its franchise, its capital, reserves, and surplus, its advances, and its income, shall be exempt from all taxation now or hereafter imposed by the United States * * * or by any State * * *.' 12 U.S.C. § 1433, 12 U.S.C.A. § 1433. (Emphasis supplied.)
4
The Supreme Court of South Carolina affirmed the judgment upholding the State's taxing power, basing its affirmance on two grounds.5 It was of the opinion, first, that the exemption provision of the 1932 Act, although completely exempting the loans of the Federal Home Loan Bank from state taxation, did not cover the stamp taxes on the promissory notes securing the loans because these taxes were imposed upon the borrowing Savings and Loan Association rather than upon the lending Home Loan Bank and for this reason should not be considered taxes on the Bank's loans within the meaning of the 1932 provision. Secondly, the state court held that regardless of the original scope of the 1932 exemption, that exemption was implicitly repealed as to transactions like this one by the taxation provision of the Home Owners' Loan Act of 1933. We granted certiorari in order to determine whether the State has imposed a tax forbidden by Congress.6
5
The first question is whether the immunity granted 'advances' of the Federal Home Loan Bank by the 1932 Act is broad enough to bar state stamp taxes on this loan transaction. We decided a very similar question in Pittman v. Home Owners' Loan Corp., 308 U.S. 21, 60 S.Ct. 15, 84 L.Ed. 11. There the State of Maryland imposed a stamp tax upon the recording of mortgages at the rate of 10 cents for each $100 of the principal amount of the mortgage indebtedness. The Home Owners' Loan Corporation sought to record a mortgage upon payment of the ordinary recording fee without payment of the additional state stamp tax. The mortgage had been issued to it as security for a loan which the Corporation had made under now defunct provisions of the Home Owners' Loan Act of 1933. Section 4(c) of that Act provided that '(t)he Corporation, including * * * its loans' shall be exempt 'from all taxation * * * now or hereafter imposed * * * by any State' exept for real estate taxes. We unanimously affirmed the holding of the state court that this exemption provision, practically identical in language and substance to the exemption in 12 U.S.C. § 1433, 12 U.S.C.A. § 1433, precluded application of the recording tax to mortgages securing loans from the Corporation.
6
The state court in the present case, although drawing no distinction between the terms 'loans' and 'advances,' nevertheless thought the Pittman decision inapplicable here because in that case the mortgage was presented for recording by the exempt lender itself (the Home Owners' Loan Corporation) while here the South Carolina tax was assessed against the borrowing petitioner association rather than against the exempt lender (the Home Loan Bank). We distinctly said in Pittman, however, that the fact that the state taxing statute did not require payment of the tax by the lender has 'no determining significance,' our reason being that "whoever pays it it is a tax upon the mortgage and that is what is forbidden by the law of the United States."7 We went on in Pittman to recognize that the real question was whether the 'critical term * * * 'loans' * * * should be construed as covering the entire process of lending, the debts which result therefrom and the mortgages given * * * as security.'8 The question here is the same as to the synonymous term 'advances'9 and as to the promissory notes securing the advances, since the language of the exemption is equally broad. The factors given weight in the Pittman opinion in deciding that the exemption covered the entire loan transaction are also present here. The Act under consideration there required that the loans 'be secured by a duly recorded home mortgage' just as here the Act requires the advances to be secured by the note or obligation of the borrower. Here, as we said in Pittman, therefore, the documents sought to be taxed 'were indispensable elements in the lending operations authorized by Congress'10 and were required for the protection of the lending institution. The tax in Pittman was 'graded according to the amount of the loan'11 and here too the face value of the notes is the measure of the tax.
7
While the question of the breadth of the exemption of 'advances' in the 1932 Act thus is persuasively answered by our reasoning in Pittman, the same conclusion is called for by the language and legislative history of that Act as a whole. It set up a system of federally chartered Home Loan Banks for the purpose, as stated in the House and Senate Committee Reports, of placing 'long-term funds in the hands of local institutions' in order to alleviate the pressing need of home owners for 'low-cost, long-term, installment mortgage money' and to 'decrease costs of mortgage money' with a 'resulting benefit to home ownership in the form of lower costs and more liberal loans.'12 It is to this end that the Act authorizes the Federal Home Loan Banks to make 'advances' of funds to eligible borrower institutions 'upon the note or obligation' of the borrower secured primarily by mortgages on homes.13 The exemption of these 'advances' from taxation obviously is in keeping with the Act's over-all policy of making these mortgage funds available at low cost to home owners. Regardless of who pays the documentary stamp taxes here at issue, the necessary effect of the taxes is to increase the cost of obtaining the advances of funds from the Home Loan Bank to be used in making loans to home owners. In its impact, therefore, this tax, whether nominally imposed on the Bank or on the petitioner, is bound to increase the cost of loans to home owners and thus contravene the basic purpose of Congress in insulating these advances from state taxation. We hold that it was error to construe the exemption provision of the 1932 Act as not broad enough to bar imposition of the State's stamp taxes on the notes which were an integral part of these loan transactions.
8
This leaves for consideration the state court's holding that, in instances where the borrower is a Federal Savings and Loan Association such as petitioner, the exemption conferred upon the entire loan transaction by the 1932 Act was impliedly repealed by the taxation provision in the Home Owners' Loan Act of 1933. The court based this holding upon the following language of the 1933 Act:
9
'* * * (N)o State * * * or local taxing authority shall impose any tax on such associations or their franchise, capital, reserves, surplus, loans, or income greater than that imposed by such authority on other similar local mutual or cooperative thrift and home financing institutions.' 12 U.S.C. § 1464(h), 12 U.S.C.A. § 1464(h).
10
This provision unequivocally bars discriminatory state taxation of the Federal Savings and Loan Associations. The state court held that this prohibition of discriminatory taxes also impliedly authorizes all nondiscriminatory state taxes imposed on these Federal Associations, thereby to that extent repealing the 1932 exemption. We agree with petitioner, however, that in enacting § 1464(h) in 1933 Congress did not, either expressly or impliedly, repeal the provision of the 1932 Act which had exempted these loan transactions from state taxation. Clearly there is no express language providing for such repeal, and it is significant that when other provisions of the 1932 Act were to be superseded by the 1933 Act they were repealed expressly and not by implication.14 It also would be difficult to think of less apt circumstances for the finding of an implied repeal. These two Acts, both designed to provide home owners with easy credit at low cost, were passed within a year of each other on the basis of the same hearings and when read together form a consistent scheme in which the 1932 exemption provision contributes to the major purpose of low-cost credit precisely as it did before passage of the 1933 Act. Nor is there even an intimation in the legislative history of the 1933 Act of any intention to reduce the scope of the exempt status of Home Loan Banks. Indeed, the only comment that would seem to have any bearing on the matter is the statement in the House and Senate Committee Reports that the 1933 Act was to provide new means of 'direct relief to home owners' without 'otherwise disturb(ing) the functioning of the Federal home-loan bank system.'15 Moreover, a construction of the 1933 Act to permit state taxation of these loan transactions when the borrower is a Federal Savings and Loan Association would bring about an incongruous result. The States would still be barred by the exemption provision of the 1932 Act from taxing these transactions when the borrower is a state-chartered association.16 To contend that the 1933 Act allows the State to tax Federal Associations on the loan transactions when it is barred by the 1932 Act from similarly taxing state-chartered associations is to urge the very kind of discriminatory taxation which the 1933 Act itself emphatically prohibits. And surely it would be completely unwarranted to construe the 1933 Act, which concerns only Federal Savings and Loan Associations, as eliminating the exemption on Home Loan Bank 'advances' when the borrower is a state-chartered institution.
11
For all these reasons, the more sensible as well as the more natural conclusion is that in the 1933 Act Congress left unimpaired the exemption of these loan transactions from state taxation conferred by the 1932 Act. The judgment of the state court therefore is reversed and the cause remanded for proceedings not inconsistent with this opinion.
12
Reversed and remanded.
1
48 Stat. 128, 12 U.S.C. §§ 1461—1468, 12 U.S.C.A. §§ 1461 1468.
2
47 Stat. 725, 12 U.S.C. §§ 1421—1449, 12 U.S.C.A. §§ 1421 1449.
3
Code of Laws of South Carolina, § 65—688 (1952).
4
Such suits are authorized by Code of Laws of South Carolina, § 65—2662 (1952).
5
236 S.C. 2, 112 S.E.2d 716.
6
364 U.S. 812, 81 S.Ct. 47, 5 L.Ed.2d 45.
7
308 U.S. at page 31, 60 S.Ct. at page 17, citing Federal Land Bank of New Orleans v. Crosland, 261 U.S. 374, 378—379, 43 S.Ct. 385, 386—387, 67 L.Ed. 703.
8
308 U.S. at page 31, 60 S.Ct. at page 17.
9
The fact that the term used throughout the 1932 Act with reference to these transactions is 'advances' rather than 'loans' is not a significant distinction from Pittman but merely represents a congressional choice between synonyms, as was indicated by Senator Reed in introducing on the Senate floor the amendment which added the word 'advances' to the exemption provision:
'Mr. Reed. We should not, of course, put the loans of this new bank in the position of being taxable in the several States.' 75 Cong.Rec. 14659. (Emphasis supplied.)
10
308 U.S. at page 32, 60 S.Ct. at page 17.
11
308 U.S. at page 31, 60 S.Ct. at page 17.
12
H.R.Rep. No. 1418, 72d Cong., 1st Sess., pp. 8—10; S.Rep. No. 837, 72d Cong., 1st Sess., pp. 9—11.
13
12 U.S.C. §§ 1429—1430b, 12 U.S.C.A. §§ 1429—1430b.
14
See 48 Stat. 129; H.R.Rep. No. 55, 73d Cong., 1st Sess., p. 1; S.Rep. No. 91, 73d Cong., 1st Sess., p. 1.
15
H.R.Rep. No. 55, 73d Cong., 1st Sess., p. 1; see R.Rep. No. 91, 73d Cong., 1st Sess., p. 1.
16
The 1932 exemption of Home Loan Bank 'advances' obviously does not in any way depend upon the fact that the borrower is a Federal Savings and Loan Association, as is made all the more evident by the fact that such Federal Associations did not come into existence until passage of the 1933 Act.
| 78
|
365 U.S. 604
81 S.Ct. 774
5 L.Ed.2d 803
Stuart W. NEWSOM, Petitioner,v.W. Frank SMYTH, Jr., Superintendent of Virginia State Penitentiary.
No. 116.
Argued Jan. 16 and 17, 1961.
Decided March 27, 1961.
Mr. Armistead L. Boothe, Alexandria, Va., for petitioner.
Mr. Reno S. Harp, III, Richmond, Va., for respondent.
PER CURIAM.
1
A writ of certiorari to review the judgment of the Supreme Court of Appeals of the Commonwealth of Virginia was granted in this case, 363 U.S. 802, 80 S.Ct. 1240, 4 L.Ed.2d 1146, in the belief that it duly presented for the Court's consideration the question whether the Due Process Clause of the Fourteenth Amendment to the Federal Constitution requires that the State must, in appropriate circumstances, appoint counsel to assist an indigent prisoner under sentence of conviction for a state crime in prosecuting his appeal. After hearing oral argument, and upon full consideration of the case, we find that the record does not adequately establish that the Virginia court found or was required to find that there was presented to it the federal claim on which the case was brought here. The case thus fails to present a federal question, and the writ must be dismissed as improvidently granted.
2
So ordered.
3
Writ dismissed.
4
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
5
In April 1953 petitioner was found guilty of murder in the first degree and was sentenced to life imprisonment in the state penitentiary. At the trial, petitioner had been represented by counsel, although at allocution he had complained that his counsel had failed to present relevant evidence. On April 18, 1953, petitioner wrote to the trial judge at his trial,1 noting an appeal within the time allowed therefor under Virginia law. In a second letter written five days later,2 petitioner requested 'that you appoint me counsel to appeal my case to the State Supreme Court of Appeals.' To neither letter did he receive any reply. He took no further steps to appeal his conviction.
6
In January 1959 he filed in the Virginia court a petition for a writ of habeas corpus. The Law and Equity Court of Richmond concluded that the petition did not allege 'a failure of the trial court to accord to the accused those procedural safeguards guaranteed to him by the state and federal constitutions,' and accordingly denied the writ. Petitioner sought review by the Supreme Court of Appeals, and that court refused to issue a writ of error. Then petitioner sought review here, and certiorari was granted. 363 U.S. 802, 80 S.Ct. 1240, 4 L.Ed.2d 1146.
7
The question raised by petitioner is substantial: Does the Federal Constitution obligate the several States to appoint counsel to assist indigent defendants to pursue whatever appellate remedies the States may offer? Cf. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.
8
The opinion of the Law and Equity Court of Richmond discussed the problem of this case in those terms. After an extended discussion of the right of indigents to counsel, that court quoted from 55 A.L.R.2d at page 1085, 2 L.Ed.2d at page 1649, the following:
9
'* * * Thus, the establishment of the rule that a state must, as a matter of federal constitutional law, provide indigents with the assistance of counsel to prosecute appeals in criminal cases would appear to be no more than a logical extension of the Griffin doctrine.'
It then added:
10
'Whether this view be correct or incorrect is, of course, the question in the instant case.' And the Supreme Court of Appeals in refusing a petition for writ of error said that the judgment was 'plainly right.' Regardless of whether the courts below were 'required to find' that petitioner had adequately stated his federal claim, those courts in fact did so find as the adjudication was on the issues exposed in the record.3
11
The question whether the Equal Protection Clause of the Fourteenth Amendment requires appointment of counsel for indigents to represent them on appeal from state court judgments of conviction is present and ripe for decision. I dissent from the dismissal of the certiorari.
1
'April 18, 1953
'Honorable M. Ray Doubles
'Hustings Court Part II
'Richmond 24, Virginia
'Your Honor:
'In lue of any known action on the part of my attorney, I am taking this method of respectfully noting an appeal from the 'life sentence' imposed upon me in your Court on April 10, 1953.
'I will within the allotted time attempt to get Counsel to complete the appeal.'
2
'April 23, 1953
'Honorable Mr. Ray Doubles
'Hustings Court Part II
'Richmond, Va.
'Your Honor:
'Due to circumstances beyond my control, I have been unable to complete arrangements with an attorney to complete my appeal.
'Therefore, I respectfully request that you appoint me counsel to appeal my case to the State Supreme Court of Appeals.'
3
The judgment of the Supreme Court of Appeals read: 'The petition of Stuart W. Newsom for a writ of error * * * having been maturely considered and a transcript of the record of the judgment aforesaid seen and inspected, the court being of the opinion that the said judgment is plainly right, doth reject such petition, and refuse said writ of error, the effect of which is to affirm the judgment (of the court below).'
| 89
|
365 U.S. 570
81 S.Ct. 756
5 L.Ed.2d 783
Billy FERGUSON, Appellant,v.STATE OF GEORGIA.
No. 44.
Argued Nov. 14, 15, 1960.
Decided March 27, 1961.
Mr. Paul James Maxwell, Atlanta, Ga., for appellant.
Mr. Dan Winn, Cedartown, Ga., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The State of Georgia is the only State—indeed, apparently the only jurisdiction in the common-law world—to retain the common-law rule that a person charged with a criminal offense is incompetent to testify under oath in his own behalf at his trial. Georgia in 1866 abolished by statute the common-law rules of incompetency for most other persons. However, the statute, now Georgia Code § 38 416, expressly retained the incompetency rule as to persons 'charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction * * *.' Two years later, in 1868, Georgia allowed the criminal defendant to make an unsworn statement. The statute enacted for that purpose, as amended, is now Georgia Code, § 38—415, and provides: 'In all criminal trials, the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his defense. It shall not be under oath, and shall have such force only as the jury may think right to give it. They may believe it in preference to the sworn testimony in the case. The prisoner shall not be compelled to answer any questions on cross-examination, should he think proper to decline to answer.'
2
In this case a jury in the Superior Court, Douglas County, Georgia, convicted the appellant of murder, and he is under sentence of death. After the State rested its case at the trial, the appellant's counsel called him to the stand, but the trial judge sustained the State's objection to counsel's attempt to question him. To the argument that to deny counsel the 'right to ask the defendant any questions on the stand * * * violates * * * (Amendment) VI * * * (and) the Fourteenth Amendment to the Constitution of the United States * * * (because) it deprives the defendant of the benefit of his counsel asking him questions at the most important period of the trial * * *,' the trial judge answered that under § 38—415, '* * * you do not have the right to do anything more than instruct your client as to his rights, and * * * you have no right to question him on direct examination.' In affirming the conviction and sustaining this ruling, the Supreme Court of Georgia said:
3
'The constitutional provisions granting to persons charged with crime the benefit and assistance of counsel confer only the right to have counsel perform those duties and take such actions as are permitted by the law; and to require counsel to conform to the rules of practice and procedure, is not a denial of the benefit and assistance of counsel. It has been repeatedly held by this court that counsel for the accused cannot, as a matter of right, ask the accused questions or make suggestions to him when he is making his statement to the court and jury.' 215 Ga. 117, 119, 109 S.E.2d 44, 46—47.
4
On appeal brought here under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), we noted probable jurisdiction. 362 U.S. 901, 80 S.Ct. 616, 4 L.Ed.2d 553.
5
The only question which the appellant properly brings before us is whether this application by the Georgia courts of § 38—415 denied the appellant 'the guiding hand of counsel at every step in the proceedings against him,' Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55; 64, 77 L.Ed. 158, within the requirements of due process in that regard as imposed upon the States by the Fourteenth Amendment. See also Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4.
6
Appellant raises no question as to the constitutional validity of § 38—416, the incompetency statute.1 However, decision of the question which is raised under § 38—415 necessarily involves consideration of both statutes. Historically these provisions have been intertwined. For § 38—416 is a statutory declaration of the common-law rule disqualifying criminal defendants from testifying, and § 38 415, also with its roots in the common law, was an attempt to mitigate the rigors of that incompetency.
7
The disqualification of parties as witnesses characterized the common law for centuries. Wigmore traces its remote origins to the contest for judicial hegemony between the developing jury trial and the older modes of trial, notably compurgation and wager of law. See 2 Wigmore, Evidence, pp. 674—683. Under those old forms, the oath itself was a means of decision. See Thayer, Preliminary Treatise on Evidence, pp. 24—34. Jury trial replaced decision by oath with decision of the jurors based on the evidence of witnesses; with this change '(T)he party was naturally deemed incapable of being such a witness.' 2 Wigmore, p. 682. Incompetency of the parties in civil cases seems to have been established by the end of the sixteenth century. See 9 Holdsworth, History of English Law, p. 194. In time the principal rationale of the rule became the possible untrustworthiness of the party's testimony; for the same reason disqualification was applied in the seventeenth century to interested nonparty witnesses.2
8
Its firm establishment for criminal defendants seems to have come somewhat later. In the sixteenth century it was necessary for an accused to conduct his own defense, since he was neither allowed to call witnesses in his behalf nor permitted the assistance of counsel. 1 Stephen, History of the Criminal Law of England, p. 350. The criminal trial of this period has been described as 'a long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other's arguments with the utmost eagerness and closeness of reasoning.' Stephen, supra, p. 326. In the process the defendant could offer by way of explanation material that would later be characterized as testimony. 2 Wigmore, p. 684. In the seventeenth century, however, he was allowed to call witnesses in his behalf; the right to have them sworn was accorded by statute for treason in 1695 and for all felony in 1701. 7 Will. III, c. 3; 1 Anne, St. 2, c. 9. See Thayer, supra, pp. 157—161, and n. 4; 2 Wigmore, pp. 685—686. A distinction was drawn between the accused and his witnesses—they gave evidence but he did not. See 2 Wigmore, pp. 684—685, and n. 42; 9 Holdsworth, supra, pp. 195—196. The general acceptance of the interest rationale as a basis for disqualification reinforced this distinction, since the criminal defendant was, of course, par excellence an interested witness. 'The old common law shuddered at the idea of any person testifying who had the least interest.' State v. Barrows, 76 Me. 401, 409. See Benson v. United States, 146 U.S. 325, 336—337, 13 S.Ct. 60, 63—64, 36 L.Ed. 991.
9
Disqualification for interest was thus extensive in the common law when this Nation was formed. 3 Bl.Comm. 369.3 Here, as in England, criminal defendants were deemed incompetent as witnesses. In Rex v. Lukens, 1 Dall. 5, 6, 1 L.Ed. 13, decided in 1762, a Pennsylvania court refused to swear a defendant as a witness, holding that the issue there is question 'must be proved by indifferent witnesses.' Georgia by statute adopted the common law of England in 1784, and '* * * the rules of evidence belonging to it * * * (were) in force there * * *.' Doe ex dem. Patterson v. Winn, 5 Pet. 233, 241, 8 L.Ed. 108. Georgia therefore followed the incompetency rule for criminal defendants long before it was given statutory form by the Act of 1866. See Jones v. State, 1 Ga. 610; Roberts v. State, 189 Ga. 36, 40—41, 5 S.E.2d 340, 343.4
10
Broadside assaults upon the entire structure of disqualifications, particularly the disqualification for interest, were launched early in the nineteenth century in both England and America. Bentham led the movement for reform in England, contending always for rules that would not exclude but would let in the truth. See Rationale of Judicial Evidence, bk. IX, pt. III, c. III (Bowring ed.), pp. 393—406. The basic ground of the attack was, as Macaulay said, that '(A)ll evidence should be taken at what it may be worth, that no consideration which has a tendency to produce conviction in a rational mind should be excluded from the consideration of the tribunals.' Lord Macaulay's Legislative Minutes, 1835, pp. 127—128. The qualification in civil cases of nonparty witnesses despite interest came first. See Lord Denman's Act of 1843, 6 & 7 Vict., c. 85. The first general exception in England for party witnesses in civil cases was the County Courts Act of 1846, 9 & 10 Vict., c. 95, although there had been earlier grants of capacity in certain other courts. Best Evidence (Lely ed. 1893), pp. 158—159. Lord Brougham's Act of 1851, 14 & 15 Vict., c. 99, virtually abolished the incompetency of parties in civil cases.5
11
The qualification of criminal defendants to give sworn evidence if they wished came last. The first statute was apparently that enacted by Maine in 1859 making defendants competent witnesses in prosecutions for a few crimes. Maine Acts 1859, c. 104. This was followed in Maine in 1864 by the enactment of a general competency statute for criminal defendants, the first such statute in the English-speaking world. The reform was largely the work of John Appleton of the Supreme Court of Maine, an American disciple of Bentham. Within 20 years most of the States now comprising the Union had followed Maine's lead. A federal statute to the same effect was adopted in 1878, 20 Stat. 30, 18 U.S.C. § 3481, 18 U.S.C.A. § 3481. Before the end of the century every State except Georgia had abolished the disqualification.6
12
Common-law jurisdictions outside the United States also long ago abolished the disqualification. This change came in England with the enactment in 1898 of the Criminal Evidence Act, 61 & 62 Vict., c. 36.7 Various States of Australia had enacted competency statutes even before the mother country, as did Canada and New Zealand. Competency was extended to defendants in Northern Ireland in 1923, in the Republic of Ireland in 1924, and in India in 1955.8
13
The lag in the grant of competency to the criminally accused was attributable in large measure to opposition from those who believed that such a grant threatened erosion of the privilege against self-incrimination and the presumption of innocence. '(I)f we were to hold that a prisoner offering to make a statement must be sworn in the cause as a witness, it would be difficult to protect his constitutional rights in spite of every caution, and would often lay innocent parties under unjust suspicion where they were honestly silent, and embarrassed and overwhelmed by the shame of a false accusation. * * * (It would result in) * * * the degradation of our criminal jurisprudence by converting it into an inquisitory system, from which we have thus far been happily delivered.' People v. Thomas, 9 Mich. 314, 320 321 (concurring opinion). See also Ruloff v. People, 45 N.Y. 213, 221—222; People v. Tyler, 36 Cal. 522, 528—530; State v. Cameron, 40 Vt. 555, 565—566; 1 Am.L.Rev. 443; Maury, Validity of Statutes Authorizing the Accused to Testify, 14 Am.L.Rev. 753.9
14
The position of many who supported competency gave credence to these fears. Nenther Bentham nor Appleton was a friend of the privilege against self-incrimination.10 While Appleton justified competency as a necessary protection for the innocent, he also believed that incompetency had served the guilty as a shield and thus disserved the public interest. Competency, he thought, would open the accused to cross-examination and permit an unfavorable inference if he declined to take the stand to exculpate himself.11
15
This controversy left its mark on the laws of many jurisdictions which enacted competency. The majority of the competency statutes of the States forbid comment by the prosecution on the failure of an accused to testify, and provide that no presumption of guilt should arise from his failure to take the stand. The early cases particularly emphasized the importance of such limitations. See, e.g., Staples v. State, 89 Tenn. 231, 14 S.W. 603; Price v. Commonwealth, 77 Va. 393; State v. Taylor, 57 W.Va. 228, 234—235, 50 S.E. 247, 249—250. Cf. 1 Cooley, Constitutional Limitations (8th ed.), pp. 658—661. See generally, Reeder, Comment Upon Failure of Accused to Testify, 31 Mich.L.Rev. 40. For the treatment of the accused as a witness in Canada, see 12 Can.Bar Rev. 519, 13 Can.Bar Rev. 336; in Australia, see 6 Res Judicatae 60; and in Great Britain, see 2 Taylor, Evidence (12th ed.) 864—865; 51 L.Q.Rev. 443; 58 L.Q.Rev. 369.
16
Experience under the American competency statutes was to change the minds of many who had opposed them. It was seen that the shutting out of his sworn evidence could be positively hurtful to the accused, and that inno-] cence was in fact aided, not prejudiced, by the opportunity of the accused to testify under oath. An American commentator discussing the Massachusetts statute in the first year of its operation said: 'We have always been of opinion, that the law permitting criminals to testify would aid in the detection of guilt; we are now disposed to think that it will be equally serviceable for the protection of innocence.' 1 Am.L.Rev. 396. See also 14 Am.L.Reg. 129.
17
This experience made a significant impression in England and helped to persuade Parliament to follow the American States and other common-law jurisdictions in granting competency to criminal defendants. In the debates of 1898, the Lord Chancellor quoted a distinguished English jurist, Russell Gurney: '(A)fter what he had seen there (in America), he could not entertain a doubt about the propriety of allowing accused persons to be heard as witnesses on their own behalf.' 54 Hansard, supra, p. 1176. Arthur Balfour reported to the Commons that 'precisely the same doubts and difficulties which beset the legal profession in this country on the suggestion of this change were felt in the United States, but the result of the experiment, which has been extended gradually from State to State, is that all fears have proved illusory, that the legal profession, divided as they were before the change, have now become unanimous in favor of it, and that no section of the community, not even the prisoners at the bar, desire to see any alteration made in the system.' 60 Hansard, supra, pp. 679—680.12
18
A particularly striking change of mind was that of the noted authority on the criminal law, Sir James Stephen. Writing in 1863, Stephen opposed the extension of competency of defendants. He argued that it was inherent that a defendant could not be a real witness: '(I)t is not in human nature to speak the truth under such a pressure as would be brought to bear on the prisoner, and it is not a light thing to institute a system which would almost enforce perjury on every occasion.' A General View of the Criminal Law of England, p. 202. Competency would put a dangerous discretion in the hands of counsel. 'By not calling the prisoner he might expose himself to the imputation of a tacit confession of guilt, by calling him he might expose an innocent man to a cross-examination which might make him look guilty.' Ibid. Allowing questions about prior convictions 'would indirectly put the man upon his trial for the whole of his past life.' Id., p. 203. Twenty years later, Stephen, after many years' experience on the criminal bench, was to say: 'I am convinced by much experience that questioning, or the power of giving evidence is a positive assistance, and a highly important one, to innocent men, and I do not see why in the case of the guilty there need by any hardship about it. * * * A poor and ill-advised man * * * is always liable to misapprehend the true nature of his defence, and might in many cases be saved from the consequences of his own ignorance or misfortune by being questioned as a witness.' 1 Stephen, History of the Criminal Law of England, pp. 442, 444.
19
In sum, decades ago the considered consensus of the English-speaking world came to be that there was no rational justification for prohibiting the sworn testimony of the accused, who above all others may be in a position to meet the prosecution's case. The development of the unsworn-statement practice was itself a recognition of the harshness of the incompetency rule. While its origins antedated the nineteenth century,13 its strong sponsorship by English judges of that century is explained by their desire for a mitigation of the rigors of that rule. Baron Alderson said: 'I would never prevent a prisoner from making a statement, though he has counsel. He may make any statement he pleases before his counsel addresses the jury, and then his counsel may comment upon that statement as a part of the case. If it were otherwise, the most monstrous injustice might result to prisoners.' Reg. v. Dyer, 1 Cox C.C. 113, 114. See also Reg. v. Malings, 8 Car. & P. 242; Reg. v. Walkling, 8 C. & P. 243; Reg. v. Manzano, 2 F. & F. 64; Reg. v. Williams, 1 Cox C.C. 363. Judge Stephen's sponsorship of the practice was especially influential. See Reg. v. Doherty, 16 Cox C.C. 306. See also Reg. v. Shimmin, 15 Cox C.C. 122; 60 Hansard, supra, p. 657. It became so well established in England that it was expressly preserved in the Criminal Evidence Act of 1898.14
20
The practice apparently was followed in this country at common law in a number of States and received statutory recognition in some. Michigan passed the first such statute in 1861; unlike the Georgia statute of 1868, it provided that the prisoner should be subject to cross-examination on his statement. See People v. Thomas, 9 Mich. 314.15 The Georgia Supreme Court, in one of the early decisions considering the unsworn-statement statute, stressed the degree of amelioration expected to be realized from the practice, thereby implicitly acknowledging the disadvantages for the defendant of the incompetency rule. The Court emphasized 'the broad and liberal purpose which the legislature intended to accomplish. * * * This right granted to the prisoner is a modern innovation upon the criminal jurisprudence of the common law, advancing to a degree hitherto unknown the right of the prisoner to give his own narrative of the accusation against him to the jurors, who are permitted to believe it in preference to the sworn testimony of the witnesses.' Coxwell v. State, 66 Ga. 309, 316 317.16
21
But the unsworn statement was recognized almost everywhere else as simply a stopgap solution for the serious difficulties for the accused created by the incompetency rule. 'The system of allowing a prisoner to make a statement had been introduced as a mere makeshift, by way of mitigating the intolerable hardship which occasionally resulted from the prisoner not being able to speak on his own behalf.' 60 Hansard, supra, p. 652. 'The custom grew up in England out of a spirit of fairness to give an accused, who was otherwise disqualified, an opportunity to tell his story in exculpation.' State v. Louviere, 169 La. 109, 119, 124 So. 188, 192. The abolition of the incompetency rule was therefore held in many jurisdictions also to abolish the unsworn-statement practice. 'In such cases the unsworn statement of an accused becomes secondary to his right of testifying under oath and cannot be received.' State v. Louviere, supra, 169 La. at page 119, 124 So. at page 192. 'The privilege was granted to prisoners because they were debarred from giving evidence on oath, and for that reason alone. When the law was changed and the right accorded to them to tell their story on oath as any other witness the reason for making an unsworn statement was removed.' Rex v. Krafchenko, (1914) 17 D.L.R. 244, 250 (Man.K.B.).17
Where the practice survives outside
22
Where the practice survives outside America, little value has been attached to it. 'If the accused does not elect to call any evidence or to give evidence himself, he very often makes an unsworn statement from the dock. It is well understood among lawyers that such a statement has but little evidential value compared with the sworn testimony upon which the accused can be cross-examined * * *.' Rex v. Zware, (1946) S.A.L.R. 1, 7—8. 'How is a jury to understand that it is to take the statement for what it is worth, if it is told that it cannot regard it as evidence (i.e., proof) of the facts alleged?' 68 L.Q.Rev. 463. The unsworn statement 'is seldom of much value, since it is generally incoherent and leaves open many doubts which cannot be resolved by cross-examination.' 69 L.Q.Rev. 22, 25. 'The right of a prisoner to make an unsworn statement from the dock still exists * * * but with greatly discounted value.' 1933 Scots Law Times 29. Commentators and judges in jurisdictions with statutory competency have suggested abrogation of the unsworn-statement right. See 94 Irish Law Times, March 5, 1960, p. 56; 68 L.Q.Rev. 463; Rex v. McKenna, (1951) Q.S.R. 299, 308.
23
Georgia judges, on occasion, have similarly disparaged the unsworn statement. 'Really, in practice it is worth, generally, but little if anything to defendants. I have never known or heard of but one instance where it was supposed that the right had availed anything. It is a boon that brings not much relief.' Bird v. State, 50 Ga. 585, 589. 'The statement stands upon a peculiar footing. It is often introduced for the mere purpose of explaining evidence, or as an attempt at mitigation; the accused and his counsel throw it in for what it may happen to be worth and do not rely upon it as a substantive ground of acquittal.' Underwood v. State, 88 Ga. 47, 51, 13 S.E. 856, 858.
24
The unsworn statement has anomalous characteristics in Georgia practice. It is not treated as evidence or like the testimony of the ordinary sworn witness. 'The statement may have the effect of explaining, supporting, weakening, or overcoming the evidence, but still it is something different from the evidence, and to confound one with the other, either explicitly or implicitly, would be confusing, and often misleading. * * * The jury are to deal with it on the plane of statement and not on the plane of evidence, and may derive from it such aid as they can in reaching the truth. The law fixes no value upon it; it is a legal blank. The jury may stamp it with such value as they think belongs to it.' Vaughn v. State, 88 Ga. 731, 739, 16 S.E. 64, 66. Because the statement is not evidence, even the charge in the strict terms of the statute favored by the Georgia Supreme Court, see Garrett v. State, 203 Ga. 756, 765, 48 S.E.2d 377, 383; Emmett v. State, 195 Ga. 517, 541, 25 S.E.2d 9, 23, calls attention to the fact that the defendant is not under oath. Moreover, charge after charge going beyond the terms of the statute has been sustained. Thus in Garrett v. State, supra, the trial judge instructed that while the defendants were 'allowed' to make a statement, 'they are not under oath, not subject to cross-examination, and you are authorized to give to their statement just such weight and credit as you think them entitled to receive.' (203 Ga. 756, 48 S.E.2d 378). In Emmett v. State, 195 Ga. at page 540, 25 S.E.2d at page 22, the instruction was that the statement might be believed in preference to the sworn testimony 'if you see proper to give it that weight and that place and that importance in the trial of this case.' In Douberly v. State, 184 Ga. 573, 575, 192 S.E. 223, 225, the jury were told they might credit the statement 'provided they believe it to be true.' In Allen v. State, 194 Ga. 430, 436, 22 S.E.2d 65, 68, the charge was: 'There is no presumption attached to the defendant's statement. No presumption that it is true, nor any presumption that it is not true. In other words, it goes to you without a presumption either for or against him. You have the right to reject the statement entirely if you do not believe it to be true.' In many cases the trial judges have been sustained in specifically pointing out that defendants were not subject to the sanction for perjury with respect to their unsworn statements. '(I)f he failed to tell you the truth, he incurred no penalty by reason of such failure.' Darden v. State, 171 Ga. 160, 161, 155 S.E. 38, 40. '(T)he defendant's statement is not under oath; no penalty is prescribed for making a false statement * * *.' Klug v. State, 77 Ga. 734, 736. 'Surely there can be no wrong in calling the attention of the jury to circumstances which should impair the force of such testimony or which should enable them to give it the weight to which it is entitled.' Poppell v. State, 71 Ga. 276, 278. See also Grimes v. State, 204 Ga. 854, 51 S.E.2d 797; Thurmond v. State, 198 Ga. 410, 31 S.E.2d 804; Willingham v. State, 169 Ga. 142, 149 S.E. 887; Millen v. State, 175 Ga. 283, 165 S.E. 226.
25
Because it is not evidence, the statement is not a foundation supporting the offer of corroborative evidence. Champman v. State, 155 Ga. 393, 117 S.E. 321; Medlin v. State, 149 Ga. 23, 98 S.E. 551. 'The statute is silent as to corroborating the mere statement of the accused, and, while it allows the jury to believe it in preference to the sworn testimony, it seems to contemplate that the statement shall compete with sworn testimony single-handed, and not that it shall have the advantage of being reinforced by facts which do not weaken the sworn evidence otherwise than by strengthening the statement opposed to it.' Vaughn v. State, 88 Ga. 731, 736, 16 S.E. 64, 65. Similarly the statement is not an independent basis for authenticating and introducing documents. Sides v. State, 213 Ga. 482, 99 S.E.2d 884; see also Register v. State, 10 Ga.App. 623, 74 S.E. 429. In the absence of a specific request, the trial judge need not charge the law applicable to a defense presented by the statement but not supported in sworn testimony. Prater v. State, 160 Ga. 138, 143, 127 S.E. 296, 298; Cofer v. State, 213 Ga. 22, 96 S.E.2d 601; Willingham v. State, 169 Ga. 142, 149 S.E. 887; Holleman v. State, 171 Ga. 200, 154 S.E. 906; Darby v. State, 79 Ga. 63, 3 S.E. 663. In contrast the trial judge may sua sponte instruct the jury to treat the accused's explanation as not presenting a defense in law; '(i)n proper cases the jury, may be guarded by a charge from the court against giving the statement an undue effect in favor of the prisoner * * *.' Underwood v. State, 88 Ga. 47, 51, 13 S.E. 856, 858; Fry v. State, 81 Ga. 645, 8 S.E. 308.
26
It is said that an advantage of substance which the defendant may realize from the distinction is that the contents of his statement are not circumscribed by the ordinary exclusionary rules of evidence. Prater v. State, 160 Ga. 138, 142—147, 127 S.E. 296, 298—300; Richardson v. State, 3 Ga.App. 313, 59 S.E. 916; Birdsong v. State, 55 Ga.App. 730, 191 S.E. 277; Tiget v. State, 110 Ga. 244, 34 S.E. 1023. However, 'The prisoner must have some regard to relevancy and the rules of evidence, for it was never intended that, in giving his narrative of matters pertaining to his defense, he should attempt to get before the jury wholly immaterial facts or attempt to bolster up his unsworn statement by making profert of documents, letters, or the like, which, if relevant, might be introduced in evidence, on proof of their genuineness.' Nero v. State, 126 Ga. 554, 555, 55 S.E. 404. See also Saunders v. State, 172 Ga. 770, 158 S.E. 791; Montross v. State, 72 Ga. 261; Theis v. State, 45 Ga.App. 364, 164 S.E. 456; Vincent v. State, 153 Ga. 278, 293—294, 112 S.E. 120, 127.
27
The situations in which the Georgia cases do assimilate the defendant to an ordinary witness emphasize the anomalous nature of the unsworn statement. If he admits relevant facts in his statement the prosecution is relieved of the necessity of proving them by evidence of its own. 'The prisoner's admission in open court, made as a part of his statement on the trial, may be treated by the jury as direct evidence as to the facts.' Hargroves v. State, 179 Ga. 722, 725, 177 S.E. 561, 563. 'It is well settled that the statement of a defendant to a jury is a statement made in judicio and is binding on him. Where the defendant makes an admission of a fact in his statement, such admission is direct evidence, and the State need not prove such fact by any other evidence.' Barbour v. State, 66 Ga.App. 498, 499, 18 S.E.2d 40, 41; Dumas v. State, 62 Ga. 58. And admissions in a statement will open the door to introduction of prosecution evidence which might otherwise be inadmissible. McCoy v. State, 124 Ga. 218, 52 S.E. 434. Admissions in a statement at one trial are admissible against the accused in a later trial. Cady v. State, 198 Ga. 99, 110, 31 S.E.2d 38; Dumas v. State, supra. The prosecution may comment on anything he says in the statement. Frank v. State, 141 Ga. 243, 277, 80 S.E. 1016. Although it has been held that the mere making of a statement does not put the defendant's character in issue, Doyle v. State, 77 Ga. 513, it is settled that 'A defendant's statement may be contradicted by testimony as to the facts it narrates, and his character may be as effectively put in issue by his statement as by witnesses sworn by him for this purpose.' Jackson v. State, 204 Ga. 47, 56, 48 S.E.2d 864, 870; Barnes v. State, 24 Ga.App. 372, 100 S.E. 788. The prosecution may introduce rebuttal evidence of alleged false statements. Johnson v. State, 186 Ga. 324, 197 S.E. 786; Camp v. State, 179 Ga. 292, 175 S.E. 646; Morris v. State, 177 Ga. 106, 169 S.E. 495.
28
Perhaps any adverse consequences resulting from these anomalous characteristics might be in some measure overcome if the defendant could be assured of the opportunity to try to exculpate himself by an explanation delivered in an organized, complete and coherent way. But the Georgia practice puts obstacles in the way of this. He must deliver a finished and persuasive statement on his first attempt, for he will probably not be permitted to supplement it. Apparently the situation must be most unusual before the exercise by the trial judge of his discretion to refuse to permit the defendant to make a supplemental statement will be set aside. See Sharp v. State, 111 Ga. 176, 36 S.E. 633; Jones v. State, 12 Ga.App. 133, 76 S.E. 1070. Even after the State has introduced new evidence to rebut the statement or to supplement its own case, leave to make a supplemental statement has been denied. Fairfield v. State, 155 Ga. 660, 118 S.E. 395; Johnson v. State, 120 Ga. 509, 48 S.E. 199; Knox v. State, 112 Ga. 373, 37 S.E. 416; Boston v. State, 94 Ga. 590, 21 S.E. 603; Garmon v. State, 24 Ga.App. 586, 101 S.E. 757. If the subject matter of the supplementary statement originates with counsel and not with the defendant, it has been held that this is sufficient reason to refuse to permit the making of a supplemental statement. August v. State, 20 Ga.App. 168, 92 S.E. 956. And the defendant who may have a persuasive explanation to give has no effective way of overcoming the possible prejudice from the fact that he may not be subjected to cross-examination without his consent, for he has no right to require cross-examination. Boyers v. State, 198 Ga. 838, 844—845, 33 S.E.2d 251, 255—256. Of course, even in jurisdictions which have granted competence to defendants, the prosecution may decline to cross-examine. But at least the defendants in those jurisdictions have had the advantage of having their explanation elicited through direct examination by counsel. In Georgia, however, as was held in this case, counsel may not examine his client on direct examination except in the discretion of the trial judge. The refusal to allow counsel to ask questions rarely seems to be reversible error. See, e.g., Corbin v. State, 212 Ga. 231, 91 S.E.2d 764; Brown v. State, 58 Ga. 212. 'This discretion is to be sparingly exercised, but its exercise will not be controlled except in cases of manifest abuse.' Whitley v. State, 14 Ga.App. 577, 578, 81 S.E. 797. Indeed, even where the defendant has been cross-examined on his statement, it has been held that defense counsel has no right to ask a question, Lindsay v. State, 138 Ga. 818, 76 S.E. 369. Nor may counsel call the attention of the defendant to a material omission in his statement without permission of the trial court. Echols v. State, 109 Ga. 508, 34 S.E. 1038; Clark v. State, 43 Ga.App. 384, 159 S.E. 135.
29
This survey of the unsworn-statement practice in Georgia supports the conclusion of a Georgia commentator: 'The fact is that when the average defendant is placed in the witness chair and told by his counsel or the court that nobody can ask him any questions, and that he may make such statement to the jury as he sees proper in his own defense, he has been set adrift in an uncharted sea with nothing to guide him, with the result that his statement in most cases either does him no good or is positively hurtful.' 7 Ga.B.J. 432, 433 (1945).18
30
The tensions of a trial for an accused with life or liberty at stake might alone render him utterly unfit to give his explanation properly and completely. Left without the 'guiding hand of counsel,' Powell v. State of Alabama, supra, 287 U.S. at page 69, 53 S.Ct. at page 64, he may fail properly to introduce, or to introduce at all, what may be a perfect defense. '* * * though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.' Ibid. The treatment accorded the unsworn statement in the Georgia courts increases this peril for the accused. The words of Cooley, J., in his opinion for the Michigan Supreme Court in Annis v. People, 13 Mich. 511, 519—520, fit his predicament.
31
'But to hold that the moment the defendant is placed upon the stand he shall be debarred of all assistance from his counsel, and left to go through his statement as his fears or his embarrassment may enable him, in the face of the consequences which may follow from imperfect or unsatisfactory explanation, would in our opinion be to make, what the statute designed as an important privilege to the accused, a trap into which none but the most cool and self- possessed could place himself with much prospect of coming out unharmed. An innocent man, charged with a heinous offence, and against whom evidence of guilt has been given, is much more likely to be overwhelmed by his situation, and embarrassed, when called upon for explanation, than the offender, who is hardened in guilt; and if he is unlearned, unaccustomed to speak in public assemblies, or to put together his thoughts in consecutive order any where, it will not be surprising if his explanation is incoherent, or if it overlooks important circumstances.'19
32
We therefore hold that, in effectuating the provisions of § 38—415, Georgia, consistently with the Fourteenth Amendment, could not, in the context of § 38—416, deny appellant the right to have his counsel question him to elicit his statement. We decide no more than this. Our decision does not turn on the facts that the appellant was tried for a capital offense and was represented by employed counsel. The command of the Fourteenth Amendment also applies in the case of an accused tried for a noncapital offense, or represented by appointed counsel. For otherwise, in Georgia, 'the right to be heard by counsel would be of little worth.' Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4.
33
The judgment is reversed and the cause is remanded for proceedings not inconsistent with this opinion.
34
Reversed and remanded.
Appendix to Opinion of the Court.
35
Ala.Code, 1940, Tit. 15, § 305.
36
Alaska Comp.Laws Ann.1949, § 66—13—53.
37
Ariz.Rev.Stat.Ann., 1956, § 13—163.
38
Ark.Stat.1947, § 43—2016.
39
Cal.Pen.Code, § 1323.5, West's Ann.Code. See also Cal.Pen.Code, § 1323, West's Ann.Code; Cal.Const.Art. I, § 13, West's Ann.Code.
40
Colo.Rev.Stat.Ann.1953, § 39—7—15.
41
Conn.Gen.Stat.1958, § 54—84, C.G.S.A.
42
Del.Code Ann.1953, Tit. 11, § 3501.
43
Fla.Stat., 1959, § 918.09, F.S.A.
44
Hawaii Rev.Laws 1955, § 222—15.
45
Idaho Code Ann.1948, § 19—3003.
46
Ill.Rev.Stat., 1959, c. 38, § 734.
47
Ind.Ann.Stat.1956, § 9—1603.
48
Iowa Code, 1958, § 781.12, I.C.A. See also Iowa Code § 781.13, I.C.A.
49
Kan.Gen.Stat.Ann.1949, § 62—1420.
50
Ky.Rev.Stat.1960, § 455.090.
51
La.Rev.Stat.1950, § 15.461, LSA—R.S. See also La.Rev.Stat. § 15.462, LSA—R.S.
52
Me.Rev.Stat.Ann.1954, c. 148, § 22.
53
Md.Ann.Code 1957, Art. 35, § 4.
54
Mass.Gen.Laws Ann., 1959, c. 233, § 20.
55
Mich.Comp.Laws 1948, § 617.64.
56
Minn.Stat., 1957, § 611.11, M.S.A.
57
Miss.Code Ann.1942, § 1691.
58
Mo.Rev.Stat., 1959, § 546.260, V.A.M.S. See also Mo.Rev.Stat. § 546.270, V.A.M.S.
59
Mont.Rev.Codes Ann.1947, § 94—8803.
60
Neb.Rev.Stat.1956, § 29—2011.
61
Nev.Rev.Stat.1957, § 175.170. See also Nev.Rev.Stat. § 175.175.
62
N.H.Rev.Stat.Ann.1955, § 516.31. See also N.H.Rev.Stat.Ann. § 516.32.
63
N.J.Rev.Stat.1951, § 2A:81—8, N.J.S.A.
64
N.M.Stat.Ann.1953, § 41—12—19.
65
N.Y.Code Crim.Proc. § 393.
66
N.C.Gen.Stat.1953, § 8—54.
67
N.D.Rev.Code 1943, § 29—2111.
68
Ohio Rev.Code Ann.1953, § 2945.43.
69
Okla.Stat.1951, Tit. 22, § 701.
70
Ore.Rev.Stat.1953, § 139.310.
71
Pa.Stat., 1930, Tit. 19, § 681. See also Pa.Stat.Tit. 19, § 631.
72
R.I.Gen.Laws Ann.1956, § 12—17—9.
73
S.C.Code 1952, § 26—405.
74
S.D.Code 1939, § 34.3633.
75
Tenn.Code Ann.1955, § 40—2402. See also Tenn.Code Ann. § 40 2403.
76
Vernon's Ann.Tex.Code Crim.Proc.1948, Art. 710.
77
Utah Code Ann.1953, § 77—44—5.
78
13 Vt.Stat.Ann.1959, § 6601.
79
Va.Code Ann.1950, § 19.1—264.
80
Wash.Rev.Code 1951, § 10.52.040.
81
W.Va.Code Ann.1955, § 5731.
82
Wis.Stat.1959, § 325.13, W.S.A.
83
Wyo.Stat.1957, § 7—244.
84
Mr. Justice FRANKFURTER'S separate opinion for reversing the conviction, in which Mr. Justice CLARK joins.
85
Georgia in 1784 adopted the common law of England, Act of February 25, 1784, Prince's Digest 570 (1837). This adoption included its rules of competency for witnesses, whereby an accused was precluded from being a witness in his own behalf. It is doubtful whether and to what extent the common-law privilege of an accused, barred as a witness, to address the jury prevailed in Georgia, but it is a fair guess that the practice was far less than uniform. See Roberts v. State, 189 Ga. 36, 41, 5 S.E.2d 340, 343. While the common-law rigors of incompetency were alleviated by an enactment of 1866 because 'the inquiry after truth in courts of justice is often obstructed by incapacities created by the present law,'* Georgia retained the incompetency of an accused to testify in his own defense. In 1868, for the first time a statutory provision granted the accused the privilege of making an unsworn statement to the jury. Ga.Laws 1868, p. 24. The sum of all this legislative history is that the defendant in a criminal prosecution in Georgia was disqualified as a witness, but was given opportunity to say his say to the jury. These two aspects of the legal situation in which Georgia placed the accused were made consecutive sections of the penal code in 1895, Ga.Code 1895, §§ 1010, 1011, and have thus remained through their present form as §§ 38—415 and 38—416.
86
(1) It would seem to be impossible, because essentially meaningless as a matter of reason, to consider the constitutional validity of § 38—415 without impliedly incorporating the Georgia law which renders the defendant incompetent to present testimony in his own behalf under oath. This is not a right-to-counsel case. As the Georgia Supreme Court correctly stated: 'The constitutional provisions * * * confer only the right to have counsel perform those duties and take such actions as are permitted by the law; and to require counsel to conform to the rules of practice and procedure, is not a denial of the benefit * * * of counsel.' 215 Ga. 117, 119, 109 S.E.2d 44, 46. What is in controversy here is the adequacy of an inextricably unified scheme of Georgia criminal procedure. The right to make an unsworn statement, provided by § 38—415, is an attempt to ameliorate the harsh consequences of the incompetency rule of the section following. Standing alone, § 38 415 raises no constitutional difficulty. Only when considered in the context of the incompetency provision does it take on meaning. If Georgia may constitutionally altogether bar an accused from establishing his innocence as a witness, it goes beyond its constitutional duty if it allows him to make a speech to the jury whether or not aided by counsel. Alternatively, if § 38—416 is unconstitutional—a legal nullity—a Georgia accused can insist on being sworn as a competent witness, and the privilege also to make an unsworn statement without benefit of counsel would constitute an additional benefit of which he may or may not choose to avail himself. If, as is the truth, § 38—415 has meaning only when applied in the context of § 38—416's rule of incompetency, surely we are not so imprisoned by any formal rule governing our reviewing power that we cannot consider the two parts of a disseverable, single whole because petitioner has not asked us in terms to review both halves. It is formalism run riot to find that the division into two separate sections of what is organically inseparable may not for reviewing purpose be treated as a single, appealable unit. This Court, of course, determines the scope of its reviewing power over a state court judgment.
87
(2) But if limitations on our power to review prevent us from considering and ruling upon the constitutionality of the application of Georgia's incompetency law—which alone creates the significant constitutional issue—then I should think that what is left of this mutilation should be dismissed for want of a substantial federal question. Considered in vacuo, § 38—415 fails, as has been pointed out, to present any reasonable doubts as to its constitutionality, for it provides only an additional right. If appellant had in fact purposefully chosen not to be a witness, had agreed to the validity of the incompetency provisions, and had intentionally limited his attack to § 38—415 as applied, he would be presenting an issue so abstract that the Court would not, I believe, entertain it.
88
Perhaps the accused failed to offer himself as a witness because he thought it would be a fultile endeavor under settled Georgia law, while the opportunity to have the aid of counsel in making an unsworn statement pursuant to § 38—415 would be a discretionary matter for Georgia judges. Since I cannot assume that appellant purposefully intended to waive his constitutional claim concerning his incompetency—though he may not explicitly have asserted this claim—I have no difficulty in moving from the Court's oblique recognition of the relevance to this controversy of § 38—416 to the candid determination that that section is unconstitutional.
89
Mr. Justice CLARK, whom Mr. Justice FRANKFURTER joins, concurring.
90
Because, as applied by the Georgia court, § 38—415 grants criminal defendants the opportunity to make unsworn statements in their own behalf, but withholds from the same defendants the assistance of their counsel in eliciting perhaps more effective statements, the Court today strikes down that section. It is held to be unconstitutional 'in the context of § 38—416' which renders criminal defendants incompetent as witnesses at their own trials. The Court does not, however, treat § 38—416 as anything more substantial than 'context,' and, while rendering its validity doubtful, fails to pass upon its constitutionality. The Court's hesitancy to reach that question appears to be due to appellant's tactic, at the trial, of offering his statement under § 38—415 and, in so doing, demanding the aid of his counsel, but not offering himself as a competent witness or challenging his exclusion under § 38—416. This has proven to be a perfect cast of appellant's line, for the Court has risen to the bait exactly as anticipated. The resulting advantage of the Court's present holding to the criminal defendant in Georgia is obvious—as matters now stand, the defendant may make an unsworn statement as articulate and convincing as the aid of counsel can evoke, but the prosecution may not cross-examine.
91
It is true that merely to defeat such a result is insufficient justification for this Court to reach out and decide additional constitutional questions otherwise avoidable. Nevertheless, the problem appellant poses under § 38—415 is so historically and conceptually intertwisted with the rule of § 38—416 that not only must they be considered together, as the Court expressly recognizes, but they must be allowed to stand or fall together, as a single unitary concept, uncircumscribed by the accident of divisive codification. The section today struck down, § 38—415, is not even intelligible except in terms of the incompetency imposed by § 38—416.* Were the latter rule not codified, its proscription would have to be understood as § 38—415's operative premise of common-law disability. The purported boon of § 38—415 was founded on that disability, against the hardships of which, nowhere else presently imposed, it was intended to at least partially relieve. I would not withhold adjudication because of the fact of codification, nor merely on account of the procedural dodge resorted to by counsel.
92
Reaching the basic issue of incompetency, as I feel one must, I do not hesitate to state that in my view § 38—416 does not meet the requirements of due process and that, as an unsatisfactory remnant of an age gone by, it must fall as surely as does its palliative, § 38—415. Until such time as criminal defendants are granted competency by the legislature, the void created by rejection of the codified common-law rule of Georgia may be filled by state trial judges who would have to recognize, as secured by the Fourteenth Amendment, the right of a criminal defendant to choose between silence and testifying in his own behalf. In the same manner the state courts presently implement other federal rights secured to the accused, and therefore the fact that a void of local policy would be created is not an insuperable obstacle to the disposition I propose. Nor would past convictions be automatically rendered subject to fatal constitutional attack unless, as was, in my view, done here, the proper challenge had been preserved by appropriate objection to active operation of the concept embodied in the incompetency rule in either of its phases. In view of the certain fact that criminal prosecutions will continue to be had in Georgia, and that some defendant, if not appellant himself at his new trial, will demand the right to testify in his own behalf, in strict compliance with the procedural standard adhered to today, we will sooner or later have the question of the validity of § 38—416 back on our doorstep. The result, predictably, will be the same as that reached under § 38 415 today. If that proves in fact to be the Court's future disposition of the claim I anticipate, the stability of interim convictions may well be jeopardized where related constitutional claims are preserved but, perhaps, not pressed. So too, on the reverse side of the coin, there may well be interim convictions where, had defendants been permitted to testify under oath in their own behalf verdicts of acquittal would have been returned. This Court should not allow the administration of criminal justice to be thus frustrated or unreasonably delayed by such a fragmentation of the critical issue through procedural niceties made solely in the hope of avoiding a controlling decision on a question of the first magnitude.
93
For these reasons I deem it impractical as well as unwise to withhold for a future date a decision by the Court on the constitutionality of § 38—416.
94
Disagreeing with the distorted way by which the Court reverses the judgment, I join in its reversal only on the grounds stated here and in the opinion of my Brother FRANKFURTER which I join.
1
It is suggested in the concurring opinions that we should nevertheless adjudicate the validity of § 38—416. Apart from the incongruity of passing upon the statute the appellant expressly refrained from attacking, and disregarding his challenge to the statute he did call in question, such a course would be disrespectful of the State's procedures. For it appears that the Georgia Supreme Court would not have entertained an attack on § 38 416, since the appellant did not offer himself to be sworn as a witness. See Holley v. Lawrence, 194 Ga. 529, 22 S.E.2d 154; appeal here was dismissed on the express ground that 'the judgment of the court below rests upon a non-federal ground adequate to support it, namely, that the failure to tender such testimony at the trial barred any later claim of the alleged constitutional right. * * *' 317 U.S. 518, 63 S.Ct. 394, 87 L.Ed. 434.
2
Wigmore concludes that 'the principle of parties' disqualification would have been the direct root of the disqualification by interest in general.' 2 Wigmore, p. 680. '(A)fter Coke's time and probably under the influence of his utterances, the rule for a party was extended by analogy to interested persons in general.' Pp. 682—683. Coke listed a number of disqualifications: if the witness 'becometh infamous, * * * Or if the witnesse be an infidell, or of nonsane memory, or not of discretion, or a partie interested, or the like.' I Coke Upon Littleton, 6.b.
3
There Blackstone stated the then-settled common-law rule to be that '(a)ll witnesses, of whatever religion or country, that have the use of their reason, are to be received and examined, except such as are infamous, or such as are interested in the event of the cause.'
4
By the Act of February 25, 1784, the Georgia Legislature provided that the common laws of England should remain in force in Georgia, 'so far as they are not contrary to the constitution, laws, and form of government now established in this State.' Prince's Digest (1837), p. 570. Section 3772 of the Code of 1863, which codified the statutory and decisional law of the State, stated: 'Witnesses are incompetent * * * Who are interested in the event of the suit.'
5
The history of the transition in one American jurisdiction is traced in Thayer, A Chapter of Legal History in Massachusetts, 9 Harv.L.Rev. 1. The first American statute removing the disability of interested nonparty witnesses seems to have been Michigan's in 1846, and Connecticut was first to abolish the general incapacity of parties in 1849. The Field reforms in New York State were influential in leading other American jurisdictions to discard the incapacity of both witnesses and parties in civil cases. For an account of the development in the United States, see 2 Wigmore, pp. 686—695.
The preamble to the 1866 Georgia legislation expressed the legislative aim in extending competency: 'Whereas, the inquiry after truth in courts of justice is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in civil and criminal cases, should be laid before the persons who are to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced for the truth of testimony.' The first section of the Act forbade the exclusion of witnesses, 'by reason of incapacity from crime or interest, or from being a party'; it also contained a 'dead man's statute' proviso. The remaining sections enumerated the exceptions to the extension of competency; they were in effect a statutory declaration that certain of the common-law incapacities should remain intact. See Roberts v. State, 189 Ga. 36, 5 S.E.2d 340; Wilson v. State, 138 Ga. 489, 492, 75 S.E. 619, 620; Howard v. State, 94 Ga. 587, 20 S.E. 426. The second section contained the original of § 38—416, stating: 'But nothing herein contained shall render any person, who, in any criminal proceeding, is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable, to give evidence for or against himself, or herself, or shall render any person compellable to answer any question tending to criminate himself or herself; or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband; nor shall any attorney be compellable to give evidence for or against his client.' Ga. Laws 1866, pp. 138—139. Save for the provision as to the attorney-client privilege, added during the debate in the Georgia Senate, see Senate Journal, Dec. 5, 1866, p. 266, the second section was verbatim the same as § III of Lord Brougham's Act.
6
The dates on which the general competency statutes of the States were enacted are: Alabama, 1885; Alaska, 1899; Arizona, 1871; Arkansas, 1885; California, 1866; Colorado, 1872; Connecticut, 1867; Delaware, 1893; Florida, 1895; Hawaii, 1876; Idaho, 1875; Illinois, 1874; Indiana, 1873; Iowa, 1878; Kansas, 1871; Kentucky, 1886; Louisiana, 1886; Maine, 1864; Maryland, 1876; Massachusetts, 1866; Michigan, 1881; Minnesota, 1868; Mississippi, 1882; Missouri, 1877; Montana, 1872; Nebraska, 1873; Nevada, 1867; New Hampshire, 1869; New Jersey, 1871; New Mexico, 1880; New York, 1869; North Carolina, 1881; North Dakota, 1879; Ohio, 1867; Oklahoma, 1890; Oregon, 1880; Pennsylvania, 1885; Rhode Island, 1871; South Carolina, 1866; South Dakota, 1879; Tennessee, 1887; Texas, 1889; Utah, 1878; Vermont, 1866; Virginia, 1886; Washington, 1871; West Virginia, 1881; Wisconsin, 1869; Wyoming, 1877.
The current citations to these statutes are collected in the Appendix to this opinion, 365 U.S. at page 596, 81 S.Ct. at page 770.
7
Parliament had enacted a number of specialized competency statutes prior to 1898, the first in 1872. About 25 others had been passed by the time of the enactment of the general competency statute. See 56 Hansard, Parliamentary Debates, 4th Series, pp. 977—978. The most important was the Criminal Law Amendment Act of 1885, 48 & 49 Vict., c. 69, which made defendants competent in certain felony prosecutions. Most of the other statutes involved offenses created by regulatory legislation, which were generally misdemeanors. See generally Best, supra, pp. 571—572; 2 Taylor, Evidence (12th ed.), 862—863.
8
Canada and New Zealand adopted competency statutes in 1893. Canada Evidence Act, see Rev.Stat.Can. (1952), c. 307, § 4(1); New Zealand Criminal Code Act, § 398, see N.Z.Repr.Stat., Evidence Act 1908, § 5. For an account of the Australian development, see 6 Res Judicatae 60. The statute in Northern Ireland is the Criminal Evidence Act (Northern Ireland); the Irish statute is the Criminal Justice (Evidence) Act.
For the Indian statute, see Code of Criminal Procedure (Amendment) Act, 1955, § 61, in 42 A.I.Rep. (1955), Indian Acts Section p. 91.
9
Opposition on this score was marked in Great Britain. Said one member of Parliament in the 1898 debates: '(W)hy is this change to be made in the law? The English Revolution is against it, three centuries of experience is against it; and the only argument adduced in its favor is the suggestion that an honest man is occasionally convicted of a crime of which he is innocent. * * * it would be a degradation to your great judicial tribunals that, though a guilty man may not, an innocent man may be placed in a position of embarrassment and peril—for the first time under the British Constitution—far greater than any ancient law designed.' 56 Hansard, supra, pp. 1022, 1024. Said another: '(F)or centuries the criminal law of England has been administered on the principle that if you want to hang a man you must hang him on somebody else's evidence. This is a Bill to hang a man on his own evidence * * *.' Id., at 1030. There had been particular opposition on the part of Irish members, who contended that competency would become a means of oppression of defendants there; as a result Ireland was excluded from the coverage of the Act. See 60 Hansard, supra, pp. 721—742. Other members were hostile because of fear that the statute would have an adverse effect on laborers who became criminal defendants. See 60 Hansard, supra, pp. 546—547, 574—578.
10
See Bentham, Rationale of Judicial Evidence, bk. IX, pt. IV, c. III, pp. 445—468; Appleton, The Rules of Evidence, pp. 126 134.
11
'That then the accused, if guilty, should object being placed in an attitude so dangerous to him, because he is guilty, is what might have been expected. * * * His objection to testifying, is an objection to punishment.' Appleton, supra, p. 131. See also State v. Cleaves, 59 Me. 298; cf. State v. Bartlett, 55 Me. 200, 215—221. For a note on Appleton's role in the movement to extend competency, see Thayer, A Chapter of Legal History in Massachusetts, 9 Harv.L.Rev. 1, 12. See also 14 Am.L.Reg. 705.
12
For other comments on the impact of the competency statutes, see Alverstone, Recollections of Bar and Bench, pp. 176 180; Biron, Without Prejudice; Impressions of Life and Law, p. 218; Train, The Prisoner at the Bar, pp. 205—211; Sherman, Some Recollections of a Long Life, p. 234; 1933 Scots Law Times 29; 2 Fortnightly L.J. 41.
13
The origins probably lie in the necessity for the prisoner to defend himself during the early development of English criminal law. See 365 U.S. at page 573, 81 S.Ct. at page 759, supra. Even after the defendant was allowed to have witnesses in his behalf in England, he still had no right to be heard by counsel, except for treason, until the act of 1836, and his participation in the trial remained of major importance; as before, 'a prisoner was obliged, in the nature of the case, to speak for himself.' Reg. v. Doherty, 16 Cox C.C. 306, 309. Although the practice developed in the eighteenth century of allowing counsel to advise the accused during the trial and to cross-examine the Crown's witnesses, counsel was still not permitted to address the jury. Stephen, supra, p. 424. The defendant continued to do this in his own behalf. See 1 Chitty, Criminal Law (5th Am. ed.), p. 623; Bentham, supra, bk. IX, pt. V, c. III, p. 496. See generally 26 Austral.L.J. 166.
14
Criminal Evidence Act, § 1(h). Some English judges had sought to curtail the practice after defendants were statutorily accorded full benefit of counsel by the act of 1836, 6 & 7 Will. 4, c. 114. In Reg. v. Boucher, 8 Car. & P. 141, Coleridge, J., held that because defense counsel and addressed the jury, the accused could not make a statement. See also Reg. v. Beard, 8 Car. & P. 142; Reg. v. Rider, 8 Car. & P. 539. In Reg. v. Taylor, 1 F. & F. 535, Byles, J., said that the prisoner or his counsel would be permitted to address the jury, but not both. At least a remnant of this judicial hostility to the statement lingered almost until the time of the grant of competency. See Reg. v. Millhouse, 15 Cox C.C. 622.
In addition to its statutory preservation in Great Britain, it survives in other common-law jurisdictions recognizing the defendant's competency. E.g., New Zealand, see Rex v. Perry, (1920) N.Z.L.R. 21; Kerr v. Reg., (1953) N.Z.L.R. 75, 28 N.Z.L.J. 305; Australia, see Rex v. McKenna, (1951) Q.S.R. 299; Ireland, see People v. Riordan, (1948) I.R. 416, 94 Irish Law Times, Feb. 20, 1960, p. 43, Feb. 27, 1960, p. 49, March 5, 1960, p. 55; South Africa, see Rex v. de Wet, (1933) S.A.L.R. 68, 64 So.Afr.L.J. 374.
15
In some States recognizing the statement at common law, the defendant was confined to arguing the law and commenting on the evidence of the witnesses; he could not state facts. See Ford v. State, 34 Ark. 649; Wilson v. State, 50 Tenn. 232. In other States, the prisoner appears to have been allowed more latitude. See People v. Lopez, 2 Edm.Sel.Cases, N.Y., 262. In Massachusetts, the right of a defendant with counsel to make a statement seems to have been recognized only in capital cases. See the historical review in Commonwealth v. Stewart, 255 Mass. 9, 151 N.E. 74, 44 A.L.R. 579; see also Commonwealth v. McConnell, 162 Mass. 499, 39 N.E. 107; Commonwealth v. Burrough, 162 Mass. 513, 39 N.E. 184; Commonwealth v. Dascalakis, 246 Mass. 12, 32, 140 N.E. 470, 479. For other considerations of the common-law statement, see State v. Taylor, 57 W.Va. 228, 50 S.E. 247; Hanoff v. State, 37 Ohio St. 178, 184—185 (dissenting opinion); O'Loughlin v. People, 90 Colo. 368, 384—385, 10 P.2d 543, 549, 82 A.L.R. 622; State v. Louviere, 169 La. 109, 124 So. 188; cf. Reg. v. Rogers, (1888) 1 B.C.L.R. pt. 2, p. 119. Alabama gave the unsworn statement statutory sanction in 1882. Previously the right had been confined there to an argument on the evidence, State v. McCall, 4 Ala. 643, but the statute was construed to allow the statement of matters in the nature of evidence. See Blackburn v. State, 71 Ala. 319; Chappell v. State, 71 Ala. 322. Wyoming gave a statutory right of unsworn statement in 1869. See Anderson v. State, 27 Wyo. 345, 196 P. 1047; Florida in 1866 gave the accused in the discretion of the court an opportunity to make a sworn statement on which he could not be cross-examined. This was made an absolute right in 1870. See Miller v. Florida, 15 Fla. 577. All these States, of course, subsequently made defendants fully competent.
16
It is doubtful how far the practice had been followed at common law in Georgia. See Roberts v. State, 189 Ga. 36, 41, 5 S.E.2d 340, 343. Initially there seems to have been considerable opposition to giving the unsworn statement statutory sanction. The bill that became the predecessor of present § 38—415 was originally tabled in the House and then passed after reconsideration, and was originally defeated in the Senate. See House Journal Aug. 8, 10, 13, 1868, pp. 158, 160, 173; Senate Journal, Oct. 3, 1868, p. 492. As passed, it provided that in cases of felony the prisoner should have the right to make an unsworn statement; he was not subject to cross-examination on it and the jury was empowered to give it such force as they thought right. Ga.Laws 1868, p. 24. In 1874 the right was extended to all criminal defendants. Ga.Laws 1874, pp. 22—23. In 1879 the jury was explicitly empowered to believe the statement in preference to the sworn testimony, Ga.Laws 1878—1879, pp. 53—54, and the statute took its present form.
17
See also Clarke v. State, 78 Ala. 474; Harris v. State, 78 Ala. 482; Hart v. State, 38 Fla. 39, 20 So. 805; Copeland v. State, 41 Fla. 320, 26 So. 319; O'Loughlin v. People, 90 Colo. 368, 10 P.2d 543, 82 A.L.R. 622.
In Wyoming, the defendant had the option to make an unsworn statement even after the grant of competency, since the competency statute expressly preserved the statement. In 1925 the reservation of the right of statement was removed. See Anderson v. State, 27 Wyo. 345, 196 74, 44 A.L.R. 579. be the only American jurisdiction still explicitly allowing a defendant in some cases to give either sworn testimony or an unsworn statement. See Commonwealth v. Stewart, 255 Mass. 9, 151 N.E.
18
For other Georgia comments on the practice, see 17 Ga.B.J. 120; 15 Ga.B.J. 342; 14 Ga.B.J. 362, 366; 3 Mercer L.Rev. 335; cf. 5 Ga.B.J., Feb. 1943, p. 47. The Georgia Bar Association has in the past supported a proposal in the legislature to make defendants competent. See, e.g., 1952 Ga.Bar Assn.Rep. 31. Recent study of the problem by the Association's Committee on Criminal Law and Procedure resulted in a report recommending against change on grounds that it would 'aid the prosecution and conviction of the defendant and would be of no material benefit to any defendant in a criminal case. Those who are on trial for their lives and liberty cannot possibly think and testify as clearly as a disinterested witness, and of course, it is agreed that a shrewd prosecutor could create, by expert cross examination, in the minds of the jury, an unfavorable impression of a defendant.' 1957 Ga.Bar Assn.Rep. 182. However, since that time the Committee has twice recommended competency for criminal defendants and has prepared draft legislation for that purpose. See 1960 Ga.Bar Assn.Rep. 109, 115, 116, 119.
Georgia's adherence to the rule of incompetency of criminal defendants contrasts with the undeviating trend away from exclusion of evidence that has characterized the development of the State's law since the nineteenth century. The Code of 1863 indicates that the limitations on and exceptions to disqualifications in the common law were numerous even before the Act of 1866. See, e.g., §§ 3772(5), 3779, 3780, 3781, 3782, 3783, 3785, 4563. The Georgia Arbitration Act of 1856 had made the parties competent in arbitration proceedings. See Golden v. Fowler, 26 Ga. 451, 458. Judge Lumpkin declared: '(A)s jurors have become more capable of exercising their functions intelligently, the Judges both in England and in this country, are struggling constantly to open the door wide as possible * * * to let in all facts calculated to affect the minds of the jury in arriving at a correct conclusion. * * * Truth, common sense, and enlightened reason, alike demand the abolition of all those artificial rules which shut out any fact from the jury, however remotely relevant, or from whatever source derived, which would assist them in coming to a satisfactory verdict.' Johnson v. State, 14 Ga. 55, 61—62.
A policy favoring the reception of evidence has consistently characterized the decisions of the Georgia courts and Acts of the legislature since the 1866 Act. See, e.g., Blount v. Beall, 95 Ga. 182, 22 S.E. 52; Myers v. Phillips, 197 Ga. 536, 29 S.E.2d 700; Manley v. Combs, 197 Ga. 768, 781—782, 30 S.E.2d 485, 493—494; Sisk v. State, 182 Ga. 448, 453, 185 S.E. 777, 781; Berry v. Brunson, 166 Ga. 523, 531—533, 143 S.E. 761, 765; Polk v. State, 18 Ga.App. 324, 89 S.E. 437; Watkins v. State, 19 Ga.App. 234, 91 S.E. 284. The legislature has removed some of the exceptions retained in the 1866 Act. See Ga.Laws 1935, p. 120, allowing parties to testify in breach-of-promise actions. In 1957 the legislature removed the incompetency of a wife to testify for or against her husband. Ga.Laws 1957, p. 53, amending § 38—1604. Ga.Code, § 38—101 sums up this policy: 'The object of all legal investigation is the discovery of truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.'
Moreover, in the case of defendants jointly tried, Georgia allows one codefendant to testify as a sworn witness for the other, although his testimony may serve to acquit himself if believed. See, e.g.,
Staten v. State, 140 Ga. 110, 78 S.E. 766; Cofer v. State, 163 Ga. 878, 137 S.E. 378. It may even be error in such a situation for the court to treat such testimony as if it were an unsworn statement and to fail to give sufficient emphasis in the charge to the jury as to its effect as evidence. Staten v. State, supra; Burnsed v. State, 14 Ga.App. 832, 82 S.E. 595; Roberson v. State, 14 Ga.App. 557, 81 S.E. 798; cf. O'Berry v. State, 153 Ga. 880, 113 S.E. 203. And a defendant is allowed to give sworn testimony as to matters in his trial not going to the issue of his guilt. See Thomas v. State, 81 Ga.App. 59, 58 S.E.2d 213.
19
There the Michigan Supreme Court reversed a conviction because the trial judge refused to let counsel remind the defendant that he had omitted a material fact from his unsworn statement. The quoted excerpt immediately follows an observation that the Michigan statute permitting an unsworn statement evidently did not contemplate an ordinary direct examination.
*
Ga.Laws 1866, p. 138.
*
I agree with my Brother FRANKFURTER that if § 38—415 is to be isolated from the incompetency provision of § 38—416, 'what is left of this mutilation should be dismissed for want of a substantial federal question.'
| 01
|
365 U.S. 610
81 S.Ct. 776
5 L.Ed.2d 828
Elmer Samuel CHAPMAN, Petitioner,v.UNITED STATES of America.
No. 175.
Argued Feb. 23, 1961.
Decided April 3, 1961.
Mr. J. Sewell Elliott, Macon, Ga., for petitioner.
Mr. Robert S. Erdahl, Washington, D.C., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Acting without a warrant but with the consent of the petitioner's landlord, Georgia law enforcement officers entered through an unlocked window—and searched petitioner's rented house, in his absence, and there found and seized an unregistered 'distillery' and 1,300 gallons of 'mash.' Soon afterward petitioner was indicted in the District Court for the Middle District of Georgia for violations of the federal liquor laws.1 He promptly moved the court for an order suppressing the use of the seized items as evidence at his impending criminal trial on the ground that they were obtained by an unlawful search and seizure. After hearing evidence, the court held that the search and seizure were lawful under federal standards and denied the motion.
2
At the subsequent trial, the evidence sought to be suppressed was offered and received, over petitioner's renewed objections. Upon that evidence, the jury found petitioner guilty, and the court sentenced him to imprisonment for a year and a day. On appeal, the Court of Appeals for the Fifth Circuit affirmed. 272 F.2d 70. To examine petitioner's claim that the courts below violated the standards governing admissibility of timely challenged evidence in federal courts, we granted certiorari. 363 U.S. 836, 80 S.Ct. 1621, 4 L.Ed.2d 1724.
3
The relevant evidence is not controverted. It shows the following: One Bridgaman, and another, owned a dwelling house in a wooded area near the Macon, Georgia, airport, which they commonly rented through a rental agency. Understanding that the house had been rented to a new tenant, Bridgaman, on Sunday, February 16, 1958, went to the house for the purpose of inviting the tenants to attend church. Upon arrival he noted a strong 'odor of mash' about the house. There was no response to his knock, and, although he tried to do so, he was unable to see into the house. He then returned to his home and, by telephone, advised the local police department of his observations. Soon afterward two local police officers, Harbin and Chance, arrived at Bridgaman's home, and the three then went to the rented house. They noticed a strong odor of 'whiskey mash' coming from the house. After their knock at the door failed to produce a response, they walked around the house and tried to look into it but were unable to do so because the shades were down. They found that all of the windows were locked, save one in the bathroom. The officers testified that Bridgaman told them 'to go in the window and see what('s) what in there.' Bridgaman's version of what he said was: 'If it's what I think it is, what it smells like, yes, you can have my permission to go in.' Thereupon they opened the bathroom window and, with the assistance of Bridgaman and Chance, Harbin entered the house through that opening. Upon entering the house he saw a complete and sizable distillery and 1,300 gallons of mash located in the living room. Apart from some accessories, containers and firewood, there was nothing else in the house. Harbin then called to Chance that he had found a large still and asked him 'to go get some help.' Chance immediately left—dropping Bridgaman at his home—to call the federal officers. While the federal officers were en route to the house, petitioner drove up, unlocked the front door, entered the house and was immediately arrested by Harbin. The federal officers soon arrived and took custody of petitioner. They also saved samples of the mash, took various pictures of the scene and then destroyed the still and its contents. Neither the state nor the federal officers had any warrant of any kind.
4
Although the decisions below were rendered prior to this Court's decision in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, the doctrine of that case is not here involved, as the lower courts explicitly rested their determinations on the ground that the search and seizure, though made by state officers, were valid under federal standards. Hence, the only question here is whether those determinations were correct. We believe that they were not.
5
The Fourth Amendment to the United States Constitution provides:
6
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
7
Until Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, this Court had never directly decided, but had always assumed, 'that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein' (id., 269 U.S. at page 32, 46 S.Ct. at page 6), but that case explicitly decided that 'Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are * * * unlawful notwithstanding facts unquestionably showing probable cause.' Id., 269 U.S. at page 33, 46 S.Ct. at page 6.
8
At least two decisions of this Court are closely relevant. Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. In the Taylor case, Federal agents had received 'complaints' respecting activities at a certain garage in Baltimore and decided to 'investigate.' As they 'approached the garage they got the odor of whiskey coming from within.' Looking through a small opening, they saw a number of cardboard cases. Although they had no warrant of any kind, they 'broke the fastening upon a door, entered, and found 122 cases of whiskey. No one was within the place and there was no reason to think otherwise. While the search progressed, Taylor came from his house and was put under arrest. The search and seizure were undertaken with the hope of securing evidence upon which to indict and convict him.' Id., 286 U.S. at page 5, 52 S.Ct. at page 467.
9
In condemning that search and seizure, this Court said that the officers 'had abundant opportunity (to obtain a warrant) and to proceed in an orderly way even after the odor had emphasized their suspicious; there was no probability of material change in the situation during the time necessary to secure such warrant. Moreover, a short period of watching would have prevented any such possibility. * * * Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guarantees * * * against unreasonable search.' The Court concluded that 'in any view, the action of the agents was inexcusable and the seizure unreasonable. The evidence was obtained unlawfully and should have been suppressed.' Id., 286 U.S. at page 6, 52 S.Ct. at page 467.
10
In the Johnson case, state narcotic agents, while in the hallway of a hotel, recognized a strong odor of burning opium coming from a particular room. Without knowing who was occupying the room, they knocked and, after some delay, the door was opened. The agents then entered the room and told the occupant 'to consider (herself) under arrest because we are going to search the room.' The search produced incriminating opium and smoking apparatus which was warm from recent use. The District Court refused to suppress that evidence and admitted it over defendant's objection at the trial and she was convicted. In reversing, this Court said:
11
'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.
12
Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. * * * The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.
13
'There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with. But this is not such a case.' 333 U.S. at pages 13—15, 68 S.Ct. at pages 368, 369.
14
Here, as in that case, 'No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons and, in these circumstances, certainly are not enough to bypass the constitutional requirement. No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear.' 333 U.S. at page 15, 68 S.Ct. at page 369.
15
We think it must be concluded here, as it was in Johnson, that 'If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required.' 333 U.S. at page 15, 68 S.Ct. at page 369. See also Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514.
16
Actually, the Government does not contend in this Court that this search and seizure, as such, met the standards of the Fourth Amendment. Instead, it says: 'Our position is that when the landlord, paying a social call, found good reason to believe that the leased premises were being wasted and used for criminal purposes, he had authority to enter as a matter of right and to bring officers with him for this purpose.' It says that, under the common law, a landlord has an absolute right to enter the demised premises 'to view waste,' and that he should be able to exercise that right through law enforcement officers to whom he has delegated his authority. But it cites no Georgia or other case holding that a landlord, in the absence of an express covenant so permitting, has a right forcibly to enter the demised premises without the consent of the tenant 'to view waste.' And, so far as our research discloses, no Georgia case so holds.
17
The only relevant authority cited by the Government is a statement from Tiffany, Landlord and Tenant (1910 ed.), § 3.b.(2), p. 9, that 'It has also been said that (the landlord) may enter to 'view waste,' that is, to determine whether waste has been committed, provided at least that this does not involve the breaking of windows or doors * * *.'2 (Emphasis added.) There are several answers to this contention. First, here the landlord and the officers forced open a window to gain entry to the premises. Second, 'their purpose in entering was (not to view waste but) to search for distilling equipment * * *.' Jones v. United States, supra, 357 U.S. at page 500, 78 S.Ct. at page 1257. Third, to uphold such an entry, search and seizure 'without a warrant would reduce the (Fourth) Amendment to a nullity and leave (tenants') homes secure only in the discretion of (landlords).' Johnson v. United States, supra, 333 U.S. at page 14, 68 S.Ct. at page 369. Moreover, '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 property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. * * * (W)e 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.' Jones v. United States, 362 U.S. 257, 266—267, 80 S.Ct. 725, 733, 4 L.Ed.2d 697.
18
After pointing to the fact that a Georgia statute (Title 58 Ga.Code § 106) provides that the unlawful manufacture of distilled liquor on rented premises shall work a forfeiture of the rights of the tenant, at the option of the landlord, and that another (Title 58 Ga.Code § 109) provides that use of a structure for that purpose constitutes a nuisance, the Government argues that, inasmuch as he used the demised premises for the illicit manufacture of distilled liquor, petitioner had forfeited all rights in the premises, and the landlord thus acquired the right forcibly to enter to abate the nuisance, and that he could and did delegate that right to the officers. But it is clear that, before the officers made the forcible entry, the landlord did not know that the premises were being used for the manufacture of liquor, nor had he exercised his statutory option to forfeit the tenancy for such a cause. And the Supreme Court of Georgia has held that a proceeding to abate a nuisance under § 109 'must proceed for the public on information filed by the solicitor-general of the circuit.' Kilgore v. Paschall, 202 Ga. 416, 417, 43 S.E.2d 520, 521.
19
It follows that this search was unlawful, and since evidence obtained through that search was admitted at the trial, the judgment of the Court of Appeals must be reversed.
20
Reversed.
21
Mr. Justice BLACK concurs in the result.
22
Mr. Justice FRANKFURTER, concurring in the judgment.
23
Since searches and seizures play such a frequent role in federal criminal trials, it is most important that the law on searches and seizures by which prosecutors and trial judges are to be guided should be as clear and unconfusing as the nature of the subject matter permits. The course of true law pertaining to searches and seizures, as enunciated here, has not—to put it mildly—run smooth. The Court's opinion in this case is hardly calculated, I regret to say, to contribute to clarification. The reasoning by which the Court reaches its result would be warranted were Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, still law. While the Court does not explicitly rely on it, underlying the present decision is the approach of Trupiano. That decision was a shortlived deviation from the course of decisions preceding it and it was specifically overruled by United States v. Rabinowitz, 1950, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653. Since the Rabinowitz case expresses the prevailing view, the decision in this case runs counter to it. The Court does rely on Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, although that case was seriously impaired by Rabinowitz, 339 U.S. at page 66, 70 S.Ct. at page 435, dissenting opinion, 339 U.S. at page 85, 70 S.Ct. at page 444.
24
Surely it is fair to say that the lower courts and prosecutors have a right to proceed on the assumption, on the basis of controlling decisions, that whether or not a search is 'unreasonable' turns on the circumstances presented by a particular situation, as a matter of substantive determination. On that test, I find it very difficult to conclude that a police officer may not deem adequate the authorization of a landlord to enter his house without a search warrant where he has solid ground for believing that his lessee is utilizing the house as an illegal distillery. It seems to me that it is not at all 'unreasonable' not to charge a local police officer with knowledge of the law of Georgia regarding the power of a landlord to abate a nuisance in his house. Apart from charging a policeman with knowledge of the local law relating to landlord and tenant, he certainly would not acquire that knowledge by reading the only Georgia case to which the Court's opinion refers, Kilgore v. Paschall, 202 Ga. 416, 43 S.E.2d 520, a case which deals with the procedure of a solicitor general of a Georgia circuit in abating a nuisance by an injunction and tells nothing about the remedy of self-help by a landlord.
25
In joining the Court's judgment, I do so on the basis of the views set forth in my dissents in Davis v. United States, 328 U.S. 582, 594, 66 S.Ct. 1256, 1262, 90 L.Ed. 1453; Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280, 90 L.Ed. 1477; Harris v. United States, 331 U.S. 145, 155, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399; United States v. Rabinowitz, supra, 339 U.S. at page 68, 70 S.Ct. at page 445. As these opinions elucidate, the Fourth Amendment incorporates a guiding history that gives meaning to the phrase 'unreasonable searches and seizures' contained within it far beyond the meaning of the phrase in isolation and taken from the context of that history and its gloss upon the Fourth Amendment. The Amendment in its entirety in the setting of that history decidedly does not leave the phrase 'unreasonable searches and seizures' at large.
26
Mr. Justice CLARK, dissenting.
27
The Constitution condemns only an unreasonable search. As my Brother FRANKFURTER says, that determination 'turns on the circumstances presented by a particular situation.'1
28
As I read the record, Bridgaman had rented a house to Chapman. On a Sunday morning he called at the house to invite Chapman to church services. However, Bridgaman found Chapman gone, the house locked up and an 'awful scent' of whiskey mash all over the place, including an open but empty cellar. He reported these facts to state officers and, at his suggestion, two officers accompanied him to the house. They too smelled, as the Court says, 'a strong odor of 'whiskey mash' coming from the house.'
29
Under Georgia law, the use of premises for the manufacture or the keeping of liquor for disposition works 'a forfeiture of the rights of any lessee or tenant under any lease or contract for rent * * *.'2; Bridgaman advised the officers he was the owner of the house, had it leased out, and 'instructed' officer Harbin to enter it and 'see what('s) what in there.' The officers found a bathroom window unlocked. Bridgaman 'told' the officers 'to go in the window' and assisted in 'boosting' officer Harbin into the window and on into the house. Inside, the officer found a still set up for operation and 1,300 gallons of whiskey mash in the vats. There was neither household furniture nor other evidence of residential occupancy.
30
The Court sets aside Chapman's conviction on the ground that this search without a warrant was 'unreasonable.' For the life of me I cannot see why this is true. I agree with a unanimous Court of Appeals that 'under the circumstances of the search here made by the State officers, no illegality was shown.' (272 F.2d 73.)
31
The 'reasonableness' of the search hinges on the rights of the landlord under Georgia law in such a situation.
32
This Court refuses to honor the clear language of § 106, apparently because the Government 'cites no Georgia or other case' holding that a landlord may, under the circumstances here, enter on his premises. Instead, it bases its reversal on Taylor v. United States, 286 U.S. 1, 52 U.S. 466, 76 L.Ed. 951, and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 369, 92 L.Ed. 436, involving entry by officers, unaccompanied by the landlord, into a home without a search warrant when there was ample time to secure one. This doctrine, established by Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, was repudiated and specifically overruled only two years later in United States v. Rabinowitz, 339 U.S. 56, at page 66, 70 S.Ct. 430, at page 435, 94 L.Ed. 653. Furthermore, none of the cases cited by the Court involve the landlord-tenant circumstance controlling here.
33
As to Georgia law, the Court itself finds that 'no Georgia case' holds that landlords have a right of entry as was exercised by Bridgaman here. It says that, first, the window was forced, second, the entry was for purposes of search and, third, affirmance would "leave (tenants') homes secure only in the discretion of (landlords)" (quoting from Johnson, supra). The obvious answer to that is: 'Chapman was a tenant no more!' The statute provided for the forfeiture of his lease at his lessor's option when he began making whiskey on the premises. And Bridgaman so elected when he directed the officers to enter the house. It was Chapman who was the trespasser, not Bridgaman. The latter was merely repossessing his property, not abating a nuisance. Therefore, § 109 of the Georgia Code, cited by the Court, has no bearing here for that statute merely provides that the Attorney General 'may' abate such a nuisance. It has no reference to landlords qua landlords. Indeed, the officers here could have abated the nuisance without judicial help by destroying the still and all of its paraphernalia under authority of 58 Ga.Code Ann. (Cum. Supp.1958) § 207.3 Likewise, Kilgore v. Paschall, 202 Ga. 416, 43 S.E.2d 520, also cited by the Court, is entirely inapposite. That case merely holds that the special statutory authorization, under an entirely different provision of the Georgia Code, § 110, to close up 'blind tigers,' i.e., public places of disrepute where gambling, drinking, etc., are carried on, must be brought by the Solicitor of the county wherein they are located. But even if it did hold that actions under § 109 must be brought by the Solicitor, that ruling would have no effect here, precisely because the present factual situation does not come under § 109 but under § 106 and § 207, supra.
34
Furthermore, there was ample reason for not getting a warrant here. It was Sunday afternoon and, as the Georgia officer testified, he had 'never got on on Sunday.' 'I don't think you can.' And this was buttressed by his further statements: 'Well, I didn't feel no call to get one.' 'The man that owned the house, he was there and he told us to go in the window and see what('s) what in there, so we went on in.' This shows a complete reliance by the officers on Bridgaman's direction to enter the house. This, I say, made the search entirely reasonable and therefore valid under the Fourth Amendment.
35
Every moment of every day, somewhere in the United States, a law enforcement officer is faced with the problem of search and seizure. He is anxious to obey the rules that circumscribe his conduct in this field. It is the duty of this Court to lay down those rules with such clarity and understanding that he may be able to follow them. For some years now the field has been muddy, but today the Court makes it a quagmire. It fashions a novel rule, supporting it with an old theory long since overruled. If Rabinowitz is no longer law the Court should say so. It is disastrous to law enforcement to leave at large the inconsistent rules laid down in these cases. It turns the wellsprings of democracy—law and order—into a slough of frustration. It turns crime detection into a game of 'cops and robbers.' We hear much these days of an increasing crime rate and a breakdown in law enforcement. Some place the blame on police officers. I say there are others that must shoulder much of that responsibility.
1
26 U.S.C. §§ 5601, 5606, 26 U.S.C.A. §§ 5601, 5606.
2
Only ancient English cases are cited in support of the text.
1
I join in his opinion except for the last paragraph in which he concurs in the judgment of the court.
2
58 Ga.Code Ann., § 106. Aside from eviction, there are no statutory procedural requirements as to forfeiture, the forfeit operating by virtue of § 106 at the option of the landlord.
3
Section 207 provides in pertinent part: '(W)henever said apparatus (for making liquor is) * * * found or discovered by any sheriff, * * * the same shall be summarily destroyed and rendered useless by him without any formal order of the court.'
| 01
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365 U.S. 646
81 S.Ct. 783
5 L.Ed.2d 855
Leonard SALDANA, Petitioner,v.UNITED STATES.
No. 176.
Argued March 20, 1961.
Decided April 3, 1961.
Mr. Stephen R. Reinhardt, Los Angeles, Cal., for petitioner.
Mr. Herbert A. Bernhard, Los Angeles, Cal., for petitioner, pro hac vice, by special leave of Court.
Mr. Archibald Cox, Sol. Gen., for respondent.
PER CURIAM.
1
The petitioner was convicted on four counts of a five-count indictment charging offenses under the narcotics laws. 21 U.S.C. § 174, 21 U.S.C.A. § 174. He complains of a number of alleged trial errors. In addition, he points to a series of events occurring during the course of the prosecution which, he says, operated to deprive him of constitutionally guaranteed rights. It is unncessary to detail here the course of those proceedings, since we are advised that a change in the calendar system of the District Court for the Southern District of California insures that what occurred in this case will not occur again.
2
During oral argument in this Court the Solicitor General suggested that the combination of circumstances in this case, beginning with one judge's clearly expressed intention to impose a five-year sentence, and ending with another judge's imposition of a twenty-year sentence under the indictment, was not consistent with that regularity and fairness which should characterize the administration of criminal justice in the federal courts. In the light of the Solicitor General's suggestion, and upon an independent examination of the record, we have concluded that a due regard for the fair administration of justice requires that the convictions under counts 3, 4, and 5 of the indictment be set aside. 28 U.S.C. § 2106, 28 U.S.C.A. § 2106; see Communist Party of United States v. Subversive Activities Control Board, 351 U.S. 115, 124, 76 S.Ct. 663, 668, 100 L.Ed. 1003; Mesarosh v. United States, 352 U.S. 1, 14, 77 S.Ct. 1, 8, 1 L.Ed.2d 1; Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. Cf. Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490. The conviction under count 2, to which the petitioner originally pleaded guilty, is affirmed.
3
Because of this disposition of the case, we do not reach for consideration the alleged trial errors with respect to limitation of cross-examination, sufficiency of the evidence of a 'sale' under count 5, and instructions to the jury as to entrapment.
4
So ordered.
5
Convictions on three counts set aside, and conviction on one count affirmed.
| 01
|
365 U.S. 624
81 S.Ct. 784
5 L.Ed.2d 838
UNITED STATES, Petitioner,v.VIRGINIA ELECTRIC AND POWER COMPANY.
No. 49.
Argued Nov. 10, 1960.
Decided April 3, 1961.
Mr. Perry W. Morton, Washington, D.C., for petitioner.
Mr. Ralph H. Ferrell, Jr., Richmond, Va., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
In 1944 Congress authorized the construction of a dam and reservoir on the Roanoke River in Virginia and North Carolina. For purposes of that project the Government acquired by condemnation a flowage easement over 1840 acres of fast lands adjacent to the Dan River, a navigable tributary of the Roanoke. This 1840-acre tract was part of a 7400-acre estate. The respondent owned a perpetual and exclusive flowage easement over 1540 acres within the easement taken by the Government. The only question presented by this case concerns the compensation awarded to the respondent for the destruction of its easement.
2
The respondent's easement had been purchased from the owner of the estate and had been conveyed to the respondent's predecessors in title by various deeds over a period of many years, beginning in 1907. Along with the easement the fee owner had also expressly granted by deed the release of all claims for damage to the residue of the estate resulting from the exercise of rights under the easement.
3
In 1951, after extended negotiations, the owner of the estate agreed to convey to the Government a flowage easement over the 1840-acre tract in return for the payment of one dollar.1 This agreement was expressly made subject to 'such water, flowage, riparian and other rights, if any,' as the respondent owned in the tract. The agreement also provided that the Government could elect to acquire its easement by a condemnation proceeding, in which event the agreed consideration of one dollar would be 'the full amount of the award of just compensation inclusive of interest.' Exercising this election, the Government instituted condemnation proceedings in the District Court to acquire a flowage easement over the 1840 acres in question, depositing one dollar as the estimated just compensation for the property to be taken. The fee owner acknowledged the settlement contract previously made and agreed to the one dollar compensation. The respondent, whose easement was to be destroyed, intervened in the proceedings to contest 'the issue of just compensation.'
4
The District Court made a substantial award to the respondent as compensation for the taking of its flowage easement. The judgment was affirmed by the Court of Appeals for the Fourth Circuit, on the authority of that court's decision in United States v. Twin City Power Co., 215 F.2d 592. United States v. 2979.72 Acres of Land, More or Less, etc., 218 F.2d 524. After the judgment in the Twin City case was reversed by this Court, 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240, we vacated the judgment in this litigation and remanded the case to the Court of Appeals for further consideration in the light of our Twin City decision. 350 U.S. 956, 76 S.Ct. 345, 346, 100 L.Ed. 832. The Court of Appeals in turn remanded the case to the District Court with instructions that, in computing the amount of compensation to be awarded for the taking of the respondent's easement, there should be eliminated 'any element of value arising from the availability of the land for water power purposes due to its being situate on a navigable stream.' 4 Cir., 235 F.2d 327, 330, rehearing denied 237 F.2d 165.
5
On remand the District Court proceeded in accordance with these directions. Commissioners were appointed and given detailed instructions to follow in computing the compensation to be awarded the respondent. These instructions included an explicit direction to exclude from the computation any element of value arising from the availability of the land for water power purposes attributable to its location on a navigable stream.2 The Commissioners found that, under the criteria imposed by the court, the value of the respondent's easement was $65,520. The district judge accepted these findings, and in accordance with them awarded the respondent that sum. On appeal the judgment was affirmed 270 F.2d 707.
6
We granted certiorari to consider the Government's claim that the respondent's easement had no compensable value when appropriated by the United States. United States v. Virginia Electric and Power Co., 362 U.S. 947, 80 S.Ct. 862, 4 L.Ed.2d 866. For the reasons that follow we reject that argument in the extreme form it has been presented, but we have concluded that the judgment must nonetheless be set aside for a redetermination of the compensation award.
7
It is indisputable, as the Government acknowledges, that a flowage easement is 'property' within the meaning of the Fifth Amendment. See United States v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787; Panhandle Eastern Pipe Line Co. v. State Highway Commission, 294 U.S. 613, 618, 55 S.Ct. 563, 565, 79 L.Ed. 1090; Western Union Tel. Co. v. Pennsylvania R. Co., 195 U.S. 540, 570, 25 S.Ct. 133, 141, 49 L.Ed. 312. Similarly, there can be no question that the Government's destruction of that easement would ordinarily constitute a taking of property within the meaning of the Fifth Amendment. See Pumpelly v. Green Bay Co., 13 Wall. 166, 181, 20 L.Ed. 557; United States v. Cress, 243 U.S. 316, 327—329, 37 S.Ct. 380, 384—385, 61 L.Ed. 746; United States v. Kansas City Life Ins. Co., 339 U.S. 799, 809—811, 70 S.Ct. 885, 890—892, 94 L.Ed. 1277. Nevertheless, it is argued that the Government cannot be required to pay compensation for the destruction of the easement in the present case because the easement was subject to the overriding navigational servitude of the United States.
8
This navigational servitude—sometimes referred to as a 'dominant servitude,' Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 249, 74 S.Ct. 487, 493, 98 L.Ed. 686, or a 'superior navigation easement,' United States v. Grand River Dam Authority, 363 U.S. 229, 231, 80 S.Ct. 1134, 1136, 4 L.Ed.2d 1186—is the privilege to appropriate without compensation which attaches to the exercise of the 'power of the government to control and regulate navigable waters in the interest of commerce.' United States v. Commodore Park, 324 U.S. 386, 390, 65 S.Ct. 803, 805, 89 L.Ed. 1017. The power 'is a dominant one which can be asserted to the exclusion of any competing or conflicting one.' United States v. Twin City Power Co., 350 U.S. 222, 224—225, 76 S.Ct. 259, 260 261, 100 L.Ed. 240; United States v. Willow River Power Co., 324 U.S. 499, 510, 65 S.Ct. 761, 767, 89 L.Ed. 1101. A classic description of the scope of the power and of the privilege attending its exercise is to be found in the Court's opinion in United States v. Chicago, M., St. P. & P.R. Co.:
9
'The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary high water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. (Citing cases.) The damage sustained results not from a taking of the riparian owner's property in the stream bed, but from the lawful exercise of a power to which that property has always been subject.' 312 U.S. 592, 596—597, 61 S.Ct. 772, 775, 85 L.Ed. 1064.
10
Since the privilege or servitude only encompasses the exercise of this federal power with respect to the stream itself and the lands beneath and within its high-water mark, the Government must compensate for any taking of fast lands which results from the exercise of the power. This was the rationale of United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277, where the Court held that when a navigable stream was raised by the Government to its ordinary high-water mark and maintained continuously at that level in the interest of navigation, the Government was liable 'for the effects of that change (in the water level) upon private property beyond the bed of the stream.' 339 U.S. at pages 800—801, 70 S.Ct. at page 886. See also United States v. Willow River Power Co., 324 U.S. 499, 509, 65 S.Ct. 761, 767, 89 L.Ed. 1101.
11
But though the Government's navigational privilege does not extend to lands beyond the high-water mark of the stream, the privilege does affect the measure of damages when such land is taken. In United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240, we held that the compensation awarded for the taking of fast lands should not include the value of the land as a site for hydroelectric power operations. It was pointed out that such value, derived from the location of the land, is attributable in the end to the flow of the stream—over which the Government has exclusive dominion. 350 U.S. at pages 225—227, 76 S.Ct. at pages 261—262. Thus, just as the navigational privilege permits the Government to reduce the value of riparian lands by denying the riparian owner access to the stream without compensation for his loss, United States v. Commodore Park, 324 U.S. 386, 390—391, 65 S.Ct. 803, 805, 89 L.Ed. 1017; Scranton v. Wheeler, 179 U.S. 141, 162—165, 21 S.Ct. 48, 56—58, 45 L.Ed. 126; Gibson v. United States, 166 U.S. 269, 276, 17 S.Ct. 578, 580, 41 L.Ed. 996, it also permits the Government to disregard the value arising from this same fact of riparian location in compensating the owner when fast lands are appropriated.
12
The Government's argument is that the rationale of Twin City makes payment of any compensation for the destruction of the respondent's easement unnecessary in the present case. This argument is based on the theory that the respondent's easement had no value save in conjunction with water power development. The respondent acknowledges that the courts below were correct in excluding any value of the easement derived from the availability of the land for water power purposes. It argues, however, that the easement had other value, derived from uses of the land not dependent upon the flow of the stream. If the easement did have such value, then the Government must compensate for the easement's destruction under the rule of Kansas City Life Ins. Co., supra, since the easement was a property right in fast lands. The basic issue is thus whether the respondent's easement might be found to have value other than in connection with the flow of the stream.
13
We think such a finding might be warranted. The evidence was that the highest and best use of the servient land (unconnected with riparian uses) was for agriculture, timber and grazing purposes. The respondent had an exclusive and perpetual property right to destroy those uses and the value which they created. This right was an attribute of a transferable, commercial easement with intrinsic value. It had been acquired for a valuable consideration. It had a marketability roughly commensurate with the marketability of the subservient fee. Only an adventurous purchaser would have acquired the underlying fee interest in the 1540-acre tract for any purpose whatever, without also purchasing the easement.
14
If easements to flood fast lands were worthless as a matter of law when taken by the United States, it would follow that when the Government took such an easement from the owner of an unencumbered tract of land, the Government would have to pay the owner nothing. That is not the law. United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277. The Government itself acknowledges that it must pay such a landowner for the value of the property which does not stem from the flow of the stream, the value based upon the nonriparian uses of the property.
15
It follows that the Government must likewise compensate the easement owner for that aspect of the easement's value which is attributable not to water power, but to the depreciative impact of the easement upon the nonriparian uses of the property. The valuation of an easement upon the basis of its destructive impact upon other uses of the servient fee is a universally accepted method of determining its worth. See e.g., Olson v. United States, 292 U.S. 246, 253, 54 S.Ct. 704, 707, 78 L.Ed. 1236; Karlson v. United States, 8 Cir., 82 F.2d 330, 337; Jahr, Eminent Domain, 252 and n. 6 (collecting cases); 4 Nichols, Eminent Domain, § 12.41(2), n. 27 (collecting cases) (1951 ed.); 1 Orgel, Valuation under Eminent Domain, § 106, at 454 (2d ed.); Saxon, Appraising Flowage Easements, 24 Appraisal Journal 490, 494.
16
But the Government contends that the market value of the easement to those interested in developing the nonriparian uses of the fee can be ignored. It is claimed that, despite the general principle of indemnification underlying the Fifth Amendment, see Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236, no compensation should be allowed for this value because it represents the 'destructive function' of the easement. Cf. Roberts v. City of New York, 295 U.S. 264, 283, 55 S.Ct. 689, 694, 79 L.Ed. 1429. It is argued that equitable principles prohibit compensation for such value. But equity works the other way. At the very least, the Government's argument would mean, in a case like this one, that compensation could be denied the fee owner because he had already conveyed the flowage easement, cf. United States v. Sponenbarger, 308 U.S. 256, 265—266, 60 S.Ct. 225, 228—229, 84 L.Ed. 230, and denied the owner of the easement because it was valueless against condemnation by the United States. The Government would thus destroy the entire property interest in fast lands without compensation. 'The word 'just' in the Fifth Amendment evokes ideas of 'fairness' and 'equity' * * *.' United States v. Commodities Trading Corp., 339 U.S. 121, 124, 70 S.Ct. 547, 549, 94 L.Ed. 707; see Monongahela Navigation Co. v. United States, 148 U.S. 312, 324—326, 13 S.Ct. 622, 625—626, 37 L.Ed. 463. The result contended for by the Government would hardly comport with those standards. The District Court and the Court of Appeals were correct in holding that a flowage easement over fast lands adjoining a navigable stream is property which cannot be appropriated without compensating the owner.
17
The remaining question is whether the District Court's method of determining the amount of compensation to be awarded was correct. The court was clearly right in excluding all value attributable to the riparian location of the land. United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240. There can be no quarrel either with the Court's procedure in directing the Commissioners to appraise first the easement taken by the Government, and then to apportion its value between the respondent and the owner of the subservient fee.3 United States v. Dunnington, 146 U.S. 338, 343 345, 350—354, 13 S.Ct. 79, 80—81, 82—84, 36 L.Ed. 996. And the court adopted an acceptable method of appraisal, indeed the conventional method, in valuing what was acquired by the Government by taking the difference between the value of the property before and after the Government's easement was imposed. See Olson v. United States, 292 U.S. 246, 253, 54 S.Ct. 704, 707, 78 L.Ed. 1236.4 For these reasons we think that the court followed an entirely acceptable procedure in valuing the totality of what was appropriated by the Government.
18
In apportioning the respondent's share of this value, however, we think that the court erred.5 The court apparently was of the view that the subservient fee interest in the 1540 acres was without value, and accordingly awarded to the respondent the entire value of what the Government appropriated in that acreage. The respondent was thus compensated as thought it were the owner, not of an easement, but of an unencumbered fee, as the Court of Appeals recognized. 270 F.2d, at page 712. The record does not support such an apportionment.
19
The guiding principle of just compensation is reimbursement to the owner for the property interest taken. 'He is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more.' Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236. In many cases this principle can readily be served by the ascertainment of fair market value—'what a willing buyer would pay in cash to a willing seller.' United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 280, 87 L.Ed. 336. See United States v. Commodities Trading Corp., 339 U.S. 121, 123, 70 S.Ct. 547, 549, 94 L.Ed. 707; United States v. Cors, 337 U.S. 325, 333, 69 S.Ct. 1086, 1090, 93 L.Ed. 1392. But this is not an absolute standard nor an exclusive method of valuation. See United States v. Commodities Trading Corp., supra, 339 U.S. at page 123, 70 S.Ct. at page 549; United States v. Cors, supra, 337 U.S. at page 332, 69 S.Ct. at page 1090; United States v. Miller, supra, 317 U.S. at pages 374—375, 63 S.Ct. at page 280; United States v. Toronto, Hamilton & Buffalo Nav. Co., 338 U.S. 396, 70 S.Ct. 217, 94 L.Ed. 195.
20
The record in the present case, as might be expected, contains no evidence of a market in flowage easements of the type here involved. In the absence of such evidence, the court valued the flowage easement as the equivalent of the value of the servient lands for agricultural, forestry, or grazing use. The court thus ascribed a maximum value to the respondent's easement, a value not supported by the record.
21
We think the correct approach to the problem of valuation in a case of this kind was formulated by the Court of Appeals for the Fifth Circuit in Augusta Power Co. v. United States, 278 F.2d 1. The basic issues in that case were virtually indistinguishable from those presented here.6 We are content to adopt the language of Judge Rives' opinion with respect to the standard to be followed in valuing flowage easements of this character: 'Between the two extremes just illustrated, the respective values of the fee and of the easement would fluctuate from time to time depending on the probability or improbability of actual exercise of the easement by the * * * Power Company or its assigns. If all interested parties were before the Court, the maximum which the United States would be required to pay would be the value of the lands, not including their value for hydroelectric power purposes. That is, however, a maximum, and not necessarily the measure of what the United States would have to pay under any and all circumstances. * * *
22
'* * * It seems to us that the maximum compensation payable for the flowage easement under any conceivable circumstances is so much of the value of the lands for agricultural and forestry purposes and for any other uses, not including hydroelectric power value, as the easement owner has a right to destroy or depreciate. That maximum is more simply expressed in the criterion adopted by the Commission, i.e., 'the difference in the value of the land with and without the flowage easement.' Subject to that maximum, the actual measure of compensation payable for he flowage easement is the value of the easement to its owner. 'The question is, What has the owner lost? not, What has the taker gained?' 1 Orgel on Valuation Under Eminent Domain, p. 352.' Augusta Power Co. v. United States, 278 F.2d 1, 4—5. (Footnotes omitted.)
23
In a word, the value of the easement is the nonriparian value of the servient land discounted by the improbability of the easement's exercise. It is to be emphasized that in assessing this improbability, no weight should be given to the prospect of governmental appropriation. The value of the easement must be neither enhanced nor diminished by the special need which the Government had for it. United States v. Cors, 337 U.S. 325, 332—334, 69 S.Ct. 1086, 1090—1091, 93 L.Ed. 1392; United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336; Olson v. United States, 292 U.S. 246, 261, 54 S.Ct. 704, 711, 78 L.Ed. 1236; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 76, 33 S.Ct. 667, 677, 57 L.Ed. 1063. The court must exclude any depreciation in value caused by the prospective taking once the Government 'was committed' to the project. United States v. Miller, supra, 317 U.S. at pages 376—377, 63 S.Ct. at page 281; see United States v. Cors, supra, 337 U.S. at page 332, 69 S.Ct. at page 1090. Accordingly, the impact of that event upon the likelihood of actual exercise of the easement cannot be considered. As one writer has pointed out, '(i)t would be manifestly unjust to permit a public authority to depreciate property values by a threat * * * (of the construction of a government project) and then to take advantage of this depression in the price which it must pay for the property' when eventually condemned. 1 Orgel, Valuation under Eminent Domain, § 105, at 447 (2d ed.); see Congressional School of Aeronautics, Inc. v. State Roads Commission, 218 Md. 236, 249—250, 146 A.2d 558, 565.
24
The judgment is vacated, and the case remanded to the District Court for further proceedings consistent with this opinion.
25
It is so ordered.
26
Judgment vacated and case remanded with directions.
27
Mr. Justice DOUGLAS, concurring.
28
If the 1,840 acres in question lay between low and high water, the United States by keeping the water level at the ordinary high-water contour would not in my view appropriate any private property. For that is use of the bed of the stream pursuant to the navigation servitude. Most of our cases deal with that. It was in that domain that United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277, arose.
29
If the 1,840 acres were a dam site, any of their value for such a purpose would be noncompensable within the ruling of United States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240. Dam-site value is water-power value. And the flow of the stream in its natural state or through a structure that is low or high provides 'a head of water' (United States v. Willow River Co., 324 U.S. 499, 502, 65 S.Ct. 761, 764, 89 L.Ed. 1101) that often has great value. But when it is in a navigable stream, it is not a property right subject to private ownership and compensation under the Fifth Amendment. There is 'no private property in the flow' of this navigable stream. United States v. Appalachian Power Co., 311 U.S. 377, 427, 61 S.Ct. 291, 309, 85 L.Ed. 243.
30
Yet if the Federal Government builds a dam that raises the water above the ordinary high-water mark by a foot, by a hundred feet, or by five hundred feet, it asserts dominion over property not within its havigational servitude. As we said in United States v. Willow River Co., supra, 324 U.S. 509, 65 S.Ct. 767, 'High-water mark bounds the bed of the river. Lands above it are fast lands and to flood them is a taking for which compensation must be paid.'
31
It is in the latter domain that the present controversy lies. The flowage rights being condemned are rights to flood a part of the 1,840-acre tract that lies above the 'usual water line' which I understand to mean land above the ordinary high-water mark.
32
Whatever may be the reason why this particular interest in the uplands was acquired, the owner stands in the shoes of his predecessor in title. The owner of the easement is entitled, as the Court holds, to no water-power value. The owner is, in other words, entitled to nothing that gains value from the flow of the stream, from any head of water, or from the strategic location of his land for hydroelectric development of the river. But the owner of the easement and the owner of the subservient fee have all the other parts of the bundle of rights that represent 'property' within the meaning of the Fifth Amendment.
33
Hence, I join the opinion of the Court.
34
Mr. Justice WHITTAKER, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.
35
In the hope that it might eventually acquire from the Federal Government a license to construct a power dam across a navigable river, the power company acquired, by conveyances from the fee ownners, easements permanently to flood 1,540 acres of fast lands adjacent to the river. It did not own any other estate or interest in those lands, and the exercise of its easement to flood them was, of course, necessarily subject to the prior issuance of a federal license authorizing the private damming of the river, for without such a license the power company could not dam the river, see § 4 of the Federal Power Act, 41 Stat. 1065, 16 U.S.C. § 797, 16 U.S.C.A. § 797, and thus back its waters upon those lands, and it had no right to use the lands for any other purpose.
36
No federal license to dam the river at or near this point was ever issued. Instead, the Federal Government itself determined to construct a power dam at this point in the river, and as a necessary consequence to inundate these lands as a part of the resulting reservoir. To that end, it brought this condemnation action against the power company, and therein filed its declaration of taking, and took, the latter's easement to back flow these lands, and the question here is: What value, if any, did that easement have to the power company at the time the Government took it?
37
We think that, as a matter of fact and of law, it did not have any value whatever at that time. This is so because: (1) The sole and only right the power company ever had in these lands was the right to dam and back the river's waters upon them; (2) the exercise of that right was always contingent and dependent upon the prior issuance of a federal license authorizing the private damming of the river (16 U.S.C. § 797(e), 16 U.S.C.A. § 797(e)), for the Government's power over the flow of a navigable stream 'is a dominant one which can be asserted to the exclusion of any competing or conflicting one,' United States v. Twin City Power Co., 350 U.S. 222, 224—225, 76 S.Ct. 259, 261, 100 L.Ed. 240; and (3) when the Government determined to construct the power dam and appurtenant facilities for its own benefit, it necessarily 'displace(d) all competing interests and appropriate(d) the entire flow of the river for the declared public purpose,' United States v. Twin City Power Co., supra, 350 U.S. at page 225, 76 S.Ct. at page 261. (4) Therefore, at the time the Government took this easement, there was no possibility that the power company could ever dam and back the river's waters upon these lands and, inasmuch as it had no estate in or right to use the lands for any other purpose, it must follow that the easement was wholly without value to the power company for any purpose at the time the Government took it.
38
However, the Court, after adverting to the power company's argument that 'the easement had other value, derived from uses of the land not dependent upon the flow of the stream,' says: 'We think such a finding might be warranted.' It finds such value to exist in the 'right to destory (agricultral, timber and grazing) uses and the value which they created.'
39
But the right to 'destroy' agricultural uses, although a proper consideration in determining the damages to be paid to the owner of the unencumbered fee when an easement to flow is being condemned and taken from him, United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277; Olson v. United States, 292 U.S. 246, 253—254, 54 S.Ct. 704, 707—708, 78 L.Ed. 1236, is not a thing of value—even of recognizable 'hold up' value—to the owner of the easement, United States v. ChandlerDunbar Water Power Co., 229 U.S. 53, 79—80, 33 S.Ct. 667, 678, 57 L.Ed. 1063, except for the authorized flooding use, or possibly as against the owner of the subservient fee who might be willing to pay for the riddance of the easement and restoration of his original right to make agricultural uses of the land. See Roberts v. New York City, 295 U.S. 264, 282—283, 55 S.Ct. 689, 693—694, 79 L.Ed. 1429. At all events, the clincher is that any right of the power company to 'destroy' agricultural uses of these lands consisted solely of its right to dam and back the river's waters upon them, and when the Government determined to construct the dam for its own benefit even that nebulous 'right' was gone. Hence, the easement had no possible value—not even a nuisance value—to the power company at the time the Government took it.
40
It is settled that the 'just compensation' required by the Fifth Amendment to be paid for the taking of private property for public use is the value at the very time of the taking to the person from whom taken. 'The value should be fixed as of the date of the proceedings and with reference to the loss the owner sustains, considering the property in its condition and situation at the time it is taken, and not as enhanced by the purpose for which it was taken. Kerr v. South Park Commissioners, 117 U.S. 379, 387 (6 S.Ct. 801, 805, 29 L.Ed. 924, 927); Shoemaker v. United States, 147 U.S. 282, 304, 305 (13 S.Ct. 361, 37 L.Ed. 170).' United States v. Chandler-Dunbar Water Power Co., supra, 229 U.S. at page 76, 33 S.Ct. at page 677.
41
The Fifth Amendment 'merely requires that an owner of property taken should be paid for what is taken from him. * * * And the question is what has the owner lost, not what has the taker gained.' Boston Chamber of Commerce v. City of Boston, 217 U.S. 189, 195, 30 S.Ct. 459, 460, 54 L.Ed. 725. See also United States v. Twin City Power Co., supra, 350 U.S. at page 228, 76 S.Ct. at page 262. At the time of this taking, the Government had determined to build the dam itself, thus precluding any possibility that the power company could ever dam and back the river's waters upon these lands, and, inasmuch as it had no right to use them for any other purpose, it must follow that the easement had no possible value to the power company at the time the Government took it. Surely 'the government cannot be justly required to pay for an element of value which did not (then) inhere in (the easement).' United States v. Chandler-Dunbar Water Power Co., supra, 229 U.S. at page 76, 33 S.Ct. at page 677.
42
Nor does the Fifth Amendment contemplate a disregard of separate estates and interests in land. It contemplates only that the condemnee shall be paid 'just compensation' for the particular estate or interest that he owned and that was taken from him. In Boston Chamber of Commerce v. City of Boston, supra, the city condemned for public street purposes a part of a tract of land owned in fee by the Chamber of Commerce, but over a large portion of the part condemned a wharf company owned 'an easement of way, light and air.' The Chamber of Commerce and the wharf company agreed between themselves to claim, and they sought, damages to both estates 'in a lump sum.' If this could be done, it was agreed that the estate, considered as the sole unencumbered estate of a single person, was worth 12 times more than if the damage should be assessed according to the condition of the title at the time. The city's contention that the several estates should be separately valued was sustained by the trial court, and this Court speaking through Mr. Justice Holmes, affirmed saying:
43
'But the Constitution does not require a disregard of the mode of ownership,—of the state of the title. It does not require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires that an owner of property taken should be paid for what is taken from him. * * * And the question is what has the owner lost, not what has the taker gained.' 217 U.S. at page 195, 30 S.Ct. at page 460.
44
The Government cannot here, just as the city could not there, 'be made to pay for a loss of theoretical creation, suffered by no one in fact,' id., 217 U.S. at page 194, 30 S.Ct. at page 460, for there is 'no justice in (requiring the Government to pay) for a loss suffered by no one in fact.' United States v. Chandler-Dunbar Water Power Co., supra, 229 U.S. at page 76, 33 S.Ct. at page 677.
45
Here the power company rests solely upon a claimed right to back the river's waters upon these lands. It thus necessarily depends upon and claims a right in and to use the waters of the river for that purpose. This Court held in the Twin City case, supra, that the owner of adjoining fast lands has no interest in the waters of a navigable river, and that those waters do not, as against the Government, attribute to the value of such lands. It said:
46
'If the owner of the fast lands can demand water-power value as part of his compensation, he gets the value of a right that the Government in the exercise of its dominant servitude can grant or withhold as it chooses. The right has value or is an empty one dependent solely on the Government. What the Government can grant or withhold and exploit for its own benefit has a value that is peculiar to it and that no other user enjoys.' 350 U.S. at page 228, 76 S.Ct. at page 263.
47
The Government, by determining to exploit its stream for its own benefit, 'displace(d) all competing interests and appropriate(d) the entire flow of the river for the declared public purpose.' Id., 350 U.S. at page 225, 76 S.Ct. at page 261. In these circumstances, '(t)o require the United States to pay for this water-power value would be to create private claims in the public domain.' Id., 350 U.S. at page 228, 76 S.Ct. at page 263.
48
The Twin City and Chandler-Dunbar cases, supra, seem clearly to require the conclusion, on the facts here, that the easement to flood these lands had no value to the power company at the time the Government took it.
49
It was its failure to obtain a federal license to dam the river—not the taking of its easement to flow—that hurt the power company, for once the Government determined to construct the power dam for its own use and benefit no possibility remained that the power company could ever use the easement, and hence its entire value was gone.
50
To the Court's observation that 'the Government's argument would mean, in a case like this one, that compensation could be denied the fee owner because he had already conveyed the flowage easement, * * * and denied the owner of the easement because it was valueless against condemnation by the United States,' the law requires us to say: Exactly so. The fee owners had sold and conveyed, for consideration satisfactory to them, the right permanently to flood these lands and no longer owned any interest in that estate. Indeed, they claim none. That estate in these lands was not taken by the Government from them. Not having taken anything from the fee owners, the Government does not owe them 'just compensation' for anything. This also demonstrates the Court's further error in remanding the case for 'apportionment' of the 'damages' between the owner of the easement and the owners of the fee. In no event could there be anything to apportion to the fee owners. What the Government took was the easement. It belonged solely to the power company, and if it had any value at the time it was taken by the Government, that value belonged solely to the power company. But the easement had no value to the power company at the time it was taken by the Government. The power company's sole estate in these lands was an easement to back the river's waters upon them. The exercise—and hence the value—of that easement was always contingent upon the prior issuance of a federal license authorizing the private damming of the river. No such license was ever issued. Instead, the Government determined to construct the dam and appurtenant facilities for its own benefit. This left no possibility that the power company could ever dam and back the river's waters upon these lands, and inasmuch as it had no right to use them for any other purpose, it seems clearly to follow that the easement was wholly without value to the power company for any purpose at the time the Government took it.
51
It is of course true, as already stated, that if the Government had taken the right to flow these lands from the owner of the unencumbered fee, the law would require it to pay his damages resulting from that deprivation of his right to make agricultural and similar surface uses of these lands. United States v. Kansas City Life Ins. Co., supra. From that premise it is argued that the owner of the easement to flow, having acquired it from the owner of the unencumbered fee, 'stands in the shoes of his predecessor in title' and is thus entitled to like damages from the Government when it takes that easement from him. But that premise is erroneous. The error lies in the obvious fact that the power company never acquired or owned any right to make agricultural uses of these lands. Hence it did not suffer, and is not entitled to recover, any damages for the destruction of such uses. Quite distinguishable from an unencumbered fee, the only estate of the power company in these lands was the right to store the river's waters upon them. Once the Government determined to construct the power dam for its own use no possibility remained that the power company could ever use the lands for that purpose and, having no right to use the lands for any other purpose, it must follow that the easement was wholly without value to the power company for any purpose at the time the Government took it.
52
We believe that the Fifth Amendment's command that 'private property (shall not) be taken for public use, without out just compensation' should be liberally construed in favor of the condemnee, but that does not mean that the Government should be required to pay something for nothing.
53
For these reasons, we think the judgment should be reversed with directions to enter judgment for the Government.
1
The record indicates that the owner was willing to accept this nominal amount because of her interest in developing the balance of the estate as a wild game preserve, a use which presumably would be enhanced by a contiguous artificial lake.
2
The detailed instructions were otherwise based upon a traditional method of valuing what the Government appropriated, i.e., the difference in the value of the servient land before and after the Government's easement was imposed.
3
The owner of the fee, having agreed to convey her interest for one dollar, would, of course, not receive any larger amount apportioned to her interest. See Albrecht v. United States, 329 U.S. 599, 67 S.Ct. 606, 91 L.Ed. 532.
4
In determining the value of the Government's easement, the court assumed its proportions to be limited to 1540 acres, rather than to the 1840 acres actually taken. This was entirely permissible. Since the owner of the fee was making no claim, the only objective of the proceedings in the District Court was to determine the amount of compensation to be awarded the respondent. It was quite logical, therefore, to appraise only that part of the Government's easement which conincided with the respondent's property interest, and thereafter to apportion to the respondent its share of what was taken by that much of the Government's appropriation.
5
The court did not err, however, in including in the award to the respondent an amount for damages to the residue of the estate. The respondent was the record owner of the right to damage the residue, a right which the owner had expressly conveyed by separate deed for a valuable consideration. This was a property right in the residue, measurable by a monetary award to cover damages to the same. The amount of this portion of the award would depend upon the probability of the respondent's easement being exercised. See accompanying text, infra.
6
In that case the Government had also argued upon the basis of our Twin City decision, that a private flowage easement over fast lands is valueless as a matter of law when taken by the Government for navigational purposes. The argument was unambiguously rejected: 'Very clearly, the United States is in error when is claims * * * that it 'has a dominant servitude which it can exercise in its discretion and without compensation." 278 F.2d at page 4.
'If (the) Power Company had been successful in assembling the necessary lands, and in securing approval of the Federal Power Commission, and thereafter had actually exercised its easements by permanently flooding the lands, their value for agricultural and forestry purposes would have been destroyed. If, with that status, the United States had condemned the lands, the compensation due would be payable to (the) Power Company. That compensation would not include the hydroelectric power value, but it would embrace (the Power Company's) property right to destroy the value of the lands for agricultural and forestry purposes.
'At the other extreme, if factors such as difficulty of assemblage of all necessary lands, the increasing economic advantage of steam plants over hydroelectric plants, the need for additional power in the particular area, etc., had made it certain that the flowage easements would never be exercised by the * * * Power Company or its assigns, excluding the United States, then such compensation as might be due would be payable to the owners of the fee title and nothing to the * * * Power Company.
| 34
|
365 U.S. 753
81 S.Ct. 864
6 L.Ed.2d 72
BULOVA WATCH COMPANY, Inc., Petitioner,v.UNITED STATES.
No. 241.
Argued March 27, 1961.
Decided April 17, 1961.
Mr. Bernard Weiss, New York City, for petitioner.
Mr. Oscar H. Davis, Washington, D.C., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Petitioner recovered a judgment in the Court of Claims against the United States for an overpayment of its excess profits taxes for the fiscal year ended March 31, 1942, in the amount of $211,899.28, plus interest thereon 'as provided by law.' 163 F.Supp. 633, 637, 143 Ct.Cl. 342. Of the principal sum of the judgment, $150,016.21 was attributable to an unused excess profits credit carry-back from the succeeding year ended March 31, 1943.
2
Acting in accordance with the provisions of § 3771(e) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 3771(e) the Commissioner computed and allowed statutory interest on the latter sum from June 14, 1945, the date on which petitioner filed its claim for refund, to April 25, 1959—30 days prior to issuance of the refund check—in the amount of $124,784.72. Thereafter, petitioner moved the Court of Claims for relief from the Commissioner's interpretation of the judgment, contending that interest should be computed, under the provisions of 28 U.S.C. § 2411(a), 28 U.S.C.A. § 2411(a), from the earliest date the overpayment could have been determined (the end of the fiscal year subsequent to the year involved, i.e., March 31, 1943), rather than from the date it filed its claim for refund (June 14, 1945) as provided in § 3771(e), and that it was thus entitled to the further sum of $51,252.69. The motion was denied, without opinion.
3
Because of the importance of the question involved to the proper administration of the internal revenue laws, and to settle a conflict between the lower federal courts upon the question,1 we granted certiorari. 364 U.S. 861, 81 S.Ct. 103, 5 L.Ed.2d 85.
4
The question thus presented is whether the date from which interest accrues on an overpayment of taxes attributable to an unused excess profits credit carry-back is governed by § 3771 (e)2 of the Internal Revenue Code of 1939, or by 28 U.S.C. § 2411(a), 28 U.S.C.A. § 2411(a).3
5
Petitioner contends that, because refund of the tax was not awarded administratively but by the 'judgment of (a) court,' the date from which interest runs is governed by the provisions of § 2411(a), and that it is thus entitled to interest from 'the date of the payment' on the 'overpayment' which, it argues, became ascertainable, and hence should be regarded as made, on March 31, 1943.4 The Government, on the other hand, contends that § 3771(e) is a special statute relating exclusively to tax refunds attributable to the carry-back provisions of the internal revenue laws, and hence prevails, as respects the special subject of carry-backs, over the general provisions of § 2411(a). After a careful review of these and other statutes and their legislative history, we have concluded that the Government is right.
6
Section 3771(e) of the 1939 Code deals specifically with the subject of interest on tax refunds attributable to the carry-back of a net operating loss or an unused excess profits tax credit, and is 'an integral part of the carry-back provision(s)' of the internal revenue laws. Manning v. Seeley Tube & Box Co., 338 U.S. 561, 568, 70 S.Ct. 386, 390, 94 L.Ed. 346. It specifically says that '(i)f the Commissioner determines that any part of an overpayment is attributable to * * * (an) unused excess profits credit for a succeeding taxable year, no interest shall be allowed or paid with respect to such part of the overpayment for any period before the filing of a claim for credit or refund of such part of the overpayment or the filing of a petition with the Tax Court, whichever is earlier.' The refund awarded here was solely 'attributable to * * * (an) unused excess profits credit for (the) succeeding taxable year.' How, then, can petitioner be entitled to interest 'for any period before the filing of a claim for credit or refund'? Petitioner agrees that if its award had been made administratively by the Commissioner or the Tax Court,5 rather than by the 'judgment' of the Court of Claims, interest would not be allowable on the refund for any period prior to the filing of its claim. But it argues that the language of § 2411(a)—'In any judgment of any court rendered * * * for any overpayment in respect of any internal-revenue tax, interest shall be allowed * * * upon the amount of the overpayment, from the date of the payment or collection thereof'6—requires the allowance of interest 'from the date of the payment or collection' of the tax when recovery is awarded by a District Court or, as here, by the Court of Claims. The effect of petitioner's contention thus is that Congress has made the starting date of interest in such cases dependent upon the forum selected by the taxpayer. Its argument would mean—in fact, it frankly proceeds on the theory—that a taxpayer, holding a refund claim attributable to an unused excess profits credit, could, by proceeding in a District Court or the Court of Claims, recover interest from the date when a claim for refund could have been filed, yet if he proceeded through the Tax Court he could not recover interest for any period prior to the actual filing of his claim, even though the Tax Court's final judgments (or orders) are subject to review by the United States Courts of Appeals and ultimately by this Court. In the light of the provisions of § 3771(e) and its legislative history, it is almost certain that Congress did not intend such an anomalous, nonuniform and discriminatory result.
7
Petitioner further contends that § 2411(a) is a later enactment than § 3771(e) and, for that reason, should take precedence over it. We do not believe that § 2411(a) can fairly be regarded as a later enactment than § 3771(e), for at the time § 3771(e) was enacted, in 1942, a predecessor provision of § 2411(a) had long been on the books. Save for the word 'hereby'—of no possible significance—that predecessor provision (§ 177(b) of the Judicial Code, 28 U.S.C. (1940 ed.) § 284(b) was identical with the present § 2411(a).7 But even if petitioner were correct in concluding that § 2411(a) is to be regarded as the later enactment, it would not necessarily take precedence over § 3711(e), for it is familiar law that a specific statute controls over a general one 'without regard to priority of enactment.' Townsend v. Little, 109 U.S. 504, 512, 3 S.Ct. 357, 362, 27 L.Ed. 1012. See e.g., Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704; MacEvoy Co. v. United States, 322 U.S. 102, 107, 64 S.Ct. 890, 893, 88 L.Ed. 1163; Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228-229, 77 S.Ct. 787, 791—792, 1 L.Ed.2d 786.
8
Section 3771(e) specifically fixes the date from which interest shall run on carry-back refunds. It came into the law with the Revenue Act of 1942, which authorized carry-backs. A carry-back is an exceptional relief measure in that it permits a departure from the basic annual accounting rule. The carry-back provisions 'were enacted to ameliorate the unduly drastic consequences of taxing income strictly on an annual basis. They were designed to permit a taxpayer to set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year.' Libson Shops, Inc., v. Koehler, 353 U.S. 382, 386, 77 S.Ct. 990, 993, 1 L.Ed.2d 924.
9
The significant feature of a carry-back is that it permits an adjustment of an earlier liability upon the basis of subsequent events. It contemplates that the initial tax obligation was not incorrectly or mistakenly imposed but was actually due, but that an adjustment may be made upon the basis of the taxpayer's gain or loss in the succeeding year or years, and it is evident from the very terms of § 3771(e) that Congress thought it would be unfair to the Government to require it to pay interest on a claim brought about by such a retroactive adjustment prior to the time when the taxpayer took affirmative steps to bring home to the Commissioner that he is now in position to claim, and claims, a readjustment of his past admittedly correct tax liability. Section 3771(e) does not, of course, deny interest on carry-back refunds. It only prohibits the accrual of interest prior to the time the taxpayer's claim therefor is filed with, and thus made known to, the Commissioner.
10
The report of the Senate Finance Committee on the bill that became § 3771(e) clearly discloses that these were Congress' purposes in adopting the section. It said:
11
'A taxpayer entitled to a carry-back of a net operating loss or an unused excess profits credit (see sec. 204 of the bill) will not be able to determine the deduction on account of such carry-back until the close of the future taxable year in which he sustains the net operating loss or has the unused excess profits credit. He must therefore file his return and pay his tax without regard to such deduction, and must file a claim for refund at the close of the succeeding taxable year when he is able to determine the amount of such carry-back. Inasmuch as any overpayment resulting from the deduction of such carry-back does not occur, as a practical matter, until the net operating loss or the unused excess profits credit for the future taxable year is determined, and inasmuch as it is desirable to insure promptness in the filing of claims to inform the Commissioner that such deductions have been determined, this section provides that no interest will be allowed with respect to any such overpayment for any period before the claim therefor is filed, or a petition asserting such overpayment is filed with the Board of Tax Appeals, whichever is earlier.'8 (Emphasis added.)
12
This surely shows Congress' purpose to deny interest on carry-back refunds for any period prior to the time they could be determined, and also to prevent, through delay in the presentation of claims, the accumulation of interest after that date and prior to the filing of the claim.9
13
In providing, in § 6611(f) of the 1954 Internal Revenue Code, 26 U.S.C.A. § 6611(f), that overpayments resulting from the carry-back of net operating losses 'shall be deemed not to have been made prior to the close of the taxable year in which such net operating loss arises,' Congress recognized that it was making a change from existing law. The relevant Committee Report10 makes this clear. It said, in pertinent part, that:
14
In the light of the provisions of § 3771(e) and its clear legislative history, we think it is a special statute relating solely to, and exclusively governing, tax refunds attributable to the carry-back provisions of the internal revenue laws, and hence prevails, as respects the special subject of carry-backs, over the general provisions of § 2411(a). The judgment of the Court of Claims was therefore correct and must be affirmed.
15
Affirmed.
16
Mr. Justice DOUGLAS dissents.
1
In Carter v. Liquid Carbonic Pacific Corp., 97 F.2d 1, the Court of Appeals for the Ninth Circuit reached a result contrary to that reached by the Court of Claims in this case.
2
Internal Revenue Code of 1939:
'§ 3771. Interest on Overpayments.
'(a) Rate.—Interest shall be allowed and paid upon any overpayment in respect of any internal revenue tax at the rate of 6 per centum per annum.
'(b) Period.—Such interest shall be allowed and paid as follows:
'(1) Credits.—In the case of a credit * * *.
'(2) Refunds.—In the case of a refund, from the date of the overpayment to a date preceding the date of the refund check by not more than thirty days * * *.
'(e) (as added by § 153(d), Revenue Act of 1942, c. 619, 56 Stat. 798, 847) Claims based on carry-back of loss or credit.—If the Commissioner determines that any part of an overpayment is attributable to the inclusion in computing the net operating loss deduction for the taxable year of any part of the net operating loss for a succeeding taxable year or to the inclusion in computing the unused excess profits credit adjustment for the taxable year of any part of the unused excess profits credit for a succeeding taxable year, no interest shall be allowed or paid with respect to such part of the overpayment for any period before the filing of a claim for credit or refund of such part of the overpayment or the filing of a petition with the Tax Court, whichever is earlier.'
3
28 U.S.C.:
'§ 2411 (as amended by § 120, Act of May 24, 1949, c. 139, 63 Stat. 89, 106). Interest.
'(a) In any judgment of any court rendered (whether against the United States, a collector or deputy collector of internal revenue, a former collector or deputy collector, or the personal representative in case of death) for any overpayment in respect of any internal-revenue tax, interest shall be allowed at the rate of 6 per centum per annum upon the amount of the overpayment, from the date of the payment or collection thereof to a date preceding the date of the refund check by not more than thirty days, such date to be determined by the Commissioner of Internal Revenue. The Commissioner is authorized to tender by check payment of any such judgment, with interest as herein provided, at any time after such judgment becomes final, whether or not a claim for such payment has been duly filed, and such tender shall stop the running of interest, whether or not such refund check is accepted by the judgment creditor.'
4
It will be noted that petitioner stops short of claiming that it is entitled to interest from the date it paid its 1942 excess profits tax. It claims, rather, that interest runs from the end of the succeeding tax year that gave rise to the carry-back (i.e., March 31, 1943). The Government's position, on the other hand, is that the interest runs from June 14, 1945, the date on which the refund claim was first presented.
5
Petitioner points to the fact that in Lasky v. Commissioner of Internal Revenue, 352 U.S. 1027, 77 S.Ct. 594, 1 L.Ed.2d 598, the Tax Court was held to be an administrative agency.
6
Petitioner does not in fact claim interest from the date it actually paid its excess profits taxes for the year 1942 but, rather, from the end of the succeeding tax year that gave rise to the carry-back, i.e., March 31, 1943. See note 4.
7
The history of 28 U.S.C. § 2411(a) and its predecessor provisions goes back to 1911. See § 177(b) of the Judicial Code, enacted in 1911 (c. 231, 36 Stat. 1141), as amended by the Revenue Act of 1921 (c. 136, 42 Stat. 227, § 1324(b)), as further amended by the Revenue Act of 1926 (c. 27, 44 Stat. 9, § 1117). Further amendments occurred in 1928 (45 Stat. 791, § 615) and in 1936 (49 Stat. 1648, § 808). The 1948 codification omitted from the Judicial Code all reference to interest on tax overpayments, but, by a correction Act in 1949 (c. 139, 63 Stat. 89, § 120), Congress restored the section to the Judicial Code as § 2411(a). The only difference between § 177(b) as it stood in 1942, and § 2411(a) as it stands today, is that the word 'hereby' no longer appears. Thus, § 3771(e) is not only the specific enactment designed to control the subject of interest in carry-back cases, but it is also a later enactment than § 2411(a).
8
S.Rep. No. 1631, 77th Cong., 2d Sess., pp. 123—124.
9
That Congress did not propose to allow interest for any period prior to presentment of the claim is further confirmed by the provisions of § 6 of the Tax Adjustment Act of 1945, c. 340, 59 Stat. 517, amending § 3771(e). Section 4 of that Act added a new section to the Internal Revenue Code, § 3780, providing for tentative carry-back adjustments. The concurrent amendment of § 3771(e) specifies that interest shall not start to run prior to the date application is made for the tentative carry-back adjustments.
10
H.R.Rep. No. 1337, 83d Cong., 2d Sess., p. A418, U.S.Code Cong. and Adm.News, 1954, p. 4566.
'Existing law denies interest on an overpayment caused by a carry-back for any period prior to the filing of a claim for credit or refund of such amount (or filing a petition with the Tax Court with respect to such amount). Under this (proposed) section, interest is denied only for the period prior to the close of the taxable year in which the net operating loss arises. This is consistent with the rule for interest on underpayments (see the discussion of sec. 6601).'11
11
Section 6601(e) provides that if the amount of tax is reduced by a carry-back loss, the reduction shall not affect the interest payable thereon by the taxpayer for the period ending with the close of the year in which the loss arises. Section 292(c) of the 1939 Code (added by § 6 of the Tax Adjustment Act of 1945, c. 340, 59 Stat. 517) provided: 'If any part of a deficiency is determined by the Commissioner to be attributable * * * to a carry-back to which an overpayment described in section 3771(e) * * * in any other tax is attributable * * * no interest shall be assessed or paid under subsection (a) (providing that interest is payable on a deficiency from the date prescribed for the payment of the tax) with respect to such part of the deficiency for any period during which interest was not allowed with respect to such overpayment * * *'.
| 1112
|
365 U.S. 731
81 S.Ct. 886
6 L.Ed.2d 56
John M. KOSSICK, Petitioner,v.UNITED FRUIT CO.
No. 96.
Argued Feb. 20, 1961.
Decided April 17, 1961.
Rehearing Denied May 29, 1961.
See 366 U.S. 941, 81 S.Ct. 1657.
Mr. Jacob Rassner, New York City, for petitioner.
Mr. Eugene Underwood, New York City, for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case calls in question the propriety of a dismissal before trial of the first cause of action in a seaman's diversity complaint. Dismissal was on the ground that the allegations of the complaint are deficient by reason of the New York Statute of Frauds.
2
The allegations of the complaint, which for present purposes must be taken as true, are in substance as follows: Petitioner, while employed as chief steward on one of the vessels of respondent, United Fruit Company, suffered a thyroid ailment, not attributable to any fault of the respondent, but with respect to which it concededly had a legal duty to provide him with maintenance and cure. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760. Respondent insisted that petitioner undergo treatment at a United States Public Health Service Hospital. Petitioner, however, considering on the basis of past experience that such treatment would prove unsatisfactory and inadequate, notified respondent that he wished to be treated by a private physician who had agreed to take care of him for $350, which amount petitioner insisted would by payable by the respondent in fulfillment of its obligation for maintenance and cure.
3
Respondent, the complaint continues, declined to accede to this course, but agreed that if petitioner would enter a Public Health Service Hospital (where he would receive free care) it would assume responsibility for all consequences of improper or inadequate treatment. Relying on that undertaking, and being unable himself to defray the cost of private treatment, petitioner underwent treatment at a Public Health Service Hospital. The Public Health Service Hospital and private physician alluded to were both located in New York.
4
Finally, it is alleged that by reason of the improper treatment received at such hospital, petitioner suffered grievous unwonted bodily injury, for which the respondent, because of its undertaking, is liable to the petitioner for damages in the amount of $250,000.1
5
The District Court dismissed the complaint, considering that the agreement sued on was void under the New York Statute of Frauds, N.Y. Personal Property Law, McKinney's Consol. Laws, c. 41, § 31, par. 2,2 there being no allegation that such agreement was evidenced by any writing, 166 F.Supp. 571.3 The Court of Appeals affirmed. 275 F.2d 500. We brought the case here because it presented novel questions as to the interplay of state and maritime law. 363 U.S. 838, 80 S.Ct. 1613, 4 L.Ed.2d 1724.
6
At the outset, we think it clear that the lower courts were correct in regarding the sufficiency of this complaint as depending entirely upon its averments respecting respondent's alleged agreement with petitioner. Liability here certainly cannot be founded on principles of respondeat superior. Nor is there anything in the authorities relating to a shipowner's duty to provide maintenance and cure which suggests that respondent was obliged, as a matter of law, to honor petitioner's preference for private treatment, or that it was responsible for the quality of petitioner's treatment at other hands which, for all that appears, may reasonably have been assumed to be well trained and careful.
7
With respect to respondent's alleged agreed undertaking, as the case comes to us, petitioner, on the one hand, does not deny the contract's invalidity under the New York Statute of Frauds, if state law controls, nor, on the other hand, can its validity well be doubted, though the alleged agreement was not reduced to writing, if maritime law controls. For it is an established rule of ancient respectability that oral contracts are generally regarded as valid by maritime law.4 In this posture of things two questions must be decided: First, was this alleged contract a maritime one? Second, if so, was it nevertheless of such a 'local' nature that its validity should be judged by state law?
I.
8
The boundaries of admiralty jurisdiction over contracts—as opposed to torts or crimes—being conceptual rather than spatial, have always been difficult to draw. Precedent and usage are helpful insofar as they exclude or include certain common types of contract: a contract to repair, Endner v. Greco, D.C., 3 F. 411, or to insure a ship, Insurance Co. v. Dunham, 11 Wall. 1, 20 L.Ed. 90, is maritime, but a contract to build a ship is not. People's Ferry Co. of Boston v. Beers, 20 How. 393, 15 L.Ed. 961. Without doubt a contract for hire either of a ship or of the sailors and officers to man her is within the admiralty jurisdiction. 1 Benedict, Admiralty, 366. A suit on a bond covering cargo on general average is governed by admiralty law, Cie. Francaise de Navigation a Vapeur v. Bonnasse, 2 Cir., 19 F.2d 777, while an agreement to pay damages for another's breach of a maritime charter is not, Pacific Surety Co. v. Leatham & Smith Towing & Wrecking Co., 7 Cir., 151 F. 440. The closest analogy we have found to the case at hand is a contract for hospital services rendered an injured seaman in satisfaction of a shipowner's liability for maintenance and cure, which has been held to be a maritime contract. Methodist Episcopal Hospital v. Pacific Transport Co., D.C., 3 F.2d 508. The principle by reference to which the cases are supposed to fall on one side of the line or the other is an exceedingly broad one. 'The only question is whether the transaction relates to ships and vessels, masters and mariners, as the agents of commerce * * *.' I Benedict, Admiralty, 131.5
The Court of Appeals here held:
9
'The contract sued on is not a maritime contract, since it was merely a promise to pay money, on land, if the former seaman should suffer injury at the hands of the United States Public Health Service personnel, on land, in the course of medical treatment. * * * For all that appears in the complaint, it may well be that the contract sued on was allegedly made after the maritime contract of employment of the plaintiff had been terminated. It really makes no difference whether this was so or not. All that remained was the performance by the shipowner of its undisputed obligation to supply maintenance and cure. The shipowner supplied plaintiff with a master's certificate, which was used by him to obtain admittance as a patient in the United States Public Health Service Hospital. * * * That took care of the obligation to furnish 'cure.' * * *' (275 F.2d 502).
10
With respect to the learned judges below, we think that is too narrow a view of the matter. It can as well be argued that the alleged contract related to and stood in place of a duty created by and known only in admiralty as a kind of fringe benefit to the maritime contract of hire. See Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct., 173, 77 L.Ed. 368. The Court of Appeals and respondent are certainly correct in considering that a shipowner's duty to provide maintenance and cure may ordinarily be discharged by the issuing of a master's certificate carrying admittance to a public hospital, and that a seaman who refuses such a certificate or the free treatment to which it entitles him without just cause, cannot further hold the shipowner to his duty to provide maintenance and cure. Williams v. United States, D.C., 133 F.Supp. 319; Luth v. Palmer Shipping Co., 3 Cir., 210 F.2d 224; The Bouker No. 2, 2 Cir., 241 F. 831; see Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993. But without countenancing petitioner's intemperate aspersions against Public Health Service Hospitals, and rejecting as we have the noncontractual grounds upon which he seeks to predicate liability here, we nevertheless are clear that the duty to afford maintenance and cure is not simply and as a matter of law an obligation to provide for entrance to a public hospital. The cases which respondent cites hold no more than that a seaman who can receive adequate and proper care free of charge at a public hospital may not 'deliberately refuse the hospital privilege, and then assert a lien upon his vessel for the increased expense which his whim or taste has created.' The Bouker No. 2, supra, 241 F. at page 835. Presumably if a seaman refuses to enter a public hospital or, having entered, if he leaves to undergo treatment elsewhere, he may recover the cost of such other treatment upon proof that 'proper and adequate' cure was not available at such hospital. Cf. Williams v. United States; Luth v. Palmer Shipping Co., supra.
11
No matter how skeptical one may be that such a burden of proof could be sustained, or that an indigent seaman would be likely to risk losing his rights to free treatment on the chance of sustaining that burden, since we should not exclude that possibility as a matter of law as the Court of Appeals apparently did, it must follow that the contract here alleged should be regarded as an agreement on the part of petitioner to forego a course of treatment which might have involved respondent in some additional expense, in return for respondent's promise to make petitioner whole for any consequences of what appeared to it at the time as the cheaper alternative. In other words, the consideration for respondent's alleged promise was petitioner's good faith forbearance to press what he considered—perhaps erroneously—to be the full extent of his maritime right to maintenance and cure. Compare, American Law Institute, Restatement, Contracts § 75, 76. So viewed, we think that the alleged agreement was sufficiently related to peculiarly maritime concerns as not to put it, without more, beyond the pale of admiralty law.
12
This brings us, then, to the remaining, and what we believe is the controlling, question: whether the alleged contract, though maritime, is 'maritime and local,' Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90, 66 L.Ed. 210, in the sense that the application of state law would not disturb the uniformity of maritime law, Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086.
II.
13
Although the doctrines of the uniformity and supremacy of the maritime law have been vigorously criticized—see Southern Pacific Co. v. Jensen, supra, 244 U.S. at page 218, 37 S.Ct. at page 530 (dissenting opinion); Standard Dredging Corp. v. Murphy, 319 U.S. 306, 309, 63 S.Ct. 1067, 1068, 87 L.Ed. 1416—the qualifications and exceptions which this Court has built up to that imperative doctrine have not been considered notably more adequate. See Gilmore and Black, Admiralty, passim; Currie, Federalism and the Admiralty: 'The Devil's Own Mess,' 1960, The Supreme Court Review, 158; The Application of State Survival Statutes in Maritime Causes, 60 Col.L.Rev. 534. Perhaps the most often heard criticism of the supremancy doctrine is this: the fact that maritime law is—in a special sense at least, Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368—federal law and therefore supreme by virtue of Article VI of the Constitution carries with it the implication that wherever a maritime interest is involved, no matter how slight or marginal, it must displace a local interest, no matter how pressing and significant. But the process is surely rather one of accommodation, entirely familiar in many areas of overlapping state and federal concern, or a process somewhat analogous to the normal conflict of laws situation where two sovereignties assert divergent interests in a transaction as to which both have some concern. Surely the claim of federal supremacy is adequately served by the availability of a federal forum in the first instance and of review in this Court to provide assurance that the federal interest is correctly assessed and accorded due weight.
14
Thus, for instance, it blinks at reality to assert that because a longshoreman, living ashore and employed ashore by shoreside employers, performs seaman's work, the State with these contacts must lose all concern for the longshoreman's status and well-being. In allowing state wrongful death statutes, The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524; The Hamilton, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264, and state survival of actions statutes, Just v. Chambers, 312 U.S. 383, 668, 61 S.Ct. 687, 85 L.Ed. 903, respectively, to grant and to preserve a cause of action based ultimately on a wrong committed within the admiralty jurisdiction and defined by admiralty law, this Court has attempted an accommodation between a liability dependent primarily upon the breach of a maritime duty and state rules governing the extent of recovery for such breach. Since the chance of death foreclosing recovery is necessarily a fortuitous matter, and since the recovery afforded the disabled victim of an accident need be no less than that afforded to his family should be die, the intrusion of these state remedial systems need not bring with it any undesirable disuniformity in the scheme of maritime law.
15
Altogether analogous reasoning was used by Mr. Justice Brandeis in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582, where it was held that a New York court could properly compel arbitration under the arbitration clause of a maritime contract. It was there reasoned that since such clauses are valid in admiralty and their breach gives rise to an action for damages, to compel arbitration is really to do no more than substitute a different and more effective remedy for that available in admiralty.
16
The line of cases descended from the early precedent of Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996, and most recently added to by Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852; see also Kelly v. State of Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3, exemplify but another variation of this process of accommodation. In the Huron case we allowed the City of Detroit to impose the requirements of its smoke control regulations on vessels coming to the city, even though they had measured up to federally imposed standards as to ship's boilers and equipment. There the matter was put thus:
17
'* * * The thrust of the federal inspection laws (with which petitioner had complied) is clearly limited to affording protection from the perils of maritime navigation. * * *
18
'By contrast, the sole aim of the Detroit ordinance is the elimination of air pollution to protect the health and enhance the cleanliness of the local community. * * *
19
'Congressional recognition that the problem of air pollution is peculiarly a matter of state and local concern is manifest in * * * legislation.' 362 U.S. at pages 445—446, 80 S.Ct. at page 817.
20
Turning to the present case, we think that several considerations point to an accommodation favoring the application of maritime law. It must be remembered that we are dealing here with a contract, and therefore with obligations, by hypothesis, voluntarily undertaken, and not, as in the case of tort liability or public regulations, obligations imposed simply by virtue of the authority of the State or Federal Government. This fact in itself creates some presumption in favor of applying that law tending toward the validation of the alleged contract. Pritchard v. Norton, 106 U.S. 124, 1 S.Ct. 102, 27 L.Ed. 104; Ehrenzweig, Contracts in the Conflict of Laws, Part One: Validity, 59 Col.L.Rev. 973. As we have already said, it is difficult to deny the essentially maritime character of this contract without either indulging in finespun distinctions in terms of what the transaction was really about, or simply denying the alleged agreement that characterization by reason of its novelty. Considering that sailors of any nationality may join a ship in any port, and that it is the clear duty of the ship to put into the first available port if this be necessary to provide prompt and adequate maintenance and cure to a seaman who falls ill during the voyage, The Iroquois, 194 U.S. 240, 24 S.Ct. 640, 48 L.Ed. 955, it seems to us that this is such a contract as may well have been made anywhere in the world, and that the validity of it should be judged by one law wherever it was made. On the other hand we are hard put to perceive how this contract was 'peculiarly a matter of state and local concern,' Huron Portland Cement Co. v. City of Detroit, supra, unless it be New York's interest in not lending her courts to the accomplishment of fraud, something which appears to us insufficient to overcome the countervailing considerations. Finally, since the effect of the application of New York law here would be to invalidate the contract, this case can hardly be analogized to cases such as Red Cross Line v. Atlantic Fruit, or Just v. Chambers, supra, where state law had the effect of supplementing the remedies available in admiralty for the vindication of maritime rights. Nor is Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337, apposite. The application of state law in that case was justified by the Court on the basis of a lack of any provision of maritime law governing the matter there presented. A concurring opinion, id., 348 U.S. at page 321, 75 S.Ct. at page 374, and some commentators have preferred to refer the decision to the absurdity of applying maritime law to a contract of insurance on a houseboat established in the waters of a small artificial lake between Texas and Oklahoma. See Gilmore and Black, Admiralty 44—45. Needless to say the situation presented here has a more genuinely salty flavor than that.
21
In sum, were contracts of the kind alleged in this complaint known to be a normal phenomenon in maritime affairs, we think that there would be little room for argument in favor of allowing local law to control their validity. A different conclusion should not be reached either because such a contract may be thought to be a rarity, or because of any suspicion that this complaint may have been contrived to serve ulterior purposes. Cf. 275 F.2d at page 501; 166 F.Supp. at pages 573—574, note 1, supra. Without remotely intimating any view upon the merits of petitioner's claim, we conclude that it was error to apply the New York Statute of Frauds to bar proof of the agreement alleged in the complaint.
22
Reversed.
23
Mr. Justice FRANKFURTER, whom Mr. Justice STEWART joins, dissenting.
24
Certainly no decision in the Court's history has been the progenitor of more lasting dissatisfaction and disharmony within a particular area of the law than Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086. The mischief it has caused was due to the uncritical application of the loose doctrine of observing 'the very uniformity in respect to maritime matters which the Constitution was designed to establish.' Southern Pacific Co. v. Jensen, supra, 244 U.S. at page 217, 37 S.Ct. at page 529. The looser a legal doctrine, like that of the duty to observe 'the uniformity of maritime law,' the more incumbent it is upon the judiciary to apply it with well-defined concreteness. It can fairly be said that the Jensen decision has not been treated as a favored doctrine. Quite the contrary. It has been steadily narrowed in application, as is strikingly illustrated by such a tour de force as our decision in Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246.
25
The Court today, relying as it does on Jensen, reinvigorates that 'ill-starred decision.' Davis v. Department of Labor, supra, 317 U.S. at page 259, 63 S.Ct. at page 230 (concurring opinion). The notion that if such a limited and essentially local transaction as the contract here in issue were allowed to be governed by a local statute of frauds it would 'disturb the uniformity of maritime law' is, I respectfully submit, too abstract and doctrinaire a view of the true demands of maritime law. I would affirm the judgment below.
26
Mr. Justice WHITTAKER, dissenting.
27
Like the Court of Appeals, 275 F.2d 500, I think the oral contract here claimed by petitioner was not a maritime but a New York contract and barred by its statute of frauds. New York Personal Property Law, § 31, par. 2. I therefore dissent.
1
Apparently any cause of action against the United States arising out of the alleged negligence of its agents in treating petitioner was barred by the running of a shorter statute of limitations than is applicable to the contract alleged here. Compare 28 U.S.C. § 2401(b), 28 U.S.C.A. § 2401(b), with New York Civil Practice Act, § 48.
2
New York Personal Property Law, § 31, par. 2, provides:
'Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the person to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking;
'2. Is a special promise to answer for the debt, default or miscarriage of another person.'
3
A second cause of action for maintenance and cure was subsequently discontinued by petitioner, 275 F.2d at page 502.
4
Although the question has not often been litigated, Union Fish Co. v. Erickson, 248 U.S. 308, 39 S.Ct. 112, 63 L.Ed. 261; see United States Fidelity & Guaranty Co. v. American-Hawaiian S.S. Co., 4 Cir., 280 F. 1023; Hastorf v. F. R. Long-W. G. Broadhurst Co., 2 Cir., 239 F. 852; Quirk v. Clinton, 20 Fed.Cas. page 146, No. 11,518; Northern Star S.S. Co. of Canada v. Kansas Milling Co., D.C., 75 F.Supp. 534, it is well accepted that maritime contracts do not as a generality depend on writing for their validity. As Judge Hough, one of the most distinguished of the federal admiralty judges, once said:
'* * * (This) failure to stress force of custom, in maritime matters, is found in Union Fish Co. v. Erickson (supra), where with obvious correctness the California statute of frauds was not permitted to defeat a shipmaster's libel for wrongful discharge from an engagement for more than one year. * * * (T)he ground of decision should have been the simple one that such engagements, orally made, were as old as the history of marine customs, had passed into the maritime law of the United States, and would be recognized and enforced by the courts of the nation,—so that what California said on the subject (if anything) was merely immaterial.' Hough, Admiralty Jurisdiction—Of Late Years, 37 Harv.L.Rev. 529, at 537.
Writing of a different sort of contract, an equally distinguished British admiralty judge has said that '* * * it is common practice for commercial men to assume very extensive financial obligations on the nod of a head or the initialing of a slip, and many binding chartering engagements are no doubt daily concluded in an informal manner * * *' Soc. Portuguesa de Navios Tanques, Ltd. v. Hvalfslsk Polaris A/S, (1952) 1 Lloyd's List Reports 73, 74 (per McNair, J.), in which opinion he is confirmed by Kent, 3 Commentaries 159—160 (1828 ed.), and the French authority, Pothier, Maritime Contracts 10 (Cushing trans.). True, a seaman's contract of hire, his articles, have long been required to be in writing by statutes of the various maritime nations, among them one of the first statutes passed by our Congress, 1 Stat. 131 (1790). Compare 2 Geo. II, c. 36 (1729). But this rule was clearly instituted for the protection of the seaman, Curtis, Merchant Seamen 37, and in no way assumes the invalidity of such contracts in the absence of writing. In our law the seaman who ships without articles can recover the highest wages paid at the port of embarcation, as well as subjecting the master who took him on board to penalties, 46 U.S.C. §§ 564, 578, 46 U.S.C.A. §§ 564, 578; Norris, The Law of Seamen, §§ 91, 119. An Ordonnance of Louis XIV declares that if the seaman's contract is not in writing, the seaman's oath as to its provisions must be credited, Pothier, supra, at 100, while Lord Tenterden, Merchant Ships and Seamen 476, expressly states that an oral contract of hire is not invalid but only results in a penalty against the master. The Union Fish case, supra, no more than exemplifies the enforceability of an oral maritime contract of hire.
5
Benedict goes on to quote from an anonymous commentary on the Mediaeval Statutes of Culm, one of the early sources of maritime law, that anything pertaining to navigation or seamen is to be considered a part of the maritime law.
| 78
|
365 U.S. 744
81 S.Ct. 870
6 L.Ed.2d 66
MOSES LAKE HOMES, INC., Larsonaire Homes, Inc., and Larson Heights, Inc., Petitioners,v.GRANT COUNTY.
No. 212.
Argued March 23, 1961.
Decided April 17, 1961.
Rehearing Denied June 5, 1961.
See 366 U.S. 947, 81 S.Ct. 1671.
Mr. Lyle L. Iversen, Seattle, Wash., for petitioners.
Mr. Paul A. Klasen, Jr., Soap Lake, Wash., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Among their various contentions, petitioners sought our writ of certiorari on the ground that, although finding that the State of Washington had discriminatorily, and theefore unconstitutionally, valued and taxed their federal Wherry Act leaseholds, the Court of Appeals for the Ninth Circuit, nevertheless, sustained and enforced those taxes. 276 F.2d 836. We granted the writ, limited to that question. 364 U.S. 814, 81 S.Ct. 59, 5 L.Ed.2d 45. Understanding of our decision will require a brief statement of the relevant facts of the case.
2
Acting pursuant to the provisions of §§ 801 to 809 of Title VIII of the National Housing Act (12 U.S.C. (1958 ed.) §§ 1748, 1748a to h—1, 12 U.S.C.A. §§ 1748, 1748a to 1748h—1), the Secretary of the Air Force, on behalf of the United States, entered into a separate lease, with each of Moses Lake Homes, Inc., Larsonaire Homes, Inc., and Larson Heights, Inc., Washington corporations, demising, in each instance, a particularly described tract of land, within the Larson Air Force Base in Grant County, Washington, for a term of 75 years, unless sooner terminated by the Government, for use as a housing project at a nominal rental of $100 per year.1
3
The leases were on the same form, and each bound the lessee to erect on its leasehold a described housing project, and to maintain and operate it throughout the life of the lease. Each lease contemplated and provided that the lessee would raise the money necessary to construct the project by an F.H.A. insured mortgage loan on its leasehold and the improvements, to be serviced and amortized by the lessee out of its rents from the housing units, which were to be rented at such rates and to such military and civilian personnel as the Commanding Officer of the air base might designate. The leases further provided that the buildings and improvements, 'as completed,' would become the property of the United States and so remain, regardless of any termination of the lease, without further compensation to the lessee.
4
With the proceeds of F.H.A. insured mortgage loans on their respective leaseholds and the improvements, aggregating more than $6,000,000, the lessees erected the respective housing projects and undertook their management and operation as agreed in the leases.
5
In June 1954, the Grant County assessor placed the Moses Lake leasehold on his assessment list for taxation in the year 1955, but he did not then levy any tax against it. Moses Lake promptly sued for and obtained a decree in the Superior Court of the State enjoining the County from levying any taxes on its leasehold for the year 1955 and thereafter. Upon the County's appeal, the Supreme Court of Washington reversed on November 14, 1957, holding that the leasehold was taxable by the County, and further holding, upon its understanding of our opinion in Offutt Housing Co. v. Sarpy County, 351 U.S. 253, 76 S.Ct. 814, 100 L.Ed. 1151, that it would be proper, for such purpose, to value the leasehold at 'the full value of the buildings and improvements' thereon. Moses Lake Homes, Inc., v. Grant County, 51 Wash.2d 285, 287, 317 P.2d 1069, 1070.
6
Thereafter, in December 1957, the County valued these Wherry Act leaseholds on the basis of the full value of the buildings and improvements, and acting under § 84.40.080, Revised Code of Washington, retrospectively assessed its taxes against the Moses Lake leasehold for the years 1955 through 1958, against the Larsonaire leasehold for the years 1956 through 1958, and against the Larson Heights leasehold for the years 1957 and 1958 as 'omitted property' as authorized by that section.2 Later, the County assessed and levied its taxes against the leaseholds, on the same basis, for the year 1959.3
7
On January 21, 1958, the County issued its distraints, and also its notices of sales of these leaseholds and the improvements thereon to be held on March 4, 1958, to satisfy its tax demands. Very soon thereafter, the United States instituted this condemnation action in the United States District Court for the Eastern District of Washington against the lessees and Grant County, and on March 1, 1958, it filed therein its declaration of taking, and took, these leasehold estates—depositing in the registry of the court $253,000 as their estimated value4—and thereupon, on motion of the United States, the court enjoined Grant County from proceeding with its tax sales pending final determination of the case.
8
By its answer, the County claimed, and asked the court to award it, the greater part of the deposit to satisfy its tax demands.5 The lessees disputed the County's claim, contending, inter alia, that the asserted taxes were invalid because discriminatorily assessed in violation of § 511 of the Housing Act of 1956 (70 Stat. 1091, c. 1029, 42 U.S.C. (1958 ed.) § 1594 note, 42 U.S.C.A. § 1594 note) and in violation of the United States Constitution. That issue, among others, was litigated between those parties as adversary codefendants.
5
See note 4.
9
Although the District Court found that Washington's 'taxes and assessments on Wherry housing (leaseholds) are * * * levied upon a basis different and higher than (other leaseholds),' it, nevertheless, held that, but for the state court injunction, the 1955 and 1956 taxes against the Moses Lake leasehold would have been validly assessed and levied before the effective period of § 511 of the Housing Act of 1956 (June 15, 1956),6 and it allowed those items of the County's claim; but it denied all other items of the claim. On appeal, the Ninth Circuit 'sustained (the District) court's finding that the method used in assessing the Moses Lake leaseholds resulted in a higher tax than would have been true in the case of a non-Wherry Act leasehold,' 276 F.2d at page 847, but it held that 'the fact that the taxes are higher does not invalidate the entire tax. It only requires that the amount collectible be reduced to what it would have been if the tax had been levied on a non-Wherry Act leasehold basis,' 276 F.2d at page 847, and—otherwise upholding the County's levies against the Moses Lake leasehold for the years 1955, 1956 and 1957—it remanded the case to the District Court to make the proper reduction in the amount of those taxes, and also for further proceedings respecting the other taxpayers and tax years involved, except it held that the 1959 taxes were invalid because levied on the leaseholds after the United States had acquired them.
10
In addition to the weight properly to be accorded to the conclusions of the two courts below that Washington imposes a higher tax on Wherry Act leaseholds than on other similar leaseholds, it is eminently clear that this is so. Section 84.40.030 of the Revised Code of Washington provides that all property shall be assessed at 50 percent of its fair value, and that 'Taxable leasehold estates shall be valued at such price as they would bring at a fair, voluntary sale for cash.' Consonant with that statute, the Washington Supreme Court has consistently held, save as to Wherry Act leaseholds, that all leaseholds, including leaseholds on the State's own tax-exempt lands are to be valued for tax purposes on the basis of their fair market value, considering their burdens as well as their benefits. Metropolitan Building Co. v. King County, 72 Wash. 47, 129 P. 883; Metropolitan Building Co. v. King County, 64 Wash. 615, 117 P. 495; Metropolitan Building Co. v. King County, 62 Wash. 409, 113 P. 1114. And see Bellingham Community Hotel Co. v. Whatcom County, 190 Wash. 609, 612—613, 70 P.2d 301, 303, and Dexter Horton Bldg. Co. v. King County, 10 Wash.2d 186, 116 P.2d 507.
11
Even the facts of the Metropolitan cases are remarkably similar to the facts here. There the Metropolitan Company acquired a 50-year lease of land owned by the State. As required by the lease, the lessee erected very substantial improvements upon the land—funding their cost with a large issue of mortgage bonds—which improvements, immediately upon completion, became the property of the State. In the first of those cases, 62 Wash. 409, 113 P. 1114, the Court held that the leasehold should not be assessed at a 'speculative' value, but at its 'actual * * * value in money * * *,' and that it was error to assess it at the value of the improvements. In the two later Metropolitan cases (64 Wash. 615, 117 P. 495; 72 Wash. 47, 129 P. 883), the court emphasized that, in determining the fair market value of the leasehold, consideration must be given to its burdens, including mortgages upon it, as well as to its benefits.
12
Yet, without overruling or departing those cases with respect to state-created heaseholds, the Washington Supreme Court held in Moses Lake Homes Co., Inc. v. Grant County, 51 Wash.2d 285, 317 P.2d 1069, 1071, that Wherry Act leaseholds are taxable at 'the full value of the buildings and improvements' thereon. It felt bound, as it said, to apply that special valuation rule to Wherry Act leaseholds because of our opinion in Offutt Housing Co. v. Sarpy County, 351 U.S. 253, 76 S.Ct. 814, 100 L.Ed. 1151. In this, the Washington Supreme Court mistakenly read and misapplied the Offutt case. Nothing in that case requires the States to assess Wherry Act leaseholds on the basis of the value of the improvements thereon. In this respect, it holds only that such a valuation is not unconstitutional per se. That case did not involve any issue or question of discrimination. It involved the law of Nebraska which requires all leaseholds in tax-exempt property to be assessed at the full value of the buildings and improvements thereon, and the Offutt case held that such might constitutionally be done. It did not hold, as the Supreme Court of Washington has construed it in the Moses Lake case, that a State might constitutionally discriminate against leaseholds on federally owned lands in favor of leaseholds on state-owned lands.
13
If anything is settled in the law, it is that a State may not discriminate against the Federal Government or its lessees. See, e.g., Phillips Co. v. Dumas School District, 361 U.S. 376, 80 S.Ct. 474, 4 L.Ed.2d 384; United States v. City of Detroit, 355 U.S. 466, 473, 78 S.Ct. 474, 478, 2 L.Ed.2d 424; City of Detroit v. Murray Corp., 355 U.S. 489, 78 S.Ct. 458, 2 L.Ed.2d 441. In United States v. City of Detroit, supra, we said:
14
'It still remains true, as it has from the beginning, that a tax may be invalid even though it does not fall directly on the United States if it operates so as to discriminate against the Government or those with whom it deals.' 355 U.S., at page 473, 78 S.Ct. at page 478.
15
The Dumas case, supra, is closely in point and controlling. There the State of Texas taxed the leasehold estate of a government lessee at the 'full value of the leased premises' (361 U.S., at page 378, 80 S.Ct. at page 476), while it imposed 'a distinctly lesser burden on similarly situated lessees of exempt property owned by the State and its political subdivisions.' 361 U.S. at page 379, 80 S.Ct. at page 477. We there said, '(I)t 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,' 361 U.S., at page 385, 80 S.Ct. at page 480, and we held the tax to be void because it 'discriminates unconstitutionally against the United States and its lessees.' 361 U.S., at page 379, 80 S.Ct. at page 477. That case is indistinguishable from this one on the point here.
16
The Court of Appeals was also in error in holding that 'the fact that the taxes are higher does not invalidate the entire tax (but) only requires that the amount collectible be reduced to what it would have been if the tax had been levied on a non-Wherry Act leasehold basis' (276 F.2d at page 847), and in remanding the case to the District Court to make the necessary adjustment. We held in the Dumas case, supra, that a discriminatory tax is void and 'may not be exacted.' 361 U.S. at page 387, 80 S.Ct. at page 481. The effect of the Court's remand was to direct the District Court to decree a valid tax for the invalid one which the State had attempted to exact. The District Court has no power so to decree. Federal courts may not assess or levy taxes. Only the appropriate taxing officials of Grant County may assess and levy taxes on these leaseholds, and the federal courts may determine, within their jurisdiction, only whether the tax levied by those officials is or is not a valid one. When, as here, the tax is invalid, it 'may not be exacted.' Phillips Co. v. Dumas School District, 361 U.S. at page 387, 80 S.Ct. at page 481.
17
Nor is there any merit in respondent's contention that the opinion and judgment of the Supreme Court of Washington in the Moses Lake case, supra, is res judicata of the County's tax claims against the Moses Lake leasehold for at least the years 1955 and 1956. This is so because no tax whatever had then been assessed and levied against the Moses Lake leasehold, and hence no issue of discrimination was or could have been presented and adjudicated in that case.
18
Inasmuch as the taxes, presently assessed and levied, discriminate unconstitutionally against the United States and its lessees, they are void, and hence may not be exacted.
19
Reversed.
1
The Moses Lake lease was entered into on May 31, 1950, the Larsonaire lease on August 6, 1953, and the Larson Heights lease on August 2, 1954.
2
Section 84.40.080 of the Revised Code of Washington provides, in relevant part, as follows:
'The assessor * * * shall enter in the detail and assessment list of the current year any property shown to have been omitted from the assessment list of any preceding year, at the valuation of that year, or if not then valued, at such valuation as the assessor shall determine from the preceding year * * *. When such an omitted assessment is made, the taxes levied thereon may be paid within one year of the due date of the taxes for the year in which the assessment is made without penalty or interest.'
3
The County's tax claims against petitioners' leaseholds were as follows: Moses Lake, $142,285.73; Larsonaire, $68,838; and Larson Heights, $47,088.
4
The deposited sum of $253,000 was allocated among the three petitioners as follows: Moses Lake, $126,500; Larsonaire, $65,300; and Larson Heights, $61,200. Thus, the County's claims against the Moses Lake and Larsonaire leaseholders were greater than the amount deposited by the United States as their reasonable value. See note 3. Had the County been successful on all items of its claim, it would have received all but $14,112 of the deposited sum.
6
Section 408 of the Housing Amendments of 1955, as amended by § 511 of the Housing Act of 1956 (70 Stat. 1091, c. 1029, 42 U.S.C. (1958 ed.) § 1594 note, 42 U.S.C.A. § 1594 note), contains the following relevant provision:
'* * * Nothing contained in the provisions of title VIII of the National Housing Act in effect prior to August 11, 1955, or any related provision of law, shall be construed to exempt from State or local taxes or assessments the interest of a lessee from the Federal Government in or with respect to any property covered by a mortgage insured under such provisions of title VIII: Provided, That, no such taxes or assessments (not paid or encumbering such property or interest prior to June 15, 1956) on the interest of such lessee shall exceed the amount of taxes or assessments on other similar property of similar value * * *.'
| 78
|
365 U.S. 705
81 S.Ct. 855
6 L.Ed.2d 36
INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Haverhill Typographical Union No. 38 and Worcester Typographical Union No. 165, Petitioners,v.NATIONAL LABOR RELATIONS BOARD.
No. 340.
Argued March 1, 1961.
Decided April 17, 1961.
Rehearing Denied May 29, 1961.
See 366 U.S. 941, 81 S.Ct. 1658.
Mr. Gerhard P. Van Arkel, Washington, D.C., for petitioners.
Mr. Dominick L. Manoli, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This case involves a controversy that started in 1956 between petitioner Local 165 and the Worcester Telegram and between petitioner Local 38 and the Haverhill Gazette. The two unions insisted that the collective bargaining agreements that were being negotiated contain clauses or provisions to which each employer objected. The controversy as it reaches here is reduced to two clauses: first, that the hiring for the composing room be in the hands of the foreman; that he must be a member of the union; but that the union 'shall not discipline the foreman for carrying out written instructions of the publisher or his representatives authorized by this Agreement'; and second, that the General Laws of the International Typographical Union shall govern the relations between the parties if they are 'not in conflict with state or federal law.' The unions' demand that these clauses be included in the agreement led to a deadlock in the negotiations which in turn resulted in a strike.
2
The employers filed charges with the Board, complaints were issued, the cases consolidated, and hearings held. The Board concluded that the demands for the two clauses and the strikes supporting them were violations of the Act. It found that a demand for a contract that included those clauses was a refusal to bargain collectively within the meaning of § 8(b)(3) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 140—141, 29 U.S.C. § 158(b)(3), 29 U.S.C.A. § 158(b)(3). It found that striking to force acceptance of those clauses was an attempt to make the employers discriminate in favor of union members contrary to the command of § 8(b)(2) of the Act. It also found that striking for the 'foreman clause' was restraining and coercing the employers in the selection of their representatives for the adjustment of grievances in violation of § 8(b)(1)(B) of the Act. 123 N.L.R.B. 806. The Court of Appeals enforced the Board's order apart from features not material here. 1 Cir., 278 F.2d 6. The case is here on certiorari, 364 U.S. 878, 81 S.Ct. 166, 5 L.Ed.2d 101.
3
What we have said in National Labor Relations Board v. News Syndicate Co., 365 U.S. 695, 81 S.Ct. 849, 6 L.Ed.2d 29, is dispositive of the clause which incorporates the General Laws of the parent union 'not in conflict with state or federal law.' On that phrase of the case the judgment below must be reversed.
4
Mr. Justice CLARK and Mr. Justice WHITTAKER dissent, substantially for the reasons stated by the Court of Appeals, 278 F.2d 6.
5
We turn then to the controversy over the 'foreman clause.' As to whether the strike to obtain the 'foreman clause' was permissible, the Court is equally divided. Accordingly the judgment on that phase of the controversy is affirmed.
6
Reversed in part and affirmed in part.
7
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
8
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.
9
I join the Court's opinion upon the basis set forth in my concurring opinions in No. 339, 365 U.S. 703, 81 S.Ct. 854, and in Nos. 64 and 85, Local 357, International Brotherhood of Teamsters, etc. v. National Labor Relations Board, 365 U.S. 677, 81 S.Ct. 840.
| 67
|
365 U.S. 695
81 S.Ct. 849
6 L.Ed.2d 29
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.NEWS SYNDICATE COMPANY, Inc., et al.
No. 339.
Argued March 1, 1961.
Decided April 17, 1961.
Mr. Dominick L. Manoli, Washington, D.C., for petitioner.
Mr. John R. Schoemer, Jr., New York City, for respondent News Syndicate Co., Inc.
Mr. Gerhard P. Van Arkel, Washington, D.C., for respondent New York Mailers' Union No. 6, International Typographical Union AFL-CIO.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Respondent union, affiliated with the International Typographical Union, entered into collective bargaining agreements with various publishers, including respondent News Syndicate (and Dow Jones & Co.), which contained a provision that 'the General Laws of the International Typographical Union * * * not in conflict with this contract or with federal or state law shall govern relations between the parties on conditions not specifically enumerated herein.' The contract limited mail-room employment to 'journeymen and apprentices.' The contract also provided that mail-room superintendents, foremen, and assistant foremen must be members of the union and that the foremen would do the hiring. The General Laws of ITU provided that 'foremen or journeymen' should be 'active members' of the union, that only union members should operate, maintain, and service any mailing machinery or equipment, that no person should be eligible as a 'learner' who is not a union member.
2
Another provision of the contract stated, however, that 'The Union shall not discipline the Foreman for carrying out the instructions of the Publisher or his representatives in accordance with this agreement.' It also provided that the foremen 'shall be appointed and may be removed by the Publisher.'
3
The foreman at one plant was a union member and the Board found that he discriminated in favor of union men against a nonunion employee named Julius Arrigale. It also found that the foreman at another plant was a union member and discriminated in favor of union men and against a nonunion employee named Burton Randall. It concluded that the union and the News Syndicate had violated § 8(b)(1)(A) and (2) and § 8(a)(1) and (3) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 140—141, as amended, 29 U.S.C., § 158, 29 U.S.C.A. § 158, respectively, by their contract arrangements and by operating an unlawful closed shop and preferential hiring system.1 It held that vesting control over employment in union foremen was a delegation of exclusive control over hiring to the union without the requisite safeguards prescribed by the Board in Mountain Pacific Chapter, 119 N.L.R.B. 883. The order of the Board contained various provisions including a direction that all employees in the mail-rooms be reimbursed for dues and assessments paid the union for a period beginning six months before the service of the charges against it; and this duty was made, so far as concerns the news mail-room, a joint and several liability of the union and News Syndicate. 122 N.L.R.B. 818.
4
The Board petitioned the Court of Appeals for enforcement of the order. That court held that the finding of discrimination against Randall was in part supported by the record; and it refused enforcement of the Board's order, allowing the Board, if it wished, to enter an order directed only to that instance of discrimination the Court of Appeals found the record to show. 279 F.2d 323. The case is here on petition for a writ of certiorari which we granted along with No. 340, International Typographical Union, etc. v. National Labor Relations Board, 365 U.S. 705, 81 S.Ct. 855, 6 L.Ed.2d 36, because of the conflict between them, 364 U.S. 877, 878, 81 S.Ct. 166, 5 L.Ed.2d 100, 101.
5
What we have this day decided in Local 60, United Brotherhood of Carpenters, etc. v. National Labor Relations Board, 365 U.S. 651, 81 S.Ct. 875, 6 L.Ed.2d 1, is dispositive of the provision in the Board's order requiring respondents to reimburse union members for dues and assessments.
6
We also believe the Court of Appeals was right in concluding that the contract on its face is not unlawful even though the foremen—who are union members—do the hiring. In the first place, the contract (unlike the General Laws) does not require journeymen and apprentices to be union members. In the second place, the provisions of the contract which we have set forth make the foremen 'solely the employers' agents,' as the Court of Appeals concluded.2 279 F.2d at page 330. Finally, as we said in Local 357, International Brotherhood of Teamsters, etc. v. National Labor Relations Board, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11, we will not assume that unions and employers will violate the federal law, favoring discrimination in favor of union members against the clear command of this Act of Congress. As stated by the Court of Appeals, 'In the absence of provisions calling explicitly for illegal conduct, the contract cannot be held illegal because it failed affirmatively to disclaim all illegal objectives.' 279 F.2d at page 330.
7
We also agree with the Court of Appeals that the General Laws provision of the contract is not per se unlawful. For it has in it the condition that only those General Laws of the union are incorporated which are 'not in conflict with this contract or with federal or state law.' Any rule or regulation of the union which permitted or required discrimination in favor of union employees would, therefore, be excluded from incorporation in the contract since it would be at war with the Act. We can say with Judge Prettyman in Honolulu Star-Bulletin v. National Labor Relations Board, 107 U.S.App.D.C. 58, 61, 274 F.2d 567, 570 that while the words 'not in conflict with federal * * * law' might in some circumstances be puzzling or uncertain as to meaning, 'there could hardly be any uncertainty respecting a closed-shop clause.' For the command of § 8 is clear and explicit and the only exception is plainly spelled out in the provisos to § 8(a)(3).
8
Whether in practice respondents maintained and enforced closed-shop and preferential hiring conditions raises a distinct question.
9
The Board's case comes down to the method by which those in the mail-room became journeymen. One could either take an apprentice training program or pass a competency examination. Apprentices were hired by the foremen; but the Court of Appeals found that there were no discriminatory practices in the actual hiring of apprentices. If a person followed the examination route, the contract provided for it to be given 'by impartial examiners qualified to judge journeyman competency selected by the parties hereto.' The examiners were union officials and the mail-room foremen.
10
The union proposed and News Syndicate agreed in 1956 to put into the class of a 'regular substitute' those extras who in the prior two years had earned 15 vacation credits, which was another way of describing those who had averaged about three days' work a week. Those who were hired on a day-to-day basis ('shaped for work') included 60 nonunion men. Of these, 31 were invited to take the examination. They passed, were made 'regular substitutes,' and subsequently became union members. Thereafter each of the new 'regular substitutes' was hired prior to Randall, though he had 'shaped' at the News longer than many of them. Randall, it appears, had full-time outside jobs that kept him from 'shaping' regularly.3 Arrigale was a nonjourneyman who shaped up for the Wall Street Journal, which had essentially the same hiring setup as the News. The asserted discrimination occurred when 'outside card-men' were hired in preference to Arrigale, although Arrigale was 'shaping' steadily and was the oldest nonunion extra. The foreman testified he took 'outside card-men' because he could be sure of their competency, because they would have taken the journeyman test or had served as apprentices. There was no evidence that membership in the union was a condition for the journeyman test, save that all journeymen in fact did become union men.
11
Respondents, therefore, contend that to accord priority in the hire of extras to men who work regularly for the employer (and who also have the journeyman status) is a hiring system based on competency and legitimate employee qualifications.
The Court of Appeals concluded:
12
'We find * * * a dearth of evidence either that a Union journeyman has ever been hired in preference (let alone, an unlawful preference) to a nonunion journeyman, or that the qualifying standards for taking a competency examination are discriminatory. The record is barren of even the slightest hint that there has been discrimination in the conduct of the examinations. Availability, dependability and regularity of service, as well as mere competency, are valid nondiscriminatory considerations in determining the order of hire. The fact that one applicant is as competent as another, does not mean that the other may not properly be preferred on the basis of his other qualifications. And the fact that those achieving status as new 'regular substitutes' subsequently became Union members and even indicated their willingness to do so prior to the adoption of the standard, does not indicate, at least on this record, that the standard, seemingly fair, was discriminatory in its effect. Randall admitted that he would have welcomed the opportunity to become a Union member, and for aught that appears in the record, so would the remaining extras who did not meet the established standard.
13
'We conclude that the record does not warrant a finding that the hiring system in general, or the competency system in particular, by its discrimination against nonunion applicants, encouraged Union membership.' 279 F.2d at pages 333—334.
14
This finding of the Court of Appeals disposed of Arrigale's complaint and all of Randall's with the exception of the loss of one night's employment as to which the court sustained the Board. The Board drew contrary inferences. But it does not now seriously challenge the foregoing finding of the Court of Appeals. Rather, its main reliance is on the long history of ITU's use of the closed shop, the fact that foremen were union members, and the obscurity of the 'not in conflict' clause of the agreement. We think the reversal of the Board on the facts by the Court of Appeals was within the scope of review entrusted to it. See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 490—491, 71 S.Ct. 456, 465—466, 95 L.Ed. 456.
15
Affirmed.
16
Mr. Justice WHITTAKER dissents. See his dissenting opinion in Local 60, United Brotherhood of Carpenters, etc. v. National Labor Relations Board, 365 U.S. 660, 81 S.Ct. 880.
17
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
18
Mr. Justice HARLAN, whom Mr. Jutsice STEWART joins, concurring.
19
I join the Court's opinion on the basis of the reasoning set forth in my concurring opinions in No. 68, Local 60, United Brotherhood of Carpenters, etc. v. National Labor Relations Board, 365 U.S. 656, 81 S.Ct. 878 and in Nos. 64 and 85, Local 357, International Brotherhood of Teamsters, etc. v. National Labor Relation Board, 365 U.S. 677, 81 S.Ct. 840.
20
Here, as with respect to the 'hiring hall' clause in Nos. 64 and 85, I think the Board's finding that the 'General Laws' clause 'encouraged' union membership must be accepted. I need only add that in light of the historic use of such clauses to maintain closed-shop conditions, I would not be willing to overrule the Board's determination that those employed or seeking employment in this newspaper's mail room would regard the innocently worded incorporation of the union's valid 'General Laws' as in fact evidencing the employer's and union's intent to allow forbidden union bylaws to govern their relationship as regards employment, until a finding of an unfair labor practice arising therefrom had actually been made.
21
Mr. Justice CLARK, dissenting.
22
I agree with the Court's disposition of that part of the Board's order requiring respondents to reimburse union members for dues and assessments. However, for the reasons stated in my dissent in Nos. 64 and 85, Local 357, International Brotherhood of Teamsters, etc. v. National Labor Relations Board, 365 U.S. 685, 81 S.Ct. 845, I believe that the inclusion in the agreement of the 'General Laws' and 'Foreman' clauses violated § 8(b)(1)(A) and (2) and § 8(a)(1) and (3). I, therefore, dissent from those portions of the Court's opinion.
1
Section 8 provides in relevant part:
'(a) It shall be an unfair labor practice for an employer—
'(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
'(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later * * * Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;
'(b) It shall be an unfair labor practice for a labor organization or its agents—
'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; * * *
'(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership * * *.'
Section 7 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).' 29 U.S.C.A. § 157.
2
The 1947 amendments to the Act changed the ruling in Packard Motor Car Co. v. National Labor Relations Board, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040, which held that foremen were 'employees.' Section 2(3) now excludes from the term 'employees' one who is 'employed as a supervisor.' Section 2(11) defines a 'supervisor' as one 'having authority, in the interest of the employer, to hire,' etc., employees. 29 U.S.C.A. § 152(3, 11). Section 14(a) provides:
'Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.' 29 U.S.C.A. § 164(a).
As stated by Senator Taft, under these provisions even a union of foremen could be recognized by an employer, though no employer could be compelled to do so. S.Rep. No. 105, 80th Cong., 1st Sess., p. 5.
3
Burton Randall is neither a union member nor a journeyman within the meaning of the contract between the union and the News. The hiring practices at the News are as follows: The minimum mailing-room staff ('regular situation holders') are both union members and journeymen; they report for work each night and are not required to 'shape.' To fill in vacancies and to meet added needs, the foreman next turns to 'regular substitutes,' who are both journeymen and union members. Next in line of priority are those the Board insists are referred to as 'outside card men,' but who are at any rate both journeymen and union members regularly shaping up for other newspapers, but available for work on the News. The lowest priority category consists of what the Board calls 'nonunion shapers' (and the union, 'non-journeymen casuals'); at any rate, these men have neither union membership nor journeyman status. Within the category, such men are ranked in seniority running from the date of first shaping up for the News. Burton Randall is a 'nonunion shaper' or 'non-journeyman casual.' He has been turning up for the 'shaping' at the News for a good many years; for most of them, he showed only on Fridays and Saturdays since he held another job. From 1950 to 1956, he was third in seniority on the 'casual' list; from 1956, he was first on that list.
| 67
|
365 U.S. 715
81 S.Ct. 856
6 L.Ed.2d 45
William H. BURTON, Appellant,v.WILMINGTON PARKING AUTHORITY, et al.
No. 164.
Argued Feb. 21 and 23, 1961.
Decided April 17, 1961.
Mr. Louis L. Redding, Wilmington, Del., for appellant.
Sol. Gen. Archibald Cox, Washington, D.C., for the United States, as amicus curiae.
Mr. Clair John Killoran, Wilmington, Del., for appellee, The Wilmington Parking Authority.
Mr. Thomas Herlihy, Jr., Wilmington, Del., for appellee, Eagle Coffee Shoppe, Inc.
Mr. Justice CLARK delivered the opinion of the Court.
1
In this action for declaratory and injunctive relief it is admitted that the Eagle Coffee Shoppe, Inc., a restaurant located within an off-street automobile parking building in Wilmington, Delaware, has refused to serve appellant food or drink solely because he is a Negro. The parking building is owned and operated by the Wilmington Parking Authority, an agency of the State of Delaware, and the restaurant is the Authority's lessee. Appellant claims that such refusal abridges his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Supreme Court of Delaware has held that Eagle was acting in 'a purely private capacity' (157 A.2d 902) under its lease; that its action was not that of the Authority and was not, therefore, state action within the contemplation of the prohibitions contained in that Amendment. It also held that under 24 Del.Code s 1501,1 Eagle was a restaurant, not an inn, and that as such it 'is not required (under Delaware law) to serve any and all persons entering its place of business.' Del.1960, 157 A.2d 894, 902. On appeal here from the judgment as having been based upon a statute construed unconstitutionally, we postponed consideration of the question of jurisdiction under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), to the hearing on the merits. 364 U.S. 810, 81 S.Ct. 52, 5 L.Ed.2d 40. We agree with the respondents that the appeal should be dismissed and accordingly the motion to dismiss is granted. However, since the action of Eagle in excluding appellant raises an important constitutional question, the papers whereon the appeal was taken are treated as a petition for a writ of certiorari, 28 U.S.C. § 2103, 28 U.S.C.A. § 2103, and the writ is granted. 28 U.S.C. § 1257(3), 28 U.S.C.A. § 1257(3). On the merits we have concluded that the exclusion of appellant under the circumstances shown to be present here was discriminatory state action in violation of the Equal Protection Clause of the Fourteenth Amendment.
2
The Authority was created by the City of Wilmington pursuant to 22 Del.Code, §§ 501—515. It is 'a public body corporate and politic, exercising public powers of the State as an agency thereof.' § 504. Its statutory purpose is to provide adequate parking facilities for the convenience of the public and thereby relieve the 'parking crisis, which threatens the welfare of the community * * *.' § 501(7), (8) and (9). To this end the Authority is granted wide powers including that of constructing or acquiring by lease, purchase or condemnation, lands and facilities, and that of leasing 'portions of any of its garage buildings or structures for commercial ues by the lessee, where, in the opinion of the Authority, such leasing is necessary and feasible for the financing and operation of such facilities.' § 504(a). The Act provides that the rates and charges for its facilities must be reasonable and are to be determined exclusively by the Authority 'for the purposes of providing for the payment of the expenses of the Authority, the construction, improvement, repair, maintenance, and operation of its facilities and properties, the payment of the principal of and interest on its obligations, and to fulfill the terms and provisions of any agreements made with the purchasers or holders of any such obligations or with the city.' § 504(b)(8). The Authority has no power to pledge the credit of the State of Delaware but may issue its own revenue bonds which are tax exempt. Any and all property owned or used by the Authority is likewise exempt from state taxation.
3
The first project undertaken by the Authority was the erection of a parking facility on Ninth Street in downtown Wilmington. The tract consisted of four parcels, all of which were acquired by negotiated purchases from private owners. Three were paid for in cash, borrowed from Equitable Security Trust Company, and the fourth, purchased from Diamond Ice and Coal Company, was paid for 'partly in Revenue Bonds of the Authority and partly in cash ($934,000) donated by the City of Wilmington, pursuant to 22 Del.C. c. 5 * * *. Subsequently, the City of Wilmington gave the Authority $1,822,827.69 which sum the Authority applied to the redemption of the Revenue Bonds delivered to Diamond Ice & Coal Co. and to the repayment of the Equitable Security Trust Company loan.' Before it began actual construction of the facility, the Authority was advised by its retained experts that the anticipated revenue from the parking of cars and proceeds from sale of its bonds would not be sufficient to finance the construction costs of the facility. Moreover, the bonds were not expected to be marketable if payable solely out of parking revenues. To secure additional capital needed for its 'debt-service' requirements, and thereby to make bond financing practicable, the Authority decided it was necessary to enter long-term leases with responsible tenants for commercial use of some of the space available in the projected 'garage building.' The public was invited to bid for these leases.
4
In April 1957 such a private lease, for 20 years and renewable for another 10 years, was made with Eagle Coffee Shoppe, Inc., for use as a 'restaurant, dining room, banquet hall, cocktail lounge and bar and for no other use and purpose.' The multi-level space of the building which was let to Eagle, although 'within the exterior walls of the structure, has no marked public entrance leading from the parking portion of the facility into the restaurant proper * * * (whose main entrance) is located on Ninth Street.' 157 A.2d at page 899. In its lease the Authority covenanted to complete construction expeditiously, including completion of 'the decorative finishing of the leased premises and utilities therefor, without cost to Lessee,' including necessary utility connections, toilets, hung acoustical tile and plaster ceilings; vinyl asbestos, ceramic tile and concrete floors; connecting stairs and wrought iron railings; and wood-floored show windows. Eagle spent some $220,000 to make the space suitable for its operation and, to the extent such improvements were so attached to realty as to become part thereof, Eagle to the same extent enjoys the Authority's tax exemption.
5
The Authority further agreed to furnish heat for Eagle's premises, gas service for the boiler room, and to make, at its own expense, all necessary structural repairs, all repairs to exterior surfaces except store fronts and any repairs caused by lessee's own act or neglect. The Authority retained the right to place any directional signs on the exterior to the let space which would not interfere with or obscure Eagle's display signs. Agreeing to pay an annual rental of $28,700, Eagle covenanted to 'occupy and use the leased premises in accordance with all applicable laws, statutes, ordinances and rules and regulations of any federal, state or municipal authority.' Its lease, however, contains no requirement that its restaurant services be made available to the general public on a nondiscriminatory basis, in spite of the fact that the Authority has power to adopt rules and regulations respecting the use of its facilities except any as would impair the security of its bondholders. § 511.
6
Other portions of the structure were leased to other tenants, including a bookstore, a retail jeweler, and a food store. Upon completion of the building, the Authority located at appropriate places thereon official signs indicating the public character of the building, the flew from mastheads on the roof both the state and national flags.
7
In August 1958 appellant parked his car in the building and walked around to enter the restaurant by its front door on Ninth Street. Having entered and sought service, he was refused it. Thereafter he filed this declaratory judgment action in the Court of Chancery. On motions for summary judgment, based on the pleadings and affidavits, the Chancellor concluded, contrary to the contentions of respondents, that whether in fact the lease was a 'device' or was executed in good faith, it would not 'serve to insulate the public authority from the force and effect of the Fourteenth Amendment.' 150 A.2d 197, 198. He found it not necessary, therefore, to pass upon the rights of private restaurateurs under state common and statutory law, including 24 Del.Code § 1501. The Supreme Court of Delaware reversed, as we mentioned above, holding that Eagle 'in the conduct of its business, is acting in a purely private capacity.' It, therefore, denied appellant's claim under the Fourteenth Amendment. Upon reaching the application of state law, it held, contrary to appellant's assertion that Eagle maintained an inn, that Eagle's operation was 'primarily a restaurant and thus subject to the provisions of 24 Del.C. § 1501, which does not compel the operator of a restaurant to give service of all persons seeking such.' 157 A.2d at page 902. Delaware's highest court has thus denied the equal protection claim of the appellant as well as his state-law contention concerning the applicability of § 1501.
8
On the jurisdictional question, we agree that the judgment of Delaware's court does not depend for its ultimate support upon a determination of the constitutional validity of a state statute, but rather upon the holding that on the facts Eagle's racially discriminatory action was exercised in 'a purely private capacity' and that it was, therefore, beyond the prohibitive scope of the Fourteenth Amendment.
9
The Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, 'embedded in our constitutional law' the principle 'that the action inhibited by the first section (Equal Protection Clause) of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.' Chief Justice Vinson in Shelley v. Kraemer, 1948, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161. It was language in the opinion in the Civil Rights Cases, supra, that phrased the broad test of state responsibility under the Fourteenth Amendment, predicting its consequence upon 'State action of every kind * * * which denies * * * the equal protection of the laws.' At p. 11 of 109 U.S., at page 21 of 3 S.Ct. And only two Terms ago, some 75 years later, the same concept of state responsibility was interpreted as necessarily following upon 'state participation through any arrangement, management, funds or property.' Cooper v. Aaron, 1958, 358 U.S. 1, 4, 78 S.Ct. 1401, 1403, 3 L.Ed.2d 5. It is clear, as it always has been since the Civil Rights Cases, supra, that 'Individual invasion of individual rights is not the subject-matter of the amendment,' 109 U.S. at page 11, 3 S.Ct. at page 21, and that private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it. Because the virtue of the right to equal protection of the laws could lie only in the breadth of its application, its constitutional assurance was reserved in terms whose imprecision was necessary if the right were to be enjoyed in the variety of individual-state relationships which the Amendment was designed to embrace. For the same reason, to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an 'impossible task' which 'This Court has never attempted.' Kotch v. Board of River Port Pilot Com'rs, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093. Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.
10
The trial court's disposal of the issues on summary judgment has resulted in a rather incomplete record, but the opinion of the Supreme Court as well as that of the Chancellor presents the facts in sufficient detail for us to determine the degree of state participation in Eagle's refusal to serve petitioner. In this connection the Delaware Supreme Court seems to have placed controlling emphasis on its conclusion, as to the accuracy of which there is doubt, that only some 15% of the total cost of the facility was 'advanced' from public funds; that the cost of the entire facility was allocated three-fifths to the space for commercial leasing and two-fifths to parking space; that anticipated revenue from parking was only some 30.5% of the total income, the balance of which was expected to be earned by the leasing; that the Authority had no original intent to place a restaurant in the building, it being only a happenstance resulting from the bidding; that Eagle expended considerable moneys on furnishings; that the restaurant's main and marked public entrance is on Ninth Street without any public entrance direct from the parking area; and that 'the only connection Eagle has with the public facility * * * is the furnishing of the sum of $28,700 annually in the form of rent which is used by the Authority to defray a portion of the operating expense of an otherwise unprofitable enterprise.' 157 A.2d 894, 901. While these factual considerations are indeed validly accountable aspects of the enterprise upon which the State has embarked, we cannot say that they lead inescapably to the conclusion that state action is not present. Their persuasiveness is diminished when evaluated in the context of other factors which must be acknowledged.
11
The land and building were publicly owned. As an entity, the building was dedicated to 'public uses' in performance of the Authority's 'essential governmental functions.' 22 Del.Code, §§ 501, 514. The costs of land acquisition, construction, and maintenance are defrayed entirely from donations by the City of Wilmington, from loans and revenue bonds and from the proceeds of rentals and parking services out of which the loans and bonds were payable. Assuming that the distinction would be significant, cf. Derrington v. Plummer, 5 Cir., 240 F.2d 922, 925, the commercially leased areas were not surplus state property, but constituted a physically and financially integral and, indeed, indispensable part of the State's plan to operate its project as a self-sustaining unit. Upkeep and maintenance of the building, including necessary repairs, were responsibilities of the Authority and were payable out of public funds. It cannot be doubted that the peculiar relationship of the restaurant to the parking facility in which it is located confers on each an incidental variety of mutual benefits. Guests of the restaurant are afforded a convenient place to park their automobiles, even if they cannot enter the restaurant directly from the parking area. Similarly, its convenience for diners may well provide additional demand for the Authority's parking facilities. Should any improvements effected in the leasehold by Eagle become part of the realty, there is no possibility of increased taxes being passed on to it since the fee is held by a tax-exempt government agency. Neither can it be ignored, especially in view of Eagle's affirmative allegation that for it to serve Negroes would injure its business, that profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency.
12
Addition of all these activities, obligations and responsibilities of the Authority, the benefits mutually conferred, together with the obvious fact that the restaurant is operated as an integral part of a public building devoted to a public parking service, indicates that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn. It is irony amounting to grave injustice that in one part of a single building, erected and maintained with public funds by an agency of the State to serve a public purpose, all persons have equal rights, while in another portion, also serving the public, a Negro is a second-class citizen, offensive because of his race, without rights and unentitled to service, but at the same time fully enjoys equal access to nearby restaurants in wholly privately owned buildings. As the Chancellor pointed out, in its lease with Eagle the Authority could have affirmatively required Eagle to discharge the responsibilities under the Fourteenth Amendment imposed upon the private enterprise as a consequence of state participation. But no State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. It is of no consolation to an individual denied the equal protection of the laws that it was done in good faith. Certainly the conclusions drawn in similar cases by the various Courts of Appeals do not depend upon such a distinction.2 By its inaction, the Authority, and through it the State, has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination. The State has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so 'purely private' as to fall without the scope of the Fourteenth Amendment.
13
Because readily applicable formulae may not be fashioned, the conclusions drawn from the facts and circumstances of this record are by no means declared as universal truths on the basis of which every state leasing agreement is to be tested. Owing to the very 'largeness' of government, a multitude of relationships might appear to some to fall within the Amendment's embrace, but that, it must be remembered, can be determined only in the framework of the peculiar facts or circumstances present. Therefore respondents' prophecy of nigh universal application of a constitutional precept so peculiarly dependent for its invocation upon appropriate facts fails to take into account 'Differences in circumstances (which) beget appropriate differences in law,' Whitney v. State Tax Comm., 309 U.S. 530, 542, 60 S.Ct. 635, 640, 84 L.Ed. 909. Specifically defining the limits of our inquiry, what we hold today is that when a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself.
14
The judgment of the Supreme Court of Delaware is reversed and the cause remanded for further proceedings consistent with this opinion.
15
Reversed and remanded.
16
Mr. Justice STEWART, concurring.
17
I agree that the judgment must be reversed, but I reach that conclusion by a route much more direct than the one traveled by the Court. In upholding Eagle's right to deny service to the appellant solely because of his race, the Supreme Court of Delaware relied upon a statute of that State which permits the proprietor of a restaurant to refuse to serve 'persons whose reception or entertainment by him would be offensive to the major part of his customers * * *.'* There is no suggestion in the record that the appellant as an individual was such a person. The highest court of Delaware has thus construed this legislative enactment as authorizing discriminatory classification based exclusively on color. Such a law seems to me clearly violative of the Fourteenth Amendment. I think, therefore, that the appeal was properly taken, and that the statute, as authoritatively construed by the Supreme Court of Delaware, is constitutionally invalid.
18
Mr. Justice FRANKFURTER, dissenting.
19
According to my brother STEWART, the Supreme Court of Delaware has held that one of its statutes, 24 Del.Code § 1501, sanctions a restaurateur denying service to a person solely because of his color. If my brother is correct in so reading the decision of the Delaware Supreme Court, his conclusion inevitably follows. For a State to place its authority behind discriminatory treatment based solely on color is indubitably a denial by a State of the equal protection of the laws, in violation of the Fourteenth Amendment. Mr. brother HARLAN also would find the claim of invalidity of the statute decisive if he could read the state court's construction of it as our brother STEWART reads it. But for him the state court's view of its statute is so ambiguous that he deems it necessary to secure a clarification from the state court of how in fact it did construe the statute.
20
I certainly do not find the clarity that my brother STEWART finds in the views expressed by the Supreme Court of Delaware regarding 24 Del.Code, § 1501. If I were forced to construe that court's construction, I should find the balance of considerations leading to the opposite conclusion from his, namely, that it was merely declaratory of the common law and did not give state sanction to refusing service to a person merely because he is colored. The Court takes no position regarding the statutory meaning which divides my brothers HARLAN and STEWART. Clearly it does not take Mr. Justice STEWART'S view of what the Supreme Court of Delaware decided. If it did, it would undoubtedly take his easy route to decision and not reach the same result by its much more circuitous route.
21
Since the pronouncement of the Supreme Court of Delaware thus lends itself to three views, none of which is patently irrational, why is not my brother HARLAN'S suggestion for solving this conflict the most appropriate solution? Were we to be duly advised by the Supreme Court of Delaware that Mr. Justice STEWART is correct in his reading of what it said, there would be an easy end to our problem. There would be no need for resolving the problems in state-federal relations with which the Court's opinion deals. If, on the other hand, the Delaware court did not mean to give such an invalidating construction to its statute, we would be confronted with the problems which the Court now entertains for decision, unembarrassed by disregard of a simpler issue. This would involve some delay in adjudication. But the time would be well spent, because the Court would not be deciding serious questions of constitutional law any earlier than due regard for the appropriate process of constitutional adjudication requires.
22
Accordingly, I join in Mr. Justice HARLAN'S proposed disposition of the case without intimating any view regarding the question, prematurely considered by the Court, as to what constitutes state action.
23
Mr. Justice HARLAN, whom Mr. Justice WHITTAKER joins, dissenting.
24
The Court's opinion, by a process of first undiscriminatingly throwing together various factual bits and pieces and then undermining the resulting structure by an equally vague disclaimer, seems to me to leave completely at sea just what it is in this record that satisfies the requirement of 'state action.' I find it unnecessary, however, to inquire into the matter at this stage, for it seems to me apparent that before passing on the far-reaching constitutional questions that may, or may not, be lurking in this judgment, the case should first be sent back to the state court for clarification as to the precise basis of its decision. In deciding this case the Delaware Supreme Court, among other things, said:
25
'It (Eagle) acts as a restaurant keeper and, as such, is not required to serve any and all persons entering its place of business, any more than the operator of a bookstore, barber shop, or other retail business is required to sell its product to every one. This is the common law, and the law of Delaware as restated in 24 Del.C. § 1501 with respect to restaurant keepers. 10 Am.Jur., Civil Rights, §§ 21, 22; 52 Am.Jur., Theatres, § 9; Williams v. Howard Johnson's Restaurant, 4 Cir., 268 F.2d 845. We, accordingly, hold that the operation of its restaurant by Eagle does not fall within the scope of the prohibitions of the Fourteenth Amendment.'* 157 A.2d 894, 902.
26
If in the context of this record this means, as my Brother STEWART suggests, that the Delaware court construed this state statute 'as authorizing discriminatory classification based exclusively on color,' I would certainly agree, without more, that the enactment is offensive to the Fourteenth Amendment. It would then be quite unnecessary to reach the much broader questions dealt with in the Court's opinion. If, on the other hand, the state court meant no more than that under the statute, as at common law, Eagle was free to serve only those whom it pleased, then, and only then, would the question of 'state action' be presented in full-blown form.
27
I think that sound principles of constitutional adjudication dictate that we should first ascertain the exact basis of this state judgment, and for that purpose I would either remand the case to the Delaware Supreme Court, see Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562; cf. Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, or hold the case pending application to the state court for clarification. See Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789. It seems to me both unnecessary and unwise to reach issues of such broad constitutional significance as those now decided by the Court, before the necessity for deciding them has become apparent.
1
The statute provides that: 'No keeper of an inn, tavern, hotel, or restaurant, or other place of public entertainment or refreshment of travelers, guests, or customers shall be obliged, by law, to furnish entertainment or refreshment to persons whose reception or entertainment by him would be offensive to the major part of his customers, and would injure his business. As used in this section, 'customer' includes all who have occasion for entertainment or refreshment.'
2
See Aaron v. Cooper, 8 Cir., 261 F.2d 97; City of Greensboro v. Simkins, 4 Cir., 246 F.2d 425, affirming D.C.M.D.N.C., 149 F.Supp. 562; Derrington v. Plummer, 5 Cir., 240 F.2d 922; Coke v. City of Atlanta, D.C.N.D.Ga., 184 F.Supp. 579; Jones v. Marva Theatres, D.C.D.Md., 180 F.Supp. 49; Tate v. Department of Conservation, D.C.E.D.Va., 133 F.Supp. 53, affirmed 4 Cir., 231 F.2d 615; Nash v. Air Terminal Services, D.C.E.D.Va., 85 F.Supp. 545; Lawrence v. Hancock, D.C.S.D.W.Va., 76 F.Supp. 1004, and see Muir v. Louisville Park Theatrical Ass'n, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112, vacating and remanding 6 Cir., 202 F.2d 275.
*
24 Del.Code § 1501. The complete text of the statute is set out in the Court opinion at note 1.
*
24 Del.Code, § 1501, reads as follows:
'No keeper of an inn, tavern, hotel, or restaurant, or other place of public entertainment or refreshment of travelers, guests, or customers shall be obliged, by law, to furnish entertainment or refreshment to persons whose reception or entertainment by him would be offensive to the major part of his customers, and would injure his business.'
| 12
|
365 U.S. 708
81 S.Ct. 895
6 L.Ed.2d 39
Neal Merle SMITH, Petitioner,v.John E. BENNETT, Warden. Richard W. MARSHALL, Petitioner, v. John E. BENNETT, Warden.
Nos. 174, 177.
Argued March 28, 1961.
Decided April 17, 1961.
Mr. Luther L. Hill, Jr., Des Moines, Iowa, for petitioner in each case.
Mr. Evan Hultman, Waterloo, Iowa, for respondent in both cases.
Mr. Justice CLARK delivered the opinion of the Court.
1
The issue in these habeas corpus cases concerns the validity, under the Equal Protection Clause of the Fourteenth Amendment, of the requirement of Iowa law that necessitates the payment of statutory filing fees1 by an indigent prisoner of the State before an application for a writ of habeas corpus or the allowance of an appeal in such proceedings will be docketed. As we noted in Burns v. State of Ohio, 1959, 360 U.S. 252, 256, 79 S.Ct. 1164, 1167, 3 L.Ed.2d 1209, '(t)he State's commendable frankness in (these) case(s) has simplified the issues.' In its brief, the State conceded that 'indigent convicted criminals are unable to file a petition for habeas corpus in Iowa.' We hold that to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.
2
In No. 174, Neal Merle Smith v. John E. Bennett, Warden, the petitioner was convicted and sentenced to serve 10 years in the state penitentiary for the offense of breaking and entering. In due course he was released on parole. After a short period, however, this was revoked for violation of its conditions. Petitioner was arrested and was thereafter returned to the penitentiary for completion of his sentence. He then forwarded to the Clerk of the District Court of Lee County, Iowa, a petition for a writ of habeas corpus with accompanying motion to proceed in forma pauperis and an affidavit of proverty. In the petition he raised constitutional questions as to the validity of the warrant of arrest under which he was taken into custody and returned to the penitentiary. The Clerk refused to docket the petition without payment of the $4 filing fee. Petitioner then filed a motion in the Iowa Supreme Court for leave to appeal in forma pauperis, together with a pauper's oath, which the court denied without opinion. On appeal to this Court, we dismissed the appeal but treated the papers as a petition for certiorari, which was granted, limited to the above question, 363 U.S. 834, 80 S.Ct. 1624, 4 L.Ed.2d 1723.
3
In No. 177, Richard W. Marshall v. John E. Bennett, Warden, the petitioner, who was represented by counsel, pleaded guilty to an information charging the offense of breaking and entering and was sentenced to 10 years' imprisonment at the Iowa State Penitentiary. A year later he forwarded to the Clerk of the District Court of Lee County, Iowa, a petition for a writ of habeas corpus alleging that he was detained 'contrary to the provisions of the 14th Amendment, § 1' because the information to which he pleaded guilty was 'fatal on its face' in that 'it does not charge Petitioner with 'intent" and further because his 'plea thereon was obtained by coercion and duress.' Accompanying the petition was a motion for leave to proceed in forma pauperis and a pauper's affidavit. Thereafter, in an unreported written order, the court refused to docket the petition without the payment of the statutory filing fee but, nevertheless, examined the petition and found it 'would have to be denied if properly presented to the Court.' Petitioner forwarded appeal papers to the Supreme Court of Iowa but that application was also denied. Petitioner's motion for leave to proceed here in forma pauperis was granted, as was his petition for certiorari, which was limited to the question posed in the opening paragraph, supra. 363 U.S. 838, 80 S.Ct. 1617, 4 L.Ed.2d 1724.
4
In Burns v. State of Ohio, supra, we decided that a State could not 'constitutionally require * * * an indigent defendant in a criminal case (to) pay a filing fee before permitting him to file a motion for leave to appeal in one of its courts.' 360 U.S. at page 253, 79 S.Ct. at page 1166. That decision was predicated upon our earlier holding in Griffin v. People of State of Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, that an indigent criminal defendant was entitled to a transcript of the record of his trial, or an adequate substitute therefor, where needed to effectively prosecute an appeal from his conviction. The gist of these cases is that because '(t)here is no rational basis for assuming that indigents' motions for leave to appeal will be less meritorious than those of other defendants,' Burns v. State of Ohio, supra, 360 U.S. at pages 257—258, 79 S.Ct. at page 1168, '(t)here can be no equal justice where the kind of trial a man gets depends on the amount of money he has,' Griffin v. People of State of Illinois, supra, 351 U.S. at page 19, 76 S.Ct. at page 591, and consequently that '(t)he 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.' Burns v. State of Ohio, supra, 360 U.S. at page 258, 79 S.Ct. at page 1169. Iowa had long anticipated the rule announced in these cases, i.e., indigent defendants may appeal from criminal convictions without prior payment of filing fees, I.C.A. § 789.20 (enacted in 1917), and transcripts are provided by the county to be used in such appeals, I.C.A. § 792.8 (enacted in 1878). As the State points out, those cases 'were concerned with the rights of a convicted criminal seeking to make a direct attack upon his conviction by appeal * * *.' Habeas corpus, on the other hand, is not an attack on the conviction but on the validity of the detention and is, therefore, a collateral proceeding. The State, however, admits that the Great Writ 'is an available postconviction civil remedy in * * * Iowa' and concedes that a prisoner's inability to pay the $4 fee would render it unavailable to him. The question is therefore clearly posed: Since Iowa does make the writ available to prisoners who have the $4 fee, may it constitutionally preclude its use by those who do not?
5
The State insists that it may do so for three reasons. First, habeas corpus is a civil action brought by a prisoner to obtain his personal liberty, a civil right, and if it must be made available to indigents free of fees in protection of that right then it must be made available in like manner to all indigents in the protection of every civil right. Second, habeas corpus is a statutory right, I.C.A. § 663.5, and the legislature may constitutionally extend or limit its application. Finally, a habeas corpus action may be brought in the United States District Court because Iowa's fee requirement fulfills the demand of 28 U.S.C. § 2254, 28 U.S.C.A. § 2254, that 'the existence of circumstances rendering such (state corrective) process ineffective to protect the rights of the prisoner' be present.
6
While habeas corpus may, of course, be found to be a civil action for procedural purposes, Ex parte Tom Tong, 1883, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826, it does not follow that its availability in testing the State's right to detain an indigent prisoner may be subject to the payment of a filing fee. The State admits that each petitioner here is an indigent and that its requirement as to the $4 fee payment has effectively denied them the use of the writ. While $4 is, as the State says, an 'extremely nominal' sum, if one does not have it and is unable to get it the fee might as well be $400—which the State emphasizes it is not. In Iowa, the writ is a post-conviction remedy available to all prisoners who have $4. We shall not quibble as to whether in this context it be called a civil or criminal action for, as Selden has said, it is 'the highest remedy in law, for any man that is imprisoned.' 3 Howell's State Trials 95 (1628). The availability of a procedure to regain liberty lost through criminal process cannot be made contingent upon a choice of labels. Ever since the Magna Charta, man's greatest right—personal liberty—has been guaranteed, and the procedures of the Habeas Dorpus Act of 16792 gave to every Englishman a prompt and effective remedy for testing the legality of his imprisonment. Considered by the Founders as the highest safeguard of liberty, it was written into the Constitution of the United States that its 'privilege * * * shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.' Art. I, § 9. Its principle is imbedded in the fundamental law of 47 of our States. It has long been available in the federal courts to indigent prisoners of both the State and Federal Governments to test the validity of their detention. Over the centuries it has been the common law world's 'freedom writ' by whose orderly processes the production of a prisoner in court may be required and the legality of the grounds for his incarceration inquired into, failing which the prisoner is set free. We repeat what has been so truly said of the federal writ: 'there is no higher duty than to maintain it unimpaired,' Bowen v. Johnston, 1939, 306 U.S. 19, 26, 59 S.Ct. 442, 446, 83 L.Ed. 455, and unsuspended, save only in the cases specified in our Constitution. When an equivalent right is granted by a State, financial hurdles must not be permitted to condition its exercise.
7
To require the State to docket applications for the post-conviction remedy of habeas corpus by indigent prisoners without the fee payment does not necessarily mean that all habeas corpus or other actions involving civil rights must be on the same footing. Only those involving indigent convicted prisoners are involved here and we pass only upon them.
8
The Attorney General of Iowa also argues that indigent prisoners in the State's custody may seek 'vindication of federal rights alleged to have been denied by the State' in the federal courts. But even though this be true—an additional point not involved or passed upon here—it would ill-behoove this great State, whose devotion to the equality of rights is indelibly stamped upon its history, to say to its indigent prisoners seeking to redress what they believe to be the State's wrongs: 'Go to the federal court.' Moreover, the state remedy may offer review of questions not involving federal rights and therefore not raisable in federal habeas corpus.
9
Because Iowa has established such a procedure, we need consider neither the issue raised by petitioners that the State is constitutionally required to offer some type of post-conviction remedy for the vindication of federal rights, nor the State's converse claim that the remedy is a matter of legislative grace. However, the operation of the statutes under attack has, perhaps inadvertently, made it available only to those persons who can pay the necessary filing fees. This is what it cannot do.
10
Throughout the centuries the Great Writ has been the shield of personal freedom insuring liberty to persons illegally detained. Respecting the State's grant of a right to test their detention, the Fourteenth Amendment weighs the interests of rich and poor criminals in equal scale, and its hand extends as far to each. In failing to extend the privilege of the Great Writ to its indigent prisoners, Iowa denies them equal protection of the laws. The judgments of the Supreme Court of Iowa are vacated and each cause is remanded to that court for further action consistent with this opinion.
11
Vacated and remanded.
1
I.C.A. (Cum.Supp.1960) § 606.15 provides in pertinent part that '(t)he clerk of the district court shall charge and collect * * * (f)or filing any petition * * * and docketing the same, four dollars.' Section 685.3 states in relevant part that '(t)he clerk (of the Supreme Court) shall collect * * * (u) pon filing each appeal, three dollars.'
2
31 Car. II, c. 2.
| 12
|
365 U.S. 762
81 S.Ct. 884
6 L.Ed.2d 79
Frank R. COPPOLA, Petitioner,v.UNITED STATES.
No. 153.
Argued March 27, 1961.
Decided April 17, 1961.
Mr. William B. Mahoney, Buffalo, N.Y., for petitioner.
Mr. Howard A. Heffron, Washington, D.C., for respondent.
PER CURIAM.
1
We brought this case here, 364 U.S. 813, 81 S.Ct. 51, 5 L.Ed.2d 44, believing that it presented a question under Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. After hearing oral argument and fully examining the transcript of the proceedings in the trial court, we conclude that the particular facts of the case are not ruled by Anderson. We find no merit in the other argument advanced by the petitioner.
2
Affirmed.
3
Mr. Justice DOUGLAS, dissenting.
4
Petitioner has been convicted of participating in two different bank robberies in violation of 18 U.S.C. § 2113, 18 U.S.C.A. § 2113. In each case petitioner's confession obtained by agents of the F.B.I. were admitted against him. These confessions were made during an interrogation taking place in the Buffalo police headquarters while petitioner was under detention by local police.
5
Petitioner was no stranger to the F.B.I. One of the bank robberies charged against petitioner occurred in February 1956, the other in October of that year. The F.B.I. had first come into contact with petitioner when, at their request, he re-enacted the events of the first robbery before an audience of its victims. Apparently nothing came of this investigation. Then—almost a year later—the F.B.I. came into possession of information that petitioner was involved in an unrelated state crime. This information was relayed to the Buffalo police and put into motion the events which led to petitioner's detention, his interrogation, and his being charged with these federal crimes. He was arrested by the local police on a charge of violation of the state law at about 9:30 in the morning. The Buffalo police, who had arrested him, had interrogated him during the day. But they made no attempt to have a prompt commitment hearing that was required by New York law.1
6
The F.B.I. had been informed of petitioner's arrest about noon of the day of his arrest. At nine in the evening of that day they received permission to interrogate petitioner as to his involvement in the two robberies. From nine in the evening until almost one o'clock in the morning of the next day, they carried on their interrogation, while state officials left them alone with petitioner 'as a matter of courtesy.' It was during this period that petitioner confessed to participation in both crimes. The next day, the federal officers officially 'requested custody' of petitioner, so that he could be arraigned on the federal charges. There was some delay before he was given into federal 'custody,' for the local police had to see to his commitment under the state charges. Shortly after two o'clock in the afternoon he was arraigned on the state charges in the Buffalo City Court. At four in the afternoon, about 19 hours after the federal agents had commenced their interrogation, petitioner was arraigned in the federal court. There has been much attention focused, in the progress of this case, on whether the Buffalo police and the F.B.I. had a 'working arrangement' (see Anderson v. United States, 318 U.S. 350, 356, 63 S.Ct. 599, 602) by which petitioner's detention was effected. In my view, the activity of the federal agents in this case is proscribed without regard to whether there was, or was not, a pre-existing 'working arrangement.'
7
The confessions would be inadmissible in the case now before us if the original arrest in this case had been made by federal officers. For the duty of a federal officer making an arrest is to take the arrested person 'without unnecessary delay' before a judicial officer for a hearing in compliance with Rule 5(a), Fed.Rules Crim.Proc., 18 U.S.C.A. Here the petitioner was detained for 29 hours without seeing a judicial officer of any sort; and for 19 of these hours he was under the visitation of federal officers. There was no effort to arraign the accused during that time. The federal officers took no steps to do it themselves; nor did they insist that the state police make the arraignment before a state judge as required by state law. There was also no showing that magistrates were unavailable.2 I think it plain therefore that the 19-hour detention was an 'unnecessary delay' within the meaning of Rule 5(a).
8
Arrest, and the resulting detention, serves, under the Federal Rules, the purpose of assuring that a person, accused on probable grounds of crime, will be amenable to the orders of a competent court, which include by the terms of Rule 5(b) the right to counsel and to bail. It is not an administrative step preliminary to a secret interrogation. In Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1359, 1 L.Ed.2d 1479, this Court said that an accused 'is not to be taken to police headquarters in order to carry out a process of inquiry * * *.' In that case the accused was arrested at 2:30 p.m. and his questioning began about 8 p.m. By 10 p.m. he confessed, at which time the federal agents tried, without success, to reach a federal magistrate. Between 11:30 p.m. and midnight, petitioner dictated his confession to a typist; and he as not arraigned until the next morning.
9
The only reason put forward for a different result in this case is that the 'police headquarters' in which federal agents carried out the wrongful 'process of inquiry' belonged to Buffalo police rather than the Federal Government. The Government contends here, as it did in Anderson v. United States, supra, 318 U.S. 356, 63 S.Ct. 602, that it is not 'formally guilty of illegal conduct.' The device is too transparent. I do not think that federal agents can avoid the impact of federal rules by taking advantage of an illegal detention arranged by state officers. Rule 5(a) is not a formality; its purpose is to minimize secret police interrogation of persons under detention; its ultimate aim is to avoid those situations out of which grows the whole system of the 'third degree.' The evil at which the rule aims is in interrogation in secret and in detention before the arraignment. Its means are arraignment 'without unnecessary delay.' Here, the federal agents carried on the kind of interrogation against which Rule 5(a) is aimed. The fact that the interrogation took place in the cell of a state police station rather than in the cell of a federal jail or prison only accentuates the evasion of the Rule. In this case the federal agents used an illegal detention as the occasion to carry on a secret interrogation. What the federal agents cannot do in federal precincts they cannot do in a state jail. What we do today is to permit federal agents to flout the federal law so long as they let the accused stay in a state jail and interrogate him there to their hearts' content.
1
N.Y.Code Crim.Proc. § 165. See People v. Lovello, 1 N.Y.2d 436, 438, 154 N.Y.S.2d 8, 136 N.E.2d 483, on whose authority the Government concedes the illegality of the detention under state law.
2
There is some suggestion that a state magistrate was not available after five o'clock in the afternoon. Cf. N.Y.Code Crim.Proc. § 165. But there is no suggestion that a federal magistrate was not available.
| 01
|
365 U.S. 667
81 S.Ct. 835
6 L.Ed.2d 11
LOCAL 357, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner,v.NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 357, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN ANDHELPERS OF AMERICA.
Nos. 64, 85.
Argued Feb. 28, 1961.
Decided April 17, 1961.
Mr. Herbert S. Thatcher, Washington, D.C., for petitioner in No. 64 and for respondent in No. 85.
Mr. Norton J. Come, Washington, D.C., for respondent in No. 64 and for petitioner in No. 85.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner union (along with the International Brotherhood of Teamsters and a number of other affiliated local unions) executed a three-year collective bargaining agreement with California Trucking Associations, which represented a group of motor truck operators in California. The provisions of the contract relating to hiring of casual or temporary employees were as follows:
2
'Casual employees shall, wherever the Union maintains a dispatching service, be employed only on a seniority basis in the Industry whenever such senior employees are available. An available list with seniority status will be kept by the Unions, and employees requested will be dispatched upon call to any employer who is a party to this Agreement. Seniority rating of such employees shall begin with a minimum of three months service in the Industry, irrespective of whether such employee is or is not a member of the Union.
3
Discharge of any employee by any employer shall be grounds for removal of any employee from seniority status. No casual employee shall be employed by any employer who is a party to this Agreement in violation of seniority status if such employees are available and if the dispatching service for such employees is available. The employer shall first call the Union or the dispatching hall designated by the Union for such help. In the event the employer is notified that such help is not available, or in the event the employees called for do not appear for work at the time designated by the employer, the employer may hire from any other available source.' (Emphasis added.)
4
Accordingly the union maintained a hiring hall for casual employees. One Slater was a member of the union and had customarily used the hiring hall. But in August 1955 he obtained casual employment with an employer who was party to the hiring-hall agreement without being dispatched by the union. He worked until sometime in November of that year, when he was discharged by the employer on complaint of the union that he had not been referred through the hiring-hall arrangement.
5
Slater made charges against the union and the employer. Though, as plain from the terms of the contract, there was an express provision that employees would not be discriminated against because they were or were not union members, the Board found that the hiring-hall provision was unlawful per se and that the discharge of Slater on the union's request constituted a violation by the employer of § 8(a)(1) and § 8(a)(3) and a violation by the union of § 8(b)(2) and § 8(b)(1)(A) of the National Labor Relations Act, as amended by the Taft-Hartley Act 61 Stat. 140—141, as amended, 29 U.S.C. § 158, 29 U.S.C.A. § 158.1 The Board ordered, inter alia, that the company and the union cease giving any effect to the hiring-hall agreement; that they jointly and severally reimburse Slater for any loss sustained by him as a result of his discharge; and that they jointly and severally reimburse all casual employees for fees and dues paid by them to the union beginning six months prior to the date of the filing of the charge. 121 N.L.R.B. 1629.
6
The union petitioned the Court of Appeals for review of the Board's action, and the Board made a cross-application for enforcement. That court set aside the portion of the order requiring a general reimbursement of dues and fees. By a divided vote it upheld the Board in ruling that the hiring-hall agreement was illegal per se. 107 U.S.App.D.C. 188, 275 F.2d 646. Those rulings are here on certiorari, 363 U.S. 837, 80 S.Ct. 1610, 4 L.Ed.2d 1723, one on the petition of the union, the other on petition of the Board.
7
Our decision in Local 60, United Broth. of Carpenters, etc., v. National Labor Relations Board, 365 U.S. 651, 81 S.Ct. 875, 6 L.Ed.2d 1, is dispositive of the petition of the Board that asks us to direct enforcement of the order of reimbursement. The judgment of the Court of Appeals on that phase of the matter is affirmed.
8
The other aspect of the case goes back to the Board's ruling in Mountain Pacific Chapter, 119 N.L.R.B. 883. That decision, rendered in 1958, departed from earlier rulings2 and held, Abe Murdock dissenting, that the hiring-hall agreement, despite the inclusion of a nondiscrimination clause, was illegal per se:
9
The Board went on to say that a hiring-hall arrangement to be lawful must contain protective provisions. Its views were stated as follows:
10
'We believe, however, that the inherent and unlawful encouragement of union membership that stems from unfettered union control over the hiring process would be negated, and we would find an agreement to be nondiscriminatory on its face, only if the agreement explicitly provided that:
11
'(1) Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies, or requirements.
12
'(2) The employer retains the right to reject any job applicant referred by the union.
13
'(3) The parties to the agreement post in places where notices to employees and applicants for employment are customarily posted, all provisions relating to the functioning of the hiring arrangement, including the safeguards that we deem essential to the legality of an exclusive hiring agreement.' Id., 897.
14
The Board recognizes that the hiring hall came into being 'to eliminate wasteful, time-consuming, and repetitive scouting for jobs by individual workmen and haphazard uneconomical searches by employers.' Id., 896, n. 8. The hiring hall at times has been a useful adjunct to the closed shop.3 But Congress may have thought that it need not serve that cause, that in fact it has served well both labor and management—particularly in the maritime field and in the building and construction industry.4 In the latter the contractor who frequently is a stranger to the area where the work is done requires a 'central source' for his employment needs;5 and a man looking for a job finds in the hiring hall 'at least a minimum guarantee of continued employment.'6
15
Congress has not outlawed the hiring hall, though it has outlawed the closed shop except within the limits prescribed in the provisos to § 8(a(3).7 Senator Taft made clear his views that hiring halls are useful, that they are not illegal per se, that unions should be able to operate them so long as they are not used to create a closed shop:
16
'In order to make clear the real intention of Congress, it should be clearly stated that the hiring hall is not necessarily illegal. The employer should be able to make a contract with the union as an employment agency. The union frequently is the best employment agency. The employer should be able to give notice of vacancies, and in the normal course of events to accept men sent to him by the hiring hall. He should not be able to find himself, however, to reject nonunion men if they apply to him; nor should he be able to contract to accept men on a rotary-hiring basis. * * *
17
'* * * The National Labor Relations Board and the courts did not find hiring halls as such illegal, but merely certain practices under them. The Board and the court found that the manner in which the hiring halls operated created in effect a closed shop in violation of the law. Neither the law nor these decisions forbid hiring halls, even hiring halls operated by the unions as long as they are not so operated as to create a closed shop with all of the abuses possible under such an arrangement, including discrimination against employees, prospective employees, members of union minority groups, and operation of a closed union.' S.Rep. No. 1827, 81st Cong., 2d Sess., pp. 13, 14.
18
There being no express ban of hiring halls in any provisions of the Act, those who add one, whether it be the Board or the courts, engage in a legislative act. The Act deals with discrimination either by the employers or unions that encourages or discourages union membership.8 As respects § 8(a)(3) we said in Radio Officers, etc., v. National Labor Relations Board, 347 U.S. 17, 42—43, 74 S.Ct. 323, 337, 98 L.Ed. 455: by discrimination is prohibited. Nor does this section outlaw discrimination in employment as such; only such discrimination as encourages or discourages membership in a labor organization is proscribed.'
19
It is the 'true purpose' or 'real motive' in hiring or firing that constitutes the test. Id., 347 U.S. 43, 74 S.Ct. 337. Some conduct may by its very nature contain the implications of the required intent; the natural foreseeable consequences of certain action may warrant the inference. Id., 347 U.S. 45, 74 S.Ct. 338. And see Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. The existence of discrimination may at times be inferred by the Board, for 'it is permissible to draw on experience in factual inquiries.' Radio Officers', etc., v. National Labor Relations Board, supra, 347 U.S. 49, 74 S.Ct. 340.
20
But surely discrimination cannot be inferred from the face of the instrument when the instrument specifically provides that there will be no discrimination against 'casual employees' because of the presence or absence of union membership. The only complaint in the case was by Slater, a union member, who sought to circumvent the hiring-hall agreement. When an employer and the union enforce the agreement against union members, we cannot say without more that either indulges in the kind of discrimination to which the Act is addressed.
21
It may be that the very existence of the hiring hall encourages union membership. We may assume that it does. The very existence of the union has the same influence. When a union engages in collective bargaining and obtains increased wages and improved working conditions, its prestige doubtless rises and, one may assume, more workers are drawn to it. When a union negotiates collective bargaining agreements that include arbitration clauses and supervises the functioning of those provisions so as to get equitable adjustments of grievances, union membership may also be encouraged. The truth is that the union is a service agency that probably encourages membership whenever it does its job well. But, as we said in Radio Officers, etc., v. National Labor Relations Board, supra, the only encouragement or discouragement of union membership banned by the Act is that which is 'accomplished by discrimination.' 347 U.S. at page 43, 74 S.Ct. at page 337.
22
Nothing is inferable from the present hiring-hall provision except that employer and union alike sought to route 'casual employees' through the union hiring hall and required a union member who circumvented it to adhere to it.
23
It may be that hiring halls need more regulation than the Act presently affords. As we have seen, the Act aims at every practice, act, source or institution which in fact is used to encourage and discourage union membership by discrimination in regard to hire or tenure, term or condition of employment. Perhaps the conditions which the Board attaches to hiring-hall arrangements will in time appeal to the Congress. Yet, where Congress has adopted a selective system for dealing with evils, the Board is confined to that system. National Labor Relations Board v. Drivers, etc. Local Union, 362 U.S. 274, 284—290, 80 S.Ct. 706, 712—715, 4 L.Ed.2d 710. Where, as here, Congress has aimed its sanctions only at specific discriminatory practices, the Board cannot go farther and establish a broader, more pervasive regulatory scheme.
24
The present agreement for a union hiring hall has a protective clause in it, as we have said; and there is no evidence that it was in fact used unlaw-fully. We cannot assume that a union conducts its operations in violation of law or that the parties to this contract did not intend to adhere to its express language. Yet we would have to make those assumptions to agree with the Board that it is reasonable to infer the union will act discriminatorily.
25
Moreover, the hiring hall, under the law as it stands, is a matter of negotiation between the parties. The Board has no power to compel directly or indirectly that the hiring hall be included or excluded in collective agreements. Cf. National Labor Relations Board v. American Nat. Ins. Co., 343 U.S. 395, 404, 72 S.Ct. 824, 829, 96 L.Ed. 1027. Its power, so far as here relevant, is restricted to the elimination of discrimination. Since the present agreement contains such a prohibition, the Board is confined to determining whether discrimination has in fact been practiced. If hiring halls are to be subjected to regulation that is less selective and more pervasive, Congress not the Board is the agency to do it.
26
Affirmed in part and reversed in part.
27
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
28
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.
29
I join the Court's opinion upon considerations which, though doubtless implicit in what my Brother DOUGLAS has written, in my view deserve explicit articulation.
30
The Board's condemnation of these union 'hiring hall' procedures as violative of §§ 8(a)(1), 8(a)(3), 8(b)(1), and 8(b)(2) of the National Labor Relations Act, as amended by the Taft-Hartley Act,1 ultimately rests on a now well-established line of circuit court cases to the effect that a clause in a collective bargaining agreement may, without more, constitute forbidden discrimination. See, e.g., Red Star Express Lines v. National Labor Relations Board, 2 Cir., 196 F.2d 78. While seeming to recognize the validity of the proposition that contract terms which are equivocal on their face should ordinarily await an independent evaluation of their actual meaning and effect2 before being deemed to give rise to an unfair labor practice, such cases have justified short-circuiting that course upon these considerations: The mere existence of a clause that on its face appears to declare preferential rights for union members encourages union membership among employees or job applicants, persons not privy to the undisclosed intent of the parties, yet affected by the apparent meaning of the contract. Hence, the mere possibility that such a clause may actually turn out not to have been administered by the parties so as to favor union members is not enough to save it from condemnation as an unlawful discrimination.
31
I think this rationale may have validity under certain circumstances, but that it does not carry the day for the Board in these cases. The Board recognizes, as it must, that something more than simply actual encouragement or discouragement of union members must be shown to make out an unfair labor practice, whether the action involved be that of agreeing to a contract term or discharging an employee or anything else. In this regard, it contends that the action of agreeing to the union 'hiring' clause should be treated like any other employer or union action and that, on this premise, all that the Board must show in the light of Radio Officers' Union v. National Labor Relations Board, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455, is that the tendency to encourage or discourage union membership was foreseeable to the employer or union. Since one is presumed to intend the foreseeable consequences of his acts, and since acting in order to encourage or discourage union membership is forbidden, the Board's case is said to be made by a simple showing that such encouragement or discouragement is the foreseeable result of employer or union action. The Board then concludes with a showing that encouragement of union membership is a foreseeable consequence of the acts of agreeing to or operating a union-run hiring hall.
32
Though, as will appear (infra, 365 U.S. at page 681, 81 S.Ct. at page 842), I believe the Board erroneously construed this Court's decision in Radio Officers, I do not think we can reverse its finding of 'encouragement.' While I agree with the opinion of the Court that the Board could not infer from the mere existence of the 'hiring hall' clause an intent on the part of employer or union to discriminate in favor of union status, I think it was within the realm of Board expertness to say that the natural and foreseeable effect of this clause is to make employees and job applicants think that union status will be favored. For it is surely scarcely less than a fact of life that a certain number of job applicants will believe that joining the union would increase their chances of hire when the union is exercising the hiring function.
33
What in my view is wrong with the Board's position in these cases is that a mere showing of foreseeable encouragement of union status is not a sufficient basis for a finding of violation of the statute. It has long been recognized that an employer can make reasonable business decisions, unmotivated by an intent to discourage union membership or protected concerted activities, although the foreseeable effect of these decisions may be to discourage what the act protects. For example, an employer may discharge an employee because he is not performing his work adequately, whether or not the employee happens to be a union organizer. See National Labor Relations Board v. Universal Camera Corp., 2 Cir., 190 F.2d 429. Yet a court could hardly reverse a Board finding that such firing would foreseeably tend to discourage union activity. Again, an employer can properly make the existence or amount of a year-end bonus depend upon the productivity of a unit of the plant, although this will foreseeably tend to discourage the protected activity of strikng. Pitts-burgh-Des Moines Steel Co. v. National Labor Relations Board, 9 Cir., 284 F.2d 74. A union, too, is privileged to make decisions which are reasonably calculated to further the welfare of all the employees it represents, nonunion as well as union, even though a foreseeable result of the decision may be to encourage union membership.
34
This Court's interpretation of the relevant statutory provisions has recognized that Congress did not mean to limit the range of either employer or union decision to those possible actions which had no foreseeable tendency to encourage or discourage union membership or concerted activities. In general, this Court has assumed that a finding of a violation of § 8(a)(3) or § 8(b)(2) requires an affirmative showing of a motivation of encouraging or discouraging union status or activity. See, e.g., National Labor Relations Board v. Jones & Laughlin Co., 301 U.S. 1, 45—46, 57 S.Ct. 615, 628, 81 L.Ed. 893; Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. There have, to be sure, been exceptions to this requirement, but they have been narrow ones, usually analogous to the exceptions made to the requirements for a showing of discrimination in other contexts. For example, in Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, the Court affirmed a Board decision that a company 'no solicitation' rule was over-broadly applied to prevent solicitation of union membership on company property during periods when employees were otherwise free to do as they pleased. A finding of a motivation to discourage union membership was there held unnecessary because there was no employer showing of a nondiscriminatory purpose for applying the rule to union solicitation during the employees' free time. A similar absence of a significant business justification for the employer's acts which tended to discourage union activity explains the dispensability of proof of discriminatory motivation in Allis-Chalmers Mfg. Co. v. National Labor Relations Board, 7 Cir., 162 F.2d 435, Cusano v. National Labor Relations Board, 3 Cir., 190 F.2d 898, and National Labor Relations Board v. Industrial Cotton Mills, 4 Cir., 208 F.2d 87.
35
Another field of exceptions to the requirement of a showing of a purpose to encourage or discourage union activity is found in the Court's affirmance of the Second Circuit in Gaynor News Co., Inc., v. National Labor Relations Board, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455, a companion case to Radio Officers: If a union or employer is to be permitted to take action which substantially though unintentionally—encourages or discourages union activity, the union or employer ends served by the action must not only be of some significance, but they must also be legitimate, or at least not otherwise forbidden by the National Labor Relations Act. In Gaynor an employer who, pursuant to a nondiscriminatory business end of paying the least wages possible, agreed with the union which was the statutory representative of the employees to give certain benefits only to union members, was prevented from asserting the justifying business reasons for thus encouraging union membership because of his complicity in the union's breach of its duties as agent for all the employees. Indeed, the fact that a nondiscriminatory business purpose forbidden by the Act cannot be used by an employer to justify an action which incidentally encourages union membership, seems to me to be the true basis of the Court's holding in Radio Officers that an employer violates § 8(a)(3) when a union forces him to take actions in order to encourage union membership. The employer's nondiscriminatory reason for encouraging union membership to avoid the economic pressure the union could impose upon him—was surely no longer intended to be a justification for such employer action after the passage of § 8(b)(2), a statutory provision the very wording of which presupposed that union coercion can cause a violation of § 8(a)(3).
36
There is no reason to decide now whether there are other contexts in which a showing of an actual motivation of encouraging or discouraging union activity might be unnecessary to a finding of a union or employer unfair labor practice. For present purposes, it is sufficient to note that what is involved in the general requirement of finding of forbidden motivation, as well as in the limited scope of the heretofore recognized exceptions to this general requirement, is a realization that the Act was not intended to interfere significantly with those activities of employer and union which are justified by nondiscriminatory business purposes, or by nondiscriminatory attempts to benefit all the represented employees. It is against this policy that we should measure the Board's action in finding forbidden the incorporation in collective bargaining contracts of the 'hiring hall' clause. We must determine whether the Board's action is consistent with the balance struck by the Wagner and Taft-Hartley Acts between protection of employee freedom with respect to union activity and the privilege of employer and union to make such nondiscriminatory decisions as seem to them to satisfy best the needs of the business and the employees.
37
The legislative background to § 8(a)(3) of the Act is quite clear in its indications of where this balance was to be struck. The Senate Report on this section of the original Wagner Act states:
38
'The fourth unfair labor practice (then § 8(3)) is a corollary of the first unfair labor practice. An employer, of course, need not hire an incompetent man and is free to discharge an employee who lacks skill or ability. But if the right to join or not to join a labor organization is to have any real meaning for an employee, the employer ought not to be free to discharge an employee merely because he joins an organization or to refuse to hire him merely because of his membership in an organization. Nor should an employer be free to pay a man a higher or lower wage solely because of his membership or nonmembership in a labor organization. The language of the bill creates safeguards against these possible dangers.' S.Rep. No. 1184 on S. 2926, 73d Cong., 2d Sess. 6. (Emphasis added.)
And similarly:
39
'Of course nothing in the bill prevents an employer from discharging a man for incompetence; from advancing him for special aptitude; or from demoting him for failure to perform. But if the right to be free from employer interference in self organization or to join or refrain from joining a labor organization is to have any practical meaning, it must be accompanied by assurance that its exercise will not result in discriminatory treatment or loss of the opportunity for work.' S.Rep. No. 573 on S. 1958, 74th Cong., 1st Sess. 11.
40
To the same effect was the view of Senator Walsh:
41
'* * * The employer has the economic power; he can discharge any employee or any group of employees when their only offense may be to seek to form a legitimate organization among the workers for the purpose of collective bargaining. This bill declares that is wrong. It declares that the employee has the right to engage in collective bargaining, and it says, 'Mr. Employer, you must keep your hands off; you shall not use that effective power of dismissal from employment which you have and destroy the organization of the employees by the dismissal of one or more of your employees when they are objectionable on no other ground than that they belong to or have organized a labor union." Statement of Senator Walsh, 79 Cong.Rec. 7658. (Emphasis added.) And further, the House Report on the bill stated:
42
'Nothing in this subsection prohibits interference with the normal of the right of employers to select their employees or to discharge them. All that is intended is that the employer shall not by discriminatory treatment in hire or tenure of employment or terms or conditions of employment, interfere with the exercise by employees of their right to organize and choose representatives. It is for this reason that the employer is prohibited from encouraging or discouraging membership in any labor organization by such discrimination.' H.R.Rep. No. 1147 on S. 1958, 74th Cong., 1st Sess. 19.
43
Considered in this light, I do not think we can sustain the Board's holding that the 'hiring hall' clause is forbidden by the Taft-Hartley Act. The Board has not found that this clause was without substantial justification in terms of legitimate employer or union purposes. Cf. Republic Aviation v. National Labor Relations Board, supra; Gaynor News Co. Inc., v. National Labor Relations Board, supra. Whether or not such a finding would have been supported by the record is not for us now to decide. The Board has not, in my view, made the type of showing of an actual motive of encouraging union membership that is required by Universal Camera v. National Labor Relations Board, supra. All it has shown is that the clause will tend to encourage union membership, and that without substantial difficulty the parties to the agreement could have taken additional steps to isolate the valid employer or union purposes from the discriminatory effects of the clause.3 I do not think that these two elements alone can justify a Board holding of an unfair labor practice unless we are to approve a broad expansion of the power of the Board to supervise nondiscriminatory decisions made by employer or union. Whether or not such an expansion would be desirable, it does not seem to me consistent with the balance the labor acts have struck between freedom of choice of management and union ends by the parties to a collective bargaining agreement and the freedom of employees from restraint or coercion in their exercise of rights granted by § 7 of the Act.4
44
I therefore agree with the Court that the Board's holding that the clause in question is invalid cannot be sustained.
Mr. Justice CLARK, dissenting in part.1
45
I cannot agree with the casual treatment the Court gives to the 'casual employee' who is either unable to get employment or is fired therefrom because he has not been cleared by a union hiring hall. Inasmuch as the record, and the image of a hiring hall which it presents, are neglected by the Court, a short re sume of the facts is appropriate.
46
Lester Slater, the complainant, became a 'casual employee' in the truck freight business in 1953 or early 1954. He approached an employer but was referred to the union hiring hall. There the dispatcher told him to see Barney Volkoff, an official of the union, whose office in the union headquarters building was some three miles away. Describing his visit to Volkoff, Slater stated that '(I) just give him (Volkoff) the money to send back East to pay up my dues back there for the withdrawal card, * * * and I went right to the (hiring) hall and went to work.' However, this was but the beginning of Slater's trouble with the hall. After some difficulty with one of his temporary employers (Pacific Intermountain Express), the hall refused to refer Slater to other employers. In order to keep employed despite the union hall's failure to dispatch him, Salter relied on a letter from John Annand, an International Representative of the union, stating that 'you may seek work wherever you can find it in the freight industry without working through the hiring hall.' It was this letter that obtained Slater his employment with Los Angeles-Seattle Motor Express, where he was characterized by its dock foreman as being 'a good worker.' After a few months employment, the Business Agent of the union (Victor Karaty) called on the Los Angeles-Seattle Motor Express, advising that it could not hire Slater 'any longer here without a referral card'; that the company would 'have to get rid of Slater, and if (it) * * * didn't, that he was going to tie the place up in a knot, (that he) would pull the men off.' Los Angeles-Seattle Motor Express fired Slater, telling him that '(We) * * * can't use you now until you get this straightened out with the union. Then come back; we will put you to work.' He then went to the union, and was again referred to Volkoff who advised, 'I can't do anything for you because you are out. You are not qualified for this job.' Upon being shown the Annand letter, Volkoff declared 'I am the union.' On later occasions when Slater attempted to get clearance from Volkoff he was asked 'How come you weren't out on that—didn't go out on the picket line?' (Apparently the union had been on a strike.) Slater testified, 'I told him that nobody asked me to. I was out a week. I thought the strike was on. The hall was closed. The guys told me there weren't no work.' The landlady of Slater also approached Volkoff in an effort to get him cleared and she testified that 'I asked Mr. Barney Volkoff what he had against Lester Slater and why he was doing this to him.' And she quoted him as saying: 'For a few reasons, one is about the P.I.E. (Pacific Intermountain Express) * * * (a)nother thing, he is an illiterate.' She further testified that 'he (Volkoff) didn't like the way he dressed. And he (Volkoff) fussed around and fussed around.' He therefore refused to 'route,' as the Court calls it, Slater through the union hiring hall.
47
The Court finds that the National Labor Relations Act does not ban hiring halls per se and that therefore they are illegal only if they discriminate on the basis of union membership. It holds that no such actual discrimination was shown and that none is inferable from the face of the contract since it has a protective clause. Collaterally it holds, quoting Senator Taft, that hiring halls are 'useful'; that they save time and eliminate waste and, finally, that the Court 'cannot assume that a union conducts its operations in violation of law.'2
48
I do not doubt for a moment that men hired through such arrangements are saved the expense and delay of making the rounds of prospective employers on their own. Nor do I doubt their utility to employers with varying employee demands. And I accept the fact that Congress has outlawed only closed shops and allowed hiring halls to remain in operation. But just as those observations are not, in the final analysis, relied upon by the Court today in reaching its decision, my acquiescence in them is only a prologue to my dissent from the remaining considerations upon which its decision actually rests. These considerations are dependent upon the construction given § 8(a)(3) and I therefore first turn to that section.
49
Section 8(a)(3) provides, in part, that it shall be an unfair labor practice for an employer
50
'by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *.' (Emphasis added.)
51
As I view this prohibition, which by § 8(b)(2) is also applied to unions when causing or attempting to cause any employer to violate this section, two factors must be present before there is an unfair labor practice: (1) discrimination in the hiring or tenure of employees which is intended to, or inherently tends to, result in (2) encouragement or discouragement of membership in a union.
52
The word 'discrimination' in the section, as the Board points out and I agree, includes not only distinctions contingent upon 'the presence or absence of union membership,' 365 U.S. at page 675, 81 S.Ct. at page 839, but all differences in treatment regardless of their basis. This is the 'cause' portion of the section. But § 8(a)(3) also includes an 'effect' clause which provides that the intended or inherent effect of the discrimination must be 'to encourage or discourage (union) membership.' The section has, therefore, a divided structure. Not all discriminations violate the section, but only those the effect of which is encouragement or discouragement of union membership. Cf. Radio Officers v. National Labor Relations Board, 347 U.S. 17, at page 43, 74 S.Ct. 323, at page 337: 'Nor does this section outlaw discrimination in employment as such; only such discrimination as encourages or discourages membership in a labor organization is proscribed.' Each being a requirement of the section, both must be present before an unfair labor practice exists. On the other hand, the union here contends, and the Court agrees, that there can be no 'discrimination' within the section unless it is based on union membership, i.e., members treated one way, nonmembers another, with further distinctions, among members, based on good standing. Through this too superficial interpretation, the Court abuses the language of the Congress and unduly restricts the scope of the proscription so that it forbids only the most obvious 'hard-sell' techniques of influencing employee exercise of § 7 rights.
53
Even if we could draw no support from prior cases, the plain and accepted meaning of the word 'discrimination' supports my interpretation. In common parlance, the word means to distinguish or differentiate. Without good reason, we should not limit the word to mean to distinguish in a particular manner (i.e., on the basis of union membership or activity) so that a finding that the hall dispatched employees without regard to union membership or activity bars a finding of violation. The mere fact that the section might be read in the manner suggested by the union does not license such a distortion of the clear intent of the Congress, i.e., to prohibit all auxiliaries to the closed shop, and all pressures on employee free choice, however subtly they are established or applied. Moreover, our interpretation in Radio Officers v. National Labor Relations Board, supra, supports this position. There we said:
54
'The unfair labor practice is for an employer (1) to encourage or discourage membership (2) by means of discrimination. Thus this section does not outlaw all encouragement or discouragement of membership in labor organizations; only such as is accomplished by discrimination is prohibited. Nor does this section outlaw discrimination in employment as such; only (1) such discrimination (2) as encourages or discourages membership in a labor organization is proscribed.' At pages 42—43 of 347 U.S., at page 337 of 74 S.Ct. (Emphasis added.)
55
The Court's conclusion is in patent conflict with that reasoning.
56
Given that interpretation of the word 'discrimination,' it becomes necessary to determine the class of employee involved, and then whether any differences in treatment within that class are present. The Board found the class affected by the union hiring hall to be that group which was qualified, in the sense of ability, to do the work required by the employer and who had applied for work through the hiring hall. Obviously, not all of those who apply receive like treatment. Not all applicants receive referral cards. Clearly, then, the class applying to the hiring hall is itself divided into two groups treated differently—those cleared by the union and those who were not. The next question is whether the contract requiring and endorsing that discrimination or differentiation is designed to, or inherently tends to, encourage union membership. If it does, then § 8(a)(3) has been violated.
57
I begin with the premise that the Congress has outlawed the closed shop and that, as the Court pointed out, '(t)he policy of the Act is to insulate employees' jobs from their organizational rights,' Radio Officers, supra, 347 U.S. at page 40, 74 S.Ct. at page 335. To test the contract here, I look to probable and anticipated 'employee response' to it, id., 347 U.S. at page 46, 74 S.Ct. at page 338, recognizing that '(e)ncouragement and discouragement are 'subtle things' requiring 'a high degree of introspective perception." Id., 347 U.S. at page 51, 74 S.Ct. at page 341. Just as in cases of his interference with protected activities, the escape value of the employer's 'true purpose' and 'real motive' is to be tested by the 'natural consequences' and 'foreseeable result' of his resort, however justifiably taken, to an institution so closely allied to the closed shop. I believe, as this Court has recognized, that 'the desire of employees to unionize is directly proportional to the advantages thought to be obtained * * *.' Radio Officers, supra, 347 U.S. at page 46, 74 S.Ct. at page 339. (Emphasis added.) I therefore ask, 'Does the ordinary applicant for casual employment, who walks into the union hall at the direction of his prospective employer, consider his chances of getting dispatched for work diminished because of his non-union status or his default in dues payment?' Lester Slater testified—and it is uncontradicted—that 'He (the applicant) had to be a union member; otherwise he wouldn't be working there * * * you got to have your dues paid up to date and so forth.' When asked how he knew this, Slater replied, 'I have always knew that.' Such was the sum of his impressions gained from contact with the hall from 1953 or 1954 when he started to 1958 when he ended. The misunderstanding—if it is that—of this common worker, who had the courage to complain, is, I am sure, representative of many more who were afraid to protest or, worse, were unaware of their right to do so.
58
Of the gravity of such a situation the Board is the best arbiter and best equipped to find a solution. It is, after all, 'permissible (for the Board) to draw on experience in factual inquiries.' Radio Officers, supra, 347 U.S. at page 49, 74 S.Ct. at page 340. It has resolved the issue clearly, not only here, but also in its 1958 Report which, as I have said, repeated its Mountain Pacific position 'that a union to which an employer has so delegated hiring powers will exercise its power with a view to securing compliance with membership obligations and union rules.' At p. 68. In view of Slater's experience, for one, the idea is certainly not farfetched. Despite the contract provision as to equal treatment between union and nonunion men after a minimum amount of seniority is obtained, we find here that Slater had to 'pay up' his dues in 1953. Despite the seniority rule,3 dispatch was often made, the record shows, due to favoritism by the employer. Despite the contract's solemn words, the uncontradicted evidence is that lack of intellect, taste in dress and failure to appear on a union picket line prevented an employee from getting a job, although he was a 'good worker.' Likewise, approaching a union official (who indignantly asserts 'I am the union') with a letter from a union 'higher-up' may result in loss of work. Such factors are infinitely more persuasive than the self-serving declaration of a union hiring-hall agreement.
59
However, I need not go so far as to presume that the union has set itself upon an illegal course, conditioning referral on the unlawful criterion of union membership in good standing (which inference the majority today says cannot be drawn), to reach the same result. I need only assume that, by thousands of common workers like Slater, the contract and its conditioning of casual employment upon union referral will work a misunderstanding as to the significance of union affiliation unless the employer's abdication of his role be made less than total and some note of the true function of the hiring hall be posted where all may see and read. The tide of encouragement may not be turned, but it will in part at least be stemmed. As an added dividend, the inherent probability of the free-wheeling operation of the union hiring hall resulting in arbitrary dispatching of job seekers would to some significant extent be diminished.
60
I would hold that there is not only a reasonable likelihood, but that it must inescapably be concluded under this record, that, without the safeguards at issue, a contract conditioning employment solely upon union referral encourages membership in the union by that very distinction itself. As the Board expressed it in Mountain Pacific Chapter, supra, at 896:
61
'(T)he very grant of work at all depends solely upon union sponsorship, and it is reasonable to infer that the arrangement displays and enhances the Union's power and control over the employment status.'
62
A reasonable interpretation of the Act also demands that both the employer and the union be deemed violators. In determining that issue, I say that the Board is the best judge. I say that it has made an 'allowable judgment.' It is not for the courts to differently assess the hiring hall's 'cumulative effect on employees' or job applicants, National Labor Relations Board v. Stowe Spinning Co., 336 U.S. 226, 231, 69 S.Ct. 541, 544, 93 L.Ed. 638. Its findings here should, therefore, 'carry the authority of an expertness which courts do not possess and therefore must respect.' University Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456.
63
Finally, let me say that the Board should not be hamstrung in its effort to enforce the mandate of the Congress that there shall be no closed shop. As Senator Taft stated on the floor of the Senate:4
64
union tremendous power over the employees; furthermore, it abolishes a free labor market. A man cannot get a job where he wants to get it. He has to go to the union first; and if the union says that he cannot get in, then he is out of that particular labor field.'
65
That is where Lester Slater finds himself today. I therefore dissent.
66
Mr. Justice WHITTAKER joins in all except note 1 of this dissent, but would also add the reasons, respecting the Board's powers to make the order in question, that are stated in his dissent in Local 60, United Broth. of Carpenters, etc. v. National Labor Relations Board, 365 U.S. 660, 81 S.Ct. 880.
1
Section 8 provides in relevant part:
'(a) It shall be an unfair labor practice for an employer—
'(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
'(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *
'(b) It shall be an unfair labor practice for a labor organization or its agents—
'(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7 * * *
'(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership * * *.'
Section 7 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).'
2
See Hunkin-Conkey Constr. Co., 95 N.L.R.B. 433, 435.
'Here the very grant of work at all depends solely upon union sponsorship, and it is reasonable to infer that the arrangement displays and enhances the Union's power and control over the employment status. Here all that appears is unilateral union determination and subservient employer action with no above-board explanation as to the reason for it, and it is reasonable to infer that the Union will be guided in its concession by an eye towards winning compliance with a membership obligation or union fealty in some other respect. The Employers here have surrendered all hiring authority to the Union and have given advance notice via the established hiring hall to the world at large that the Union is arbitrary master and is contractually guaranteed to remain so. From the final authority over hiring vested in the Respondent Union by the three AGC chapters, the inference of the encouragement of union membership is inescapable.' Id., 896.
3
Fenton, Union Hiring Halls Under the Taft-Hartley Act, 9 Lab.L.Jour. 505, 506 (1958).
4
Cf. id., at 507. For expression of such view see S.Rep. No. 1827, 81st Cong., 2d Sess., pp. 4—8; Goldberg, The Maritime Story (1958), pp. 277—282.
5
Fenton, op. cit., supra, note 3, at 507.
6
Id., at 507.
7
Those provisos read:
'Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective-bargaining unit covered by such agreement when made; and (ii) unless following an election held as provided in section 9(e) within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. * * *'
8
See §§ 7 and 8, supra, note 1.
'The language of § 8(a)(3) is not ambiguous. The unfair labor practice is for an employer to encourage or discourage membership by means of discrimination. Thus this section does not outlaw all encouragement or discouragement of membership in labor organizations; only such as is accomplished
1
Set forth in note 1 of the Court's opinion, 365 U.S. at pages 669—670, 81 S.Ct. at page 836.
2
As determined, for example, from the parties' actions under them, through grievance procedures, or by arbitration, if so provided in the collective bargaining agreement.
3
In connection with such clauses, the Board would have '(T)he parties to the agreement post in places where notices to employees and applicants for employment are customarily posted, all provisions relating to the functioning of the hiring arrangement, including the safeguards that we deem essential to the legality of an exclusive hiring agreement.' These safeguards, which are also to be made contract terms, provide that:
'(1) Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, union membership, bylaws, rules, regulations, constitutional provisions, or any other aspect or obligation of union membership, policies, or requirements.
'(2) The employer retains the right to reject any job applicant referred by the union.'
4
Set forth in note 1 of the Court's opinion, 365 U.S. at pages 669—670, 81 S.Ct. at page 836.
1
I agree with the Court's disposition of that part of the Board's petition seeking direct enforcement of the order of reimbursement.
2
Interestingly enough, the Board in its Twenty-Third Annual Report (1958) characterized its holding in Mountain Pacific Chapter, 119 N.L.R.B. 883, in the following language: 'It may reasonably be inferred, the Board held, that a union to which an employer has so delegated hiring powers will exercise its power with a view to securing compliance with membership obligations and union rules.' At p. 68.
3
The employers did not receive any seniority lists from the union and were unaware of whether this provision of the agreement was being properly administered.
4
93 Cong.Rec. 3836; II Leg.Hist. of the Labor Management Relations Act, 1947, 1010.
'Perhaps (the closed shop) is best exemplified by the so-called hiring halls on the west coast, where shipowners cannot employ anyone unless the union sends him to them. * * * Such an arrangement gives the
| 67
|
365 U.S. 651
81 S.Ct. 875
6 L.Ed.2d 1
LOCAL 60, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, et al., Petitioners,v.NATIONAL LABOR RELATIONS BOARD.
No. 68.
Argued Feb. 28 and March 1, 1961.
Decided April 17, 1961.
Mr. Bernard Dunau, Washington, D.C., for petitioners.
Mr. Norton J. Come, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Petitioner, United Brotherhood, entered into a contract with Mechanical Handling Systems, Inc. (which we will call the Company), whereby the Company agreed to work the hours, pay the wages, abide by the rules and regulations of the union applicable to the locality where the work is done, and employ members of the union.
2
The Company, undertaking work at Indianapolis, agreed to hire workers on referral from a local union, one of the petitioners in this case. Two applicants from another local union were denied employment by the Company because they could not get referral from petitioner local union.
3
The Board found that petitioners had violated § 8(b)(1)(A) and § 8(b)(2) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 141, as amended, 29 U.S.C. § 158, 29 U.S.C.A. § 158, in maintaining and enforcing an agreement which established closed-shop preferential hiring conditions and in causing the Company to refuse to hire the two applicants. 122 N.L.R.B. 396.
4
After granting other relief the Board said:
5
'(A)s we find that dues, nonmembership dues, assessments, and work permit fees,1 were collected under the illegal contract as the price employees paid in order to obtain or retain their jobs, we do not believe it would effectuate the policies of the Act to permit the retention of the payments which have been unlawfully exacted from the employees.' It added that the remedial provisions 'are appropriate and necessary to expunge the coercive effect' of petitioners' unfair labor practices.
6
On application of the Board, the Court of Appeals enforced the order. 273 F.2d 699. The case is here on a writ of certiorari, 363 U.S. 837, 80 S.Ct. 1610, 4 L.Ed.2d 1723, in which petitioners challenge no part of the Board's order except the refund provision.
7
The provision for refund in this case is the product of a rule announced by the Board in the Brown-Olds case, 115 N.L.R.B. 594, which involved the use of a closed-shop agreement despite the ban in the Taft-Hartley Act. In that case a panel of three members of the five-member Board found a violation of the closed-shop provision of the Act. Two of the three agreed to an order of reimbursement to all employees for any assessments collected by the union within the period starting from six months prior to the date of the filing of the charge. One member, Ivar H. Peterson, dissented, saying that the reimbursement was inappropriate since there was an absence of 'specific evidence of coercion and evidence that payments were required as a condition of employment.' Id., 606. Later that remedy was extended to hiring arrangements, which though not operating in connection with a closed shop, were felt by the Board to have a coercive influence on applicants for work to join the union. Los Angeles-Seattle Motor Express, Inc., 121 N.L.R.B. 1629.
8
In neither of those cases nor in the present case was there any evidence that the union membership, fees, or dues were coerced. The Board as well as the Court of Appeals held that fact to be immaterial. Both said that the case was governed by Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568; and the Court of Appeals added that coercion was to be inferred as 'there was present an implicit threat of loss of job if those fees were not paid.' 273 F.2d at page 703. The Board argues, in support of that position, that reimbursement of dues where hiring arrangements have been abused is protective of rights vindicated by the Act and authorized by § 10(c).2
9
We do not think this case is governed by Virginia Electric & Power Co. v. National Labor Relations Board, supra. That case involved a company union whose very existence was unlawful. There were, indeed, findings that the union 'was not the result of the employees' free choice' (319 U.S. at page 537, 63 S.Ct. at page 1217), and that the employees had to remain members of the union to retain their jobs. Id., 319 U.S. 540, 63 S.Ct. 1218. Return of dues was one of the means for disestablishing an unlawful union. Id., 319 U.S. 541, 63 S.Ct. 1219. Cf. National Labor Relations Board v. District 50, United Mine Workers, 355 U.S. 453, 458—459, 78 S.Ct. 386, 389—360, 2 L.Ed.2d 401.
10
The unions in the present case were not unlawfully created. On the record before us they have engaged in prohibited activity. But there is no evidence that any of them coerced a single employee to join the union ranks or to remain as members. All of the employees affected by the present order were union members when employed on the job in question. So far as we know, they may have been members for years on end. No evidence was offered to show that even a single person joined the union with the view of obtaining work on this project. Nor was there any evidence that any who had voluntarily joined the union was kept from resigning for fear of retaliatory measures against him. This case is therefore quite different from Radio Officers, Union of Commercial Telegraphers Union, A.F.L. v. National Labor Relations Board, 347 U.S. 17, 48, 74 S.Ct. 323, 339, 98 L.Ed. 455, where, discrimination having been shown, the inferences to be drawn were left largely to the Board.
11
The Board has broad discretion to adapt its remedies to the needs of particular situations so that 'the victims of discrimination' may be treated fairly. See Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 86 L.Ed. 1271. But the power of the Board 'to command affirmative action is remedial, not punitive, and is to be exercised in aid of the Board's authority to restrain violations and as a means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act.' Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 236, 59 S.Ct. 206, 220, 83 L.Ed. 126. Where no membership in the union was shown to be influenced or compelled by reason of any unfair practice, no 'consequences of violation' are removed by the order compelling the union to return all dues and fees collected from the members; and no 'dissipation' of the effects of the prohibited action is achieved. National Labor Relations Board v. District 50, United Mine Workers, supra, 355 U.S. 463, 78 S.Ct. 392. The order in those circumstances becomes punitive and beyond the power of the Board.3 Cf. Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 10, 61 S.Ct. 77, 78, 85 L.Ed. 6. As judge Pope said in Morrison-Knudsen Co. v. National Labor Relations Board, 9 Cir., 276 F.2d 63, 76, 'reimbursing a lot of old-time union men' by refunding their dues is not a remedial measure in the competence of the Board of impose, unless there is support in the evidence that their membership was induced, obtained, or retained in violation of the Act. It would be difficult, even with hostile eyes, to read the history of trade unionism except in terms of voluntary associations formed to meet pressing needs in a complex society.4
12
Reversed.
13
Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.
14
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.
15
While I agree with the Court that Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568, does not justify the Board's 'Brown-Olds' remedy as it has been applied in this and other cases, I think the Board is entitled to be informed more fully why that should be so, since it may fairly be said that Virginia Electric could be taken as having invited the course the Board has been following. In joining the Court's opinion I shall therefore add some further views.
16
The Brown-Olds remedy is an order made under § 10(c) of the National Labor Relations Act which authorizes the Board, after finding an unfair labor practice, not only to issue a cease and desist order but also 'to take such affirmative action * * * as will effectuate the policies of this Act * * *.' The remedy, which seems only to be applied if the unfair labor practice amounts either to employer domination of a union (§ 8(a)(2)) or discrimination in favor of union membership by an agreement between employer and union (§ 8(a) (3); § 8(b)(2)), typically requires that either the union or the employer reimburse all employees in the amount of all moneys paid in dues, assessments, etc., since six months before the unfair labor practice charge was filed. The Board does not admit defensive evidence that some employees voluntarily made such payments. An illegal closed shop or discriminatory hiring practices create an irrebuttable presumption of coercion. See, e.g., Brown-Olds Plumbing & Heating Corp., 115 N.L.R.B. 594; Saltsman Construction Co., 123 N.L.R.B. 1176; Nassau & Suffolk Contractors' Assn., 123 N.L.R.B. 1393; Lummus Corp., 125 N.L.R.B. 1161.
17
The provision that the Board was to be allowed 'to take such affirmative action * * * as will effectuate the policies of this Act * * * ' did not pass the Wagner Act Congress without objection to the uncontrolled breadth of this power. See Hearings before Senate Committee on Education and Labor on S. 1958, 74th Cong., 1st Sess. 448—449. This Court's construction of the scope of the power has reflected a similar concern. The Board has been told that it is without power to 'effectuate the policies of this Act' by assessing punishments upon those who commit unfair labor practices. Republic Steel Corp. v. National Labor Relations Board, 311 US. 7, 11, 12, 61 S.Ct. 77, 79, 85 L.Ed. 6. The primary purpose of the provision for other affirmative relief has been held to be to enable the Board to take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practice. Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 236, 59 S.Ct. 206, 219, 83 L.Ed. 126. Thus in Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, this Court reversed the Board for refusing to allow an employer to show in mitigation of a back-pay order that the employee unjustifiably refused to take desirable new employment during the period. In Republic Steel, supra, the Court refused to enforce an order requiring the employer to pay the full amount of back pay to an employee who had been paid to work for the Work Projects Administration in the meantime. In National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377, the Court indicated that even an otherwise sensible procedure for computing back pay of an employee discriminatorily discharged must provide exceptions where the scheme would more than compensate the employee because of the seasonal nature of the employer's business.
18
The Board now emphasizes that its Brown-Olds remedy has a substantial tendency to deter employer-union encouragement of union membership in violation of §§ 8(a)(3) and 8(b)(2). But it also correctly recognizes that in light of the Republic Steel case, supra, it must show more than that the remedy will tend to deter unfair labor practices. The Board must establish that the remedy is a reasonable attempt to put aright matters the unfair labor practice set awry. As I understand its contentions, the Board attempts to make this showing by arguing that wherever there has been a not insignificant unlawful encouragement to union membership all members should be taken to have been under the influence of coercion, whether or not they were aware of this influence or would have acted differntly without it. The employees are said to have been coerced in much the same sense that a man contentedly sitting in the living room of his house may be said to be imprisoned by the barring of the doors whether or not he wants to leave.1 Accordingly, the Board has considered unnecessary an actual showing of employee unwillingness to belong to the union.
19
What we must decide, then, is whether it is within the power of the Board to provide dues-reimbursement relief for this type of imputed coercion, or, as the Board alternatively states its case, for the employee's loss of his statutory right to decide freely whether or not he shall be a union member. This issue is not satisfactorily resolved by simply pointing out that there has been no showing of forced payment of dues an employee was unwilling to pay, for unless I misunderstand the Board, it is arguing that even a willing union member loses something when there is a violation § 8(b)(2), namely the freedom of choice which the statute assures him. Nor, once we have recognized that a tendency to deter unfair labor practices is not alone sufficient justification for a Board order of affirmative relief, does the concept of punitiveness really advance a solution. Deterrence is certainly a desirable even though not in itself a sufficiently justifying effect of a Board order.
20
I think the Board should be denied the use of its Brown-Olds remedy in situations where, as here, it is not unlikely that a substantial number of employees were willing to pay dues for union membership because, as I see it, the amount of dues or other exactions paid is not a tenable way of estimating the value a willing union member would place on his right to choose freely whether or not he would be or remain a union member—as it were, on his right to change his mind. The amount of dues paid does perhaps provide a means of estimating the value of benefits received from the union. Or the amount of dues paid does perhaps measure the cost coercion imposes upon an employee who, if free to choose, would be unwilling to join the union (although even in this case a proper adjustment might have to take some account of the union benefits the employee would not have received had he been merely a nonunion employee in a unionized bargaining unit). But I can find no rational relationship at all between the amount of dues paid and the value an employee who is willing to join a union would place on his freedom to change his mind.2 In the absence of a showing of such a relationship, the Board's Brown-Olds order can no more be sustained than could its orders in the Phelps Dodge or Republic Steel cases.
21
A different result might follow in this case if Virginia Electric had held that such a relationship exists. But I think that case held only that, as a matter of statutory policy, an employee could not ever be deemed a willing member of a company-dominated union, cf. Matter of the Carpenter Steel Co., 76 N.L.R.B. 670, and that, on considerations of practicality, the employer who had violated the Act should bear the unapportionable costs of sustaining a union that served the employer's forbidden purposes at least as much as it served the employee's legitimate ones.
22
Mr. Justice WHITTAKER, dissenting.
23
The contract involved here not only required persons seeking employment in the unit to be members of the union, but also required each of them to obtain from the 'Council' and present to the 'union steward' on the job a 'work permit' before going to work. That this closed-shop hiring arrangement 'coerce(d) employees in the exercise of the rights guaranteed in section 7,' and 'cuase(d) (the) employer to discriminate against * * * employee(s) in violation of subsection (a)(3)' of the Act, contrary to the explicit provisions of §§ 8(b) (1)(A) and 8(b)(2) of the Act, 29 U.S.C. § 158, 29 U.S.C.A. § 158 is not here denied.
24
To assure protection and enforcement of the rights it had guaranteed to employees by the Act, Congress provided in § 10(c) that, upon the finding of an 'unfair labor practice,' 'the Board shall state its findings of fact and shall issue * * * an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action * * * as will effectuate the policies' of the Act.
25
Finding that the closed-shop hiring arrangement involved here violated §§ 8(b) (1)(A) and 8(b)(2) of the Act and thus constituted an unfair labor practice, the Board, in fashioning a remedy which it deemed 'necessary to expunge the coercive effect' of the violations and to 'effectuate the policies of the Act,' ordered the unions not only to cease the violations but also 'to refund to the employees involved the dues * * * and work permit fees, paid by the employees as a price for their employment.' The only question here is whether that remedy was within the Board's power. Like the Court of Appeals, I think it was.
26
Congress knew, of course, that it could not foresee the nature of all possible violations of the Act, and accordingly did not undertake to specify the precise remedy to be visited upon offenders for particular violations.
27
'(I)n the nature of things Congress could not catalogue all the devices and stratagems for circumventing the policies of the Act. Nor could it define the whole gamut of remedies to effectuate these policies in an infinite variety of specific situations. Congress met these difficulties by leaving the adaptation of means to end to the empiric process of administration. The exercise of the process was committed to the Board, subject to limited judicial review. Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion * * *.
28
'The Act does not create rights for individuals which must be vindicated according to a rigid scheme of remedies. It entrusts to an expert agency the maintenance and promotion of industrial peace.' Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271.
29
To hold that the Board is without power to do more than order the unions not to violate the Act in the future would be to deny any remedy whatever for violations. It is certain that Congress did not intend by the Act 'to hold out to (employees) 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. In directing the Board to order 'such affirmative action * * * as will effectuate the policies of this Act,' Congress seems clearly to have directed the Board to fashion and enforce a remedy 'which it * * * deem(s) adequate to that end.' Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 12, 61 S.Ct. 77, 79, 85 L.Ed. 6. In 'fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience.' National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 289, 97 L.Ed. 377. And see Radio Officers' Union of Commercial Telegraphers Union, A.F.L. v. National Labor Relations Board, 347 U.S. 17, 49, 74 S.Ct. 323, 340, 98 L.Ed. 455. Based on its long experience up to 1956, that, despite the ban which the Taft-Hartley Amendments had imposed nine years earlier, closed-shop practices were still being followed in some industries,1 the Board concluded that a remedy more effective than a cease-and-desist order was required. And, following the teaching of this Court's opinion in Virginia Electric & Power Co. v. National Labor Relations Board, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568, the Board decided that an appropriate additional remedy would be to require that the monies paid to the union under the illegal arrangement be refunded to the employees, and it accordingly so held in 1956 in United Association of Journeymen, etc., and Brown-Olds Plumbing & Heating Corp., 115 N.L.R.B. 594.2
30
In Virginia Electric & Power Co. v. National Labor Relations Board, supra, this Court had upheld an identical remedy as within the Board's power. There an employer had committed an unfair labor practice by dominating a plant union in violation of § 8(1), (2) and (3) of the Act. In fashioning a remedy that it deemed necessary to effectuate the policies of the Act, the Board ordered the employer not only to cease the practice but also to reimburseits employees for the dues withheld from their wages, pursuant to their signed authorizations, and paid to the union. Rejecting the employer's contention that this remedy was in excess of the Board's power, this Court said:
31
'(T)he Board has wide discretion in ordering affirmative action; its power is not limited to the illustrative example of one type of permissible affirmative order, namely, reinstatement with or without back pay. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 187—189, 61 S.Ct. 845, 849, 850, 85 L.Ed. 1271, 133 A.L.R. 1217. The particular means by which the effects of unfair labor pratices are to be expunged are matters 'for the Board not the courts to determine.' (International) A. of M. (etc.) v. National Labor Relations Board, supra, 311 U.S. (72) at page 82, 61 S.Ct. (83) at page 89, 85 L.Ed. 50; National Labor Relations Board v. Link-Belt Co., supra, 311 U.S. (584) at page 600, 61 S.Ct. (358) at page 366, 85 L.Ed. 368. Here the Board, in the exercise of its informed discretion, has expressly determined that reimbursement in full of the checked-off dues is necessary to effectuate the policies of the Act. We give considerable weight to that administrative determination. It should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act. There is no such showing here.' 319 U.S. at pages 539—540, 63 S.Ct. at page 1218.
32
Such an order, said the Court, 'returns to the employees what has been taken from them' and restores to them 'that truly unfettered freedom of choice which the Act demands.' 319 U.S. at page 541, 63 S.Ct. at page 1219. Surely, it is as correct to say here, as it was there, that 'An order such as this, which deprives (a union) of advantages accruing from a particular method of subverting the Act, is a permissible method of effectuating the statutory policy,' ibid., and that is all the order here purports to do.
33
It is argued that the Virginia case is distinguishable on the ground that it dealt with an employer-dominated union. But the question is one of power. The fact that the unfair labor practice there was by the employer rather than by the union, as here, is not a distinguishing difference. Nor does the fact that employees' rights were there infringed by a violation of § 8(a)(1), (2) and (3) of the Act, whereas they are here infringed by a violation of §§ 8(b)(1)(A) and 8(b)(2) of the Act, make any difference. In each instance the violation constituted an unfair labor practice, and the question is whether, in fashioning a remedy to effectuate the policies of the Act, the Board has power, in its informed discretion, to order reimbursement of the dues paid under the illegal arrangement. It would seem that if the Board had power so to order in the Virginia case, as this Court held, it similarly has power so to order in this case. Nothing in the Virginia case appears to limit the Board's power of restitution to cases involving employer-dominated unions or to any other particular type of violation, but the power seems clearly enough to be invocable in any appropriate case, in the informed discretion of the Board, and such has been the understanding of the courts.3
34
The contentions that such an order of restitution is beyond the Board's power because the employees received some benefits from the union, despite the illegal hiring arrangement, and that to allow restitution of the dues collected by the union under the illegal arrangement would be to enforce a 'penalty' which the Board has no power to assess, were fully answered to the contrary in the Virginia case, 319 U.S. at pages 542—543, 63 S.Ct. at pages 1219, 1220.
35
To require specific proof of individual injury to all employees 'would impose impossible administrative burdens,' National Labor Relations Board v. Revere Metal Art Co., supra, 280 F.2d at page 101, and prevent effective enforcement of the Act. Hence that character and fullness of proof is not required. See Radio Officers' Union of Commercial Telegraphers Union, A.F.L. v. Labor Board, 347 U.S. 17, 48—52, 74 S.Ct. 323, 339—342, 98 L.Ed. 455. And inasmuch as the General Counsel of the Board may issue complaints only upon charges filed with him, id., 347 U.S. at page 53, 74 S.Ct. at page 342, and the Board's experience seems to have proved that only a few employees will be sufficiently daring and determined overtly to complain regardless of the nature of the violation, it would seem that the Board, in the exercise of its informed discretion, may reasonably conclude, even in the absence of specific proof of injury to all the employees, that full restitution of the dues collected by the union under an illegal arrangement is necessary to effectuate the policies of the Act.
36
For these reasons, I think the Board acted within its power in ordering restitution of the dues collected under the admittedly illegal arrangement here, that the Court of Appeals correctly enforced the order, and that its judgment should be affirmed.
1
The monthly dues payable to the local union were $3.50 and the initiation fee $125. Dues and fees in lesser amounts were payable by apprentices. A member who is working within the jurisdiction of a district council who has not transferred his membership to a local union of the council pays for a working permit that is not less than 75 cents a month nor more than the local monthly dues.
2
Section 10(c) provides in relevant part:
'* * * If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act: * * *' 29 U.S.C.A. § 160(c).
3
Accord; Morrison-Knudsen Co. v. National Labor Relations Board, 2 Cir., 275 F.2d 914; National Labor Relations Board v. United States Steel Corp., 3 Cir., 278 F.2d 896; National Labor Relations Board v. Local Union No. 85, 5 Cir., 274 F.2d 344; National Labor Relations Board v. International Union, 8 Cir., 279 F.2d 951; Morrison-Knudsen Co. v. National Labor Relations Board, 276 F.2d 63 (C.A., 9th Cir.); Local 357 v. National Labor Relations Board, 107 U.S.App.D.C. 188, 275 F.2d 646. Cf. National Labor Relations Board v. Local 176, United Brotherhood of Carpenters, 1 Cir., 276 F.2d 583; Perry Coal Co. v. National Labor Relations Board, 7 Cir., 284 F.2d 910.
4
See Millis and Montgomery, Organized Labor, Vol. III (1945), c. VIII.
1
It is but another formulation of the same argument when the Board, in its brief, states that actual coercion is not required so long as the dues are collected pursuant to an illegal system: '(T)he validity of a reimbursement order is not contingent upon a showing that the employees paid monies to the union unwillingly. If the money were paid pursuant to an arrangement which violated the statute, it can be ordered refunded provided this would best effectuate the statutory policies. * * * That the money may have been collected anyhow by a legal means does not privilege the use of an illegal procedure to obtain it.'
2
For example, an employee may be more willing to join a union which charges high dues and provides substantial benefits than a union which charges little and gives little. But the Board formula declares that in the case where the dues are higher the value of the loss of freedom of choice is greater.
1
As two apparently disinterested authorities have noted:
'(By 1945), the closed shop had become one of the basic features of industrial relations in the building industry. This situation had largely remained true in practice up to the present time, despite the passage of legislation in 1947 prohibiting this type of provision from being included in collective agreements.
'* * * In all of the strongly unionized areas studied during the summer of 1952, employment arrangements equivalent to those under a closed shop were in effect. Membership in the union was almost universally regarded as a prerequisite for obtaining employment; in most instances men were employed directly or indirectly through the union itself. Both parties viewed this as standard practice and showed little or no concern for the illegality ofthe arrangement.' Haber and Levinson, Labor Relations and Productivity in the Building Trades (Univ. of Michigan, 1956), pp. 62, 71. (Emphasis added.)
2
The Board there stated:
'* * * (T)he Taft-Hartley amendments have made unlawful all closed-shop contracts as contrary to public policy, proscribing such conduct by unions as unfair labor practices. The dues required and collected under such a contract * * * contravene that public policy. It is no longer required by the Act that the union be company-dominated in order for collection of dues to be unlawful under a closed-shop contract. Here, the dues and the assessments were required and collected pursuant to a contract which clearly contravened the public policy of the Act. Dues and assessments here collected constituted the price these employees paid in order to retain their jobs. We therefore conclude that the remedy of reimbursement of all such monies is appropriate and necessary to expunge the illegal effects of the unfair labor practices found here.
'It is our view that, where payment of dues is required under a closed-shop contract, as where assessments are required under an otherwise valid agreement, reimbursement of such monies actually collected will best effectuate the policies of the Act. Otherwise the very fruits of the unfair labor practice itself will remain in the hands of the respondent. * * *' 115 N.L.R.B., at pages 600 601.
3
National Labor Relations Board v. Revere Metal Art Co., 2 Cir., 280 F.2d 96, 101; National Labor Relations Board v. Local 294, International Brotherhood of Teamsters, 2 Cir., 279 F.2d 83, 86—88; O'Neill Intl. Detective Agency v. National Labor Relations Board, 46 L.R.R.M. 2503 (C.A.3d Cir.); Dixie Bedding Mfg. Co. v. National Labor Relations Board, 5 Cir., 268 F.2d 901, 907.
| 67
|
365 U.S. 768
81 S.Ct. 911
6 L.Ed.2d 83
Lennis VERRET et al.v.OIL TRANSPORT CO., Inc., et al.
No. 388.
Supreme Court of the United States
April 17, 1961
James J. Morrison, Arthur A. de la Houssaye and Raymond H. Kierr, for petitioners.
Eberhard P. Deutsch, for respondents.
On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit.
PER CURIAM.
1
It appearing from the joint suggestion of mootness that, subsequent to the judgment of reversal by the Court of Appeals of the judgment of the District Court and the filing and granting of the petition for writ of certiorari, a consent judgment was entered by the District Court and that said judgment has been satisfied, 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
|
366 U.S. 82
81 S.Ct. 978
6 L.Ed.2d 135
In re George ANASTAPLO, Petitioner.
No. 58.
Argued Dec. 14, 1960.
Decided April 24, 1961.
Mr. George Anastaplo, petitioner, pro se.
Mr. William C. Wines, Chicago, Ill., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The questions presented by this case are similar to those involved in No. 28, Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105.
2
In 1954 petitioner, George Anastaplo, an instructor and research assistant at the University of Chicago, having previously passed his Illinois bar examinations, was denied admission to the bar of that State by the Illinois Supreme Court.1 The denial was based upon his refusal to answer questions of the Committee on Character and Fitness as to whether he was a member of the Communist Party.2 This Court, two Justices dissenting, refused review. 348 U.S. 946, 75 S.Ct. 439, 99 L.Ed. 740. In 1957, following this Court's decisions in the earlier Konigsberg case, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, and in Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, Anastaplo sought to have the Character Committee rehear his application for certification. The Committee, by a divided vote, refused, but the State Supreme Court reversed and directed rehearing.3
3
The ensuing lengthy proceedings before the Committee,4 at which Anastaplo was the only witness, are perhaps best described as a wide-ranging exchange between the Committee and Anastaplo in which the Committee sought to explore Anastaplo's ability conscientiously to swear support of the Federal and State Constitutions, as required by the Illinois attorneys' oath, and Anastaplo undertook to expound and defend, on historical and ideological premises, his abstract belief in the 'right of revolution,' and to resist, on grounds of asserted constitutional right and scruple, Committee questions which he deemed improper.5 The Committee already had before it uncontroverted evidence as to Anastaplo's 'good moral character,' in the form of written statements or affidavits furnished by persons of standing acquainted with him, and the record on rehearing contains nothing which could properly be considered as reflecting adversely upon his character or reputation or on the sincerity of the beliefs he espoused before the Committee.6 Anastaplo persisted, however, in refusing to answer, among other inquiries,7 the Committee's questions as to his possible membership in the Communist Party or in other allegedly related organizations.
4
Thereafter the Committee, by a vote of 11 to 6, again declined to certify Anastaplo because of his refusal to answer such questions, the majority stating in its report to the Illinois Supreme Court:
5
'his (Anastaplo's) failure to reply, in our view, (1) obstructs the lawful processes of the Committee, (ii) prevents inquiry into subjects which bear intimately upon the issue of character and fitness, such as loyalty to our basic institutions, belief in representative government and bona fides of the attorney's oath and (iii) results in his failure to meet the burden of establishing that he possesses the good moral character and fitness to practice law, which are conditions to the granting of a license to practice law.
6
'We draw no inference of disloyalty or subversion from applicant's continued refusal to answer questions concerning Communist or other subversive affiliations. We do, however, hold that there is a strong public interest in our being free to question applicants for admission to the bar on their adherence to our basic institutions and form of government and that such public interest in the character of its attorneys overrides an applicant's private interest in keeping such views to himself. By failing to respond to this higher public interest we hold that the applicant has obstructed the proper functions of the Committee. * * * We cannot certify the applicant as worthy of the trust and confidence of the public when we do not know that he is so worthy and when he has prevented us from finding out.'
7
At the same time the full Committee acknowledged that Anastaplo
8
'is well regarded by his academic associates, by professors who had taught him in school and by members of the Bar who know him personally * * *';
9
that it had
10
'not been supplied with any information by any third party which is derogatory to Anastaplo's character or general reputation * * *';
11
and that it had
12
'received no information from any outside source which would cast any doubt on applicant's loyalty or which would tend to connect him in any manner with any subversive group.'
13
Further, the majority found that Anastaplo's views
14
'with respect to the right to overthrow the government by force or violence, while strongly libertarian and expressed with an intensity and fervor not necessarily shared by all good citizens, are not inconsistent with those held by many patriotic Americans both at the present time and throughout the course of this country's history and do not in and of themselves reveal any adherence to subversive doctrines.' Upon review, the Illinois Supreme Court, over three dissents,8 confirmed the Committee's report and refusal to certify Anastaplo, reaffirming in its per curiam opinion the court's
15
'* * * earlier conclusion that a determination as to whether an applicant can in good conscience take the attorney's oath to support and defend the constitutions of the United States and the State of Illinois is impossible where he refuses to state whether he is a member of a group dedicated to the overthrow of the government of the United States by force and violence.' 18 Ill.2d 182, 200—201, 163 N.E.2d 429, 439.
16
We granted certiorari, 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900, and set the matter for argument along with the Konigsberg case, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105, and Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156.
17
Two of the basic issues in this litigation have been settled by our contemporary Konigsberg opinion. We have there held it not constitutionally impermissible for a State legislatively, or through court-made regulation as here and in Konigsberg, to adopt a rule that an applicant will not be admitted to the practice of law if, and so long as, by refusing to answer material questions, he obstructs a bar examining committee in its proper functions of interrogating and cross-examining him upon his qualifications. That such was a proper function of the Illinois Character Committee is incontestably established by the opinions of the State Supreme Court in this case. 3 Ill. 2d at page 476, 121 N.E.2d at page 829; 18 Ill.2d at page 188, 163 N.E.2d at page 432.9
18
We have also held in Konigsberg that the State's interest in enforcing such a rule as applied to refusals to answer questions about membership in the Communist Party outweighs any deterrent effect upon freedom of speech and association, and hence that such state action does not offend the Fourteenth Amendment.10 We think that in this respect no valid constitutional distinction can be based on the circumstance that in Konigsberg there was some, though weak, independent evidence that the applicant had once been connected with the Communist Party, while here there was no such evidence as to Anastaplo. Where, as with membership in the bar, the State may withhold a privilege available only to those possessing the requisite qualifications, it is of no constitutional significance whether the State's interrogation of an applicant on matters relevant to these qualifications—in this case Communist Party membership—is prompted by information which it already has about him from other sources, or arises merely from a good faith belief in the need for exploratory or testing questioning of the applicant. Were it otherwise, a bar examining committee such as this, having no resources of its own for independent investigation, might be placed in the untenable position of having to certify an applicant without assurance as to a significant aspect of his qualifications which the applicant himself is best circumstanced to supply. The Constitution does not so unreasonably fetter the States.11
19
Two issues, however, do arise upon this record which are not disposed of by Konigsberg. The first is whether Anastaplo was given adequate warning as to the consequences of his refusal to answer the Committee's questions relating to Communist Party membership. The second is whether his exclusion from the bar on this ground was, in the circumstances of this case, arbitrary or discriminatory.
I.
20
The opinions below reflect full awareness on the part of the Character Committee and the Illinois Supreme Court of Anastaplo's constitutional right to be warned in advance of the consequences of his refusal to answer.12 Cf. Konigsberg v. State Bar, 353 U.S. at page 261, 77 S.Ct. at page 727. On the part of Anastaplo, he stands in the unusual position of one who had already been clearly so warned as a result of his earlier exclusion from the bar for refusal to answer the very question which was again put to him on rehearing. See note 2, supra. Anastaplo nevertheless, contends in effect that he was lulled into a false sense of security by various occurrences at the Committee hearings: (1) several statements by Committee members indicating that all questions asked and refused an answer should not be considered as bearing the same level of importance in the eyes of the Committee;13 and (2) a statement by one of the principal Committee members that Illinois had no 'per se' rule of exclusion, that is that Anastaplo's refusal to answer would not automatically operate to exclude him from the bar.14
21
These suggestions, whether taken separately or together, can only be viewed as insubstantial. The sum and substance of the matter is that throughout the renewed proceedings petitioner was fully aware that his application for admission had already once been rejected on the very ground about which he now professes to have been left in doubt, and that the Committee made manifest both that it continued to attach special importance to its Communist Party affiliation questions, and that adverse consequences might well follow if Anastaplo persisted in refusing to answer them.
22
What follows will suffice to show that statements to the effect that the Committee as a whole did not necessarily approve or adopt every question asked by any of its members can hardly be taken as having left petitioner in doubt as to the central importance and general approval of questions about Communist Party membership. At an early state of the proceedings Anastaplo was informed:
23
'Now you have asked for a warning when we put a question to you that we think is a pivotal, important question in connection with your qualification. I must tell you that we consider that question, 'Are you a member of the Communist Party,' such a question; and that the refusal to answer it may have serious consequences to your application.'
24
And at the last hearing one of the leading Committee members responded to Anastaplo's insistence on being told even more explicitly what refusals to answer would be of significance to the Committee, by pointing out that
25
'The Supreme Court of Illinois has ruled that it is proper for us to ask you whether you are a member of the Communist Party. You have refused to answer the question.'15
26
Further, petitioner's repeated objections throughout the hearings to the effect that there was no basis for the Committee's evident purpose to give much greater emphasis to questions about Communist Party membership than to other unanswered inquiries, dispel any doubt that Anastaplo was quite aware that Communist-affiliation questions were to be treated differently from other questions he had refused to answer.
27
The other aspect of petitioner's claim on lack of adequate warning is equally untenable. It is true that the Committee told Anastaplo that his refusal to answer be visited on him. Anastaplo was entitled his exclusion from the bar, but only that it 'could and might.' This, however, certainly did not give rise to constitutional infirmity. Even as to one charged with crime due process does not demand that he be warned as to what specific sanction will be applied to him if he violates the law. It is enough that he know what sanction 'could and might' to no more. It is of course indubitable to no more. It is of course indubitable that by reason of the original rejection of his application. Anastaplo knew of Illinois' rule of exclusion for refusal to answer relevant questions—indeed the very questions involved here.16
28
Petitioner having been failry warned that exclusion from admission to practice might follow from his refusal to answer, it must be found that this requirement of due process was duly met.
II.
29
Petitioner's claim that the application of the State's exclusionary rule was arbitary and discriminatory in the circumstances of this case must also be rejected. It is contended (1) that Anastaplo's refusal to answer these particular questions did not obstruct the Committee's investigation, because that body already had before it uncontroverted evidence establishing petitioner's good character and fitness for the practice of law; and (2) that the real reason why the State proceeded as it did was because of its disapproval of Anastaplo's constitutionally protected views on the right to resist tyrannical government. Neither contention can be accepted.
30
It is sufficient to say in answer to the first contention that even though the Committee already had before it substantial character evidence altogether favorable to Anastaplo, there is nothing in the Federal Constitution which required the Committee to draw the curtain upon its investigation at that point. It had the right to supplement that evidence and to test the applicant's own credibility by interrogating him. And to those ends the Committee could insist upon unprivileged answers to relevant questions, such as we have held in our today's Konigsberg opinion those relating to Communist affiliations were, even though as to them the Committee could not, as it did not, draw an unfavorable inference from refusal to answer. Konigsberg v. State Bar of California, supra.
31
As to the second contention, there is nothing in the record which would justify our holding that the State has invoked its exclusionary refusal-to-answer rule as a mask for its disapproval of petitioner's notions on the right to overthrow tyrannical government.17 While the Committee's majority report does observe that there was 'a serious question' whether Anastaplo's views on the right to resist judicial decrees would be compatible with his taking of the attorney's oath, and that 'certain' members of the Committee thought that such views affirmatively demonstrated his disqualification for admission to the bar,18 it is perfectly clear that the Illinois Bar Committee and Supreme Court regarded petitioner's refusal to cooperate in the Committee's examination of him as the basic and only reason for a denial of certification.19
32
A different conclusion is not suggested by the circumstances that the Committee when it reheard Anastaplo evidence its willingness to consider the effect of petitioner's refusal to answer in light of what might transpire at the hearings, and that it continued to explore petitioner's views on resistance and overthrow long after it became clear that he would refuse to answer Communist-affiliation questions. These factors indicate no more that that the Committee was attempting to exercise an informed judgment as to whether the situation was an appropriate one for waiver of the Committee's continuing requirement, earlier enforced after the first Anastaplo hearings, that such questions must be answered. Finally, contrary to the assumption on which some of the arguments on behalf of Anastaplo seem to have proceeded, we do not understand that Illinois' exclusionary requirement will continue to operate to exclude Anastaplo from the bar any longer than he continues in his refusal to answer. We find nothing to suggest that he would not be admitted now if he decides to answer, assuming of course that no grounds justifying his exclusion from practice resulted. In short, petitioner holds the key to admission in his own hands.
33
We conclude with observing that our function here is solely one of constitutional adjudication, not to pass judgment on what has been done as if we were another state court of review, still less to express any view upon the wisdom of the State's action. With appropriate regard for the limited range of our authority we cannot say that the State's denial of Anastaplo's application for admission to its bar offends the Federal Constitution.20 The judgment of the Illinois Supreme Court must therefore be affirmed.
34
Affirmed.
35
Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
36
The petitioner George Anastaplo has been denied the right to practice law in the State of Illinois for refusing to answer questions about his views and associations. I think this action by the State violated rights guaranteed to him by the First and Fourteenth Amendments. The reasons which lead me to this conclusion are largely the same as those expressed in my dissenting opinion in Konigsberg v. State Bar of California, 366 U.S. at page 56, 81 S.Ct. at page 1010. But this case provides such a striking illustration of the destruction that can be inflicted upon individual liberty when this Court fails to enforce the First Amendment to the full extent of its express and unequivocal terms that I think it deserves separate treatment.
37
The controversy began in November 1950,1 when Anastaplo, a student at the University of Chicago Law School, having two months previously successfully passed the Illinos Bar examination, appeared before the State's Committee on Character and Fitness for the usual interview preliminary to admission to the Bar. The personal history form required by state law had been filled out and filed with the Committee prior to his appearance and showed that Anastaplo was an unusually worthy applicant for admission. His early life had been spent in a small town in southern Illinois where his parents, who had immigrated to this country from Greece before his birth, still resided. After having received his precollege education in the public schools of his home town, he had discontinued his education, at the age of eighteen, and joined the Air Force during the middle of World War II—flying as a navigator in every major theater of the military operations of that war. Upon receiving an honorable discharge in 1947, he had come to Chicago and resumed his education, obtaining his undergraduate degree at the University of Chicago and entering immediately into the study of law at the University of Chicago Law School. His record throughout his life, both as a student and as a citizen, was unblemished.
38
The personal history form thus did not contain so much as one statement of fact about Anastaplo's past life or conduct that could have, in any way, cast doubt upon his fitness for admission to the Bar. It did, however, contain a statement of opinion which, in the minds of some of the members of the Committee at least, did cast such doubt and in that way served to touch off this controversy. This was a statement made by Anastaplo in response to the command of the personal history form: 'State what you consider to be the principles underlying (a) the Constitution of the United States.' Anastaplo's response to that command was as follows:
39
'One principle consists of the doctrine of the separation of powers; thus, among the Executive, Legislative, and Judiciary are distributed various functions and powers in a manner designed to provide for a balance of power, thereby intending to prevent totally unrestrained action by any one branch of government. Another basic principle (and the most important) is that such government is constituted so as to secure certain inalienable rights, those rights to Life, Liberty and the Pursuit of Happiness (and elements of these rights are explicitly set forth in such parts of the Constitution as the Bill of Rights.). And, of course, whenever the particular government in power becomes destructive of these ends, it is the right of the people to alter or to abolish it and thereupon to establish a new government. This is how I view the Constitution.' (Emphasis supplied.)
40
When Anastaplo appeared before a two-man Subcommittee of the Committee on Character and Fitness, one of its members almost immediately engaged him in a discussion relating to the meaning of these italicized words which were substantially taken from that part of the Declaration of Independence set out below.2 This discussion soon developed into an argument as Anastaplo stood by his statement and insisted that if a government gets bad enough, the people have a 'right of revolution.' It was at this juncture in the proceedings that the other member of the Subcommittee interrupted with the question: 'Are you a member of any organization that is listed on the Attorney General's list, to your knowledge?' And this question was followed up a few moments later with the question: 'Are you a member of the Communist Party?'3 A colloquy then ensued between Anastaplo and the two members of the Subcommittee as to the legitimacy of the questions being asked, Anastaplo insisting that these questions were not reasonably related to the Committee's functions and that they violated his rights under the Constitution, and the members of the Subcommittee insisting that the questions were entirely legitimate.
41
The Subcommittee then refused to certify Anastaplo for admission to the Bar but, instead, set a further hearing on the matter before the full Committee. That next hearing, as well as all of the hearings that followed, have been little more than repetitions of the first. The rift between Anastaplo and the Committee has grown ever wider with each successive hearing. Anastaplo has stead-fastly refused to answer any questions put by the Committee which inquired into his political associations or religious beliefs. A majority of the members of the Committee, faced with this refusal, has grown more and more insistent that it has the right to force him to answer any question it sees fit to ask. The result has been a series of hearings in which questions have been put to Anastaplo with regard to his 'possible' association with scores of organizations, including the Ku Klux Klan, the Silver Shirts (an allegedly Fascist organization), every organization on the so-called Attorney General's list, the Democratic Party, the Republican Party, and the Communist Party. At one point in the proceedings, at least two of the members of the Committee insisted that he tell the Committee whether he believes in a Supreme Being and one of these members stated that, as far as his vote was concerned, a man's 'belief in the Deity * * * has a substantial bearing upon his fitness to practice law.'
42
It is true, as the majority points out, that the Committee did not expressly rest its refusal to certify Anastaplo for admission to the Bar either upon his views on the 'right of revolution,' as that 'right' is defined in the Declaration of Independence, or upon his refusal to disclose his beliefs with regard to the existence of God,4 or upon his refusals to disclose any of his political associations other than his 'possible' association with the Communist Party. But it certainly cannot be denied that the other questions were asked and, since we should not presume that these members of the Committee did not want answers to their questions, it seems certain that Anastaplo's refusal to answer them must have had some influence upon the final outcome of the hearings. In any case, when the Committee did vote, 11—6, not to certify Anastaplo for admission, not one member who asked any question Anastaplo had refused to answer voted in his favor.
43
The reasons for Anastaplo's position have been stated by him time and again—first, to the Committee and, later, in the briefs and oral arguments he presented in his own behalf, both before this Court and before the Supreme Court of Illinois. From a legal standpoint, his position throughout has been that the First Amendment gave him a right not to disclose his political associations or his religious beliefs to the Committee. But his decision to refuse to disclose these associations and beliefs went much deeper than a bare reliance upon what he considered to be his legal rights. The record shows that his refusal to answer the Committee's question stemmed primarily from his belief that he had a duty, both to society and to the legal profession, not to submit to the demands of the Committee because he believed that the questions had been asked solely for the purpose of harassing him because he had expressed agreement with the assertion of the right of revolution against an evil government set out in the Declaration of Independence. His position was perhaps best stated before the Committee in his closing remarks at the final session:
44
'It is time now to close. Differences between us remain. I leave to others the sometimes necessary but relatively easy task of praising Athens to Athenians. Besides, you should want no higher praise than what I have said about the contribution the bar can make to republican government. The bar deserves no higher praise until it makes that contribution. You should be grateful that I have not made a complete submission to you, even though I have cooperated as fully as good conscience permits. To the extent I have not submitted, to that extent have I contributed to the solution of one of the most pressing problems that you, as men devoted to character and fitness, must face. This is the problem of selecting the standards and methods the bar must employ if it is to help preserve and nourish that idealism, that vital interest in the problem of justice, that so often lies at the heart of the intelligent and sensitive law student's choice of career. This is an idealism which so many things about the bar, and even about bar admission practices, discourage and make unfashionable to defend or retain. The worthiest men live where the rewards of virtue are greatest.
45
'I leave with you men of Illinois the suggestion that you do yourselves and the bar the honor, as well as the service, of anticipating what I trust will be the judgment of our most thoughtful judges. I move therefore that you recommend to the Supreme Court of Illinois that I be admitted to the bar of this State. And I suggest that this recommendation be made retroactive to November 10, 1950 when a young Air Force veteran first was so foolish as to continue to serve his country by daring to defend against a committee on character and fitness the teaching of the Declaration of Independence on the right of revolution.'
46
The reasons for the Committee's position are also clear. Its job, throughout these proceedings, has been to determine whether Anastaplo is possessed of the necessary good moral character to justify his admission to the Bar of Illinois. In that regard, the Committee has been given the benefit of voluminous affidavits from men of standing in their professions and in the community that Anastaplo is possessed of an unusually fine character. Dr. Alexander Meiklejohn, Professor of Philosophy, Emeritus, at the University of Wisconsin, for example, described Anastaplo as 'intellectually able, a hard, thorough student and moved by high devotion to the principles of freedom and justice.' Professor Malcolm P. Sharp of the University of Chicago Law School stated: 'No question has ever been raised about his honesty or his integrity, and his general conduct, characterized by friendliness, quiet independence, industry and courage, is reflected in his reputation.' Professor Roscoe T. Steffen of the University of Chicago Law School said: 'I know of no one who doubts his honesty and integrity.' Yves R. Simon, Professor of Philosophy at the University of Chicago, said: 'I consider Anastaplo as a young man of the most distinguished and lofty moral character. Everybody respects him and likes him.' Angelo G. Geocaris, a practicing attorney in the City of Chicago, said of Anastaplo: 'His personal code of ethics is unexcelled by any practicing attorney I have met in the state of Illinois.' Robert J. Coughlan, Division Director of a research project at the University of Chicago, said: 'His honesty and integrity are, in my opinion, beyond question. I would highly recommend him without the slightest reservation for any position involving the highest or most sacred trust. The applicant is a rare man among us today: he has an inviolable sense of Honor in the great traditions of Greek culture and thought. If admitted to the American Bar, he could do nothing that would not reflect glory on that institution.'
47
These affidavits and many more like them were presented to the Committee. Most of the statements came from men who knew Anastaplo intimately on the University of Chicago campus where Anastaplo has remained throughout the proceedings here involved, working as a research assistant and as a lecturer in Liberal Arts and studying for an advanced degree in History and Social Sciences. Even at the present time, he is still there preparing his doctoral dissertation which, understandably enough, is tentatively entitled 'The Historical and Philosophical Background of the First Amendment of the Constitution of the United States.'
48
The record also shows that the Committee supplemented the information it had obtained about Anastaplo from these affidavits by conducting informal independent investigations into his character and reputation. It sent agents to Anastaplo's home town in southern Illinois and they questioned the people who knew him there. Similar inquiries were made among those who knew him in Chicago. But these intensive investigations apparently5 failed to produce so much as one man in Chicago or in the whole State of Illinois who could say or would say, directly, indirectly or even by hearsay, one thing derogatory to the character, loyalty or reputation of George Anastaplo, and not one man could be found who would in any way link him with the Communist Party. This fact is particularly significant in view of the evidence in the record that the Committee had become acquainted with a person who apparently had been a member of a Communist Party cell on the University of Chicago campus and that this person was asked to and did identify for the Committee every member of the Party whom he knew.
49
In addition to the information it had obtained from the affidavits and from its independent investigations, the Committee had one more important source of information about Anastaplo's character. It had the opportunity to observe the manner in which he conducted himself during the many hours of hearings before it. That manner, as revealed by the record before us and undenied by any findings of the Committee to the contrary, left absolutely nothing to be desired. Faced with a barrage of sometimes highly provocative and totally irrelevant questions from men openly hostile to his position, Anastaplo invariably responded with all the dignity and restraint attributed to him in the affidavits of his friends. Moreover, it is not amiss to say that he conducted himself in precisely the same manner during the oral argument he presented before this Court.
50
Thus, it is against the background of a mountain of evidence so favorable to Anastaplo that the word 'overwhelming' seems inadequate to describe it that the action of the Committee in refusing to certify Anastaplo as fit for admission to the Bar must be considered. The majority of the Committee rationalized its position on the ground that without answers to some of the questions it had asked, it could not conscientiously perform its duty of determining Anastaplo's character and fitness to be a lawyer. A minority of the Committee described this explanation as 'pure sophistry.' And it is simply impossible to read this record without agreeing with the minority. For, it is difficult to see what possible relevancy answers to the questions could have had in the minds of these members of the Committee after they had received such completely overwhelming proof beyond a reasonable doubt of Anastaplo's good character and staunch patriotism. I can think of no sound reason for further insistence upon these answers other than the very questionable, but very human, feeling that this young man should not be permitted to resist the Committee's demands without being compelled to suffer for it in some way.
51
It is intimated that the Committee's feeling of resentment might be assuaged and that Anastaplo might even be admitted to the Bar if he would only give in to the demands of the Committee and add the requested test oath to the already overwhelming proof he has submitted to establish his good character and patriotism. In this connection, the Court says: 'We find nothing to suggest that he would not be admitted now if he decides to answer, assuming of course that no grounds justifying his exclusion from practice resulted. In short, petitioner holds the key to admission in his own hands.' However well this familiar phrase may fit other cases, it does not fit this one. For the attitude of the Committee, as revealed by the transcript of its hearings, does not support a belief that Anastaplo can gain admission to the Illinois Bar merely by answering the Committee's questions, whatever answers he should give. Indeed, the Committee's own majority report discloses that Anastaplo's belief in the 'right of revolution' was regarded as raising 'a serious question' in the minds of a majority of the Committee with regard to his fitness to practice law and that 'certain' members of that majority (how many, we cannot know) have already stated categorically that they will not vote to admit an applicant who expresses such views. Nor does the opinion of the Illinois Supreme Court indicate that Anastaplo 'holds the key to admission in his own hands.' Quite the contrary, that court's opinion evidences an almost insuperable reluctance to upset the findings of the Committee. Certainly, that opinion contains nothing that even vaguely resembles the sort of implicit promise that would justify the belief asserted by the majority here. And, finally, I see nothing in the majority opinion of this Court, nor in the majority opinions in the companion cases decided today, that would justify a belief that this Court would unlock the door that blocks his admission to the Illinois Bar if Anastaplo produced the 'key' and the state authorities refused to use it.
52
The opinion of the majority already recognizes that there is not one scrap of evidence in the record before us 'which could properly be considered as reflecting adversely upon his (Anastaplo's) character or reputation or on the sincerity of the beliefs he espoused before the Committee,' and that the Committee had not received any "information from any outside source which would cast any doubt on applicant's loyalty or which would tend to connect him in any manner with any subversive group." The majority opinion even concedes that Anastaplo was correct in urging that the questions asked by the Committee impinged upon the freedoms of speech and association guaranteed by the First and Fourteenth Amendments. But, the opinion then goes on to hold that Anastaplo can nonetheless be excluded from the Bar pursuant to 'the State's interest in having lawyers who are devoted to the law in its broadest sense * * *.'6 I cannot regard that holding, as applied to a man like Anastaplo, as in any way justified. Consider it, for example, in the context of the following remarks of Anastaplo to the Committee—remarks the sincerity of which the majority does not deny:
53
'I speak of a need to remind the bar of its traditions and to keep alive the spirit of dignified but determined advocacy and opposition. This is not only for the good of the bar, of course, but also because of what the bar means to American republican government. The bar when it exercises self-control is in a peculiar position to mediate between popular passions and informed and principled men, thereby upholding republican government. Unless there is this mediation, intelligent and responsible government is unlikely. The bar, furthermore, is in a peculiar position to apply to our daily lives the constitutional principles which nourish for this country its inner life. Unless there is this nourishment, a just and humane people is impossible. The bar is, in short, in a position to train and lead by precept and example the American people.'7
54
These are not the words of a man who lacks devotion to 'the law in its broadest sense.'
55
The majority, apparently considering this fact irrelevant because the State might possibly have an interest in learning more about its Bar applicants, decides that Anastaplo can properly be denied admission to the Bar by purporting to 'balance' the interest of the State of Illinois in 'having lawyers who are devoted to the law in its broadest sense' against the interest of Anastaplo and the public in protecting the freedoms of the First Amendment, concluding, as it usually does when it engages in this process, that 'on balance' the interest of Illinois must prevail.8 If I had ever doubted that the 'balancing test' comes close to being a doctrine of governmental absolutism—that to 'balance' an interest in individual liberty means almost inevitably to destroy that liberty—those doubts would have been dissipated by this case. For this so-called 'balancing test'—which, as applied to the First Amendment, means that the freedoms of speech, press, assembly, religion and petition can be repressed whenever there is a sufficient governmental interest in doing so—here proves pitifully and pathetically inadequate to cope with an invasion of individual liberty so plainly unjustified that even the majority apparently feels compelled expressly to disclaim 'any view upon the wisdom of the State's action.'
56
I, of course, wholeheartedly agree with the statement of the majority that this Court should not, merely on the ground that such action is unwise, interfere with governmental action that is within the constitutional powers of that government. But I am no less certain that this Court should not permit governmental action that plainly abridges constitutionally protected rights of the People merely because a majority believes that on 'balance' it is better, or 'wiser,' to abridge those rights than to leave them free. The inherent vice of the 'balancing test' is that it purports to do just that. In the context of its reliance upon the 'balancing test,' the Court's disclaimer of 'any view upon the wisdom of the State's action' here thus seems to me to be wholly inconsistent with the only ground upon which it has decided this case.
57
Nor can the majority escape from this inconsistency on the ground that the 'balancing test' deals only with the question of the importance of the existence of governmental power as a general matter without regard to the importance of its exercise in a particular case. For in Barenblatt v. United States the same majority made it clear that the 'balancing test' is to be applied to the facts of each particular case (360 U.S. 109, 79 S.Ct. 1093): 'Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.'9 (Emphasis supplied.) Thus the Court not only 'balances' the respective values of two competing policies as a general matter, but also 'balances' the wisdom of those policies in 'the particular circumstances shown.' Thus, the Court has reserved to itself the power to permit or deny abridgement of First Amendment freedoms according to its own view of whether repression or freedom is the wiser governmental policy under the circumstances of each case.
58
The effect of the Court's 'balancing' here is that any State may now reject an applicant for admission to the Bar if he believes in the Declaration of Independence as strongly as Anastaplo and if he is willing to sacrifice his career and his means of livelihood in defense of the freedoms of the First Amendment. But the men who founded this country and wrote our Bill of Rights were strangers neither to a belief in the 'right of revolution' nor to the urgency of the need to be free from the control of government with regard to political beliefs and associations. Thomas Jefferson was not disclaiming a belief in the 'right of revolution' when he wrote the Declaration of Independence. And Patrick Henry was certainly not disclaiming such a belief when he declared in impassioned words that have come on down through the years: 'Give me liberty or give me death.' This country's freedom was won by men who, whether they believed in it or not, certainly practiced revolution in the Revolutionary War.
59
Since the beginning of history there have been governments that have engaged in practices against the people so bad, so cruel, so unjust and so destructive of the individual dignity of men and women that the 'right of revolution' was all the people had left to free themselves. As simple illustrations, one government almost 2,000 years ago burned Christians upon fiery crosses and another government, during this very century, burned Jews in crematories. I venture the suggestion that there are countless multitudes in this country, and all over the world, who would join Anastaplo's belief in the right of the people to resist by force tyrranical governments like those.
60
In saying what I have, it is to be borne in mind that Anastaplo has not indicated, even remotely, a belief that this country is an oppressive one in which the 'right of revolution' should be exercised.10 Quite the contrary, the entire course of his life, as disclosed by the record, has been one of devotion and service to his country—first, in his willingness to defend its security at the risk of his own life in time of war and, later, in his willingness to defend its freedoms at the risk of his professional career in time of peace. The one and only time in which he has come into conflict with the Government is when he refused to answer the questions put to him by the Committee about his beliefs and associations. And I think the record clearly shows that conflict resulted, not from any fear on Anastaplo's part to divulge his own political activities, but from a sincere, and in my judgment correct, conviction that the preservation of this country's freedom depends upon adherence to our Bill of Rights. The very most that can fairly be said against Anastaplo's position in this entire matter is that he took too much of the responsibility of preserving that freedom upon himself.
61
This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that Anastaplo has many of the qualities that are needed in the American Bar.11 It shows, not only that Anastaplo has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost. It is such men as these who have most greatly honored the profession of the law—men like Malsherbes, who, at the cost of his own life and the lives of his family, sprang unafraid to the defense of Louis XVI against the fanatical leaders of the Revolutionary government of France12—men like Charles Evans Hughes, Sr., later Mr. Chief Justice Hughes, who stood up for the constitutional rights of socialists to be socialists and public officials despite the threats and clamorous protests of self-proclaimed superpatriots13—men like Charles Evans Hughes, Jr., and John W. Davis, who, while against everything for which the Communists stood, strongly advised the Congress in 1948 that it would be unconstitutional to pass the law then proposed to outlaw the Communist Party14—men like Lord Erskine, James Otis, Clarence Darrow, and the multitude of others who have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.
62
But that is the present trend, not only in the legal profession but in almost every walk of life. Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think.15 This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us. The choice is clear to me. If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free.
63
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE joins, dissenting.
64
I join Mr. Justice BLACK's dissent. I add only that I think the judgment must also be reversed on the authority of Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, for the reasons expressed in my dissent in Konigsberg v. State Bar of California, 366 U.S. at page 80, 81 S.Ct. at page 1022.
1
The Illinois procedure for admission to the bar was thus summarized by the State Supreme Court (3 Ill.2d 471, at pages 475 476, 121 N.E.2d 826, at page 829):
'In the exercise of its judicial power over the bar, and in discharge of its responsibility for the choice of personnel who will compose that bar, this court has adopted Rule 58, (Ill.Rev.Stat.1951, chap. 110, par. 259.58,) which governs admissions and provides, among other things, that applicants shall be admitted to the practice of law by this court after satisfactory examination by the Board of Examiners and certification of approval by a Committee on Character and Fitness. Section IX of the rule provides for the creation of such committees and imposes upon them the duty to examine applicants who appear before them for moral character, general fitness to practice law and good citizenship. Still another condition precedent to admission to practice law in this State, imposed by the legislature, is the taking of an oath to support the constitution of the United States and the constitution of the State of Illinois. (Ill.Rev.Stat.1951, chap. 13, par. 4.)'
2
On that occasion the State Supreme Court said (3 Ill.2d at page 480, 121 N.E.2d at page 831):
'It is our opinion, therefore, that a member of the Communist Party may, because of such membership, be unable truthfully and in good conscience to take the oath required as a condition for admission to practice, and we hold that it is relevant to inquire of an applicant as to his membership in that party. A negative answer to the question, if accepted as true, would end the inquiry on the point. If the truthfulness of a negative answer were doubted, further questions and information to test the varacity of the applicant would be proper. If an affirmative answer were received, further inquiry into the applicant's innocence or knowledge as to the subversive nature of the organization would be relevant. Under any hypothesis, therefore, questions as to membership in the Communist Party or known subversive 'front' organizations were relevant to the inquiry into petitioner's fitness for admission to the bar. His refusal to answer has prevented the committee from inquiring fully into his general fitness and good citizenship and justifies their refusal to issue a certificate.'
3
In remanding the matter to the Character Committee, the Illinois Supreme Court stated (see 18 Ill.2d, at page 186, 163 N.E.2d at page 431):
"The principal question presented by the petition for rehearing concerns the significance of the applicant's views as to the overthrow of government by force in the light of Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, and Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed. 1356. Additional questions presented concern the applicant's activities since his original application was denied, and his present reputation.
"We are of the opinion that the Committee should have allowed the petition for rehearing and heard evidence on these matters, and the Committee is requested to do so, and to report the evidence and its conclusions."
4
The proceedings consumed six hearing days, and resulted in a transcript of over 400 pages.
5
More particularly: petitioner was first asked routine questions about his personal history. He refused, on constitutional grounds, to answer whether he was affiliated with any church. He answered all questions about organizational relationships so long as he did not know that the organization was 'political' in character. He refused, on grounds of protected free speech and association, to answer whether he was a member of the Communist Party or of any other group named in the Attorney General's list of 'subversive' organizations, including the Ku Klux Klan and the Silver Shirts of America.
Much of the ensuing five sessions was devoted to discussion of Anastaplo's reasons for believing that inquiries into such matters were constitutionally privileged, and to an unjustifiable attempt, later expressly repudiated by the Committee, to delve into the consistency of petitioner's religious beliefs with an attorney's duty to take an oath of office.
A substantial part of the proceedings revolved around Anastaplo's views as to the right to revolt against tyrannical government, and the right to resist judicial decrees in exceptional circumstances.
6
Although the transcript of the prior Committee proceedings has not been made part of the record before us, it is evident that it contained nothing which affirmatively reflected unfavorably on petitioner's character or reputation.
7
See note 5, supra.
8
Two dissenting opinions were filed. Justice Bristow dissented on constitutional grounds. 18 Ill.2d at page 201, 163 N.E.2d at page 439. Justices Schaefer and Davis, joining in a single opinion, did not reach the constitutional questions 18 Ill.2d at page 224, 163 N.E.2d at page 928.
9
In its second opinion, the State Supreme Court stated (18 Ill.2d at page 188, 163 N.E.2d at page 432):
'The committee further advises us that it has conducted no independent investigation into Anastaplo's character, reputation or activities. For the very practical reason that the committee has no personnel or other resources for any such investigation, the committee states that it has traditionally asserted the view that it cannot be expected to carry the burden of establishing, by independent investigation, whether an applicant possesses the requisite character and fitness for admission to the bar and that a duty devolves upon the applicant to establish that he possesses the necessary qualifications and that it is then the duty of the committee to test, by hearings and questioning of the applicant, the worth of the evidence which he proffers. We agree, and have held that the discretion exercised by the Committee on Character and Fitness will not ordinarily be reviewed. In re Frank, 293 Ill. 263, 127 N.E. 640.'
10
The fact that in Konigsberg the materiality of questions relating to Communist Party membership rested directly on the existence of a California statute disqualifying from membership in the bar those advocating forcible overthrow of government, whereas here materiality stemmed from their bearing upon the likelihood that a bar applicant would observe as a lawyer the orderly processes that lie at the roots of this country's legal and political system, cf. Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115, is of course a circumstance of no significance.
11
Cf. Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; American Communications Ass'n CIO v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.
12
The Committee's majority report states:
'The Committee repeatedly warned the applicant that questions regarding Communist affiliation were viewed as important by the
Committee members and that his failure to respond to them could adversely affect his application for admission to the bar.'
The Illinois Supreme Court stated (18 Ill.2d at page 196, 163 N.E.2d at page 436):
'* * * no problem exists as to inadequate notice of the consequences of a refusal to answer; the applicant was specifically notified both by the Illinois Supreme Court in its opinion in 3 Ill.2d 471, 121 N.E.2d 826, and by the committee on rehearing that his continued refusal to answer might lead to the denial of his application.'
13
It was stated at one point in the Committee hearings: 'It has been pointed out before to you, that the mere fact that a question is asked does not indicate that other people would have asked or approved that question, nor does it indicate that any particular weight will be attached to the answer or failure to answer the question; do you understand?' It should be observed, however, that this remark, as was also the case with an earlier similar remark, was made in the context of questions involving petitioner's religious beliefs. See note 5, supra.
14
This aspect of Anastaplo's contention is based on the following episode relating to the Committee's Communist Party questions:
'Mr. Anastaplo: * * * I would like to find out exactly what this
entails. You are not suggesting that refusal to answer that question would per se block my admission to the bar?
'Commissioner Stephan: No, I am saying your refusal to answer that question as to whether you are a member of the Communist Party, could and might.
'Mr. Anastaplo: I see.
'Commissioner Stephan: To us, it is relevant to your character and fitness. If you should answer the question 'yes,' I am not at all sure that would end the inquiry. I think if you should answer it 'yes,' the committee should be entitled to probe further and find out what kind of Communist Party member the applicant might be, whether he is an active member, whether he is a dues-paying member, whether he is a policy-making member, whether he is an officer in a local group, or just what he is. So I would point out the seriousness of that issue to you at this time.
'Mr. Anastaplo: I assume that the committee does not care to state why this is a particularly serious issue with respect to me? I mean—I notice you say nothing about the Ku Klux Klan or the Silver Shirts of America, about which you have also asked with the same amount of emphasis up to this point, and which I have refused to answer for the same reasons. Would you care to indicate why you say this about this question and not about the other ones?
'Commissioner Stephan: I think there is an easy answer to that. This committee has not come into being—this committee cannot completely ignore the history of this proceeding.
'Commissioner _ _: But the history includes that question, and that question has been before two of the high courts of the country.
'Commissioner Stephan: Whatever the relevance of other questions, we consider that one quite relevant.'
15
The particular importance which the Committee attached to its Communist Party questions was still further brought home to Anastaplo by the fact that after this Court's decisions in Beilan v. Board of Public Education, etc., 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414, and Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423, had come down, the Committee wrote Anastaplo specifically drawing his attention to them.
16
We find it difficult to understand how it can be seriously suggested, as it further is, that petitioner was put off guard by the fact that instead of standing on petitioner's mere refusal to answer such questions, the Committee proceeded to interrogate him widely. Not only are subsequent events generally irrelevant to an earlier warning, but a large part of the questioning which Anastaplo now complains led him astray was in fact devoted to exploring the bearing of these questions on his fitness for admission to the bar and his reasons for declining to answer them.
17
Both the Committee's report and the State Supreme Court's opinion make it apparent that this area of Anastaplo's views played no part in his exclusion from the bar. See 366 U.S. at pages 86—88, 81 S.Ct. at pages 981—982, supra; 18 Ill.2d at page 188, 163 N.E.2d at page 432.
18
This of course could hardly be so in the context of the illustrations which Anastaplo gave of his views as to when a right to resist might arise. These were: Nazi Germany; Hungary during the 1956 revolt against Russia; a hypothetical decree of this Court establishing 'some dead pagan religion as the official religion of the country * * *'; a capital sentence of Jesus Christ. Asked to give a more realistic instance of when resistance would be proper, Anastaplo summarized: 'I know of no decree, off hand, in the history of American government, where such a single instance has occurred. No—I grant that it is hard to find these instances. I think it is important to insist that there might be such instances.' Nothing in the State Court's opinion remotely suggests its approbation of these views of 'certain' Committee members.
19
Supra, 366 U.S. at pages 86—88, 81 S.Ct. at pages 981 982.
20
Apart from anything else, there is of course no room under our Rules for the suggestion made in petitioner's brief that he be admitted to the Bar of this Court, 'independently of the action Illinois might be induced to take.' See Rule 5, Revised Rules of this Court, 28 U.S.C.A.
1
As the majority points out, the record in the first series of hearings, which culminated in a denial of certiorari by this Court (348 U.S. 946, 75 S.Ct. 439, 99 L.Ed. 740), is not a part of the record in this case but we take judicial notice of it. National Fire Ins. Co. of Hartford v. Thompson, 281 U.S. 331, 336, 50 S.Ct. 288, 290, 74 L.Ed. 881, and cases cited there.
2
'We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.'
3
The following excerpt from the record of the first hearing indicates clearly the connection between Anastaplo's views on the 'right of revolution' and the questions subsequently asked him about his 'possible' political associations:
'Commissioner Mitchell: When you say 'believe in revolution,' you don't limit that revolution to an overthrow of a particular political party or a political government by means of an election process or other political means?
'Mr. Anastaplo: I mean actual use of force.
'Commissioner Mitchell: You mean to go as far as necessary?
'Mr. Anastaplo: As far as Washington did, for instance.
'Commissioner Mitchell: So that would it be fair to say that you believe the end result would justify any means that were used?
'Mr. Anastaplo: No, the means proportionate to the particular end in sight.
'Commissioner Mitchell: Well, is there any difference from your answer and my question?
'Mr. Anastaplo: Did you ask—
'Commissioner Mitchell: I asked you whether you thought that you believe that if a change, or overthrow of the government were justified, that any means could be used to accomplish that end.
'Mr. Anastaplo: Now, let's say in this positive concrete situation—I am not quite sure what it means in abstract.
'Commissioner Mitchell: I will ask you in detail. You believe
that assuming the government should be overthrown, in your opinion, that you and others of like mind would be justified in raising a company of men with military equipment and proceed to take over the government of the United States, of the State of Illinois?
'By shaking your head do you mean yes?
'Mr. Anastaplo: If you get to the point where overthrow is necessary, then overthrow is justified. It just means that you overthrow the government by force.
'Commissioner Mitchell: And would that also include in your mind justification for putting a spy into the administrative department, one or another of the administrative departments of the United States or the government of the State of Illinois?
'Mr. Anastaplo: If you got to the point you think the government should be overthrown, I think that would be a legitimate means.
'Commissioner Mitchell: There isn't any difference in your mind in the propriety of using a gun or using a spy?
'Mr. Anastaplo: I think spies have been used in quite honorable causes.
'Commissioner Mitchell: Your answer is, you do think so?
'Mr. Anastaplo: Yes.
'Commissioner Baker: Let me ask you a question. Are you aware of the fact that the Department of Justice has a list of what are described as subversive organizations?
'Mr. Anastaplo: Yes.
'Commissioner Baker: Have you ever seen that list?
'Mr. Anastaplo: Yes.
'Commissioner Baker: Are you a member of any organization that is listed on the Attorney General's list, to your knowledge? (No answer.) Just to keep you from having to work so hard mentally on it, what organizations—give me all the organizations you are affiliated with or are a member of. (No answer.) That oughtn't to be too hard.
'Mr. Anastaplo: Do you believe that is a legitimate question?
'Commissioner Baker: Yes, I do. We are inquiring into not only your character, but your fitness, under Rule 58. We don't compel you to answer it. Are you a member of the Communist Party?'
4
As the majority points out, the Committee eventually did expressly disavow any right to insist upon an answer to this question. This came at the end of a long disagreement between Anastaplo and certain members of the Committee with respect to the vitality of an old Illinois decision which indicated that a belief in God might be necessary in order to take an oath to testify. The Committee's abandonment of the point came only after Anastaplo produced a more recent Illinois case disapproving the earlier decision. It is interesting to note that neither of the Committee members who had expressed such a strong interest in knowing whether Anastaplo believes in God voted in favor of his certification.
5
The record shows that although Anastaplo repeatedly requested that the Committee allow him to see any reports that resulted from these independent investigations, the Committee, without denying that such reports existed, refused to produce them.
6
Konigsberg v. State Bar of California, 366 U.S. 36, 52, 81 S.Ct. 997, 1008, 6 L.Ed.2d 105, which the majority here relies upon as also having settled the issue in this case.
7
These remarks were made by Anastaplo in his closing argument before the Committee. He also introduced evidence to the Committee that he had earlier expressed similar views in a book review published in 1954. See Anastaplo, Review: Drinker, Legal Ethics, 14 Law. Guild Rev. 144.
8
I think the majority has once again misapplied its own 'balancing test,' for the interest it purports to 'balance' are no more at stake here than in Konigsberg. Moreover, it seems clear to me that Illinois, like California, is placing the burden of proof upon applicants for the Bar to prove they do not advocate the overthrow of the Government. Thus the decision here, like that in Konigsberg, is contrary to Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460.
9
360 U.S. 109, 126, 79 S.Ct. 1081, 1093, 3 L.Ed.2d 1115. The majority in Barenblatt then proceeded to 'balance' those interests on the basis of the particular record of that case. Id., 360 U.S. at pages 127—134, 79 S.Ct. at pages 2093—1097.
10
Anastaplo's belief in the 'right of revolution,' as disclosed by this record, is no different from that expressed by Professor Chafee: 'Most of us believe that our Constitution makes it possible to change all bad laws through political action. We ought to disagree vehemently with those who urge violent methods, and whenever necessary take energetic steps to prevent them from putting such methods into execution. This is a very different matter from holding that all discussion of the desirability of resorting to violence for political purposes should be ruthlessly stamped out. There is not one among us who would not join a revolution if the reason for it be made strong enough.' Chafee, Free Speech in the United States 178 (Harvard University Press, 1942).
11
For a similar case, see In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795, in which a 5—4 majority of this Court upheld an informal order of the Illinois Supreme Court denying Bar admission to Clyde W. Summers on the ground that his religious beliefs were inconsistent with the Illinois Constitution.
12
At the time of his decision to volunteer his services in defense of Louis XVI, Malsherbes, a man of more than seventy, was apparently completely safe from the post-revolutionary blood bath which then enveloped France. For, although active in public life prior to the Revolution, he had always been a friend of the people and, in any case, he had largely passed out of the public mind with his retirement some years earlier. Within a year of his unsuccessful defense of the life of France's former king, however, he, together with his entire family, was convicted by a revolutionary tribunal on the vague charge of conspiracy against 'the safety of the State and the unity of the Republic.' Malsherbes was then taken to the guillotine where, after being forced to witness the beheading of the other members of his family, he paid with his life for his courage as a lawyer. This story has been interestingly told by John W. Davis. See Davis, The Lawyers of Louis XVI, in The Lawyer, April 1942, p. 5, at 6—13.
13
The story of Hughes' participation in the fight against the action of the New York Legislature in suspending five of its members in 1920 on the ground that they were socialists is told in John Lord O'Brian, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev. 592, 593—594.
14
See Barenblatt v. United States, 360 U.S. 109, 147—148 (dissenting opinion), 79 S.Ct. 1081, 1103—1104.
15
See, e.g., Barsky v. Board of Regents, etc., 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829; Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 2 L.Ed.2d 1460; Uphaus v. Wyman, 364 U.S. 388; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584; Konigsberg v. State Bar of California, supra.
| 23
|
366 U.S. 36
81 S.Ct. 997
6 L.Ed.2d 105
Raphael KONIGSBERG, Petitioner,v.STATE BAR OF CALIFORNIA and the Committee of Bar Examiners of the State of California.
No. 28.
Argued Dec. 14, 1960.
April 24, 1961.
Mr. Edward Mosk, Hollywood, Cal., for petitioner.
Mr. Frank B. Belcher, Los Angeles, Cal., for respondents.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case, involving California's second rejection of petitioner's application for admission to the state bar, is a sequel to Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, in which this Court reversed the State's initial refusal of his application.
2
Under California law the State Supreme Court may admit to the practice of law any applicant whose qualifications have been certified to it by the California Committee of Bar Examiners. Cal.Bus. & Prof.Code § 6064. To qualify for certification an applicant must, among other things, be of 'good moral character,' id., § 6060(c), and no person may be certified 'who advocates the overthrow of the Government of the United States or of this State by force, violence, or other unconstitutional means * * *.' Id., § 6064.1. The Committee is empowered and required to ascertain the qualifications of all candidates. Id., § 6046. Under rules prescribed by the Board of Governors of the State Bar, an applicant before the Committee has 'the burden of proving that he is possessed of good moral character, of removing any and all reasonable suspicion of moral unfitness, and that he is entitled to the high regard and confidence of the public.' Id., Div. 3, c. 4, Rule X, § 101. Any applicant denied certification may have the Committee's action reviewed by the State Supreme Court. Id., § 6066.
3
In 1953 petitioner, having successfully passed the California bar examinations, applied for certification for bar membership. The Committee, after interrogating Konigsberg and receiving considerable evidence as to his qualifications, declined to certify him on the ground that he had failed to meet the burden of proving his eligibility under the two statutory requirements relating to good moral character and nonadvocacy of violent overthrow. That determination centered largely around Konigsberg's repeated refusals to answer Committee questions as to his present or past membership in the Communist Party.1 The California Supreme Court denied review without opinion. See 52 Cal.2d 769, 770, 344 P.2d 777, 778.
4
On certiorari this Court, after reviewing the record, held the state determination to have been without rational support in the evidence and therefore offensive to the Due Process Clause of the Fourteenth Amendment. Konigsberg v. State Bar of California, supra. At the same time the Court declined to decide whether Konigsberg's refusals to answer could constitutionally afford 'an independent ground for exclusion from the Bar,' considering that such an issue was not before it. Id., 353 U.S. 259—262, 77 S.Ct. 726—727. The case was remanded to the State Supreme Court 'for further proceedings not inconsistent with this opinion.' Id., 353 U.S. 274, 77 S.Ct. 734.
5
On remand petitioner moved the California Supreme Court for immediate admission to the bar. The court vacated its previous order denying review and referred the matter to the Bar Committee for further consideration. At the ensuing Committee hearings Konigsberg introduced further evidence as to his good moral character (none of which was rebutted), reiterated unequivocally his disbelief in violent overthrow, and stated that he had never knowingly been a member of any organization which advocated such action. He persisted, however, in his refusals to answer any questions relating to his membership in the Communist Party. The Committee again declined to certify him, this time on the ground that his refusals to answer had obstructed a full investigation into his qualifications.2 The California Supreme Court, by a divided vote, refused review, and also denied Konigsberg's motion for direct admission to practice.3 52 Cal.2d 769, 344 P.2d 777. We again brought the case here. 362 U.S. 910, 80 S.Ct. 661, 4 L.Ed.2d 618.
6
Petitioner's contentions in this Court in support of reversal of the California Supreme Court's order are reducible to three propositions: (1) the State's action was inconsistent with this Court's decision in the earlier Konigsberg case; (2) assuming the Committee's inquiries into Konigsberg's possible Communist Party membership were permissible, it was unconstitutionally arbitrary for the State to deny him admission because of his refusals to answer; and (3) in any event, Konigsberg was constitutionally justified in refusing to answer these questions.
I.
7
Consideration of petitioner's contentions as to the effect of this Court's decision in the former Konigsberg case requires that there be kept clearly in mind what is entailed in California's rule, comparable to that in many States, that an applicant for admission to the bar bears the burden of proof of 'good moral character'4—a requirement whose validity is not, nor could well be, drawn in question here.5
8
Under such a rule an applicant must initially furnish enough evidence of good character to make a prima facie case. The examining Committee then has the opportunity to rebut that showing with evidence of bad character. Such evidence may result from the Committee's own independent investigation, from an applicant's responses to questions on his application form, or from Committee interrogation of the applicant himself. This interrogation may well be of decisive importance for, as all familiar with bar admission proceedings know, exclusion of unworthy candidates frequently depends upon the thoroughness of the Committee's questioning, revealing as it may infirmities in an otherwise satisfactory showing on his part. This is especially so where a bar committee, as is not infrequently the case, has no means of conducting an independent investigation of its own into an applicant's qualifications. If at the conclusion of the proceedings the evidence of good character and that of bad character are found in even balance, the State may refuse admission to the applicant, just as in an ordinary suit a plaintiff may fail in his case because he has not met his burden of proof.
9
In the first Konigsberg case this Court was concerned solely with the question whether the balance between the favorable and unfavorable evidence as to Konigsberg's qualifications had been struck in accordance with the requirements of due process. It was there held, first, that Konigsberg had made out a prima facie case of good character and of nonadvocacy of violent overthrow, and, second, that the other evidence in the record could not, even with the aid of all reasonable inferences flowing therefrom, cast such doubts upon petitioner's prima facie case as to justify any finding other than that these two California qualification requirements had been satisfied.6 In assessing the significance of Konigsberg's refusal to answer questions as to Communist Party membership, the Court dealt only with the fact that this refusal could not provide any reasonable indication of a character not meeting these two standards for admission. The Court did not consider, but reserved for later decision, all questions as to the permissibility of the State treating Konigsberg's refusal to answer as a ground for exclusion, not because it was evidence from which substantive conclusions might be drawn, but because the refusal had thwarted a full investigation into his qualifications. See 353 U.S. at pages 259—262, 77 S.Ct. at pages 726—728. The State now asserts that ground for exclusion, an issue that is not foreclosed by anything in this Court's earlier opinion which decided a quite different question.
10
It is equally clear that the State's ordering of the rehearing which led to petitioner's exclusion manifested no disrespect of the effect of the mandate in that case, which expressly left the matter open for further state proceedings 'not inconsistent with' the Court's opinion. There is no basis for any suggestion that the State in so proceeding has adopted unusual or discriminatory procedures to avoid the normal consequences of this Court's earlier determination. In its earlier proceeding, the California Bar Committee may have found further investigation and questioning of petitioner unnecessary when, in its view, the applicant's prima facie case of qualifications had been sufficiently rebutted by evidence already in the record. While in its former opinion this Court held that the State could not constitutionally so conclude, it did not undertake to preclude the state agency from asking any questions or from conducting any investigation that it might have thought necessary had it known that the basis of its then decision would be overturned. In recalling Konigsberg for further testimony, the Committee did only what this Court has consistently held that federal administrative tribunals may do on remand after a reviewing court has set aside agency orders as unsupported by requisite findings of fact. Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656; Fly v. Heitmeyer, 309 U.S. 146, 60 S.Ct. 443, 84 L.Ed. 664.
11
In the absence of the slightest indication of any purpose on the part of the State to evade the Court's prior decision, principles of finality protecting the parties to this state litigation are, within broad limits of fundamental fairness, solely the concern of California law. Such limits are broad even in a criminal case, see Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335; Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913; cf. Palko v. State of Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 153, 82 L.Ed. 288. In this instance they certainly have not been transgressed by the State's merely taking further action in this essentially administrative type of proceeding.7
II.
12
We think it clear that the Fourteenth Amendment's protection against arbitrary state action does not forbid a State from denying admission to a bar applicant so long as he refuses to provide unprivileged answers to questions having a substantial relevance to his qualifications. An investigation of this character, like a civil suit, requires procedural as well as substantive rules. It is surely not doubtful that a State could validly adopt an administrative rule analogous to Rule 37(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which provides that that refusal, after due warning, to answer relevant questions may result in 'the matters regarding which the questions were asked' being considered for the purposes of the proceeding to be answered in a way unfavorable to the refusing party, or even that such refusal may result in 'dismissing the action or proceeding' of the party asking affirmative relief.
13
The state procedural rule involved here is a less broad one, for all that California has in effect said is that in cases where, on matters material to an applicant's qualifications, there are gaps in the evidence presented by him which the agency charged with certification considers should be filled in the appropriate exercise of its responsibilities, an applicant will not be admitted to practice unless and until he cooperates with the agency's efforts to fill those gaps. The fact that this rule finds its source in the supervisory powers of the California Supreme Court over admissions to the bar, rather than in legislation, is not constitutionally significant. Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254. Nor in the absence of a showing of arbitrary or discriminatory application in a particular case, is it a matter of federal concern whether such a rule requires the rejection of all applicants refusing to answer material questions, or only in instances where the examining committee deems that a refusal has materially obstructed its investigation. Compare Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414, with Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494.
14
In the context of the entire record of these proceedings,8 the application of the California rule in this instance cannot be said to be arbitrary or discriminatory. In the first Konigsberg case this Court held that neither the somewhat weak but uncontradicted testimony, that petitioner had been a Communits Party member in 1941, nor his refusal to answer questions relating to Party membership, could rationally support any substantive adverse inferences as to petitioner's character qualifications, 353 U.S. at pages 266—274, 77 S.Ct. at pages 729—734. That was not to say, however, that these factors, singly or together, could not be regarded as leaving the investigatory record in sufficient uncertainty as constitutionally to permit application of the procedural rule which the State has now invoked, provided that Konigsberg had been first given due warning of the consequences of his continuing refusal to respond to the Committeee's questions. Cf. 353 U.S. at page 261, 77 S.Ct. at page 727.
15
It is no answer to say that petitioner has made out a prima facie case of qualifications, for this is precisely the posture of a proceeding in which the Committee's right to examine and cross-examine becomes significant. Assuming, as we do for the moment, that there is no privilege here to refuse to answer, petitioner could no more insist that his prima facie case makes improper further questioning of him than he could insist that such circumstance made improper the introduction of other forms of rebutting evidence.
16
We likewise regard as untenable petitioner's contentions that the questions as to Communist Party membership were made irrelevant either by the fact that bare, innocent membership is not a ground of disqualification or by petitioner's willingness to answer such ultimate questions as whether he himself believed in violent overthrow or knowingly belonged to an organization advocating violent overthrow. The Committee Chairman's answer to the former contention was entirely correct:
17
'If you answered the question, for example, that you had been a member of the Communist Party during some period since 1951 or that you were presently a member of the Communist Party, the Committee would then be in a position to ask you what acts you engaged in to carry out the functions and purposes of that party, what the aims and purposes of the party were, to your knowledge, and questions of that type. You see by failing to answer the initial question there certainly is no basis and no opportunity for us to investigate with respect to the other matters to which the initial question might very well be considered preliminary.'
18
And the explanation given to petitioner's counsel by another Committee member as to why Konigsberg's testimony about ultimate facts was not dispositive was also sound:
19
'Mr. Mosk, you realize that if Mr. Konigsberg had answered the question that he refused to answer, an entirely new area of investigation might be opened up, and this Committee might be able to ascertain from Mr. Konigsberg that perhaps he is now and for many years past has been an active member of the Communist Party, and from finding out who his associates were in that enterprise we might discover that he does advocate the overthrow of this government by force and violence. I am not saying that he would do that, but it is a possibility, and we don't have to take any witness' testimony as precluding us from trying to discover it he is telling the truth. That is the point.'
20
Petitioner's further miscellaneous contentions that the State's exclusion of him was capricious are all also insubstantial.9
21
There remains the question as to whether Konigsberg was adequately warned of the consequences of his refusal to answer. At the outset of the renewed hearings the Chairman of the Committee stated:
22
'As a result of our two-fold purpose (to investigate and reach determinations), particularly our function of investigation, we believe it will be necessary for you, Mr. Konigsberg, to answer our material questions or our investigation will be obstructed. We would not then as a result be able to certify you for admission.'
23
After petitioner had refused to answer questions on Communist Party membership, the Chairman asked:
24
'Mr. Konigsberg, I think you will recall that I initially advised you a failure to answer our material questions would obstruct our investigation and result in our failure to certify you. With this in mind do you wish to answer any of the questions which you heretofore up to now have refused to answer?'
25
At the conclusion of the proceeding another Committee member stated:
26
'I would like to make this statement so that there will be no misunderstanding on the part of any court that may review this record in the future, that I feel that as a member of the Committee that the failure of Mr. Konigsberg to answer the question as to whether or not he is now a member of the Communist Party is an obstruction of the function of this Committee, not a frustration if that word has been used. I think it would be an obstruction. There are phases of his moral character that we haven't been able to investigate simply because we have been stopped at this point, and I for one could not certify to the Supreme Court that he was a proper person to be admitted to practice law in this State until he answers the question about his Communist affiliation.'
27
The record thus leaves no room for doubt on the score of 'warning,' and petitioner does not indeed contend to the contrary.
III.
28
Finally, petitioner argues that, in any event, he was privileged not to respond to questions dealing with Communist Party membership because they unconstitutionally impinged upon rights of free speech and association protected by the Fourteenth Amendment.
29
At the outset we reject the view that freedom of speech and association (N.A.A.C.P. v. State of Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488), as protected by the First and Fourteenth Amendments, are 'absolutes,' not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.10 Throughout its history this Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk. On the one hand, certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection.11 See, e.g., Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. On the other hand, general argulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. See, e.g., Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; 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; American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233. It is in the latter class of cases that this Court has always placed rules compelling disclosure of prior association as an incident of the informed exercise of a valid governmental function. Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480. Whenever, in such a context, these constitutional protections are asserted against the exercise of valid governmental powers a reconciliation must be efected, and that perforce requires an appropriate weighing of the respective interests involved. Watkins v. United States, 354 U.S. 178, 198, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273; N.A.A.C.P. v. State of Alabama, supra; Barenblatt v. United States, 360 U.S. 109, 126—127, 79 S.Ct. 1081, 1092—1093, 3 L.Ed.2d 1115; Bates v. City of Little Rock, supra; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653. With more particular reference to the present context of a state decision as to character qualifications, it is difficult, indeed, to imagine a view of the constitutional protections of speech and association which would automatically and without consideration of the extent of the deterrence of speech and association and of the importance of the state function, exclude all reference to prior speech or association on such issues as character, purpose, credibility, or intent. On the basis of these considerations we now judge petitioner's contentions in the present case.
30
Petitioner does not challenge the constitutionality of § 6064.1 of the California Business and Professions Code forbidding certification for admission to practice of those advocating the violent overthrow of government. It would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country's legal and political institutions. Cf. Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L..ed. 1317. Nor is the state interest in this respect insubstantially related to the right which California claims to inquire about Communist Party membership. This Court has long since recognized the legitimacy of a statutory finding that membership in the Communist Party is not unrelated to the danger of use for such illegal ends of powers given for limited purposes. See American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; see also Barenblatt v. United States, 360 U.S. 109, 128—129, 79 S.Ct. 1081, 1093—1094, 3 L.Ed.2d 1115; cf. Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653.
31
As regards the questioning of public employees relative to Communist Party membership it has already been held that the interest in not subjecting speech and association to the deterrence of subsequent disclosure is outweighed by the State's interest in ascertaining the fitness of the employee for the post he holds, and hence that such questioning does not infringe constitutional protections. Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317. With respect to this same question of Communist Party membership, we regard the State's interest in having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change, as clearly sufficient to outweigh the minimal effect upon free association occasioned by compulsory disclosure in the circumstances here presented.
32
There is here no likelihood that deterrence of association may result from foreseeable private action, see N.A.A.C.P. v. State of Alabama, supra, 357 U.S. at page 462, 78 S.Ct. at page 1171, for bar committee interrogations such as this are conducted in private. See Rule 58, Section X, Rules of Practice and Procedure of the Supreme Court of Illinois, S.H.A. ch. 110, § 101.58, Section 10; cf. Cal.Bus. & Prof.Code, Rules of Procedure of the State Bar of California, Rule 8; Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 291—292, 79 S.Ct. 1157, 1159—1160, 3 L.Ed.2d 1234. Nor is there the possibility that the State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association, see Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231, for a bar applicant's exclusion by reason of Communist Party membership is subject to judicial review, including ultimate review by this Court, should it appear that such exclusion has rested on substantive or procedural factors that do not comport with the Federal Constitution. See Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810; Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; cf. Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. In these circumstances it is difficult indeed to perceive any solid basis for a claim of unconstitutional intrusion into rights assured by the Fourteenth Amendment.
33
If this were all there was to petitioner's claim of a privilege to refuse to answer, we would regard the Beilan case as controlling. There is, however, a further aspect of the matter. In Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, we held unconstitutional a state procedural rule that in order to obtain an exemption a taxpayer must bear the burden of proof, including both the burdens of establishing a prima facie case and of ultimate persuasion, that he did not advocate the violent overthrow of government. We said (357 U.S. at page 526, 78 S.Ct. at page 1342):
34
'The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding—inherent in all litigation—will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. This is especially to be feared when the complexity of the proofs and the generality of the standards applied, cf. Dennis v. United States, supra, provide but shifting sands on which the litigant must maintain his position. How can a claimant whose declaration is rejected possibly sustain the burden of proving the negative of these complex factual elements? In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.'
35
It would be a sufficient answer to any suggestion of the applicability of that holding to the present proceeding to observe that Speiser was explicitly limited so as not to reach cases where, as here, there is no showing of an intent to penalize political beliefs. Distinguishing Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Gerende v. Board of Supervisors of Elections of Baltimore City, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745, and American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, the Court said (357 U.S. at page 527, 78 S.Ct. at page 1343):
36
'In these cases * * * there was no attempt directly to control speech but rather to protect, from an evil shown to be grave, some interest clearly within the sphere of governmental concern. * * * Each case concerned a limited class of persons in or aspiring to public positions by virtue of which they could, if evilly motivated, create serious danger to the public safety. The principal aim of those statutes was not to penalize political beliefs but to deny positions to persons supposed to be dangerous because the position might be misused to the detriment of the public.' But there are also additional factors making the rationale of Speiser inapplicable to the case before us. There is no unequivocal indication that California in this proceeding has placed upon petitioner the burden of proof of nonadvocacy of violent overthrow, as distinguished from its other requirement of 'good moral character.'12 All it has presently required is an applicant's cooperation with the Committee's search for evidence of forbidden advocacy. Petitioner has been denied admission to the California bar for obstructing the Committee in the performance of its necessary functions of examination and cross-examination, a ruling which indeed presupposes that the burden of producing substantial evidence on the issue of advocacy was not upon petitioner but upon the Committee. Requiring a defendant in a civil proceeding to testify or to submit to discovery has never been thought to shift the burden of proof to him. Moreover, when this Court has allowed a State to comment upon a criminal defendant's failure to testify it has been careful to note that this does not result in placing upon him the burden of proving his innocence. Adamson v. People of State of California, 332 U.S. 46, 58, 67 S.Ct. 1672, 1679, 91 L.Ed. 1903.
37
In contrast to our knowledge with respect to the burden of establishing a prima facie case, we do not now know where, under California law, would rest the ultimate burden of persuasion on the issue of advocacy of violent overthrow. But it is for the Supreme Court of California first to decide this question. Only if and when that burden is placed by the State upon a bar applicant can there be drawn in question the distinction made in the Speiser case between penalizing statutes and those merely denying access to positions where unfitness may lead to the abuse of state-given powers or privileges. The issue is not now before us.
38
Thus as matters now stand, there is nothing involved here which is contrary to the reasoning of Speiser, for despite compelled testimony the prospective bar applicant need not 'steer far wider of the unlawful zone' (357 U.S. at page 526, 78 S.Ct. at page 1342) for fear of mistaken judgment or fact finding declaring unlawful speech which is in fact protected by the Constitution. This is so as to the ultimate burden of persuasion for, notwithstanding his duty to testify, the loss resulting from a failure of proof may, for all we now know, still fall upon the State. It is likewise so as to the initial burden of production, for there is no indication in the proceeding on rehearing of petitioner's application that the Bar Committee expected petitioner to 'sustain the burden of proving the negative' (357 U.S. at page 526, 78 S.Ct. at page 1342) of those complex factual elements which amount to forbidden advocacy of violent overthrow. To the contrary it is clear that the Committee had assumed the burden of proving the affirmative of those elements, but was prevented from attempting to discharge that burden by petitioner's refusal to answer relevant questions.
39
The judgment of the Supreme Court of California is affirmed.
40
Affirmed.
41
Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
42
When this case was here before, we reversed a judgment of the California Supreme Court barring the petitioner Konigsberg from the practice of law in that State on the ground that he had failed to carry the burden of proving his good moral character and that he did not advocate forcible overthrow of the Government. In doing so, we held that there was 'no evidence in the record' which could rationally justify such a conclusion.1 Upon remand, the Supreme Court of California referred the matter back to the Committee of State Bar Examiners for further hearings, at which time Konigsberg presented even more evidence of his good character. The Committee produced no evidence whatever which tended in the slightest degree to reflect upon the good character and patriotism which we had already held Konigsberg to have established. The case is therefore now before us with the prior adjudication that Konigsberg possesses the requisite good character and patriotism for admission to the Bar unimpaired.
43
What the Committee did do upon remand was to repeat the identical questions with regard to Konigsberg's suspected association with Communists twenty years ago that it had asked and he had refused to answer at the first series of hearings. Konigsberg again refused to answer these questions and the Committee again refused to certify him as fit for admission to the Bar, this time on the ground that his refusal to answer had obstructed the required investigation into his qualifications, a ground subsequently adopted by a majority of the Supreme Court of that State.2
44
Thus, California purports to be denying Konigsberg admission to its Bar solely on the ground that he has refused to answer questions put to him by the Committee of Bar Examiners. But when the case was here before, we observed: 'There is nothing in the California statutes, the California decisions, or even in the Rules of the Bar Committee, which has been called to our attention, that suggests that failure to answer a Bar Examiner's inquiry is, ipso facto, a basis for excluding an applicant from the Bar, irrespective of how overwhelming is his showing of good character or loyalty or how flimsy are the suspicions of the Bar Examiners.'3 And we have been pointed to no subsequent California statutes, rules, regulations or court decisions which require or even permit rejection of a lawyer's application for admission solely because he refuses to answer questions.4 In this situation, it seems to me that Konigsberg has been rejected on a ground that is not supported by any authoritatively declared rule of law for the State of California.5 This alone would be enough for me to vote to reverse the judgment. There are other reasons, however.
45
Konigsberg's objection to answering questions as to whether he is or was a member of the Communist Party has, from the very beginning, been based upon the contention that the guarantees of free speech and association of the First Amendment as made controlling upon the States by the Fourteenth Amendment preclude California from denying him admission to its Bar for refusing to answer such questions. In this I think Konigsberg has been correct. California has apparently not even attempted to make actual present membership in the Communist Party a bar to the practice of law, and even if it had, I assume it would not be contended that such a law could be applied to conduct that took place before the law was passed. For such an application would, I think, not only be a clear violation of the ex post facto provision of the Federal Constitution, but would also constitute a bill of attainder squarely within this Court's holdings in Cummings v. State of Missouri6 and Ex parte Garland.7 And yet it seems to me that this record shows, beyond any shadow of a doubt, that the reason Konigsberg has been rejected is because the Committee suspects that he was at one time a member of the Communist Party.8 I agree with the implication of the majority opinion that this is not an adequate ground to reject Konigsberg and that it could not be constitutionally defended.9
46
The majority avoids the otherwise unavoidable necessity of reversing the judgment below on that ground by simply refusing to look beyond the reason given by the Committee to justify Konigsberg's rejection. In this way, the majority reaches the question as to whether the Committee can constitutionally reject Konigsberg for refusing to answer questions growing out of his conjectured past membership in the Communist Party even though it could not constitutionally reject him if he did answer those questions and his answers happened to be affirmative. The majority then goes on to hold that the Committee, by virtue of its power to reject applicants who advocate the violent overthrow of the Government, can reject applicants who refuse to answer questions in any way related to that fact, even though the applicant has sworn under oath that he does not advocate violent overthrow of the Government and even though, as the majority concedes, questions as to the political associations of an applicant subject 'speech and association to the deterrence of subsequent disclosure.' I cannot agree with that holding.
47
The recognition that California has subjected 'speech and association to the deterrence of subsequent disclosure' is, under the First Amendment, sufficient in itself to render the action of the State unconstitutional unless one subscribes to the doctrine that permits constitutionally protected rights to be 'balanced' away whenever a majority of this Court thinks that a State might have interest sufficient to justify abridgment of those freedoms. As I have indicated many times before,10 I do not subscribe to that doctrine for I believe that the First Amendment's unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the 'balancing' that was to be done in this field. The history of the First Amendment is too well known to require repeating here except to say that it certainly cannot be denied that the very object of adopting the First Amendment, as well as the other provisions of the Bill of Rights, was to put the freedoms protected there completely out of the area of any congressional control that may be attempted through the exercise of precisely those powers that are now being used to 'balance' the Bill of Rights out of existence.11 Of course, the First Amendment originally applied only to the Federal Government and did not apply to the States. But what was originally true only of Congress is now no less true with respect to the governments of the States, unless a majority of this Court wants to overrule a large number of cases in which it has been held unequivocally that the Fourteenth Amendment made the First Amendment's provisions controlling upon the States.12
48
The Court attempts to justify its refusal to apply the plain mandate of the First Amendment in part by reference to the so-called 'clear and present danger test' forcefully used by Mr. Justice Holmes and Mr. Justice Brandeis, not to narrow but to broaden the then prevailing interpretation of First Amendment freedoms.13 I think very little can be found in anything they ever said that would provide support for the 'balancing test' presently in use. Indeed, the idea of 'balancing' away First Amendment freedoms appears to me to be wholly inconsistent with the view, strongly espoused by Justices Holmes and Brandeis, that the best test of truth is the power of the thought to get itself accepted in the competition of the market.14 The 'clear and present danger test' was urged as consistent with this view in that it protected speech in all cases except those in which danger was so imminent that there was no time for rational discussion.15 The 'balancing test,' on the other hand, rests upon the notion that some ideas are so dangerous that Government need not restrict itself to contrary arguments as a means of opposing them even where there is ample time to do so. Thus here, where there is not a semblance of a 'clear and present danger,' and where there is more than ample time in which to combat by discussion any idea which may be involved, the majority permits the State of California to adopt measures calculated to suppress the advocacy of views about governmental affairs.
49
I recognize, of course, that the 'clear and present danger test,' though itself a great advance toward individual liberty over some previous notions of the protections afforded by the First Amendment,16 does not go as far as my own views as to the protection that should be accorded these freedoms. I agree with Justices Holmes and Brandeis, however, that a primary purpose of the First Amendment was to insure that all ideas would be allowed to enter the 'competition of the market.' But I fear that the creation of 'tests' by which speech is left unprotected under certain circumstances is a standing invitation to abridge it. This is nowhere more clearly indicated than by the sudden transformation of the 'clear and present danger test' in Dennis v. United States. In that case, this Court accepted Judge Learned Hand's 'restatement' of the 'clear and present danger test': 'In each case (courts) must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.'17 After the 'clear and present danger test' was diluted and weakened by being recast in terms of this 'balancing' formula, there seems to me to be much room to doubt that Justices Holmes and Brandeis would even have recognized their test. And the reliance upon that weakened 'test' by the majority here, without even so much as an attempt to find either a 'clear' or a 'present' danger, is only another persuasive reason for rejecting all such 'tests' and enforcing the First Amendment according to its terms.
50
The Court suggests that a 'literal reading of the First Amendment' would be totally unreasonable because it would invalidate many widely accepted laws. I do not know to what extent this is true. I do not believe, for example, that it would invalidate laws resting upon the premise that where speech is an integral part of unlawful conduct that is going on at the time, the speech can be used to illustrate, emphasize and establish the unlawful conduct.18 On the other hand, it certainly would invalidate all laws that abridge the right of the people to discuss matters of religious or public interest, in the broadest meaning of those terms, for it is clear that a desire to protect this right was the primary purpose of the First Amendment. Some people have argued, with much force, that the freedoms guaranteed by the First Amendment are limited to somewhat broad areas like those.19 But I believe this Nation's security and tranquility can best be served by giving the First Amendment the same broad construction that all Bill of Rights guarantees deserve.20
51
The danger of failing to construe the First Amendment in this manner is, I think, dramatically illustrated by the decision of this Court in Beauharnais v. People of State of Illinois,21 one of the cases relied upon for this holding today. In that case, a majority of this Court upheld the conviction of a man whose only 'crime' was the circulation of a petition to be presented to the City Council of Chicago urging that body to follow a policy of racial segregation in language that the State of Illinois chose to regard as 'libelous' against Negroes. Holding that 'libelous utterances' were not included in the 'speech' protected against state invasion by the Due Process Clause of the Fourteenth Amendment,22 this Court there concluded that the petition which had been circulated fell within that exception and therefore outside the area of constitutionally protected speech because it made charges against the entire Negro population of this country. Thus, Beauharnais was held to have simultaneously 'libelled' some fifteen million people. And by this tremendous expansion of the concept of 'libel,' what some people might regard as a relatively minor exception to the full protection of freedom of speech had suddenly become a vehicle which could be used to justify a return to the vicious era of the laws of seditious libel, in which the political party in power, both in England and in this country, used such laws to put its opponents in jail.23
52
Whatever may be the wisdom, however, of an approach that would reject exceptions to the plain language of the First Amendment based upon such things as 'libel,' 'obscenity'24 or 'fighting words,'25 such is not the issue in this case. For the majority does not, and surely would not, contend that the kind of speech involved in this case—wholly related as it is to conflicting ideas about governmental affairs and policies—falls outside the protection of the First Amendment, however narrowly that Amendment may be interpreted. So the only issue presently before us is whether speech that must be well within the protection of the Amendment should be given complete protection or whether it is entitled only to such protection as is consistent in the minds of a majority of this Court with whatever interest the Government may be asserting to justify its abridgment. The Court, by stating unequivocally that there are no 'absolutes' under the First Amendment, necessarily takes the position that even speech that is admittedly protected by the First Amendment is subject to the 'balancing test' and that therefore no kind of speech is to be protected if the Government can assert an interest of sufficient weight to induce this Court to uphold its abridgment. In my judgment, such a sweeping denial of the existence of any inalienable right to speak undermines the very foundation upon which the First Amendment, the Bill of Rights, and, indeed, our entire structure of government rest.26 The Founders of this Nation attempted to set up a limited government which left certain rights in the people—rights that could not be taken away without amendment of the basic charter of government. The majority's 'balancing test' tells us that this is not so. It tells us that no right to think, speak or publish exists in the people that cannot be taken away if the Government finds it sufficiently imperative or expedient to do so. Thus, the 'balancing test' turns our 'Government of the people, by the people and for the people' into a government over the people.
53
I cannot believe that this Court would adhere to the 'balancing test' to the limit of its logic. Since that 'test' denies that any speech, publication or petition has an 'absolute' right to protection under the First Amendment, strict adherence to it would necessarily mean that there would be only a conditional right, not a complete right, for any American to express his views to his neighbors—or for his neighbors to hear those views. In other words, not even a candidate for public office, high or low, would have an 'absolute' right to speak in behalf of his candidacy, no newspaper would have an 'absolute' right to print its opinion on public governmental affairs, and the American people would have no 'absolute' right to hear such discussions. All of these rights would be dependent upon the accuracy of the scales upon which this Court weighs the respective interests of the Government and the people. It therefore seems to me that the Court's 'absolute' statement that there are no 'absolutes' under the First Amendment must be an exaggeration of its own views.
54
These examples also serve to illustrate the difference between the sort of 'balancing' that the majority has been doing and the sort of 'balancing' that was intended when that concept was first accepted as a method for insuring the complete protection of First Amendment freedoms even against purely incidental or inadvertent consequences. The term came into use chiefly as a result of cases in which the power of municipalities to keep their streets open for normal traffic was attacked by groups wishing to use those streets for religious or political purposes.27 When those cases came before this Court, we did not treat the issue posed by them as one primarily involving First Amendment rights. Recognizing instead that public streets are avenues of travel which must be kept open for that purpose, we upheld various city ordinances designed to prevent unnecessary noises and congestions that disrupt the normal and necessary flow of traffic. In doing so, however, we recognized that the enforcement of even these ordinances, which attempted no regulation at all of the content of speech and which were neither openly nor surreptitiously aimed at speech, could bring about an 'incidental' abridgment of speech. So we went on to point out that even ordinances directed at and regulating only conduct might be invalidated if, after 'weighing' the reasons for regulating the particular conduct, we found them insufficient to justify diminishing 'the exercise of rights so vital to the maintenance of democratic institutions' as those of the First Amendment.28
55
But those cases never intimated that we would uphold as constitutional an ordinance which purported to rest upon the power of a city to regulate traffic but which was aimed at speech or attempted to regulate the content of speech. None of them held, nor could they constitutionally have held, that a person rightfully walking or riding along the streets and talking in a normal way could have his views controlled, licensed or penalized in any way by the city—for that would be a direct abridgment of speech itself. Those cases have only begun to take on that meaning by being relied upon, again and again as they are here, to justify the application of the 'balancing test' to governmental action that is aimed at speech and depends for its application upon the content of speech. Thus, those cases have been used to support decisions upholding such obviously antispeech actions on the part of government as those involved in American Communications Ass'n v. Douds29 and Dennis v. United States.30 And the use being made of those cases here must be considered as falling squarely within that class.31
56
The Court seeks to bring this case under the authority of the street-regulation cases and to defend its use of the 'balancing test' on the ground that California is attempting only to exercise its permissible power to regulate its Bar and that any effect its action may have upon speech is purely 'incidental.' But I cannot agree that the questions asked Konigsberg with regard to his suspected membership in the Communist Party had nothing more than an 'incidental' effect upon his freedom of speech and association. Why does the Committee of Bar Examiners ask a bar applicant whether he is or has been a member of the Communist Party? The avowed purpose of such questioning is to permit the Committee to deny applicants admission to the Bar if they 'advocate' forcible overthrow of the Government. Indeed, that is precisely the ground upon which the majority is here upholding the Committee's right to ask Konigsberg these questions. I realize that there has been considerable talk, even in the opinions of this Court, to the effect that 'advocacy' is not 'speech.' But with the highest respect for those who believe that there is such a distinction, I cannot agree with it. For this reason, I think the conclusion is inescapable that this case presents the question of the constitutionality of action by the State of California designed to control the content of speech. As such, it is a 'direct,' and not an 'incidental' abridgment of speech. Indeed, if the characterization 'incidental' were appropriate here, it would be difficult to imagine what would constitute a 'direct' abridgment of speech. The use of the 'balancing test' under these circumstances thus permits California directly to abridge speech in explicit contradiction to the plain mandate of the First Amendment.
57
But even if I thought the majority was correct in its view that 'balancing' is proper in this case, I could not agree with its decision. In the first place, I think that the decision here is unduly restrictive upon individual liberty even under the penurious 'balancing test.' The majority describes the State's interest which is here to be 'balanced' against the interest in protecting the freedoms of speech and association as an interest in 'having lawyers who are devoted to the law in its broadest sense, including not only its substantive provisions, but also its procedures for orderly change.' But is that an accurate statement of the interest of the State that is really at stake here? Konigsberg has stated unequivocally that he never has, does not now, and never will advocate the overthrow of the Government of this country by unconstitutional means, and we held when the case was here before that his evidence was sufficient to establish that fact. Since the Committee has introduced no evidence at any subsequent hearing that would lead to a contrary conclusion, the fact remains established.32 So the issue in this case is not, as the majority's statement of the State's interest would seem to indicate, whether a person who advocates the overthrow of existing government by force must be admitted to the practice of law. All we really have on the State's side of the scales is its desire to know whether Konigsberg was ever a member of the Communist Party.
58
The real lack of value of that information to the State is, to my mind, clearly shown by the fact that the State has not even attempted to make membership in the Communist Party a ground for disqualification from the Bar. Indeed, if the State's only real interest was, as the majority maintains, in having good men for its Bar, how could it have rejected Konigsberg, who, undeniably and as this Court has already held, has provided overwhelming evidence of his good character? Our former decision, which I still regard as resting on what is basically just good common sense, was that a man does not have to tell all about his previous beliefs and associations in order to establish his good character and loyalty.
59
When the majority turns to the interest on the other side of the scale, it admits that its decision is likely to have adverse effects upon free association caused by compulsory disclosures, but then goes on to say that those adverse effects will be 'minimal' here, first, because Bar admission interrogations are private and, secondly, because the decisions of Bar admission committees are subject to judicial review. As to the first ground, the Court simply ignores the fact that California law does not require its Committee to treat information given it as confidential.33 And besides, it taxes credulity to suppose that questions asked an applicant and answers given by him in the highly emotional area of communism would not rapidly leak out to the great injury of an applicant—regardless of what the facts of his particular case may happen to be. As to the second ground given, the Court fails to take into account the fact that judicial review widens the publicity of the questions and answers and thus tends further to undercut its first ground. At the same time, such review, as is demonstrated by this and the companion case decided today,34 provides small hope that an applicant will be afforded relief against stubborn efforts to destroy him arbitrarily by innuendoes that will subject him to lasting suspicions. But even if I thought the Court was correct in its beliefs that the interrogation of a Bar applicant would be kept confidential and that judicial review is adequate to prevent arbitrary exclusions from the Bar, I could not accept its conclusion that the First Amendment rights involved in this case are 'minimal.'
60
The interest in free association at stake here is not merely the personal interest of petitioner in being free from burdens that may be imposed upon him for his past beliefs and associations. It is the interest of all the people in having a society in which no one is intimidated with respect to his beliefs or associations. It seems plain to me that the inevitable effect of the majority's decision is to condone a practice that will have a substantial deterrent effect upon the associations entered into by anyone who may want to become a lawyer in California. If every person who wants to be a lawyer is to be required to account for his associations as a prerequisite to admission into the practice of law, the only safe course for those desiring admission would seem to be scrupulously to avoid association with any organization that advocates anything at all somebody might possibly be against, including groups whose activities are constitutionally protected under even the most restricted notion of the First Amendment.35 And, in the currently prevailing atmosphere in this country, I can think of few organizations active in favor of civil liberties that are not highly controversial.36 In addition, it seems equally clear that anyone who had already associated himself with an organization active in favor of civil liberties before he developed an interest in the law, would, after this case, be discouraged from spending the large amounts of time and money necessary to obtain a legal education in the hope that he could practice law in California.
61
Thus, in my view, the majority has reached its decision here against the freedoms of the First Amendment by a fundamental misapplication of its own currently, but I hope only temporarily, prevailing 'balancing' test. The interest of the Committee in satisfying its curiosity with respect to Konigsberg's 'possible' membership in the Communist Party two decades ago has been inflated out of all proportion to its real value—the vast interest of the public in maintaining unabridged the basic freedoms of speech, press and assembly has been paid little if anything more than lip service—and important constitutional rights have once again been 'balanced' away. This, of course, is an ever-present danger of the 'balancing test' for the application of such a test is necessarily tied to the emphasis particular judges give to competing societal values. Judges, like everyone else, vary tremendously in their choice of values. This is perfectly natural and, indeed, unavoidable. But it is neither natural nor unavoidable in this country for the fundamental rights of the people to be dependent upon the different emphasis different judges put upon different values at different times. For those rights, particularly the First Amendment rights involved here, were unequivocally set out by the Founders in our Bill of Rights in the very plainest of language, and they should not be diluted by 'tests' that obliterate them whenever particular judges think values they most highly cherish outweigh the values most highly cherished by the Founders.
62
Moreover, it seems to me that the 'balancing test' is here being applied to cut the heart out of one of the very few liberty-protecting decisions that this Court has rendered in the last decade. Speiser v. Randall37 struck down, as a violation of the Federal Constitution, a state law which denied tax exemptions to veterans who refused to sign an oath that they did not advocate 'the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means * * *.'38 The case arose when certain veterans insisted upon their right to the exemptions without signing the oath. The California Supreme Court rejected the veterans' constitutional contention that the state law violated due process by placing the burden of proof upon the taxpayer to prove that he did not advocate violent overthrow of the Government. This Court reversed, with only one Justice dissenting, on the ground that the necessary effect of such an imposition of the burden of proof 'can only result in a deterrence of speech which the Constitution makes free.'39 Indeed, the majority opinion in the Speiser case distinguished the very cases upon which the majority here is relying on the ground that 'the oaths required in those cases performed a very different function from the declaration in issue here. In the earlier cases it appears that the loyalty oath, once signed, became conclusive evidence of the facts attested so far as the right of office was concerned. If the person took the oath he retained his position. The oath was not part of a device to shift to the officeholder the burden of proving his right to retain his position.'40 But that is precisely what is happening here. For, even though Konigsberg has taken an oath that he does not advocate the violent overthrow of the Government, the Committee has persisted in the view that he has not as yet demonstrated his right to admission to the Bar. If that does not amount to the sort of shifting of the burden of proof that is proscribed by Speiser, I do not know what would.
63
The situation in the present case is closely analogous to that condemned in the Speiser case and, indeed, the major factual difference between the two cases tends to make this case an even stronger one. Here, as in Speiser, the State requires an oath that the person involved does not advocate violent overthrow of the Government. Here, as there, the taking of the oath is not conclusive of the rights of the person involved. And here, as there, contrary to the implications in the majority opinion, I think it clear that the State places upon each applicant for admission to the Bar the burden of proving that he does not advocate the violent overthrow of the Government. There is one difference between the two cases, for here Konigsberg agreed to take the oath required and he refused to answer only when the State insisted upon more. Surely he cannot be penalized for his greater willingness to cooperate with the State.
64
The majority also suggests that the Speiser case may be distinguishable because it involved merely the power of the State to impose a penalty, by way of a heavier tax burden, upon a person who refused to take an oath, while this case involves the power of the State to determine the qualifications a person must have to be admitted to the Bar—a position of importance to the public. This distinction seems to me to be little more than a play on words. Speiser had the burden of proving that he did not advocate the overthrow of the Government and, upon his refusal to satisfy this burden, he was forced to pay additional taxes as a penalty. Konigsberg has the burden of proving that he does not advocate the violent overthrow of the Government and, upon his supposed failure to meet this burden, he is being denied an opportunity to practice the profession for which he has expended much time and money to prepare himself. So far as I am concerned the consequences to Konigsberg, whether considered from a financial standpoint, a social standpoint, or any other standpoint I can think of, constitute a more serious 'penalty' than that imposed upon Speiser.
65
In my judgment this case must take its place in the ever-lengthening line of cases in which individual liberty to think, speak, write, associate and petition is being abridged in a manner precisely contrary to the explicit commands of the First Amendment.41 And I believe the abridgment of liberty here, as in most of the other cases in that line, is based upon nothing more than a fear that the American people can be alienated from their allegiance to our form of government by the talk of zealots for a form of government that is hostile to everything for which this country now stands or ever has stood. I think this fear is groundless for I believe that the loyalty and patriotism of the American people toward our own free way of life are too deeply rooted to be shaken by mere talk or argument from people who are wedded to totalitarian forms of government. It was this kind of faith in the American people that brought about the adoption of the First Amendment, which was expressly designed to let people say what they wanted to about government—even against government if they were so inclined. The idea underlying this then revolutionary idea of freedom was that the Constitution had set up a government so favorable to individual liberty that arguments against that government would fall harmless at the feet of a satisfied and happy citizenship. Thomas Jefferson voiced this idea with simple eloquence on the occasion of his first inauguration as President of the United States: 'If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.'42
66
In the main, this is the philosophy under which this county has lived and prospered since its creation. There have, however, been two notable exceptions, the first being the period of the short-lived and unlamented alien and sedition laws of the late 1700's, and the other being the period since the beginning of the 'cold war' shortly after the close of World War II, in which there has been a widespread fear of an imagined overwhelming persuasiveness in Communist arguments. The most commonly offered justification for the liberty-stifling measures that have characterized this latter period is that the Communists do not themselves believe in the freedoms of speech, press and assembly so they should not be allowed to take advantage of the freedoms our Constitution provides. But, as illustrated by this and many other cases, the effect of repressive laws and inquisitions of this kind cannot be and is not limited to Communists.43 Moreover, the fact that Communists practice repression of these freedoms is, in my judgment, the last reason in the world that we should do so. We do not have to imitate the Communists in order to survive. Our Bill of Rights placed our survival upon a firmer ground—that of freedom, not repression.
67
Nothing in this record shows that Konigsberg has ever been guilty of any conduct that threatens our safety. Quite the contrary, the record indicates that we are fortunate to have men like him in this country for it shows that Konigsberg is a man of firm convictions who has stood up and supported this country's freedom in peace and in war. The writings that the record shows he has published constitute vehement protests against the idea of overthrowing this Government by force. No witness could be found throughout the long years of this inquisition who could say, or even who would say, that Konigsberg has ever raised his voice or his hand against his country. He is, therefore, but another victim of the prevailing fashion of destroying men for the views it is suspected they might entertain.
68
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE joins, dissenting.
69
This judgment must be reversed even if we assume with Mr. Justice Traynor in his dissent in the California Supreme Court, 52 Cal.2d 769, 774, at page 776, 344 P.2d 777, 780, at pages 781—782, that 'a question as to present or past membership in (the Communist Party) is relevant to the issue of possible criminal advocacy and hence to (Konigsberg's) qualifications.' The Committee did not come forward, in the proceeding we passed upon in 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810, nor in the subsequent proceeding, with evidence to show that Konigsberg unlawfully advocated the otherthrow of the Government. Under our decision in Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460, the Fourteenth Amendment therefore protects Konigsberg from being denied admission to the Bar for his refusal to answer the questions. In Speiser we held that '* * * when the constitutional right to speak is sought to be deterred by a State's general taxing program due process demands that the speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition.' 357 U.S. at pages 528—529, 78 S.Ct. at page 1343. 'There may be differences of degree,' Mr. Justice Traynor said, 'in the public interest in the fitness of the applicants for tax exemptions and for admission to the Bar'; yet, as to the latter also, 'Such a procedure is logically dictated by Speiser * * *.' 52 Cal.2d at page 776, 344 P.2d at page 782. And unless mere whimsey governs this Court's decisions in situations impossible rationally to distinguish, such a procedure is indeed constitutionally required here. The same reasons apply. For Mr. Justice Traynor was entirely right in saying: 'Whatever its relevancy (the question as to past or present Party membership) in a particular context, * * * it is an extraordinary variant of the usual inquiry into crime, for the attendant burden of proof upon any one under question poses the immediate threat of prior restraint upon the free speech of all applicants. The possibility of inquiry into their speech, the heavy burden upon them to establish its innocence, and the evil repercussions of inquiry despite innocence, would constrain them to speak their minds so noncommittally that no one could ever mistake their innocuous words for advocacy. This grave danger to freedom of speech could be averted without loss to legitimate investigation by shifting the burden to the examiners. Confronted with a prima facie case, an applicant would then be obliged to rebut it.' Id., 52 Cal.2d at page 776, 344 P.2d at page 782.
70
The Court admits the complete absence of any such predicate by the Committee for its questions. The Court attempts to distinguish the situations in order to escape the controlling authority of Speiser. The speciousness of its reasoning is exposed in Mr. Justice BLACK'S dissent. I would reverse.
1
Konigsberg rested his refusals, not on any claim of privilege against self-incrimination, but on the ground that such inquiries were beyond the purview of the Committee's authority, and infringed rights of free thought, association, and expression assured him under the State and Federal Constitutions. He affirmatively asserted, however, his disbelief in violent overthrow of government.
2
The Committee made the following findings relevant to the issues now before us:
'(1) That the questions put to the applicant by the Committee concerning past or present membership in or affiliation with the Communist Party are material to a proper and complete investigation of his qualifications for admission to practice law in the State of California.
'(2) That the refusal of applicant to answer said questions has obstructed a proper and complete investigation of applicant's qualifications for admission to practice law in the State of California.'
3
The essence of the state court's decision appears in the following extracts from its opinion:
'* * * The committee action now before us contains no findings or conclusion that petitioner had failed to establish either his good moral character or his abstention from advocacy of overthrow of the government.
'Here it is the refusal to answer material questions which is the basis for denial of certification. * * *
'* * * (T)o admit applicants who refuse to answer the committee's questions upon these subjects would nullify the concededly valid legislative direction to the committee. Such a rule would effectively stifle committee inquiry upon issues legislatively declared to be relevant to that issue.' Id., 52 Cal.2d at pages 772, 774, 344 P.2d at pages 779, 780.
Justice Traynor dissented on the ground that the California Supreme Court, not being required by statute to exclude bar applicants on the sole ground of their refusal to answer questions concerning possible advocacy of the overthrow of government, should not adopt such an exclusionary rule, at least where the Committee of Bar Examiners has not come forward with some evidence of advocacy. He declined to reach constitutional issues. Justice Peters dissented on federal constitutional grounds and in the belief that this Court's decision in the first Konigsberg case required immediate admission of the applicant. Chief Justice Gibson did not participate in the decision.
4
All of the 50 States, as well as Puerto Rico and the District of Columbia, prescribe qualifications of moral character as precondi-
tions for admission to the practice of law. See West Publishing Co., Rules for Admission to the Bar (35th ed. 1957); Survey of the Legal Profession, Bar Examinations and Requirements for Admission to the Bar (1952); Jackson, Character Requirements for Admission to the Bar, 20 Fordham L.Rev. 305 (1951); Annotation, 64 A.L.R.2d 301 (1959).
The burden of demonstrating good moral character is regularly placed upon the bar applicant. Ex parte Montgomery, 249 Ala. 378, 31 So.2d 85; In re Stephenson, 243 Ala. 342, 10 So.2d 1, 4, 143 A.L.R. 166; Application of Courtney, 83 Ariz. 231, 319 P.2d 991; Ark.Stat.Ann.1947, §§ 25—101, 25—103; Spears v. State Bar of California, 211 Cal. 183, 294 P. 697, 72 A.L.R. 923; In re O'Brien's Petition, 79 Conn. 46, 63 A. 777; In re Durant, 80 Conn. 140, 147, 67 A. 497; Del.Sup.Ct.Rule 31(1)(A)(a), (2)(A)(a), Del.C.Ann. Coleman v. Watts, Fla., 81 So.2d 650 (burden of proof on applicant; prima facie showing shifts burden of going forward to Examiners); Gordon v. Clinkscales, 215 Ga. 843, 114 S.E.2d 15; In re Latimer, 11 Ill.2d 327, 143 N.E.2d 20 (semble); Rosencranz v. Tidrington, 193 Ind. 472, 141 N.E. 58, 28 A.L.R. 1136; In re Meredith, Ky., 272 S.W.2d 456; In re Meyerson, 190 Md. 671, 59 A.2d 489 (semble); Matter of Keenan, 313 Mass. 186, 47 N.E.2d 12; Application of Smith, 220 Minn. 197, 19 N.W.2d 324 (semble); On Application for Attorney's License, 21 N.J.L. 345; Application of Cassidy, 268 App.Div. 282, 51 N.Y.S.2d 202, affirmed 296 N.Y. 926, 73 N.E.2d 41; Application of Farmer, 191 N.C. 235, 131 S.E. 661; In re Weinstein, 150 Or. 1, 42 P.2d 744; State ex rel. Board of Bar Examiners v. Poyntz, 152 Or. 592, 52 P.2d 1141 (burden of proof on applicant; prima facie showing shifts burden of going forward to Examiners); In the Matter of Eary, 134 W.Va. 204, 58 S.E.2d 647 (semble).
5
For reasons given later (366 U.S. at pages 55—56, 81 S.Ct. at pages 1008—1010, infra), we need not decide whether California's burden-of-proof rule could constitutionally be applied, as it was by the Committee after the first Konigsberg proceedings, to the requirement of nonadvocacy of violent overthrow.
6
The Court assumed, but did not discuss, the constitutionality of California's burden-of-proof rule as applied to the nonadvocacy-of-forcible-overthrow requirement of the California statute.
7
Moreover, even if there could be debate as to whether this Court's prior decision prevented new hearings on matters that had already transpired at the time of the first state hearings, there can be no doubt that such decision did not prevent California from investigating petitioner's actions during the period subsequent to the first hearing. Therefore we would in any case be presented with the question of the constitutionality of the State's refusing to admit petitioner to the practice of law because of his declining to answer whether he has been a member of the Communist Party since the termination of the first set of hearings.
8
The transcript of the original hearings before the Committee has been made part of the record before us in the present case.
9
There is no basis for any intimation that the California Supreme Court fashioned a special procedural rule for the purposes of this particular case. The California Bar Committee has in the past declined to certify applicants who refused to answer pertinent questions. See Farley (Secretary, Committee of Bar Examiners), Character Investigation of Applicants for Admission, 29 Cal.State Bar Journal, 454, 457, 466 (1954). No more does the State's action bear any of the hallmarks of a bill of attainder or of an ex post facto regulation, see Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356; cf. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252, especially in light of the fact that petitioner was explicitly warned in advance of the consequences of his refusal to answer. Likewise, there is no room for attributing to the Committee a surreptitious purpose to exclude Konigsberg by the device of putting to him questions which it was known in advance he would not answer, and then justifying exclusion on the premise of his refusal to respond. So far as this record shows Konigsberg was excluded only because his refusal to answer had impeded the investigation of the Committee, a ground of rejection which it is still within his power to remove.
10
That view, which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: 'Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble * * *.' But as Mr. Justice Holmes once said: '(T)he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.' Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115. In this connection also compare the equally unqualified command of the Second Amendment: 'the right of the people to keep and bear Arms shall not be infringed.' And see United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206.
11
That the First Amendment immunity for speech, press and assembly has to be reconciled with valid but conflicting governmental interests was clear to Holmes, J. ('I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.' Abrams v. United States, 250 U.S. 616, 627, 40 S.Ct. 17, 21, 63 L.Ed. 1173); to Brandeis, J. ('But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute.' Whitney v. People of State of California, 274 U.S. 357, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095); and to Hughes, C.J. ('(T)he protection (of free speech) even as to previous restraint is not absolutely unlimited.' Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357.)
12
Indeed, we cannot tell whether California did so even in the earlier proceeding, since the California Supreme Court's denial of review of the Committee's original rejection of Konigsberg was without opinion, and for all we know may have rested alone on petitioner's failure to meet his state burden of proof as to 'good moral character.'
1
Konigsberg v. State Bar of California, 353 U.S. 252, 273, 77 S.Ct. 722, 733, 1 L.Ed.2d 810. That decision was reached on the basis of a record containing a large quantity of evidence favorable to Konigsberg and some scanty evidence arguably adverse to him.
2
Konigsberg v. State Bar of California, 52 Cal.2d 769, 344 P.2d 777. Mr. Justice Traynor and Mr. Justice Peters dissented in separate opinions.
3
353 U.S. at pages 260—261, 77 S.Ct. at page 727.
4
The total absence of any authoritative source for this rule is, in my judgment, merely accentuated by the reference in the majority opinion to the article written for the California State Bar Journal by the Secretary of the Committee of Bar Examiners. So far as the cases relied upon in that article are even available for study, they do not in any way support the action of the Bar Committee here.
5
Thus, it seems to me that California's rejection of Konigsberg is not supported by any 'law of the land,' as required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See Cohen v. Hurley, 366 U.S. 117, at pages 135—150, 81 S.Ct. 954, at pages 965—972, 6 L.Ed.2d 156 (dissenting opinion). As Daniel Webster argued in the Dartmouth College cases: 'Are then these acts of the legislature, which affect only particular persons and their particular privileges, laws of the land? Let this question be answered by the text of Blackstone: 'And first, it (i.e. law) is a rule: not a transient sudden order from a superior, to, or concerning, a particular person; but something permanent, uniform, and universal. Therefore, a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law.' Lord Coke is equally decisive and emphatic. Citing and commenting on the celebrated 29th chap. of Magna Charta, he says, 'no man shall be disseized, &c. unless it be by the lawful judgment, that is, verdict of equals, or by the law of the land, that is, (to speak it once for all,) by the due course and process of law." (Emphasis as in source.) Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 580—581, 4 L.Ed. 629.
6
4 Wall. 277, 18 L.Ed. 356.
7
4 Wall. 333, 18 L.Ed. 366.
8
The suspicions of the Committee doubtless relate to the period around 1941 for the Committee had heard testimony from an ex-Communist that Konigsberg had attended meetings of a Communist Party unit during that period. The unreliability of that testimony was discussed in the Court's opinion when the case was here before. See 353 U.S. at pages 266—268, 77 S.Ct. at pages 729—731.
9
Under the circumstances of this case, it seems clear to me that the action of the State of California in rejecting Konigsberg is also contrary to our decision in Schware v. Board of Bar Examiners of State of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796. In that case, every member of this Court who participated in the decision expressed serious doubts with regard to the probative value of evidence as to a Bar applicant's membership in the Communist Party 15 years previous to our consideration of the case. Id., 353 U.S. at pages 246, (concurring opinion) 251, 77 S.Ct. at pages 760, 762. I cannot believe that such evidence becomes more probative when, as here, it would, if obtained, have been five years older.
10
See, e.g., my dissenting opinions in Braden v. United States, 365 U.S. 431, 441—446, 81 S.Ct. 584, 590—593, 5 L.Ed.2d 653; Wilkinson v. United States, 365 U.S. 399, 422—423, 81 S.Ct. 567, 580, 5 L.Ed.2d 633; Uphaus v. Wyman, 364 U.S. 388, 392—393, 81 S.Ct. 153, 159, 160, 5 L.Ed.2d 148; Barenblatt v. United States, 360 U.S. 109, 140—144, 79 S.Ct. 1081, 1100—1102, 3 L.Ed.2d 1115; American Communications Ass'n v. Douds, 339 U.S. 382, 445 453, 70 S.Ct. 674, 707—711, 94 L.Ed. 925.
11
James Madison, for example, indicated clearly that he did not understand the Bill of Rights to permit any encroachments upon the freedoms it was designed to protect. 'If they (the first ten Amendments) are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.' 1 Annals of Congress 439 (1789). (Emphasis supplied.)
12
See, e.g., Minersville School District v. Gobitis, 310 U.S. 586, 593, 60 S.Ct. 1010, 1012, 84 L.Ed. 1375; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302.
13
See Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, where Mr. Justice Holmes, writing for the Court, said: 'The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.'
14
Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (Holmes, J., dissenting). See also Gitlow v. People of State of New York, 268 U.S. 652, 673, 45 S.Ct. 625, 632, 69 L.Ed. 1138: 'If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.' (Holmes, J., dissenting.) And see Whitney v. California, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095: '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 and assembly.' (Brandeis, J., concurring.)
15
See Abrams v. United States, 250 U.S. 616, 630—631, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (dissenting opinion); Gitlow v. People of State of New York, 268 U.S. 652, 672—673, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (dissenting opinion); Whitney v. People of State of California, 274 U.S. 357, 378—379, 47 S.Ct. 641, 649—650, 71 L.Ed. 1095 (concurring opinion).
16
See Bridges v. State of California, 314 U.S. 252, 260 263, 62 S.Ct. 190, 192—194, 86 L.Ed. 192.
17
2 Cir., 183 F.2d 201, 212; 341 U.S. 494, 510, 71 S.Ct. 857, 867, 95 L.Ed. 1137.
18
Roth v. United States, 354 U.S. 476, 514, 77 S.Ct. 1304, 1324, 1 L.Ed.2d 1498 (dissenting opinion). See also National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834.
19
See, e.g., Meiklejohn, What Does the First Amendment Mean? 20 U. of Chi. L.Rev. 461, 464.
20
Cf. Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746: '(C)onstitutional Provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.'
21
343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919.
22
The Court opinion here apparently treats the Beauharnais case as having decided that the Federal Government has power, despite the First Amendment, to pass so-called 'group libel' laws. This, I think, is wholly unjustified. The Beauharnais opinion was written on the assumption that the protection afforded the freedoms of speech and petition against state action by the Fourteenth Amendment amounted to something less than the protection afforded these freedoms against congressional action by the First Amendment. Thus, as pointed out in my dissent in that case, the majority in Beauharnais never even mentioned the First Amendment but upheld the state 'group libel' law on the ground that it did not violate 'civilized 'conons of decency,' reasonableness, etc.' See 343 U.S. at pages 268—269, 72 S.Ct. at pages 736—737. See also the dissent of Mr. Justice Jackson, 343 U.S. at pages 287—305, 72 S.Ct. at pages 746—755.
23
The story of the use by the Federalists of the Alien and Sedition Acts of 1798 as a weapon to suppress the political opposition of the Jeffersonians has been graphically told in Bowers, Jefferson and Hamilton, at 362—411.
24
See, e.g., Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
25
See, e.g., Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.
26
'The founders of our federal government were too close to oppressions and persecutions of the unorthodox, the unpopular, and the less influential to trust even elected representatives with unlimited powers of control over the individual. From their distrust were derived the first ten amendments, designed as a whole to 'limit and qualify the powers of Government', to define 'cases in which the Government ought not to act, or to act only in a particular mode', and to protect unpopular minorities from oppressive majorities. 1 Annals 437. The first of the ten amendments erected a Constitutional shelter for the people's liberties of religion, speech, press, and assembly. This amendment reflects the faith that a good society is not static but advancing, and that the fullest possible interchange of ideas and beliefs is essential to attainment of this goal. The proponents of the First Amendment, committed to this faith, were determined that every American should possess an unrestrained freedom to express his views, however odious they might be to vested interests whose power they might challenge.' Feldman v. United States, 322 U.S. 487, 501, 64 S.Ct. 1082, 1088, 88 L.Ed. 1408 (dissenting opinion).
27
Typical of such cases are those referred to by the majority in its opinion here: 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, 61 S.Ct. 762, 85 L.Ed. 1049; 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.
28
Schneider v. State of New Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155.
29
339 U.S. 382, especially at pages 398—400, 70 S.Ct. 674, at pages 683—685.
30
341 U.S. 494, especially at pages 508—509, 71 S.Ct. 857, at pages 866, 867.
31
See also the discussion of these street-regulation cases in my dissenting opinion in Barenblatt v. United States, 360 U.S. 109, 141—142, 79 S.Ct. 1081, 1100—1101, 3 L.Ed.2d 1115.
32
The majority places some stress upon the fact that the Committee did not have independent investigatory resources with which to seek further evidence. In view of the complete reliance upon this decision to justify the use of an identical procedure in In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135, where the bar admission committee not only had investigatory resources but also utilized them to the fullest, this fact must be of little 'weight' in the constitutional 'balance.'
33
In this regard, the situation is identical to that invalidated as unconstitutional by our decision in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231. Indeed, the absence of such a requirement was there stressed as an important part of the ground upon which that decision rested. Id., 364 U.S. at page 486, 81 S.Ct. at page 251.
34
In re Anastaplo, supra. See also the discussion in my dissenting opinion in that case, especially 366 U.S. at pages 108 112, 81 S.Ct. at pages 992—995.
35
The situation here is thus identical to that in Speiser v. Randall, where the Court expressly recognized the danger to protected associations. See 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460.
36
Cf. Shelton v. Tucker, supra, 364 U.S. at page 486, note 7, 81 S.Ct. at page 251, where we took note of testimony that efforts were being made to remove from a school system all teachers who supported such organizations as the American Civil Liberties Union, the Urban League, the American Association of University Professors, and the Women's Emergency Committee to Open Our Schools.
37
357 U.S. 513, 78 S.Ct. 1332, 1336, 2 L.Ed.2d 1460.
38
Section 32 of the California Revenue and Taxation Code. This section was set out in full in the majority opinion in Speiser. 357 U.S. at pages 516—517, note 2, 78 S.Ct. at page 1337.
39
357 U.S. at page 526, 78 S.Ct. at page 1342.
40
Id., 357 U.S. at page 528, 78 S.Ct. at page 1343. The cases so distinguished were Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Gerende v. Board of Supervisors of Elections of Baltimore City, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745, and American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.
41
This line has already been considerably lengthened during this very Term of Court. See, e.g., Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148; Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653.
42
Thomas Jefferson, First Inaugural Address, March 4, 1801. This address is reprinted in Jones, Primer of Intellectual Freedom 142, 143 (Harvard University Press, 1949).
43
'Centuries of experience testify that laws aimed at one political or religious group, however rational these laws may be in their beginnings, generate hatreds and prejudices which rapidly spread beyond control. Too often it is fear which inspires such passions, and nothing is more reckless or contagious. In the resulting hysteria, popular indignation tars with the same brush all those who have ever been associated with any member of the group under attack or who hold a view which, though supported by revered Americans as essential to democracy, has been adopted by that group for its own purposes.' American Communications Ass'n v. Douds, 339 U.S. 382, 448—449, 70 S.Ct. 674, 709, 94 L.Ed. 925 (dissenting opinion).
| 23
|
366 U.S. 117
81 S.Ct. 954
6 L.Ed.2d 156
Albert Martin COHEN, Petitioner,v.Denis M. HURLEY.
No. 84.
Argued Dec. 14 and 15, 1960.
Decided April 24, 1961.
Mr. Theodore Kiendl, New York City, for petitioner.
Mr. Denis M. Hurley, Brooklyn, N.Y., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
We are called upon to decide whether the State of New York may, consistently with the Fourteenth Amendment, disbar an attorney who, relying on his state privilege against self-incrimination, has refused to answer material questions of a duly authorized investigating authority relating to alleged professional misconduct.1
2
The issue arises in the context of the so-called Brooklyn 'ambulance chasing' Judicial Inquiry which this Court had before it in Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234. The origins, authority, and nature of the Inquiry have already been sufficiently described in our opinion in that case. There need only be added here that the purpose of the Inquiry, as reflected in the establishing order of the Appellate Division of the Supreme Court of the State of New York, Second Department, was twofold: 'to expose all the evil practices (involved in the improper solicitation and handling of contingent-retainers in personal injury cases) with a view to enabling this court to adopt appropriate measures to eliminate them and to discipline those attorneys found to have engagedin them.' In re Cohen, 9 A.D.2d 436, 437, 195 N.Y.S.2d 990, 993.
3
For some years the Second Department has had a court rule 'which requires that an attorney who makes contingent-fee agreements for his services in personal injury, wrongful death, property damage, and certain other kinds of cases, must file such agreements with the (Appellate Division) and, if he enters into five or more such agreements in any year, must give to the court in writing certain particulars as to how he came to be retained' (called 'Statements ofRetainer'). 7 N.Y.2d 488, 493, 199 N.Y.S.2d 658, 660, 166 N.E.2d 672, 674, see Rule 3 of the Special Rules Regulating the Conduct of Attorneys and Counselors at Law in the Second Judicial Department, Clevenger's Practice Manual, p. 21—19 (1959). Principally as a result of the large number of Statements of Retainer filed by him during recent years, petitioner was called to testify and produce records before the Justice in charge of the Inquiry.2 Relying on his concededly available state privilege against self-incrimination, petitioner refused to produce the records called for and to answer some sixty other questions. The subject matter of such questions was summarized by the New York Court of Appeals in its opinion in this case (7 N.Y.2d 488, 494, 199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 674—675), as follows:
4
'* * * Those unanswered questions related to the identity of his law office partners, associates and employees, to his possession of the records of the cases described in his statements of retainer, to any destruction of such records, to his bank accounts, to his paying police officers or othes for referring claimants to him, to his paying insurance company employees for referring cases to him, and to his promising to pay to any 'lay person' 10% of recoveries or settlements. He was asked—and refused to answer—as to whether he had made or agreed to make such payments to any of several named persons, as to whether he had hired or paid nonlawyers to arrange settlements of his cases with insurance companies and as to whether his partner or associate Rothenberg had been indicted for and had pleaded guilty to violations of sections 270—a and 270—d of the Penal Law, Consol.Laws, c. 40, which forbid the solicitation of legal business or the employment by lawyers of such solicitors. * * *'
5
After petitioner had refused to answer these questions, counsel for the Inquiry warned him that 'serious consequences,' in the form of an exercise of the Appellate Division's disciplinary power over attorneys practicing before it,3 might flow from his refusal to respond, even though that refusal was based on a claim of privilege. As the basis for his warning counsel referred to various provisions of the Canons of Professional Ethics4 and of the New York Penal Law.5 Petitioner was then given a further opportunity to respond to the unanswered questions, but he declined, preferring to rely upon his claim of privilege.
6
Thereafter the Justice in charge of the Inquiry recommended to the Appellate Division that petitioner be disciplined. The Appellate Division ordered respondent Hurley to file a petition for disciplinary action. The ensuing petition sought petitioner's disbarment, alleging as grounds therefor:
7
'The refusal of * * * Albert Martin Cohen, to produce the records (called for by the Inquiry), and his refusal to answer the questions (summarized above), are in disregard and in violation of the inherent duty and obligation of respondent as a member of the legal profession in that, among other things, such refusals are contrary to the standards of candor and frankness that are required and expected of a lawyer to the Court; such refusals are in definance of and flaunt (sic) the authority of the Court to inquire into and elicit information within respondent's knowledge relating to this conduct and practices as a lawyer; by his refusal to answer the aforesaid questions the respondent hindered and impeded the Judicial Inquiry that was ordered by this Court; by his refusals respondent withheld vital information bearing upon his conduct, character, fitness, integrity, trust and reliability as a member of the legal profession. * * *'
8
The Appellate Division ordered petitioner disbarred, saying (9 A.D.2d at pages 448-449, 195 N.Y.S.2d at page 1003):
9
'To avoid any possible doubt as to our position, we state again that the basis for any disciplinary action by this court is, not the fact that respondent has invoked his constitutional privilege against self incrimination, but rather the fact that he has deliberately refused to co-operate with the court in its efforts to expose unethical practices and in its efforts to determine incidentially whether he had committed any acts of professional misconduct which destroyed the character and fitness required of him as a condition to his retention of the privilege of remaining a member of the Bar.'
10
The New York Court of Appeals affirmed, Judge Fuld dissenting.6 7 N.Y.2d 488, 199 N.Y.S.2d 658, 166 N.E.2d 672. We granted certiorari because the case presented still another variant of the issues arising in the Konigsberg, Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105, and Anastaplo, In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135, cases.
11
Starting from the undeniably correct premise that a State may not arbitrarily refuse a person permission to practice law, Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810; Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, petitioner's claim that New York's disbarment of him was capricious rests essentially on two propositions: (1) that the Fourteenth Amendment forbade the State from making his refusal to answer the Inquiry's questions a per se ground for disbarment; (2) that in any event such a ground is not permissible when refusal to answer rests on a bona fide claim of a privilege against self-incrimination.
I.
12
The first contention must be rejected largely in light of our today's opinions in the Konigsberg and Anastaplo cases. The fact that such refusal was here made a ground for disbarment, rather than for denial of admission to the barAs in Konigsberg and Anastaplo, is not of constitutional moment. And there is no claim here either that the unanswered questions were not material or that petitioner was not duly warned of the consequences of his refusal to answer. By the same token those cases also dispose of petitioner's basically similar contention that the State could proceed against him only by way of independent evidence of wrongdoing on his part.
13
We do not think it can be seriously contended that New York's judicial inquiry was so devoid of rational justification that the mere act of compelling even unprivileged testimony was a deprivation of petitioner's liberty without due process. History and policy combine to establish the presence of a substantial state interest in conducting an investigation of this kind. That interest is nothing less than the exertion of disciplinary powers which English and American courts (the former primarily through the Inns of Court) have for centuries possessed over members of the bar, incident to their broader responsibility for keeping the administration of justice and the standards of professional conduct unsullied. Not only is the practice of such judicial investigations long-established, but the subject matter of the present investigation does not lack a rational basis. It is no less true than trite that lawyers must operate in a three-fold capacity, as self-employed businessmen as it were, as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes. It is certainly not beyond the realm of permissible state concerns to conclude that too muchattention to the business of getting clients may be incompatible with a sufficient devotion to duties which a lawyer owes to the court, or that the 'payment of awards to persons bringing in legal business' is inconsistent with the personally disinterested position a lawyer should maintain.
14
Finally, it cannot by any stretch be considered that New York acted arbitrarily or irrationally in applying the disciplinary sanction of disbarment to the petitioner. What Mr. Justice Cardozo (then Chief Judge of the New York Court of Appeals) said in the Karlin case, People ex rel. Karlin v. Culkin, is enough to put an end to that contention:
15
'If a barrister was suspected of misconduct, the benchers of his inn might inquire of his behavior. We can hardly doubt that refusal to answer would have been followed by expulsion. There was thus little occasion for controversies as to discipline to be brought before the judges, unless the benchers failed in the performance of their duties. In case they did fail, a supervisory power was ever in reserve. The inns * * * were subject * * * to visitation by the judges. * * * Short shrift would there have been for the barrister who refused to make answer as to his professional behavior in defiance of the visitors.' 248 N.Y. 465, at pages 472—473, 162 N.E. 487, at page 490.
16
If more than long-lived practice is thought necessary to justify such a sanction, it is to be found in the fact that the denial of continued access to a position that can be misused is permissible to assure that the position may not be held without observance of the obligations lawfully imposed upon it. Revocation of a license for failure to fulfill similar obligations of a licensee is the very sanction which the Federal Government has adopted in a number of situations. See 12 U.S.C. § 481, 47 U.S.C. §§ 308(b), 312(a)(4), 12 U.S.C.A. § 481, 47 U.S.C.A. §§ 308(b), 312(a)(4). scope of federal review here as being
17
A different constitutional conclusion does not result from the fact that petitioner's refusal was based on a good-faith assertion of his state privilege against self-incrimination. Because, from a federal standpoint, there can be no doubt that a State has great leeway in defining the reach of its own privilege against self-incrimination, we regard the scopeof federal review here as being limited to the question whether arbitrary of discriminatory state action can be found in the consequences New York has attached to the exercise of the privilege in this instance.
18
Basic to consideration of this aspect of petitioner's case is the fact that the State's disbarment order was predicated not upon any unfavorable inference which it drew frow petitioner's assertion of the privilege, cf. Slochower v. Board of Higher Education, 350 U.S. 551, 557—558, 76 S.Ct. 637, 640—641, 100 L.Ed. 692; Grunewald v. United States, 353 U.S. 391, 421, 77 S.Ct. 963, 982, 1 L.Ed.2d 931, nor upon any purpose to penalize him for its exercise, but solely upon his refusal to discharge obligations which, as a lawyer, he owed to the court. The Court of Appeals stated:
19
'Of course, (petitioner) had the right to assert the privilege and to withhold the criminating answers. That right was his as it would be the right of any citizen and it was not denied to him. He could not be forced to waive his immunity * * *. But the question still remained as to whether he had broken the 'condition' on which depended the 'privilege' of membership in the Bar * * *. 'Whenever the condition is broken the privilege is lost' (citing Matter of Rouss, 221 N.Y. 81, 84—85, 116 N.E. 782, at page 782, Cardozo, J.). Appellant as a citizen could not be denied any of the common rights of citizens. But he stood before the inquiry and before the Appellate Division in another quite different capacity, also. As a lawyer he was 'an officer of the court, and, like the court itself, an instrument * * * of justice' (citing People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470—471, 162 N.E. 487, 489, Cardozo, J.), with the inevitable consequences that the court which was charged with control and discipline of its officers had its own right to demand his full, honest and loyal co-operation in its investigations and to strike his name from the rolls if he refused to co-operate. Such 'co-operation' is a 'phrase without reality' as Chief Judge Cardozo wrote in People ex rel. Karlin v. Culkin, supra, 248 N.Y. at page 471, 162 N.E. at page 489, if a lawyer after refusing to answer pertinent questions about his professional conduct can retain his status and privileges as an officer of the court.' 7 N.Y.2d at page 495, 199 N.Y.S.2d at page 662, 166 N.E.2d at page 675.
20
We do not think that it can be seriously contended that the unavailability of the state privilege in judicial inquiries of this type amounts to a distinction from criminal prosecutions so irrational as to suggest either a denial of due process or a purposeful discrimination of the kind which violates the Equal Protection Clause of the Fourteenth Amendment. A State may rationally conclude that the consequence of disbarment is less drastic than that of a prison term for contempt, albeit arguments to the contrary can be made as well. It may also rationally conclude that procedures resulting in greater preventive certainty are warranted when what is involved is the right to continue to occupy a position affording special opportunities, for deleterious conduct—opportunities, indeed, created by the State's original certification of the petitioner's merit. In this regard all that New York has in effect held is that petitioner, by resort to a privilege against self-incrimination, can no more claim a right not to be disbarred for his refusal to answer with respect to matters within the competence of the Court's supervisory powers over members of the bar, than could a trustee claim a right not to be removed from office for failure to render accounts which might incriminate him. Finally, where illegal or shady practices on the part of some lawyers are suspected, New York could rationally conclude that the profession itself need not be subjected to the disrespect which would result from the publicity, delay, and possible ineffectiveness in their exposure and eradication that might follow could miscreants only be dealt with through ordinary investigatory and prosecutorial processes.' If the house is to be cleaned, it is for those who occupy and govern it, rather than for strangers, to do the noisome work.' People ex rel. Karlin v. Culkin, 248 N.Y. 465, 480, 162 N.E. 487, 493, (Cardozo, J.).
21
These bases for affording a procedure in such judicial inquiries different from that in criminal prosecutions are more than enough to make wholly untenable a contention that there has here been a denial either of due process or of equal protection.
22
Although what has already been said disposes of this case, we take note, in conclusion, of two further considerations. First, it is suggested that the Fourteenth Amendment gave petitioner a Federal constitutional right not to be required to incriminate himself in the state proceedings (although, apart from his claim of fundamental unfairness, the petitioner himself does not so contend, Note 1, supra). That proposition, however, was explicitly rejected by this Court, upon the fullest consideration, more than fifty years ago, Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97,7 and such has been the position of the Court ever since.8 See Snyder v. Com. of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674;9 Brown v. Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, 80 L.Ed. 682; Palko v. Connecticut, 302 U.S. 319, 323—324, 58 S.Ct. 149, 150—151, 82 L.Ed. 288; Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903;10 Knapp v. Schweitzer, 357 U.S. 371, 374, 78 S.Ct. 1302, 1304, 2 L.Ed.2d 1393. This is not to say, of course, that State have free rein either in the choice of means of forcing incriminatory testimony, or in the drawing of inferences from a refusal to testify on grounds of possible self-incrimination, no matter how objectionable or irrational. But these decisions do establish, at the very least, that to make out a violation of the Fourteenth Amendment, something substantially more must be shown than that the state procedures involved have a tendency to discourage the withholding of self-incriminatory testimony.
23
It is, however, suggested that such additional factors are to be found in New York's assertion of a power to grant a state privilege against self-incrimination without including within its sweep protection from disbarment of a lawyer who asserts this privilege during a judicial inquiry into his professional conduct. It is said that this gives rise to a pernicious doctrine whereby lawyers 'may be separated into a special group upon which special burdens can be imposed even though such burdens are not and cannot be placed upon other groups.'
24
This argument wholly misconceives the issue and what the Court has held respecting it. The issue is not, of course, whether lawyers are entitled to due process of law in matters of this kind, but, rather, what process is constitutionally due them in such circumstances. We do not hold that lawyers, because of their special status in society, can therefore be deprived of constitutional rights assured to others, but only, as in all cases of this kind, that what procedures are fair, what state process is constitutionally due, what distinctions are consistent with the right to equal protection, all depend upon the particular situation presented, and that history is surely relevant to these inquiries.11 State banks may be subjected to periodic examinations that would violate the rights of some other kinds of business against unreasonable search and seizure. Compare 12 U.S.C. § 481, 12 U.S.C.A. § 481, with Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. A state contractor can be deprived of even the rudiments of a hearing on the issue of whether the state executive department is contracting in accordance with applicable state law. Cf. Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108. The 'right' to judicial review of agency determinations can be taken away from railroad employees in one situation but guaranteed to professional employees in other situations. Compare Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61, with Leedom v. kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210. A state employee need no longer be entrusted with government property if he refuses to explain what has become of property with which he is charged though his refusal may be protected against a contempt sanction by a state or federal privilege against self-incrimination. Cf. Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423.
25
Clearly enough, factual distinctions are the determinative consideration upon the question of what process is due in each of these cases. Otherwise making state procedures vary solely on the basis of the given occupation would indeed be nothing less than a denial of equal protection to bankers, contractors, railroad employees, and government employees. On the basis of the factual distinctions that we have mentioned above, we consider that a State can constitutionally afford a different procedure—the present procedure—in these judicial investigation from that in criminal prosecutions.
26
Petitioner's disbarment is not constitutionally infirm, and the Court of Appeals' order must be affirmed.
27
Affirmed.
28
Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
29
We are once again called upon to consider the constitutionality of penalties imposed upon lawyers who refuse to testify before a secret inquiry being conducted by the State of New York into suspected unethical practices among members of the legal profession in and around New York City. In Anonymous v. Baker,1 a majority of this Court upheld the power of New York to conduct such a secret inquiry. Here, the majority upholds the disbarment of petitioner, a New York lawyer for thirty-nine years, solely because, in reliance upon an assertion of his constitutional privilege against self-incrimination, he refused to testify before that inquiry. The theory upon which this order of disbarment was upheld by the New York Court of Appeals—a theory which the majority here embraces—is that although lawyers, as citizens, have a constitutional right not to incriminate themselves, they also have a special duty, as lawyers, to cooperate with the courts and that this 'duty of co-operation' would become a "phrase without reality' * * * if a lawyer after refusing to answer pertinent question about his professional conduct can retain his status and privileges as an officer of the court.'2 In my judgment, however, the majority is here approving a practice that makes the constitutional privilege against self-incrimination the 'phrase without reality.'3
30
This almost magical obliteration of the privilege against self-incrimination represents a radical departure from the previously established practice in the State of New York. For, as pointed out in the dissent of Judge Fuld, the New York Court of Appeals had earlier condemned an attempt to introduce precisely the policy it here accepted, saying: "The constitutional privilege (not to incriminate one's self) is a fundamental right and a measure of duty; its exercise cannot be a breach of duty to the court.' It follows that * * * the present disciplinary proceeding instituted against the appellant, wherein the single offense charged is his refusal to yield a constitutional privilege, is unwarrantable.'4
31
In departing from its prior policy of fully protecting the privilege against compelled self-incrimination guaranteed by both the State and the Federal Constitutions, the New York court relied heavily on several of this Court's recent cases.5 Those cases, I regret to say, do provide some support for New York's partial nullification of the constitutional privilege against self-incrimination. For those cases are a product of the recently emphasized constitutional philosophy under which no constitutional right is safe from being 'balanced' out of existence whenever a majority of this Court thinks that the interests of the State 'weigh more' than the particular constitutional guarantee involved.6 The product of the 'balancing' here is the conclusion that the State's interest in disbarring any lawyer suspected of 'ambulance chasing' outweighs the value of those provisions of our Bill of Rights and the New York Constitution commanding government not to make people testify against themselves. This is a very dubious conclusion, at least to one like me who believes that our Bill of Rights guarantees are essential to individual liberty and that they state their own values leaving no room for courts to 'weigh' them out of the Constitution.7 The First Amendment freedoms have already suffered a tremendous shrinkage from 'balancing,'8 and here the Fifth Amendment once again suffers from the same process.9 I agree with Mr. Justice DOUGLAS that the order here under review is in direct conflict with the mandate of the Fifth Amendment as made controlling upon the States by the Fourteenth Amendment.10
32
In a less important area, I would be content to rest my dissent upon the single ground that a State may not penalize any person for invoking his constitutional privilege against self-incrimination. But, as I see this case, it involves other constitutional problems that go far beyond the privilege against self-incrimination—problems that involve dangers which, though as yet largely peculiar to the members of the legal profession, are so important that they need to be discussed. And, as I understand the majority's opinion, it disposes of those problems on a ground that, from the standpoint of the legal profession, is the most far-reaching possible—that lawyers have fewer constitutional rights than others. It thus places the stamp of approval upon a doctrine that, if permitted to grow, as doctrines have a habit of doing, can go far toward destroying the independence of the legal profession and thus toward rendering that profession largely incapable of performing the very kinds of services for the public that most justify its existence.
33
The unlimited reach of the doctrine being promulgated can best be shown by analysis of the issue before us as that issue was posed by the court below. In coucluding that petitioner should be disbarred for reliance upon the privilege against self-incrimination, the New York Court of Appeals expressly recognized the right of every citizen, under New York law, to refuse to give self-incriminating testimony. 'That right,' the court said, 'was his (petitioner's) as it would be the right of any citizen * * *.' But, the curt reasoned, petitioner was more than an ordinary citizen. '(H)e stood before the inquiry and before the Appellate Division in another quite different capacity, also.'11 The capacity referred to was petitioner's capacity as a lawyer. In that 'capacity,' the court concluded, petitioner could not properly avail himself of his rights as a citizen. Thus it is clear that the theory adopted by the court below and reaffirmed by the majority here is that lawyers may be separated into a special group upon which special burdens can be imposed even though such burdens are not and cannot be placed upon other groups. Lawyers are thus to have their legal rights determined by something less than the 'law of the land' as it is accorded to other people.
34
In my judgment, the theory so casually but enthusiastically adopted by the majority constitutes nothing less than a denial to lawyers of both due process and equal protection of the laws as guaranteed by the Fourteenth Amendment. For I have always believed that those guarantees, taken together, mean at least as much as Daniel Webster told this Court was meant by due process of law, or the 'law of the land,' in his famous argument in the Dartmouth College case: 'By the law of the land is most clearly intended the general law * * *. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society.'12 I think it is clear that the opinion of the majority in this case says unequivocally that lawyers may not avail themselves of 'the general rules which govern society.'
35
The majority recognizes, as indeed it must, that New York is depriving lawyers, because they are lawyers, of the full benefit of a constitutional privilege available to other people. But, instead of reaching the natural and, I think, obvious conclusion that such a singling out of one particular group13 for special disabilities with regard to the basic privileges of individuals is in direct conflict with the Fourteenth Amendment,14 it chooses to defend this patent discrimination against lawyers on the theory that there are no protections guaranteed to every man who in the words of Magna Charta, is being 'anywise destroyed' by the Government. The 'law of the land' is therefore, in the view of the majority, an accordion-like protection that can be withdrawn from any person or group of persons whenever the Government might prefer 'procedures resulting in greater preventive certainty' if it can show some 'reasonable' basis for that preference. The majority then proceeds to find such a 'reasonable' basis on two grounds: first, that lawyers occupy a high position in our society 'affording special opportunities for deleterious conduct' and can, by virtue of that position, be compelled to forego rights that are accorded to other groups; and, secondly, that the powers here exercised over petitioner by the courts of New York are no different than those exercised over lawyers by the courts of England several hundred years ago. In my judgment, neither of these grounds provides the slightest justification for the refusal of the State of New York to allow lawyers to avail themselves of 'the general rules which govern society.'
36
I heartily agree with the view expressed by the majority that lawyers occupy an important position in our society, for I recognize that they have a great deal to do with the administration, the enforcement, the interpretation, and frequently even with the making of the Constitution and the other laws that govern us. But I do not agree with the majority that the importance of their position in any way justifies a discrimination against them with regard to their basic rights as individuals. Quite the contrary, I would think that the important role that lawyers are called upon to play in our society would make it all the more imperative that they not be discriminated against with regard to the basic freedoms that are designed to protect the individual against the tyrannical exertion of governmental power. For, in my judgment, one of the great purposes underlying the grant of those freedoms was to give independence to those who must discharge important public responsibilities. The legal profession, with responsibilities as great as those placed upon any group in our society, must have that independence. If it is denied them they are likely to become nothing more than parrots of the views of whatever group wields governmental power at the moment. Wherever that has happened in the world, the lawyer, as properly so called and respected, has ceased to perform the highest duty of his calling and has lost the affection and even the respect of the people.
37
Nor do I believe, as the majority asserts, that the discrimination here practiced is justified by virtue of the fact that the courts of England have for centuries exercise disciplinary powers 'over members of the bar, incident to their broader responsibility for keeping the administration of justice and the standards of professional conduct unsullied.' The rights of lawyers in this country are not, I hope, to be limited to the rights that English rulers chose to accord to their barristers hundreds of years ago. For it is certainly true that the courts of England could have then, as the majority points out, made 'short shrift' of any barrister who refused to 'co-operate' with the King's courts. Indeed, those courts did sometimes make 'short shrift' of lawyers whose greatest crime was to dare to defend unpopular causes.15 And in much the same manner, these same courts were at this same time using their 'inherent' powers to make 'short shrift' of juries that returned the wrong verdict.16 History, I think, records that it was this willingness on the part of the courts of England to make 'short shrift' of unpopular and uncooperative groups that led, first, to the colonization of this country, later, to the war that won its independence, and, finally to the Bill of Rights.17
38
When the Founders of this Nation drew up our Constitution, they were uneasily aware of this English practice, both as it had prevailed in that country and as it had been experienced in the colonies prior to the Revolution. Particularly fresh in their minds was the treatment that had been accorded the lawyers who had sought to defend John Peter Zenger against a charge of seditious libel before a royal court in New York in 1735.18 These two lawyers had been summarily disbarred by the judges presiding at that trial for 'having presumed, (notwithstanding they were forewarned by the Court of their displeasure, if they should do it) to sign, and having actually signed, and put into court, Exceptions, in the name of John Peter Zenger; thereby denying the legality of the judges their commissions * * *.'19 It is to the lasting credit and renown of the colonial bar that Andrew Hamilton, a lawyer of Philadelphia, defied the hostility of the judges, defended and brought about the acquittal of Zenger.20
39
Unlike the majority today, however, the Founders were singularly unimpressed by the long history of such English practices. They drew up a Constitution with provisions that were intended to preclude for all time in this country the practice of making 'short shrift' of anyone—whether he be lawyer, doctor, plumber or thief. Thus, it was provided that in this country, the basic 'law of the land' must include, among others, freedom from bills of attainder, from ex post facto laws and from compulsory self-incrimination, and rights to trial by jury after indictment by grand jury and to assistance of counsel.21 To make certain that these rights and freedoms would be accorded equally to everyone, it was also provided: 'No person shall * * * be deprived of life, liberty, or property, without due process of law.'22 (Emphasis supplied.) The majority is holding, however, that lawyers are not entitled to the full sweep of due process protections because they had no such protections against judges or their fellow lawyers in England. But I see no reason why this generation of Americans should be deprived of a part of its Bill of Rights on the basis of medieval English practices that our Forefathers left England, fought a revolution and wrote a Constitution to get rid of.23 This Court should say here with respect to due process and self-incrimination what it said with respect to the freedoms of speech and press in Bridges v. California: '(T) o assume that English common law in this field became ours is to deny the generally accepted historical belief that 'one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press."24
40
Instead of applying the reasoning of the Bridges case to protect the right of lawyers to avail themselves of the privilege against self-incrimination, the majority departs from that reasoning in an opinion that threatens also to restrict the freedoms of speech, press and association. For, in addition to the bare holding that a lawyer may not avail himself of the 'law of the land' with respect to the privilege against self-incrimination, the opinion carries the plain implication that a lawyer is not to have the protection of the First Amendment with regard to his private beliefs and associations whenever his exercise of those freedoms might interfere with his duty to 'co-operate' with a judge.25 It is, of course, possible that the majority will allow this process to go no further—that it will not disturb the few remaining constitutional safeguards of the lawyer's independence. But I find no such promise in the majority's opinion. On the contrary, I find in that opinion a willingness to give overriding effect to the lawyer's duty of 'co-operation,' even to the destruction of constitutional safeguards, and I cannot know how many constitutional safeguards would be sacrificed to this doctrine. Could a lawyer who refused to 'co-operate' now be subjected to an unlawful search in an attempt to find evidence that he is guilty of something that a judge might later find to constitute 'shady practices'?26 Could the court peremptorily confine a lawyer in jail for contempt until he agreed to 'co-operate' with the court by foregoing his privilege against self-incrimination—or renouncing his freedom of speech?27 Or can American courts now emulate the onetime practice of English courts of sending lawyers to jail for the 'crime' of publicly advocating the repeal of laws that require people to incriminate themselves?28 If the requirements of due process and equal protection of the laws are observed, we know that the answers to these questions would be, no. But who knows how short 'short shrift' can get?
41
The majority says that some of the evil practices I have referred to do not exist today and that they would now be held unconstitutional. The Court does not mean, of course, that the people of this country have an 'absolute' right not to be subjected to such practices.29 It means rather that a majority of this Court, as presently constituted, thinks that such practices are not 'justified on balance.' But only 10 years ago, a different majority of this Court upheld summary imprisonment of the defense counsel in Dennis v. United States,30 on a record which indicated that the primary reason for that imprisonment was the imputation to the lawyers of what the trial judge conceived of as the unpatriotic and treasonable designs of their clients.31 Even more recently, a bare 5—4 majority of this Court prevented the temporary disbarment of a lawyer whose only 'crime' lay in criticizing the manner in which the federal courts conduct trials for sedition.32 And today, this Court is upholding the refusal of two States to admit lawyers to their respective Bars solely because those lawyers would not renounce their rights under the First Amendment.33 The sad truth is that the majority is being unduly optimistic in thinking the practices I have mentioned do not exist today. They may have been disguised by description in different language but the practices themselves have not changed.
42
It seems to me that the majority takes a fundamentally unsound position when it endorses a practice based upon the artificial notion that rights and privileges can be stripped from a man in his capacity as a lawyer without affecting the rights and privileges of that man as a man. It is beyond dispute that one of the important ends served by the practice of law is that it provides a means of livelihood for the lawyer and those dependent upon him for support. That means of earning a livelihood is not one that has been conferred upon the lawyer as a gift from the State. Quite the contrary, it represents a substantial investment in time, money and energy on the part of the person who prepares himself to go into the legal profession. Moreover, even after a lawyer has been admitted to practice, a further substantial investment must be made to enable the lawyer to build up the sort of goodwill that lies at the root of any successful practice. Young lawyers must and do take on cases in which their ultimate fee is only a fraction of the real value of the work they put into the case in order to build up this sort of goodwill. The lawyer's abilities, acquired through long and expensive education, and the goodwill attached to his practice, acquired in part through uncompensated services, are capital assets that belong to the lawyer—both as a lawyer and as a man, assuming that such a conceptualistic distinction can be drawn.
43
These assets should be no more subject to confiscation than his home or any other asset he may have acquired through his industry and initiative. If they are used in violation of an already-existing, clear requirement of the law which pronounces as the penalty for violation confiscation of the assets, and if the violation is established in a proceeding in which all the requirements of the 'law of the land' are satisfied, that is one thing.34 But to confiscate the earning capacity that represents a large part of a lawyer's lifetime achievements on the theory that no such asset exists is quite another. The theory that the practice of law is nothing more than a privilege conferred by the State which it can destroy whenever it can assert a 'reasonable' justification for doing so seems to me to permit plain confiscation.
44
Even apart from the financial impact, the disbarment of a lawyer cannot help but have a tremendous effect upon that lawyer as a man. The dishonor occasioned by an official pronouncement that a man is no longer fit to follow his chosen profession cannot well be ignored. Such dishonor undoubtedly goes far toward destroying the reputation of the man upon whom it is heaped in the community in which he lives. And the suffering that results falls not only upon the disbarred lawyer but upon his family as well. Government certainly should not be allowed to do this to a man without according him the full benefit of the 'law of the land,' both constitutional and statutory.
45
In view of all this I can see no justification for the notion that membership in the bar is a mere privilege conferred by the State and is therefore subject to withdrawal for the 'breach' of whatever vague and indefinite 'duties' the courts and other lawyers may see fit to impose on a case-by-case basis.35 Nearly a century ago, an English judge observed, correctly I think, that 'short of those heavy consequences which would attach to the greater and more heinous offences, I own I can conceive of no jurisdiction more serious than that by which a man may be deprived of his degree and status as a barrister, and which, in such a case perhaps, after he has devoted the best years of his life to this arduous profession,—deprives him of his position as a member of the profession, and throws him back upon the world to commence a new career as best he may, stamped with dishonour and disgrace.'36 But that is precisely what is happening here on the basis of nothing more than petitioner's 'failure to co-operate' with the courts by reliance upon his constitutional privilege against self-incrimination. A man who has devoted thirty-nine years of his life to the practice of law and who, so far as this record shows, has never failed to perform those services faithfully and honorably is being dismissed from the profession in disgrace and is having his means of livelihood taken away from him at a point in his lefe when it seems highly unlikely that he will be able to find an adequate alternative means to support himself.
46
Quite differently from the majority, I think that the legal profession not only can but should endure what the majority refers to as the 'disrespect which would result from the publicity, delay, and possible ineffectiveness in their exposure and eradication that might follow could miscreants only be dealt with through ordinary investigatory and prosecutorial processes.' (Emphasis supplied.) Indeed, I cannot understand how any man in this country can assume that 'publicity,' 'delay' and 'ineffectiveness' brought on by observance of due process of law can ever be disrespectable. I am not at all certain, however, that the legal profession can survive in any form worthy of the respect we want it to have if its internal intergroup conflicts over professional ethics37 are not rigidly confined by just those 'ordinary investigatory and prosecutorial processes' which, though belittled by the majority today, are enshrined in the concepts of equal protection and due process. For if the legal profession can, with the aid of those members of the profession who have become judges, exclude any member it wishes even though such exclusion could not be accomplished within the limits of the same kind of due process that is accorded to other people, how is any lawyer going to be able to take a position or defend a cause that is likely to incur the displeasure of the judges or whatever group of his fellow lawyers happens to have authority over him?38 The answer is that in many cases he is not going to be able to take such a position or to defend such a cause and the public will be deprived of just those legal services that, in the past, have given lawyers their most bona fide claim to greatness.
47
It may be that petitioner has been guilty of some violation of law which if legally proved would justify his disbarment. It is only fair to say, however, that there is not one shred of evidence in this record to show such a violation. And petitioner is entitled to every presumption of innocence until and unless such a violation has been charged and proved in a proceeding in which he, like other citizens, is accorded the protection of all of the safeguards guaranteed by the requirements of equal protection and due process of law. This belief that lawyers too are entitled to due process and equal protection of the laws will not, I hope, be regarded as too new or too novel.
48
The great importance of observing due process of law, though to some extent familiar to lawyers and laymen alike, is sometimes difficult for laymen to understand. Courts have often had to rely upon lawyers and their familiarity with the wisdom underlying these processes to explain the need for time-consuming procedures to impatient laymen. Such impatience is understandable when it comes from laymen—but it is regrettable to find it in lawyers. The respect for a rule of law administered through due process of law is the very hallmark of a lawyer—without it he cannot keep faith with his profession.
49
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
50
The privilege against self-incrimination contained in the Fifth Amendment has an honorable history and should not be downgraded as it is today. Levi Lincoln, Attorney General, objected in the hearing of Marbury v. Madison, 1 Cranch 137, 144, 2 L.Ed. 60, to answering certain questions on the ground that the answers might tend to crimination him.1 See Warren, The Supreme Court in United States History (1937), Vol. I, p. 237. The Court, then headed by Chief Justice Marshall, respected the privilege.2 Neither he nor any Justice even intimated that it was improper for a lawyer to invoke his constitutional rights. They knew that the Fifth Amendment was designed to protect the innocent as well as the guilty. What the Court did that day reflected the attitude expressed by the Court in 1956 in Slochower v. Board of Education, 350 U.S. 551, 557—558, 76 S.Ct. 637, 641, when we said, 'The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. * * * The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.'
51
The lawyer in this case is in the same need of that protection as was the Attorney General in Marbury v. Madison and the professor in the Slochower case.
52
The American philosophy of the Fifth Amendment was dynamically stated by President Andrew Jackson who replied as follows to a House Committee investigating the spoils system:
53
'(Y)ou request myself and the heads of the departments to become our own accusers, and to furnish the evidence to convict ourselves.' H.R.Rep.No.194, 24th Cong., 2d Sess., p. 31.
54
President Grant took long absences from Washington, D.C., for recreational purposes. A House resolution asked Grant to list all his executive acts, since his election, which had been 'performed at a distance from the seat of government established by law,' together with an explanation of the necessity 'for such performance.' Grant declined, stating that if the information was wanted for purposes of impeachment '* * * it is asked in derogation of an inherent natural right, recognized in this country by a constitutional guarantee which protects every citizen, the President as well as the humblest in the land, from being made a witness against himself.' 4 Cong.Rec., Pt. 3, 44th Cong., 1st Sess., p. 2999; H.Jour., 44th Cong., 1st Sess., p. 917.
55
A faithful account of the Fifth Amendment was given by Simon H. Rifkind, formerly a federal judge in the Southern District of New York who served with distinction from 1941 to 1950. He said in an address on May 3, 1954:3
56
'Far and wide, currency has been given to what I regard as the mischievous doctrine, the unconstitutional and historically false doctrine that the plea of the Fifth Amendment is an admission of guilt, an act of subversion, a badge of disloyalty.
57
'I confess that when I hear the words 'Fifth Amendment Communist' spoken, I experience a sense of revulsion. In that phrase I detect a denial of seven centuries of civilizing growth in our law, a repudiation of that high regard for human dignity which is the proud hallmark of our law. That phrase makes a mockery of a practice of every court in our land—a practice which is so well-accepted that we take it for granted: Has any of you ever seen a prosecutor call a defendant to the witness stand? Of course not; you are shocked, I hope, at the suggestion. A defendant takes the stand only of his own free will. Nor do we speak of 'Fifth Amendment burglars,' 'Fifth Amendment traffic violators,' or 'Fifth Amendment anti-trust law violators.' Nor, for that matter, would I speak of 'Fifth and Sixth Amendment Senators.' But I do seem to recall that when the actions of a Senator recently came under investigation, he hastened to insure that he would have the right to confront and cross-examine has accusers. He demanded that a statement of the charges be made available to him, and he insisted that he be allowed to compel the attendance of witnesses in his own behalf.
58
'This is not the time to go into the hoary history of the Fifth Amendment, but this much is clear: The privilege to remain silent was regarded by our ancestors as the inalienable right of a free man. To compel a man to accuse himself was regarded as a cruelty beneath the tolerance of civilized people, and it simply is not true as a matter of law that only the guilty are privileged to plead the Fifth Amendment. The innocent too have frequent occasion to seek its beneficent protection.'
59
There is no exception in the Fifth Amendment for lawyers any more than there is for professors, Presidents, or other office holders.
60
I believe that the States are obligated by the Due Process Clause of the Fourteenth Amendment to accord the full reach of the privilege to a person who invokes it. See Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903 (dissenting opinion); Scott v. California, 364 U.S. 471, 81 S.Ct. 245, 5 L.Ed.2d 222 (dissenting opinion)—a position which Mr. Justice Brennan today strengthens and reaffirms. In the disbarment proceedings, petitioner relied not only on the state constitution but on the Due Process Clause of the Fourteenth Amendment, contending that it forbade the State's making his silence the basis for his disbarment. I agree with that view. Moreover, apart from the Fifth Amendment, I do not think that a State may require self-immolation as a condition of retaining the license of an attorney. When a State uses petitioner's silence to brand him as one who has not fulfilled his 'inherent duty and obligation * * * as a member of the legal profession,' it adopts a procedure that does not meet the requirements of due process. Taking away a man's right to practice law is imposing a penalty as severe as a criminal sanction, perhaps more so. The State should carry the burden of proving guilt. The short-cut sanctioned today allows proof of guilt to be 'less than negligible.' Grunewald v. United States, 353 U.S. 391, 424, 77 S.Ct. 963, 984, 1 L.Ed.2d 931.
61
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE joins, dissenting.
62
I would reverse because I think that the petitioner was protected by the immunity from compulsory self-incrimination guaranteed by the Fifth Amendment, which in my view is absorbed by the Fourteenth Amendment, and therefore is secured against impairment by the States.
63
In Barron v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 8 L.Ed. 672, decided in 1833, the Court held that it was without jurisdiction to review a judgment of the Maryland Court of Appeals which denied an owner compensation for his private property taken for public use. Chief Justice Marshall wrote that, contrary to the contention of the owner, 'the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.' This, he said, was because the first eight Amendments 'contain no expression indicating an intention to apply them to the state governments. This Court cannot so apply them.' 7 Pet., at pages 250—251. For over a quarter of a century after the adoption of the Fourteenth Amendment in 1868, this holding was influential in many decisions of the Court which rejected arguments for the application to the States of one after another of the specific guarantees included in the Federal Bill of Rights. See Knapp v. Schweitzer, 357 U.S. 371, 378—379, note 5, 78 S.Ct. 1302, 1306—1307, where the cases are collected.
64
In 1897, however, the Court decided Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979. That case also challenged the constitutionality of a judgment of a State Supreme Court, that of Illinois, alleged to have sustained a taking of private property for public purposes without just compensation. But the property owner could now invoke the Fourteenth Amendment against the State. The Court held that the claim based on that Amendment was cognizable by the Court. On the merits, the first Mr. Justice Harlan wrote, 'In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument.' 166 U.S. at page 241, 17 S.Ct. at page 586. Thus the Court, in fact if not in terms, applied the Fifth Amendment's just-compensation requirement to the States, finding in the Fourteenth Amendment a basis which Chief Justice Marshall in Barron found lacking elsewhere in the Constitution.
65
But if suitors in state cases who invoked the protection of individual guarantees of the Bill of Rights were no longer to be turned away by the Court with Marshall's summary 'This court cannot so apply them,' neither was the Court to give encouragement that all specifics in the federal list would be applied as was the Just Compensation Clause. Although there were Justices as early as 1892, see O'Neil v. Vermont, 144 U.S. 323, 337, 366, 12 S.Ct. 693, 698, 699 36 L.Ed. 450 (dissenting opinions), as there are Justices today, see dissent of Mr. Justice DOUGLAS herein and Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, (dissenting opinion), urging the view that the Fourteenth Amendment carried over intact the first eight Amendments as limitations on the States, the course of decisions has not so far followed that view. Additional specific guarantees have, however, been applied to the States. For example, while as recently as 1922, Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543, 42 S.Ct. 516, 522, 66 L.Ed. 1044, the Court had said that the Fourteenth Amendment did not make the protections of the First Amendment binding on the States, decisions since 1925 have extended against state power the full panoply of the First Amendment's protections for religion, speech, press, assembly, and petition. See, e.g., Gitlow v. People of State of New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625, 627, 75 L.Ed. 1357; DeJonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278; Bridges v. California, 314 U.S. 252, 277, 62 S.Ct. 190, 201, 86 L.Ed. 192. The view occasionally expressed that the freedom of speech and the press may be secured by the Fourteenth Amendment less broadly than it is secured by the First, see Beauharnais v. Illinois, 343 U.S. 250, 288, 72 S.Ct. 725, 746, 96 L.Ed. 919 (dissenting opinion); Roth v. United States, 354 U.S. 476, 505 506, 77 S.Ct. 1304, 1319—1320, 1 L.Ed.2d 1498 (separate opinion); Smith v. California, 361 U.S. 147, 169, 80 S.Ct. 215, 227, 4 L.Ed.2d 205 (separate opinion), has never persuaded even a substantial minority of the Court. Again, after saying in 1914 that 'the 4th Amendment is not directed to individual misconduct of (state) officials. Its limitations reach the Federal government and its agencies,' Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 346, 58 L.Ed. 652, the Court held in 1949 that '(t)he security of one's privacy against arbitrary intrusion by the police * * * is * * * implicit in 'the concept of ordered liberty' and as such enforceable against the States * * *.' Wolf v. Colorado, 338 U.S. 25, 27—28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782; and see Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669.
66
This application of specific guarantees to the States has been attended by denials that this is what in fact is being done. The insistence has been that the application to the States of a safeguard embodied in the first eight Amendments is not made 'because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.' Twining v. New Jersey, 211 U.S. 78, 99, 29 S.Ct. 14, 20, 53 L.Ed. 97. In other words, due process is said to be infused with 'an independent potency' not resting upon the Bill of Rights, Adamson v. California, 332 U.S. 46, 66, 67 S.Ct. 1672, 1682 (concurring opinion). It is strange that the Court should not have been able to detect this characteristic in a single specific when it rejected the application to the States of virtually every one of them in the three decades following the adoption of the Fourteenth Amendment. Since '(f)ew phrases of the law are so elusive of exact apprehension as * * * (due process of law) * * * (and) * * * its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise,' Twining v. New Jersey, supra, 211 U.S. at pages 99 100, 29 S.Ct. at page 20, this formulation has been a convenient device for leaving the Court free to select for application to the States some of the rights specifically mentioned in the first eight Amendments, and to reject others. But surely it blinks reality to pretend that the specific selected for application is not really being applied. Mr. Justice Cardozo more accurately and frankly described what happens when he said in Palko v. Connecticut, 302 U.S. 319, 326, 58 S.Ct. 149, 152, 82 L.Ed. 288, that guarantees selected by the Court 'have been taken over from the earlier articles of the Federal Bill of Rights and brought within the Fourteenth Amendment by a process of absorption. * * *' (Italics supplied.)
67
Many have had difficulty in seeing what justifies the incorporation into the Fourteenth Amendment of the First and Fourth Amendments which would not similarly justify the incorporation of the other six. Even if I assume, however, that, at least as to some guarantees, there are considerations of federalism—derived from our tradition of the autonomy of the States in the exercise of powers concerning the lives, liberty, and property of state citizens—which should overbear the weighty arguments in favor of their application to the States, I cannot follow the logic which applies a particular specific for some purposes and denies its application for others. If we accept the standards which justify the application of a specific, namely that it is 'of the very essence of a scheme of ordered liberty,' Palko v. Connecticut, supra, 302 U.S. at page 325, 58 S.Ct., at page 152, or is included among 'those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' Hurtado v. California, 110 U.S. 516, 535, 4 S.Ct. 111, 120, 28 L.Ed. 232, or is among those personal immunities 'so rooted in the traditions and conscience of our people as to be ranked as fundamental,' Snyder v. Com. of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, surely only impermissible subjective judgments can explain stopping short of the incorporation of the full sweep of the specific being absorbed. For example, since the Fourteenth Amendment absorbs in capital cases the Sixth Amendment's requirement that an accused shall have the assistance of counsel for his defense, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, I cannot see how a different or greater interference with a State's system of administering justice is involved in applying the same guarantee in noncapital cases. Yet our decisions have limited the absorption of the guarantee to such noncapital cases as on their particular facts 'render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair * * *.' Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 186, 93 L.Ed. 127; see also Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. But see McNeal v. Culver, 365 U.S. 109, 117, 81 S.Ct. 413, 418, 5 L.Ed.2d 445 (concurring opinion). This makes of the process of absorption 'a license to the judiciary to administer a watered-down, subjective version of the individual guarantees of the Bill of Rights when state cases come before us,' which, I said in Ohio ex rel. Eaton v. Price, 364 U.S. 263, 275, 80 S.Ct. 1463, 1470, 4 L.Ed.2d 1708 (dissenting opinion), I believe to be indefensible.
68
The case before us presents, for me, another situation in which the application of the full sweep of a specific is denied, although the Court has held that its restraints are absorbed in the Fourteenth Amendment for some purposes. Only this Term we applied, admittedly not in terms but nevertheless in fact, the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment to invalidate a state conviction obtained with the aid of a confession, however true, which was secured from the accused by duress or coercion. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; and see Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. And not too long ago we invalidated a state conviction for illegal possession of morphine based on evidence of two capsules which the accused had swallowed and then had been forced by the police to disgorge Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. But the Court today relies upon earlier statements that the immunity from compulsory self-incrimination is not secured by the Fourteenth Amendment against impairment by the States. These statements appear primarily in Twining v. New Jersey, supra, and Adamson v. California, supra. Those cases do not require the conclusion reached here. Neither involved the question here presented of the constitutionality of a penalty visited by a State upon a citizen for invoking the privilege. Both involved only the much narrower question whether comment upon a defendant's failure to take the stand in his own defense was constitutionally permissible.
69
However, all other reasons aside, a cloud has plainly been cast on the soundness of Twining and Adamson by our decisions absorbing the First and Fourth Amendments in the Fourteenth. There is no historic or logical reason for supposing that those Amendments secure more important individual rights. I need not rely only on Mr. Justice Bradley's famed statement in Boyd v. United States, 116 U.S. 616, 632, 6 S.Ct. 524, 533, 29 L.Ed. 746, that compulsory self-incrimination 'is contrary to the principles of a free government. It is abhorrent to the instincts of an * * * American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.' I may also call to my support the more current appraisal in the same vein in Ullmann v. United States, 350 U.S. 422, 426—428, 76 S.Ct. 497, 500—501, 100 L.Ed. 511. The privilege is rightly designated 'one of the great landmarks in man's struggle to make himself civilized.' Griswold, The Fifth Amendment Today, (1955) 7. But even without the support of these eminent authorities, I believe that the unanswerable case for absorption was stated by the first Mr. Justice Harlan in his dissent in Twining, supra, 211 U.S. at page 114, 29 S.Ct. at page 26. Therefore, with him, 'I cannot support any judgment declaring that immunity from self-incrimination is not * * * a part of the liberty guaranteed by the 14th Amendment against hostile state action.' Id., 211 U.S. at page 126, 29 S.Ct. at page 31. The degree to which the privilege can be eroded unless deterred by the Fifth Amendment's restraints is forcefully brought home in this case by the New York Court of Appeals' departure from its former precedents. See Judge Fuld's dissent, 7 N.Y. 488, 498, 199 N.Y.S.2d 658, 664, 166 N.E.2d 672, 677.
70
I would hold that the full sweep of the Fifth Amendment privilege has been absorbed in the Fourteenth Amendment. In that view the protection it affords the individual, lawyer or not, against the State, has the same scope as that against the National Government, and, under our decision in Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, the order under review should be reversed.
1
N.Y.Const. Art. I, § 6. While petitioner, at his appearance before the investigating authority, also claimed a federal privilege not to testify, in his later response to the petition initiating disciplinary proceedings he relied solely upon 'the privilege against self-incrimination guaranteed to all persons, lawyers or laymen alike, under Article I Section 6 of the New York State Constitution.' It is of course settled that a Fifth Amendment privilege was not availabel to petitioner in the present case. See, e.g., Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393; Lerner v. Casey, 357 U.S. 468, 478, 78 S.Ct. 1311, 1316, 2 L.Ed.2d 1423. Nor do we understand it to be contended that the Fourteenth Amendment automatically precluded the State from exacting petitioner's testimony and attaching consequences to his refusal to respond. Cf. Adamson v. California, 332 U.S. 46, 54, 67 S.Ct. 1672, 1676, 91 L.Ed. 1903; Palko v. Connecticut, 302 U.S. 319, 323—324, 58 S.Ct. 149, 150—151, 82 L.Ed. 288; Twining v. New Jersey, 211 U.S. 78, 110—114, 29 S.Ct. 14, 24—26, 53 L.Ed. 97. We take the petitioner's position and the remittitur of the Court of Appeals as presenting under the Fourteenth Amendment only a broad claim of fundamental unfairness.
2
the following quotation from the respondent's brief accurately reflects the record:
'During the period 1954 to 1958, inclusive, pursuant to the provisions of said Rule, petitioner, a specialist in negligence cases, filed 228 statements as to retainer in his own name. In addition, 76 such statements were filed in the firm name of Cohen & Rothenberg, thus indicating that petitioner and his law firm had been retained on a contingent basis in a total of 304 negligence cases in five years (R. 33—35). The inquiry therefore deemed it advisable to call petitioner as one of its witnesses.'
3
Section 90 of the New York Judiciary Law.
4
'* * * Canon 22 * * * requiring lawyers to be candid and frank when before the court, Canons 28 and 29 forbidding the payment of awards to persons bringing in legal business and requiring lawyers knowing of such practices to inform the court thereof, Canon 34 outlawing division of fees except with other lawyers * * *.' 7 N.Y.2d 488, 494, 199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 675. Canons 29 and 34 of the New York Canons of Professional Ethics are found in McKinney N.Y.Laws, Judiciary Law, pp. 774—775. Canons 22 and 28 are found in the 1959 'pocket part,' at pp. 210—211. They are similar in all respects to the correspondingly numbered Canons of Professional Ethics of the American Bar Association.
5
N.Y.Pen.Law §§ 270—a, 270—c, 270—d, 276, 'all relating to soliciting and fee splitting.' 7 N.Y.2d 488, 494, 199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 675.
6
Judge Fuld dissented on state constitutional gounds, reaching no federal questions.
7
'Even if the historical meaning of due process of law and the decisions of this court did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which is the inalienable possession of every citizen of a free government. Salutary as the principle may seem to the great majority, it cannot be ranked with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption has never been universally assented to since the days of Bentham; many doubt it to-day, and it is best defended not as an unchangeable principle of universal justice but as a law proved by experience to be expedient. See Wigmore, § 2251. It has no place in the jurisprudence of civilized and free countries outside the domain of the common law, and it is nowhere observed among our own people in the search for truth outside the administration of the law. It should, must, and will be rigidly observed where it is secured by specific constitutional safeguards, but there is nothing in it which gives it a sanctity above and before constitutions themselves. Much might be said in favor of the view that the privilege was guaranteed against state impairment as a privilege and immunity of National citizenship, but, as has been shown, the decisions of this court have foreclosed that view. There seems to be no reason whatever, however, for straining the meaning of due process of law to include this privilege within it, because, perhaps, we may think it of great value. The States had guarded the privilege to the satisfaction of their own people up to the adoption of the Fourteenth Amendment. No reason is perceived why they cannot continue to do so. The power of their people ought not to be fettered, their sense of responsibility lessened, and their capacity for sober and restrained self-government weakened, by forced construction of the Federal Constitution. * * *' 211 U.S. at pages 113—-114, 29 S.Ct. at page 25.
8
Hence, if any 'constitutional privilege against self-incrimination' has here been made a "phrase without reality" it can only have been a state privilege which this Court does not have jurisdiction to protect.
9
'The privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state.' 291 U.S. at page 105, 54 S.Ct. at page 332.
10
'California follows Anglo-American legal tradition in excusing defendants in criminal prosecutions from compulsory testimony. * * * That is a matter of legal policy and not because of the requirements of due process under the Fourteenth Amendment.' 332 U.S. at pages 54—55, 67 S.Ct. at page 1677.
11
Of course it is not alone the early beginning of the practice of judicial inquiry into attorney practices which is significant upon the reasonableness of what transpired here. Rather it is the long life of that mode of procedure which bears upon that issue, in much the same way that a strong consensus of views in the States is relevant to a finding of fundamental unfairness. What is significant is that the practice we are now concerned with has survived the centuries which have seen the fall of all those iniquitous standards of which we are reminded, and which, incidentially, would be equally unconstitutional today if applied after a full criminal-type investigation and trial. While recognizing that the test was not exclusive, this Court stated many years ago:
'First. What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. This test was adopted by the court, speaking through Mr. Justice Curtis, in Den ex den. Murray v. Hoboken Land Co., 18 How. 272, 280, 15 L.Ed. 372, 376 * * *.' Twining v. New Jersey, supra, 211 U.S. at page 100, 29 S.Ct. at page 20.
1
360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234. The majority there held that witnesses before the inquiry could constitutionally be deprived of a public hearing and the assistance of counsel. But cf. Chambers v. Florida, 309 U.S. 227, 237, 60 S.Ct. 472, 477, 84 L.Ed. 716; 'The determination to preserve an accused's right to procedural due process sprang in large part from knowledge of the historical truth that the rights and liberties of people accused of crime could not be safely entrusted to secret inquisitorial processes.'
2
Matter of Cohen, 7 N.Y.2d 488, 495, 199 N.Y.S.2d 658, 662, 166 N.E.2d 672, 675.
3
In my judgment, petitioner's reliance upon his federal privilege against self-incrimination under the Fifth and Fourteenth Amendments is sufficiently shown by this whole record to require the consideration of that question by this Court. As the majority points out, petitioner expressly asserted that privilege before the court conducting the inquiry. Since that time it is true that he has not always spelled out with meticulous specificity this self-incrimination claim under the Fifth and Fourteenth Amendments, but he has consistently and repeatedly urged that his disbarment violates the Fourteenth Amendment. And the record shows throughout that the whole controversy has hinged around the question of the power of the State, under both the State and the Federal Constitutions, to force him to answer the questions he had been asked at the inquiry. Under these circumstances, I cannot allow to pass unnoticed the violation which I think has occurred with respect to petitioner's rights under the Fifth Amendment. Cf. Boynton v. Virginia, 364 U.S. 454, 457, 81 S.Ct. 182, 184, 5 L.Ed.2d 206. While the Court seems to intimate an opposite view, its opinion appears to me actually to pass upon this federal contention.
4
Matter of Grae, 282 N.Y. 428, 435, 26 N.E.2d 963, 967, 127 A.L.R. 1276.
5
7 N.Y.2d at page 496, 199 N.Y.S.2d at page 663, 166 N.E.2d at page 676. The cases relied upon were: Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423. Beilan v. Board of Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494.
6
The majority has not even bothered expressly to 'strike a balance' in these cases apparently on the theory that the value of the privilege against self-incrimination is so small that it can be 'outweighed' by any countervailing governmental interest. See, e.g., Nelson v. County of Los Angeles, supra, 362 U.S. at pages 7 8, 80 S.Ct. at page 531: '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.'
7
My views of this 'balancing' process have been set out at length in the companion cases, Konigsberg v. State Bar of California, 366 U.S. 56, at pages 62—71, 75, 81 S.Ct. 1010, at pages 1013—1018, 1019, and In re Anastaplo, 366 U.S. 97, at pages 109—113, 81 S.Ct. 987, at pages 993—995. See also the opinion cited at note 10 in my dissenting opinion in Konigsberg.
8
See, e.g., Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653; Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403; Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090.
9
It is true that some inroads have already been made into the Fifth Amendment, for both Lerner v. Casey, supra, and Nelson v. County of Los Angeles, supra, rested partly upon a willingness of a majority of this Court to 'balance' away the full protection of that Amendment.
10
This conclusion is reached primarily on the basis of agreement with the dissenting opinion of Mr. Justice Harlan in Twining v. New Jersey, 211 U.S. 78, 114—127, 29 S.Ct. 14, 26—31, 53 L.Ed. 97. But even if that case were rightly decided, it would not provide support for the decision here. For the issue with regard to the privilege against self-incrimination here is quite different from the issue posed in the Twining case. In that case the only question before the Court was whether comment upon a defendant's failure to take the stand in his own defense was constitutionally permissible.
11
7 N.Y.2d at page 495, 199 N.Y.S.2d at page 662, 166 N.E.2d at page 675.
12
Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 581, 4 L.Ed. 629. See also Vanzant v. Waddel, 10 Tenn. 260, in which Judge Catron, later Mr. Justice Catron, speaking for the Supreme Court of Tennessee, observed: 'The right to life, liberty and property, of every individual, must stand or fall by the same rule or law that governs every other member of the body politic, or 'LAND,' under similar circumstances; and every partial or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void.' Id., at page 270. The views expressed by Webster and Judge Catron go back at least as far as 1215 and Magna Charta, in which it was provided: 'No free man shall be taken or imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed; nor shall we go upon him nor send upon him, but by the lawful judgment of his peers or by the law of the land.'
13
I recognize, of course, that New York also singles out other groups for special treatment with regard to certain constitutional privileges. See Barsky v. Board of Regents, 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829. That practice, which i regard as also clearly unconstitutional (see my dissenting opinion in that case, id., 347 U.S. at pages 456—467, 74 S.Ct. at page 658), does not affect the argument here. For discrimination against one group cannot be justified on the ground that it is also practiced against another.
14
Cf. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. In that case, we said: 'In this tradition (the tradition of Magna Charta), our own constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons.' Id., 351 U.S. at page 17, 76 S.Ct. at page 589.
15
The following excerpt from Hallam, The Constitutional History of England, Vol. I (2d ed.), at 477, indicates the extent to which this sort of thing was done in seventeenth-century England: 'To puritans having been committed by the high-commission court, for refusing the oath ex-officio, employed Mr. Fuller, a bencher of Gray's Inn, to move for their habeas corpus; which he did on the ground that the high commissioners were not empowered to commit any of his majesty's subjects to prison. This being reckoned a heinous offence, he was himself committed, at Bancroft's instigation, (whether by the king's personal warrant, or that of the councilboard, does not appear) and lay in gaol to the day of his death * * *.'
16
Hallam, op. cit., supra, n. 15, at 316, makes the following observation with regard to the duty of cooperation imposed upon English juries: 'There is no room for wonder at any verdict that could be returned by a jury, when we consider what means the government possessed of securing it. The sheriff returned a pannel, either according to express directions, of which we have proofs, or to what he judged himself of the crown's intention and interest. If a verdict had gone against the prosecution in a matter of moment, the jurors must have laid their account with appearing before the star-chamber; lucky, if they should escape, on humble retractation, with sharp words, instead of enormous fines and indefinite imprisonment.'
17
Judge Catron expressed the same point in Vanzant v. Waddel, supra: 'The idea of a people through their representatives, making laws whereby are swept away the life, liberty and property of one or few citizens, by which neither the representatives nor their other constituents are willing to be bound, is too odious to be tolerated in any government where freedom has a name. Such abuses resulted in the adoption of Magna Charta in England, securing the subject against odious exceptions, which is, and for centuries has been the foundation of English liberty. Its infraction was a leading cause why we separated from that cuntry, and its value as a fundamental rule for the protection of the citizen against legislative usurpation, was the reason of its adoption as part of our constitution.' 10 Tenn., at pages 270—271.
18
See the Trial of John Peter Zenger, 17 Howell's State Trials 675. Zenger, a newspaper publisher, had seen fit to criticize the government and was being tried for printing 'many things derogatory of the dignity of his majesty's government, reflecting upon the legislature, upon the most considerable persons in the most distinguished stations in the province, and tending to raise seditions and tumults among the people thereof.' Id., at 678.
19
Id., at 686—687. The judges there preferred the label of 'contempt' to that of 'failure to co-operate.'
20
See Dictionary of American Biography, Vol. XX, at 648 649, for the story of Hamilton's successful defense of Zenger.
21
Cf. Chambers v. Florida, 309 U.S. 227, 235—241, especially at 237, note 10, 60 S.Ct. 472, 476—479, at page 477, 84 L.Ed. 716.
22
That command, of course, originally applied only to the Federal Government. Barron v. Baltimore, 7 Pet. 243, 8 L.Ed. 672. But with the adoption in 1868 of the Fourteenth Amendment, the same command, together with the related requirement of equal protection of the laws, became binding upon the States.
23
The majority asserts that it is not only 'the early beginning of the practice of judicial inquiry into attorney practices . . . (but also) the long life of that mode of procedure' that justifies its decision here. This argument—that constitutional rights are to be determined by long-standing practices rather than the words of the Constitution—is not, as the majority points out, a new one. It lay at the basis of two of this Court's more renowned decisions—Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691, and Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. But cf. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. The notion that a violation of the plain language of the Constitution can gain legal statute by long-continued practice is not one I can subscribe to. A majority group, as de Tocqueville observed, too often 'claims the right not only of making the laws, but of breaking the laws it has made.' De Tocqueville, Democracy in America, Vol. 1, at 261.
24
314 U.S. 252, 264, 62 S.Ct. 190, 194, 86 L.Ed. 192.
25
This implication stems from the majority's reliance upon its opinions in the companion cases, Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105, and In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135. If, as the majority says, there is no constitutional difference between admission and disbarment proceedings, it seems clear that lawyers may now be called in by a State and forced to disclose their political associations on a penalty of disbarment if they refuse to do so.
26
The same point was persuasively urged by Mr. Justice Floyd of the Florida Supreme Court in a concurring opinion where that court refused to adopt the rule adopted by the New York court in this case. See Sheiner v. State, 82 So.2d 657, 664.
27
As shown in notes 15 and 16, supra, the same arguments used to justify the decision in this case would also be applicable to the supposed case for it certainly cannot be denied that such a practice had the 'sanction' of English history.
28
Hallam, op. cit., supra, n. 15, at 287, reports the following event in early seventeenth-century England: 'The oath ex officio, binding the taker to answer all questions that should be put to him, inasmuch as it contravened the generous maxim of English law that no one is obliged to criminate himself, provoked very just animadversion. Morice, attorney of the court of wards, not only attacked its legiality with arguments of no slight force, but introduced a bill to take it away. This was on the whole well received by the house; and sir Francis Knollys, the stanch enemy of episcopacy, though in high office, spoke in its favour. But the queen put a stop to the proceeding, and Morice lay some time in prison for his boldness.'
29
This much is made indisputably clear in the majority opinion in Konigsberg v. State Bar of California, supra, 366 U.S. at pages 49—51, 81 S.Ct. at pages 1006—1007.
30
341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.
31
See Sacher v. United States, 343 U.S. 1, 19, 72 S.Ct. 451, 459, 96 L.Ed. 717 (dissenting opinion). In my judgment the Sacher case is not altogether unlike the case of the lawyer Fuller discussed in n. 15, supra.
32
In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473. Cf. Trial of John Peter Zenger, supra.
33
Konigsberg v. State Bar of California, supra; In re Anastaplo, supra. The pressures being brought upon Konigsberg and Anastaplo are subtler than those brought upon such people as Morice (see note 28), but they are no less real.
34
Thus, I am in complete agreement with the majority that, on a constitutional level, '(i)t is certainly not beyond the realm of permissible state concerns to conclude that too much attention to the business of getting clients may be incompatible with a sufficient devotion to duties which a lawyer owes to the court, or that the 'payment of awards to persons bringing in legal business' is inconsistent with the personally disinterested position a lawyer should maintain.' But that state concern in preventing 'ambulance chasing' is certainly no greater than the state concern in preventing any other activity which it has seen fit to make a crime. Suspected 'ambulance chasers' should be no more subject to the deprivation of due process and equal protection that stems from 'procedures resulting in greater preventive certainty' than are suspected murderers. Indeed, it seems to me that if the question is to be decided on the basis of 'state concern,' there is no more justification for applying such summary procedures to 'ambulance chasing' than for applying them to any other variety of crime.
35
Cf. Barsky v. Board of Regents, supra, 347 U.S. at pages 459, 472—474, 74 S.Ct. at pages 659, 666—667 (dissenting opinions).
36
Hudson v. Slade, 3 Foster and Finlason (Q.B.) 390, 411.
37
The true nature of the underlying controversy in this case, as a controversy between economically competing groups of lawyers, is shown by the fact that four different associations of attorneys filed briefs as amici curiae in the present proceeding two favorable to petitioner and two favorable to respondent.
38
The immense danger of departures from due process to lawyers who represent unpopular causes is dramatically illustrated in Sacher v. United States, supra. Cf. United States ex rel. Goldsby v. Harpole, 5 Cir., 263 F.2d 71, 82, for a discussion of another situation in which the independence of the lawyer may be crucial to his ability adequately to defend his client.
1
As reported in The Aurora for February 15, 1803, Levi Lincoln stated to the Court '(t)hat if the court should upon the questions being submitted in writing determine that he was bound to answer them, another difficulty would suggest itself upon the principles of evidence; he would suppose the case to assume its most serious form, if in the course of his official duty these commissions should have come into his hands, and that he might either by error or by intention have done wrong, it would not be expected that he should give evidence to criminate himself. This was an extreme case, and he used only to impress upon the court the nature of the principle in the strongest terms.'
2
The Court, as reported in 1 Cranch at page 144, said that the Attorney General was not obliged 'to state any thing which would criminate himself.'
3
Rifkind, Reflections on Civil Liberties (American Jewish Committee), pp. 12—13.
| 01
|
366 U.S. 28
81 S.Ct. 933
6 L.Ed.2d 100
Arthur J. GOLDBERG, Secretary of Labor, Petitioner,v.WHITAKER HOUSE COOPERATIVE, INC., et al.
No. 274.
Argued March 30, 1961.
Decided April 24, 1961.
Miss Bessie Margolin, Washington, D.C., for petitioner.
Mr. Philip S. Bird, Waterville, Me., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Respondent cooperative was organized in 1957 under the laws of Maine; and we assume it was legally organized. The question is whether it is an 'employer' and its members are 'employees' within the meaning of the Fair Labor Standards Act of 1938, § 3, 52 Stat. 1060, as amended, 29 U.S.C. § 203, 29 U.S.C.A. § 203. The question is raised by a suit filed under § 17 of the Act by petitioner to enjoin respondent from violating the provisions of the Act concerning minimum wages (§ 6), record-keeping (§ 11(c)) and the regulation of industrial homework (§ 11(d)). And see § 15(a)(5). The District Court denied relief. 170 F.Supp. 743. The Court of Appeals affirmed by a divided vote. 275 F.2d 362. The case is here on a petition for certiorari which we grnated (364 U.S. 861, 81 S.Ct. 104, 5 L.Ed.2d 85) because of the importance of the problem in the administration of the Act.
2
The corporate purpose of the respondent as stated in its articles is to manufacture, sell, and deal in 'knitted, crocheted, and embroidered goods of all kinds.' It has a general manager and a few employees who engage in finishing work, i.e., trimming and packaging. There are some 200 members who work in their homes. A homeworker who desires to become a member buys from respondent a sample of the work she is supposed to do, copies the sample, and submits it to respondent. If the work is found to be satisfactory, the applicant can become a member by paying $3 and agreeing to the provisions of the articles and bylaws. Members were prohibited from furnishing others with articles of the kind dealt in by respondent.1 They are required to remain members at least a year. They may, however, be expelled at any time by the board of directors if they violate any rules or regulations or if their work is substandard.2 Members are not liable for respondent's debts; they may not be assessed; each has one vote; their certificates are not transferrable; each member can own only one membership; no dividends or interest is payable on the certificate 'except in the manner and limited amount' provided in the bylaws. The bylaws provide that 'excess receipts' are to be applied (1) to writing off 'preliminary expenses'; (2) to 'necessary depreciation reserves'; (3) to the establishment of a 'capital reserve.' The balance may be used in the discretion of the board of directors 'for patronage refunds which shall be distributed according to the percentage of work submitted to the Cooperative for sale.' Members are paid every month or every other month for work submitted for sale on a rate-per-dozen basis. This payment is considered to be 'an advance allowance' until there is a distribution of 'excess receipts' to the members 'on the basis of the amount of goods which each member has submitted to (respondent) for sale.'
3
By § 11(d) of the Act the Administrator is authorized to make 'such regulations and orders regulating, restricting, or prohibiting industrial homework as are necessary or appropriate to prevent the circumvention or evasion of and to safeguard the minimum wage rate prescribed in this Act.' Section 11(d) was added in 19493 and provides that 'all existing regulations or orders of the Administrator relating to industrial homework are hereby continued in full force and effect.'
4
These Regulations4 provide that no industrial homework, such as respondent's members do, shall be done 'in or about a home, apartment, tenement, or room in a residential establishment unless a special homework certificate'5 has been issued. Respondent's members have no such certificates; and the question for us is whether its operations are lawful without them and without compliance by respondent with the other provisions of the Act.
5
These Regulations have a long history. In 1939, shortly after the Act was passed, bills were introduced in the House to permit homeworkers to be employed at rates lower than the statutory minimum.6 These amendments were rejected.7 Thereupon the Administrator issued regulations governing homeworkers;8 and we sustained some of them in Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921, decided in 1945. In 1949 the House adopted an amendment which would have exempted from the Act a large group of homeworkers.9 The Senate bill contained no such exemption; and the Conference Report rejected the exemption.10 Instead, § 11(d) was added, strengthening the authority of the Administrator to restrict or prohibit homework.11 Still later respondent was organized; and, as we have said, it made no attempt to comply with these homework regulations.
6
We think we would be remiss, in light of this history, if we construed the Act loosely so as to permit this homework to be done in ways not permissible under the Regulations. By § 3(d) of the Act an 'employer' is any person acting 'in the interest of an employer in relation to an employee.' By § 3(e) an 'employee' is one 'employed' by an employer. By § 3(g) the term employ (includes to suffer or permit to work.' We conclude that the members of this cooperative are employees within the meaning of the Act.
7
There is no reason in logic why these members may not be employees. There is nothing inherently inconsistent between the coexistence of a proprietary and an employment relationship. If members of a trade union bought stock in their corporate employer, they would not cease to be employees within the conception of this Act. For the corporation would 'suffer or permit' them to work whether or not they owned one share of stock or none or many. We fail to see why a member of a cooperative may not also be an employee of the cooperative. In this case the members seem to us to be both 'members' and 'employees.' It is the cooperative that is affording them 'the opportunity to work, and paying them for it,' to use the words of Judge Aldrich, dissenting below. 275 F.2d at page 366. However immediate or remote their right to 'excess receipts' may be,12 they work in the same way as they would if they had an individual proprietor as their employer.13 The members are not self-employed; nor are they independent, selling their products on the market for whatever price they can command. They are regimented under one organization, manufacturing what the organization desires and receiving the compensation the organization dictates.14 Apart from formal differences, they are engaged in the same work they would be doing whatever the outlet for their products. The management fixes the piece rates at which they work; the management can expel them for substandard work or for failure to obey the regulations. The management, in other words, can hire or fire the homeworkers. Apart from the other considerations we have mentioned, these powers make the device of the cooperative too transparent to survive the statutory definition of 'employ' and the Regulations governing homework. In short, if the 'economic reality' rather than 'technical concepts' is to be the test of employment (United States v. Silk, 331 U.S. 704, 713, 67 S.Ct. 1463, 1468, 91 L.Ed. 1757; Rutherford Food Corp. v. McComb, 331 U.S. 722, 729, 67 S.Ct. 1473, 1476, 91 L.Ed. 1772), these homeworkers are employees.
8
Reversed.
9
Mr. Justice WHITTAKER, with whom Mr. Justice BRENNAN and Mr. Justice STEWART join, dissenting.
10
It is clear and undisputed that the Fair Labor Standards Act does not apply in the absence of an employer-employee relationship. Here, upon what seems to me to be ample evidence, the District Court found that the cooperative was created and is being operated as a true cooperative under the laws of Maine, 170 F.Supp. 743, and, on appeal, the Court of Appeals approved those findings. 1 Cir., 275 F.2d 362. Unless those findings are clearly erroneous, they must be accepted here. Fed.Rules Civ.Proc., 52(a), 28 U.S.C., 28 U.S.C.A. Accepting them excludes any notion that the cooperative was formed or availed of as a 'device' to circumvent the Act. It is not seriously contended here that these findings of the two courts below were 'clearly erroneous,' but rather the Government's principal contention is that the bona fides of the cooperative are immaterial.
11
Doubtless, even a true cooperative may have employees. But surely a true cooperative does not automatically become the 'employer' of its 'members' in the commonly understood sense of those terms, nor, hence, in their sense as used in subparagraphs (d) and (e) of § 3 of the Act, 29 U.S.C. § 203(d) and (e), 29 U.S.C.A. § 203(d, e). Something more is required. For the Act to apply, the cooperative must in a fair sense 'employ' its 'members.' Like the two courts below, I think it may not fairly be said, on this record, that there is any evidence that the cooperative ever did 'employ' its 'members,' or suffer or permit them to work for it. Instead, the evidence shows, as the two courts below found and as I read it, that each member worked for herself—in her own home when and as she chose—toward the production of knitted articles which she marketed through her cooperative, receiving immediately 'an advance' thereon, and ultimately—after payment of her portion of the cooperative's 'expenses' and setting up its 'necessary depreciation (and capital) reserves'—the balance of the proceeds of sale would 'be distributed (to her) according to the percentage of work (she) submitted to the Cooperative for sale.' Like the two courts below, I fail to see in this any element of employment by the cooperative of its members.
12
If, as seems practically inevitable in the light of the Court's judgment, the cooperative must now be dissolved, will not its assets, including its 'depreciation (and capital) reserves' as well as its 'excess receipts,' have to be refunded to its members 'according to the percentage of work submitted (by them respectively) to the Cooperative for sale,' and not according to their memberships or investments, just as required by the Maine statute and the cooperative's articles? This seems wholly inconsistent with any notion that the members were employees of the cooperative or that they were suffered to work for it, or that it bought or paid them for their knitted articles.
13
On the basis of the amply supported findings of the two courts below, it seems reasonably clear that the cooperative never did 'employ' its 'members,' and inasmuch as the Act does not apply in the absence of an employment relationship, I think the judgment of the two courts below is consonant with the facts and the law and should be affirmed.
1
This provision of the bylaws was purportedly removed by a vote at the annual meeting of June 26, 1958, though a quorum was not present at the meeting. See Mitchell v. Whitaker House Cooperative, Inc., 170 F.Supp. at page 749, notes 7, 8, at page 751.
2
An expulsion may be appealed by filing a petition 'to be acted upon by the members at the next meeting.' Cf. Me.Rev.Stat., c. 56, § 16.
3
Fair Labor Standards Amendments of 1949, § 9, 63 Stat. 910, 916.
4
See 29 CFR §§ 530.1—530.12.
5
Id., § 530.2.
6
See H.R.Rep. No. 522, 76th Cong., 1st Sess., p. 10; 86 Cong.Rec. 4924, 5122.
7
86 Cong.Rec. 5499; see also the remarks of Mr. Zimmerman, id., at 5136, and of Mr. Hook, id., at 5224—5225.
8
The Knitted Outerwear Wage Order, which covers the industry in which respondent is engaged, was issued April 4, 1942. See 7 Fed.Reg. 2592.
9
95 Cong.Rec. 11209—11210.
10
H.R.Rep. No. 1453, 81st Cong., 1st Sess.
11
95 Cong.Rec. 14927.
12
There has been no distribution of 'excess receipts' to the members. The evidence is that respondent could survive 'as a financially solvent enterprise only by doubling its present gross income.' As of the date of the trial, respondent was in arrears even as respects what it owed its managerial employees. See 170 F.Supp. at page 751.
13
See Mitchell v. Law, D.C., 161 F.Supp. 795.
14
When the cooperative desired to reduce its inventory and the rate of production of its members, it withheld the 'advance allowances.'
| 67
|
366 U.S. 161
81 S.Ct. 937
6 L.Ed.2d 184
Bert SMITH, Petitioner,v.J. Turner BUTLER et al., Trustees.
No. 313.
Argued March 27 and 28, 1961.
Decided April 24, 1961.
Rehearing Denied May 29, 1961.
See 366 U.S. 941, 81 S.Ct. 1657.
Mr. William S. Frates, Miami, Fla., for petitioner.
Mr. Harold B. Wahl, Jacksonville, Fla., for respondents.
PER CURIAM.
1
The petition for certiorari in this case raised solely a question regarding the bearing of the Railway Labor Act, 45 U.S.C.A. § 151 et seq. on the enforcement of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The petition was granted. 364 U.S. 869, 81 S.Ct. 113, 5 L.Ed.2d 92. After full argument and due consideration, it became manifest that the course of litigation and the decisions in the Florida courts did not turn on the issue on the basis of which certiorari was granted. Accordingly, the writ is dismissed.
2
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, dissenting.
3
I cannot agree that, as the Court says, the petition for certiorari in this case 'raised solely a question regarding the bearing of the Railway Labor Act on the enforcement of the Federal Employers' Liability Act.' The issue actually tendered is the familiar one whether a reviewing court properly deprived an FELA claimant of a jury verdict on the ground that the evidence was insufficient to support the finding of the carrier's negligence. The Court relies upon 'the course of litigation and the decisions in the Florida courts.' My reading of what occurred in the Florida courts makes manifest to me that the issue under the Question Presented in the petition is as to the sufficiency of the proofs to establish negligence.
4
The petitioner was a flagman in the employ of Florida East Coast Railway. He brought this action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., 45 U.S.C.A. § 51 et seq., in the Circuit Court of Dade County, Florida. He alleged that he suffered injuries in the course of his employment while taking a 'field test' which the carrier required him to take along its right of way and tracks in Florida. He alleged eight grounds of negligence but has abandoned six and we are concerned only with two, namely that the carrier violated the Federal Employers' Liability Act, '(a) (I)n negligently and unlawfully requiring the plaintiff to participate in such a 'field test'; (b) (I)n negligently allowing its servants, agents or supervisors to conduct such a 'field test." At the close of petitioner's case at the trial, the carrier made a motion to dismiss the claim alleged under allogations (a) and (b), on the ground that those allegations 'pertain to the right to give a field test.' Respondents contended that such a claim, if cognizable at all, was cognizable not under the Federal Employers' Liability Act but only as a grievance within the exclusive cognizance of the National Railroad Adjustment Board created under the Railway Labor Act, 45 U.S.C. § 153, First (i), 45 U.S.C.A. § 153, subd. 1(i); see Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460. The trial judge denied the motion and ruled that the gravamen of the petitioner's claim was not that respondents could not require petitioner to take a test, but that, 'knowing his physical condition,' the carrier was negligent in requiring the petitioner to take the particular test. The trial judge also denied the carrier's motion for a directed verdict grounded on the alleged insufficiency of the proofs to establish negligence. The jury returned a verdict for the petitioner. The Florida District Court of Appeal, Third District, reversed and remanded the case for a new trial. 104 So.2d 868.
5
On remand counsel for both parties and the trial judge discussed at length what it was the Court of Appeal held. There was agreement that the opinion of the Court of Appeal was ambiguous. It might be read to ground the reversal on the finding by the Court of Appeal that the cause was pleaded and tried on a claim not actionable under the Federal Employers' Liability Act but, if at all, under the Railway Labor Act. This is suggested by the language in the opinion, 'If the appellee were aggrieved, he had a remedy for such grievance under the Railway Labor Act.' 104 So.2d at pages 869—870. On the other hand, the opinion might also be interpreted as grounding the reversal on the insufficiency of the evidence to prove negligence, because the petitioner, while assuming the right of the carrier to give the test, had failed to show that it was negligent in the circumstances proved for the carrier to require the petitioner to take the test. Support for this interpretation is in the statement of the opinion that '(T)he appellee's entire case as reflected by this record conclusively indicates that it was premised upon the claim that appellant's conduct in requiring the appellee to take a field test was unlawful and that all of his injuries and damages resulted from such unlawful act.' 104 So.2d at page 870.
6
The trial judge finally concluded that the opinion of the Court of Appeal was to be read as resting the reversal upon the latter ground. The trial judge stated, 'I think that I am inclined to agree with (petitioner's counsel) that they (the Court of Appeal) just didn't say requiring a field test was improper. They said, 'requiring the appellee to participate in a field test,' and they had the field test that was conducted when they wrote this opinion, and if their opinion means anything to us at all, I think we have got to follow it to the extent of our interpretation of their words and what they meant.' The trial judge ruled further that a cause of action for negligence on the part of the carrier in giving the particular test 'would be included' in allegation (a) above quoted.
7
The record on remand thus plainly reveals that the trial judge agreed with petitioner's argument that allegations (a) and (b) of the complaint pleaded, and the parties had tried, a cause of action under the Federal Employers' Liability Act.
8
Counsel for the carrier admitted during the colloquy on the remand that if this was the cause of action pleaded and tried, the claim was actionable under the Federal Employers' Liability Act. Carrier's counsel went further. He said, 'I think the proofs so far justify it, but if they want to travel on that issue, I think they could amend.' Petitioner's counsel was willing to amend but insisted that the case had been pleaded and tried on that theory and that no amendment was necessary. No formal amendment was made, obviously because the trial judge ruled that the theory was embraced within allegation (a). However, petitioner's counsel desired to apply for review of the Court of Appeal's determination as rested, as the trial judge had interpreted its opinion, on the ground that the evidence was insufficient to present a jury question of negligence. But, since a new trial was ordered by the Court of Appeal, there could be no final judgment review of which might be sought until a judgment was entered on the retrial. In order to obtain such a judgment without retrying the case, petitioner's counsel proffered the trial record of the first trial as his only proof at the retrial. He expressly stated that his position was that the trial record was sufficient 'to prove that the railroad either knew or should have known that Bert Smith was physically unable to take that test and likely to be injured if he took it, and in spite of what the railroad knew or should have known, they gave him the test.' The trial judge accepted the proffer over the carrier's objection, but ruled that he was bound by the Court of Appeal's holding that that record did not suffice to raise a jury question of negligence. '(U)nder the testimony that was adduced before on this point, that I would rule that there was no proper issue of evidence to submit to the jury of negligence on requiring him to take this particular field test under the testimony.' The judge accordingly directed the entry of a judgment in favor of the carrier. Obviously the case went to the District Court of Appeal the second time with this gloss of the trial judge's interpretation of that Court's earlier opinion. Therefore, when the District Court of Appeal, per curiam, affirmed 'upon the authority' of its previous opinion, 118 So.2d 237, the affirmance sustained the trial judge's interpretation of the reversal as having rested, not on the ground that the Railway Labor Act precluded the petitioner's claim under the Federal Employers' Liability Act, but on the ground that the evidence of negligence was insufficient to support a recovery on the claim properly pleaded under the latter statute. The Supreme Court of Florida, in an unreported minute, denied petitioner's petition for certiorari. We granted his petition to this Court, 364 U.S. 869, 81 S.Ct. 113, 5 L.Ed.2d 92.
9
Against this background of 'the course of litigation and the decisions in the Florida courts' the Question Presented, if plain English is to have its ordinary meaning, is whether the Florida Court of Appeal correctly determined that the evidence at the first trial was insufficient to raise a jury question of the alleged negligence of the carrier in requiring the petitioner, knowing his physical condition, to take the field test. For the Question Presented is as follows:
10
'Did the Florida Appellate Court err in holding that when a railroad employee sustains personal injuries while performing an alleged physical fitness field test ordered by the railroad that the provisions of the Railway Labor Act, 45 U.S.C. Section 151, et seq. (45 U.S.C.A. § 151 et seq.) preclude him from claiming that the giving of such a test under the facts and circumstances of this case was an act of negligence under the Federal Employers' Liability Act, 45 U.S.C., Section 51, et seq. (45 U.S.C.A. § 51 et seq.)?' (Emphasis supplied.)
11
Although the members of the Court have disagreed whether we should grant review of these cases, when they are brought here all of us except my Brother Frankfurter believe that we have the duty to decide them on the merits. Viewing the issue presented for our review I have read the trial record. I need not rely solely on my own conclusion that the evidence plainly presented a jury question 'whether the proofs justify with reason the conclusion that employer negligence played and part, even the slightest, in producing the injury * * * for which damages are sought.' Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493. I may summon to my support the concession of the carrier's counsel that on that issue 'the proofs so far justify it.' I would reverse and remand the cause with direction to enter an order reinstating the judgment in favor of the petitioner.
12
Mr. Justice DOUGLAS joins this opinion except that he would remand for a new trial. He believes that the District Court of Appeal was correct in holding that the jury trial was not a fair one. See Butler v. Smith, 104 So.2d 868.
| 78
|
366 U.S. 1
81 S.Ct. 941
6 L.Ed.2d 84
Willie Lee STEWART, Petitioner,v.UNITED STATES.
No. 143.
Argued Feb. 21, 1961.
Decided April 24, 1961.
Mr. Edward L. Carey, Washington, D.C., for petitioner.
Mr. Carl W. Belcher, Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
The Fifth Amendment to the United States Constitution provides in unequivocal terms that no person may 'be compelled in any criminal case to be a witness against himself.' To protect this right Congress has declared that the failure of a defendant to testify in his own defense 'shall not create any presumption against him.'1 Ordinarily, the effectuation of this protection is a relatively simple matter—if the defendant chooses not to take the stand, no comment or argument about his failure to testify is permitted.2 But where for any reason it becomes necessary to try a particular charge more than one time, a more complicated problem may be presented. For a defendant may choose to remain silent at his first trial and then decide to take the stand at a subsequent trial. When this occurs, questions arise as to the propriety of comment or argument in the second trial based upon the defendant's failure to take the stand at his previous trial. This case turns upon such a question.
2
Petitioner has been tried three times in the District Court for the District of Columbia upon an indictment charging that he had committed first-degree murder under a felony-murder statute.3 In all three trials, petitioner's chief defense has been insanity but, on each occasion, the jury has rejected this defense and returned a verdict of guilty upon which the District of Columbia's mandatory death sentence has been imposed.4 After the first two trials, in which petitioner did not testify, the convictions and death sentences were set aside on the basis of trial errors that the Court of Appeals found had prevented a proper consideration of the case by the jury.5 At the third trial, in an apparent effort to bolster the contention of insanity, petitioner was placed upon the stand and asked a number of questions by defense counsel—a maneuver obviously made for the purpose of giving the jury an opportunity directly to observe the functioning of petitioner's mental processes in the hope that such an exhibition would persuade them that his memory and mental comprehension were defective. Petitioner's responses to these questions were aptly described by the court below as 'gibberish without meaning.'6
3
Upon cross-examination, the prosecutor attempted without noticeable success to demonstrate that these irrational answers were given by petitioner in furtherance of his plan to feign a mental weakness that did not exist. To this end, the prosecutor asked petitioner a number of questions about statements petitioner had allegedly made subsequent to his arrest, apparently in the hope that one of these questions would surprise petitioner and provoke a sensible response. When petitioner continued to talk in the same manner that he had used upon direct examination, the prosecutor concluded his cross-examination with the following remarks in the form of questions: 'Willie, you were tried on two other occasions.' And, 'This is the first time you have gone on the stand, isn't it, Willie?'7
4
The defense moved immediately for a mistrial on the ground that it was highly prejudicial for the prosecutor to inform the jury of the defendant's failure to take the stand in his previous trials. The prosecutor defended his actions on the ground that this 'is a fact that the Jury is entitled to know.' The trial judge agreed with the prosecutor, denied the motion for a mistrial, and the trial proceeded, culminating in the third verdict of guilty and death sentence. On appeal, the case was heard by all nine members of the Court of Appeals sitting en banc and was affirmed by a 5—4 vote8—the majority concluding that the issue was controlled by the decision of this Court in Raffel v. United States,9 and the minority concluding that the issue was controlled by our decision in Grunewald v. United States.10 We granted certiorari to consider whether it was error for the trial court to deny the motion for a mistrial under the circumstances.11
5
In this Court, the Government concedes that the question put to the defendant about his prior failures to testify cannot be justified under Raffel, Grunewald, or any other of this Court's prior decisions. This concession, which we accept as proper, rests upon the Government's recognition of the fact that in no case has this Court intimated that there is such a basic inconsistency between silence at one trial and taking the stand at a subsequent trial that the fact of prior silence can be used to impeach any testimony which a defendant elects to give at a later trial. The Raffel case, relied upon by the majority below, involved a situation in which Raffel had sat silent at his first trial in the face of testimony by a government agent that Raffel had previously made admissions pointing to his guilt. On a second trial, Raffel took the stand and denied the truth of this same testimony offered by the same witness. Under these circumstances, this Court held that Raffel's silence at the first trial could be shown in order to discredit his testimony at the second trial on the theory that the silence itself constituted an admission as to the truth of the agent's testimony. The result was that Raffel's silence at the first trial was held properly admitted to impeach the specific testimony he offered at the second trial. Here, on the other hand, the defendant's entire 'testimony' comprised nothing more than 'gibberish without meaning' with the result that there was no specific testimony to impeach. Any attempt to impeach this defendant as a witness could therefore have related only to his demeanor on the stand, and, indeed, the majority below expressly rested its conclusion upon the view that the prosecution had the right under Raffel to test the genuineness of this sort of 'demeanor-evidence' by questions as to why it was not offered at previous trials.12 But if Raffel could properly be read as standing for this proposition, such questions would be permissible in every instance, for whenever a witness takes the stand, he necessarily puts the genuineness of his demeanor into issue.13 The Government quite properly concedes that this cannot be the law since it would conflict with the precise holding of this Court in the Grunewald case.14
6
Despite this concession, however, the Government persists in the contention that petitioner's conviction should be upheld, arguing that the error committed was harmless and could not have affected the jury's verdict. This argument is rested upon three grounds: first, that the jury may not even have heard the improper question; secondly, that even if the jury did hear the question, it may not have inferred that petitioner in fact did not testify at his previous trial; and, finally, that even if the jury did infer that petitioner did not testify previously, no inference adverse to petitioner would have been drawn from this fact. The first two of these grounds can be quickly disposed of. We can think of no justification for ignoring the part of a record showing error on a mere conjecture that the jury might not have heard the testimony that part of the record represents. Nor do we believe it reasonable to argue that the jury trying this case would not have inferred that this defendant had failed to testify in his prior trials when the prosecutor asked, 'This is the first time you have gone on the stand, isn't it, Willie?' Indeed, the recognition that such an inference will in all likelihood be drawn from leading questions of this kind lies at the root of the long-established rule that such questions may not properly be put unless the inference, if drawn, would be factually true.15 Thus, the Government's argument that the error was harmless must stand or fall upon the third ground it urges—that the jury's awareness of petitioner's failure to take the stand at his previous trials would not have prejudiced the consideration of his case. The disposition of this contention requires the statement of a few more of the relevant facts of the case.
7
In connection with the defense of insanity, petitioner had introduced evidence of both mental disease and mental defect, as those terms are applied in the relevant law of the District of Columbia.16 On the mental disease issue, the testimony was that petitioner was suffering from manic depressive psychosis, a disease which the record shows tends to fluctuate considerably in its manifestations from time to time. On the mental defect issue, the defense introduced evidence that petitioner had an intelligence level in the moronic class. The case went to the jury on both of these points, the jury being directed to acquit if it found the homicide to have been the product either of mental disease or mental defect.17 Petitioner's 'testimony' thus raised at least two different issues in the minds of the jury: first, whether petitioner was simply feigning this testimony; and, secondly, whether, if not, petitioner's condition at the time of his third trial fairly represented his condition at the time of the act charged in the indictment.18
8
We think it apparent that the jury's awareness of petitioner's failure to testify at his first two trials could have affected its deliberations on either or both of these issues. Thus, the jury might well have thought it likely that petitioner elected to feign this 'testimony' out of desperation brought on by his failure to gain acquittal without it in the two previous trials. Similarly, even if the jury believed petitioner's 'testimony' was genuine, it might have thought that petitioner's condition was caused by a mental disease and concluded that it is unlikely that a disease that had manifested itself only one out of three times for exhibition at trial was active at the occasion of the homicide. Or, on the same assumption, it might have thought that petitioner's failure to exhibit himself at the previous trials indicated that the condition manifested at this trial was the result of a worsening in his mental condition since those trials and, consequently, also since the commission of the acts charged in the indictment. There may be other ways in which the jury might have used the information improperly given it by the prosecution—we have mentioned more than enough already, however, to satisfy ourselves that the Government's contention that the error was harmless must be rejected.
9
The Government's final contention is that even if the error was prejudicial the conviction should be allowed to stand on the theory that the error was not sufficiently prejudicial to warrant the granting of a mistrial and the defense made no request for cautionary instructions. One answer to this argument is to be found in the Government's own brief. For, in its argument regarding the possibility that the jury may not have been aware of the improper question, the Government stresses the fact that the question was not emphasized by any reference to it in the instructions to the jury. During the course of this argument the Government expressly recognizes that the danger of the situation would have been increased by a cautionary instruction in that such in instruction would have again brought the jury's attention to petitioner's prior failures to testify. Plainly, the defense was under no obligation to take such a risk. The motion for a mistrial was entirely appropriate and, indeed, necessary to protect the interests of petitioner.19
10
We thus conclude that this conviction and sentence against petitioner cannot stand. In doing so, we agree with the point made by the Government in its brief—that it is regrettable when the concurrent findings of 36 jurors are not sufficient finally to terminate a case. But under our system, a man is entitled to the findings of 12 jurors on evidence fairly and properly presented to them. Petitioner may not be deprived of his life until that right is accorded him. That right was denied here by the prosecutor's improper questions.
11
Reversed.
12
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.
13
The result which the Court draws from its account of the trial seems not unreasonable. But by force of what the Court does not relate, there is such disparity between its account and the almost nine hundred pages of the trial transcript that, in fairness, the Court's opinion hardly conveys what took place before the jury and what must, therefore, rationally be evaluated in attributing any influence on the jury's verdict to the questions which the Government now concedes were improperly asked. 'In reviewing criminal cases, it is particularly important for appellate courts to relive the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.' Johnson v. United States, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704 (concurring opinion).
14
What emerges from the transcript, at the outset, is that Willie Lee Stewart's killing of Harry Honikman was practically never in issue. The testimony of two eyewitnesses who positively identified Stewart as the killer1 was not seriously challenged. A third witness had examined in Stewart's hands, shortly before the killing, the gun which unimpugned ballastic evidence established fired the lethal shots. The testimony of a fingerprint expert, also unimpugned, linked Stewart to the killing. Nowhere in their opening or closing statements did experienced defense counsel ask the jury to doubt that Stewart was the killer: the whole of the defense was that Stewart was not responsible because insane.
15
Insanity was not merely, as the Court says, Stewart's chief defense; it was his defense. His lawyer put it aptly: '(The prosecutor) knows as well as I, as anybody in this courtroom, the only defense we have is insanity.'2 Thus, there is not involved in this case the danger that the jury, being told as laymen of the defendant's previous failure to testify in his own behalf, reasoned that if Stewart did not do the acts with which he was charged he would have said so. Here, those acts were not contested. If prejudice is not to be blindly assumed, but to be discovered in the record, it must be discovered by some more subtle train of associations.
16
Stewart's trial took the major part of six court days: twelve calendar days. The Government's opening case, presenting the testimony of the eyewitnesses, fingerprint and ballistic experts, arresting and investigating officers, etc.—ten witnesses in all3 consumed a day and a half. Thereafter, beginning on the second court day and running into the third, the defense put in the testimony of a series of witnesses—Stewart's cousin, landlady, friend, sister, employer, wife, neighbor, sister-in-law—all of whom recounted episodes of Stewart's behavior tending to show his unsoundness of mind.4 These episodes spanned the period of his life from early childhood until the time of the killing, and they painted what, to say the least, is a bizarre portrait.
17
If the jury believed them, they believed, inter alia: (1) that Stewart, as a child, threw all his food on the floor, ran away from school, tore his clothes off, cut them up, roamed the house at night; (2) that Stewart's aunts and brother were of unsound mind, in that they would often sit with saliva running out of their mouths and would never say anything; (3) that Stewart, as an adult, once shot at his wife, and sat on his wife and beat her while she was pregnant; (4) that he once punched a hole in a low ceiling with his fist for no apparent reason and, on another occasion, threw all the food out of his refrigerator and beat the refrigerator door so hard with his first that he broke it; (5) that he locked his children out of the family's room in cold weather; that he threatened to throw one of his children, while a baby, out of the window and threatened to throw another into a burning stove; that he would have done both if not forcibly prevented; (6) that he insisted on pushing through a boarded front door and jumping in and out of the house at a time when the porch was under repair; that he once jumped out of a window; that he threw his rephew's toy piano out of a window; (7) that he attempted to have sexual relations with his sister-in-law in her husband's presence; (8) that, having been told by his employer that he would get a requested pay raise, he kicked down a brick wall that he had been constructing. Following this testimony, defense counsel read to the jury portions of Stewart's military record, revealing that a medical discharge had been recommended for Stewart after a fight with another soldier, largely on the basis of tests taken at that time which placed Stewart's intelligence in the feeble-minded range.
18
On the third trial day, the defendant took the stand and was examined and cross-examined briefly. His testimony occupies fifteen pages of the eight-hundred-and-eighty-five-page trial minutes. Let this sample of it give its quality of meaninglessness:
19
'Q. What is your wife's name, Willie? A. You should ask her that. As far as I am concerned, I don't have no wife. I don't consider I have any; therefore, I can't say what her name is.
20
'Q. Have you ever been married? A. I wouldn't say married.
21
'Q. What do you mean you wouldn't say married? A. Well, as far as I concerned, nobody is married, as far as my way of understanding.
22
'Q. Do you have any children? A. I don't consider—I have none. She say I have some. I don't have none. If she say I have some, I guess I have to leave it to her. As far as my concern, I don't have none and I don't want none.
23
'Q. Do you know where you are now? A. Looking at you, as far as I know.
24
'Q. What is my neme? A. I don't know.
25
'Q. Who is your lawyer? A. Well, I mean, I am my own lawyer, as far as my concern.'
26
On his direct examination, Stewart testified that he did not know what kind of a building he was in, that he had never shot nobody but that the white folks told him he was supposed to kill; that he considered himself master, as far as the killing situation; that he was the monkey, the monkey with the tail; that he still remained to see that monkey with the tail; that he had been told to kill—his mind tells him to kill—and he was always going to kill until he conquered; that the good man upstairs say so; that he had talked to God and God told him to conquer everybody, that he was the master; he hated everybody; counsel shouldn't ask him no more. The brief cross-examination proceeded in the same vein. The prosecutor's questions, designed less to elicit any information from the witness than to call forth some revealingly intelligent response, some sign of memory or understanding, which would show that Stewart's apparently grave mental estrangement was a pose, evoked only wild and unresponsive answers. The cross-examination closed on the following dialogue:
27
'Q. You can see me, can't you, Willie? A. Sure. You can see me, too, can't you? We see one another. I am going to be the master and you ain't going to stop me and nobody else.
28
'Q. Tell me, Willie, do you know a Dr. Williams? A. Dr. Williams?
29
'Q. Yes, E. Y. Williams. A. Why you keep asking me? If I told you once, I told you a hundred time, I am my own doctor. Why you keep asking me the same question over and over again. I told you I am my own doctor.
30
'Q. Do you know a Deputy Marshall by the name of Ballinger? A. I am my own marshal. I am everything. That takes care of the whole question. I am everything. Everything you ask me, I am talking to me, I am it.
31
'Q. Willie, you were tried on two other occasions. A. Well, I don't care how many occasions, how many case—you say case. I was a case man once in a time.
32
'Q. This is the first time you have gone on the stand, isn't it, Willie? A. What?
33
'Q. This is the first time you have gone on the stand, isn't it, Willie? A. I am always the stand; I am everything, I done told you.
34
'Mr. Smithson (the prosecutor): That is all.
35
'The Witness: You and nobody else going ever stop me.
36
'The Court: Mr. Carey (defense counsel), anything further?
37
'Mr. Carey: That is all.'
38
Defense counsel immediately moved for a mistrial, which was denied. The defense then qualified Dr. E. Y. Williams, a psychiatrist, as an expert witness. Responsive to hypothetical questions predicated upon Stewart's army record, the various instances of odd behavior testified to by the previous lay witnesses, and the circumstances of Honikman's killing, Dr. Williams gave his professional opinion that Stewart was, at the time of the killing, suffering from both a mental defect and a mental disease. He explained in detail the psychiatric significance of Stewart's intelligence quotient of sixty-five, a rating which, he told the jury, would characterize Stewart as a moron. He further typified Stewart's mental disease as manic-depressive psychosis and, by the use of a blackboard, diagrammed and described the cyclic character of that disease. He testified that his own examination of the defendant in 1953 had yielded insufficient personal history to base a diagnosis, but that he had examined Stewart on several occasions since that time and found nothing which would change his opinion that Stewart was a manic-depressive psychotic. Dr. Williams was cross-examined at length on the afternoon of the third and the morning of the fourth days of the trial.
39
The remaining three trial days were taken up, in large part, by the testimony of seven government witnesses put forward to rebut Stewart's defense of insanity. Two psychiatric experts testified that they had examined Stewart shortly after the killing in 1953 and found no mental defect or disease. A neighbor and friend of Stewart's who had known him for six years and seen him regularly during at least three years preceding 1953 testified that, on the basis of Stewart's conduct in his presence, he believed that Stewart was normal. An attendant at Saint Elizabeths Hospital, where Stewart had been committed during late 1957 and early 1958, described Stewart's behavior there as that of a model patient who had caused no specific trouble, gotten along with others, played cards and checkers, been seen with a Bible, etc. A police lieutenant at the District of Columbia jail similarly related Stewart's activities at the jail over the four years between the killing and the present trial. Through this witness there were put in evidence as exhibits portions of the jail file tending to show that Stewart had signed certain forms, made certain written requests, and sent numerous letters to his wife and sister-in-law. A third psychiatric expert, who had examined Stewart early in 1958, testified that he found no evidence of mental disease and did not regard Stewart as a mental defective. A fourth testified, on the basis of two examinations made in 1958, that the defendant was not a manic-depressive psychotic. Both of these psychiatrists agreed that Stewart was malingering at the time of their examinations.
40
It is unnecessary to describe in greater detail here the testimony of these seven government witnesses. All were cross-examined, two of the experts at considerable length. On the sixth trial day, counsel for the Government and for the defense addressed the jury. Neither in these exhaustive closing statements nor in the court's extended charge was any reference made to the two questions, asked several days before and, in effect, unanswered, which are now assigned as prejudicial error. The jury retired, deliberated, and found the defendant guilty.
41
On the totality of this record, with solicitous regard for the heavy obligation which rests upon us in a capital case, I cannot but conclude that the prosecutor's questions concerning Stewart's prior failures to testify are of that class of errors 'which do not affect the substantial rights of the parties,' and which, therefore, this Court, by virtue of an Act of Congress, is under duty to disregard. 40 Stat. 1181 (1919), in its present form 63 Stat. 105, 28 U.S.C. § 2111, 28 U.S.C.A. § 2111. This is so in light of a number of considerations, none of which viewed in isolation might be determinative, but whose sum—in the whole context of the trial—convinces me that the Court's conjectures of prejudice are chimerical.
42
First, Stewart never intelligibly answered the questions. The jury was not told and did not know as a fact that he had not previously taken the stand. The Court now finds that the jury may nevertheless have inferred the information from the leading form of the prosecutor's questions. But this conclusion should not be reached merely on the basis of the broad generalization that 'such an inference will in all likelihood be drawn from leading questions of this kind.' Such an abstraction does not get us to the heart of the question before us. That question, in one aspect, is whether it is likely that this jury in the circumstances of this case drew the inference from this leading question. It is not only not likely, but overwhelmingly unlikely.
43
The question was not pressed or persisted in by the prosecutor so as to concentrate the jury's attention on it as an assertion of fact. It was once repeated—when Stewart asked 'What?' and then dropped. It was asked in a setting in which it is not to be assumed, because most improbable, that the jury took in and paid heed to the content of the prosecutor's questions as such, particularly the one now so inflated in importance. On the stand was a witness who had just testified that he was the master and the monkey with the tail and that he had been told by God to conquer and kill. His responses appeared raving and incoherent. The only significance of his testimony, of course, was his demeanor, and it was upon the manner and character of his responses, not upon the subjects inquired into, that the jury can plausibly be supposed to have focused. The offending question followed a series of others—'You can see me, can't you, Willie?' '* * * Willie, do you know a Dr. Williams?' 'Do you know a Deputy Marshal by the name of Ballinger?'—which had absolutely no significance of content, except insofar as they prodded the witness to respond. There is no reason to think that the jury could have regarded the questions concerning previous failure to testify any differently, or attributed special significance to them. In any event, assuming that the jury were given to pondering subtle inferences in the face of this manifest madman, they could have learned no more from the prosecutor's questions than what Stewart's own counsel had already elicited. The jury knew that this defendant had been tried before because testimony from prior trials had been read to them. Yet defense counsel asked Stewart on direct examination: 'Have you ever taken an oath?' and Stewart answered: 'Not that I knows of.'
44
Even had the jurors not been absorbed by the eye-catching spectacle of Stewart on the stand, and even had the unanswered questions been answered, the inference attributed to the jury by the Court would hardly have been a probable one. For the prejudice which the Court conceives does not arise from the simple knowledge that Stewart had not previously testified. It arises only upon the supposition that the jury indulged conjectures concerning the reasons for his not testifying, and upon the further supposition that, in the course of those conjectures, it rejected alternatives favorable to the defense—for example, that Stewart, being insane, capriciously refused to go on the stand—and fixed on the explanation that Stewart was sane at the time of the earlier trials. Perhaps, were there nothing else in this case, this chain of suppositions might be entertainable. But the weakness of its links is one more factor making it implausible to find prejudice here.
45
Finally, these two concededly impermissible questions—more accurately, a single question once repeated at the witness' request—must be viewed in the perspective of the proceedings as a whole. Asked and left unanswered on the third day of a six-day trial at which eighteen witnesses testified and the testimony of eight more was read to the jury, the questions were never again adverted to. They had been preceded by a series of what the jury cannot but have found startling accounts of Stewart's behavior, were contemporaneous with a glaring display of the symptoms of madness, and were followed by a two-day battle of expert witnesses one accoutered with blackboard and chalk—all addressed to the question of Stewart's sanity. It weaves solidities out of gossamer assumptions to attribute to fleeting and argumentative implications of fact in a leading question an impact so ponderous as to discredit and reverse a jury's verdict in the context of a record that impressively carries the contrary meaning. The jury was not left to pick at such threads in order to weave the cords of its verdict. On both sides—by both the prosecution and the defense—strong, heavy cables were furnished it. To suppose that, even if noticed when asked and made the occasion of implausible deductions, these questions amounted to more than a whisper drowned in the compulsion of ear-resounding testimony, seems to me a striking example of pursuing a quest for error.
46
More than a half-century ago, William H. Taft, reflecting his wide experience even before he became Chief Justice, laid this charge at the door of the courts:
47
'* * * The * * * disposition on the part of the courts to think that every provision of every rule of law in favor of the defendant is one to be strictly enforced, and even widened in its effect in the interest of the liberty of the citizen, has led courts of appeal to a degree of refinement in upholding technicalities in favor of defendants, and in reversing convictions that render one who has had practical knowledge of the trial of criminal cases most impatient.
48
'* * * When a court of highest authority in this country thus interposes a bare technicality between a defendant and his just conviction, it is not too much to charge some of the laxity in our administration of the criminal law to a proneness on the part of courts of last resort to find error and to reverse judgments of conviction.'5
49
I am convinced that today's decision falls within these weighty strictures. To explain the jury's rejection of Stewart's sole defense of insanity, with its consequent finding of guilt, on the ground, as a matter of assumption, that the jury was influenced by the two questions on which the verdict is reversed here, is to show less respect for the jury system than do the opponents of the system.6 One does not have to accept all the encomia which opinions of this Court have showered on the jury's functions and values, not to attribute fecklessness to the twelve men and women chosen to sit in this murder case. To make such attribution is to be unconsciously betrayed, as sophisticates sometimes are, into a depreciation of the capacities of the run of men. I dissent from the judgment of the Court.
50
Mr. Justice CLARK, with whom Mr. Justice WHITTAKER joins, dissenting.
51
It may be that Willie Lee Stewart 'had an intelligence level in the moronic class,' but he can laugh up his sleeve today for he has again made a laughingstock of the law. This makes the third jury verdict of guilt—each with a mandatory death penalty—that has been set aside since 1953. It was in that year that Willie walked into Harry Honikman's little grocery store here in Washington, bought a bag of potato chips and a soft drink, consumed them in the store, ordered another bottle of soda, and then pulled out a pistol and killed Honikman right before the eyes of his wife and young daughter. The verdict is now set aside because of some hypotheticals as to what the jury might have interred from a single question asked Willie as to whether he had testified at his other trials. In my view, none of these conjectures is sufficiently persuasive to be said to cast doubt on the validity of the jury's determination. Let us first review the setting of the fatal question in the trial.
52
The jury heard evidence for six days and from some 26 witnesses. The printed record here, which is only partial, consists of 400 pages. Willie Stewart's 'gibberish' comprises nine pages, representing perhaps some 20 minutes of testimony. It came during the third day of the trial. Mr. Carey, Willie's counsel, had placed him on the stand. He had asked on direct examination, 'Have you ever taken an oath?' Willie replied, 'Not that I knows of.' Willie was also asked by his counsel, 'Did you ever stand trial before this trial for the murder of Harry Honikman?' He answered, 'Well, you talk. You just go ahead and explain yourself. Have you ever stand trial? Go ahead. Don't ask me. I don't know.' Mr. Carey had not represented Willie on the other trials. Carey then asked, 'Were you ever tried for first degree murder before this time?' And Willie replied, 'I ain't never been tried. I ain't never been tried.' With these openings made by Carey, the Government, on cross-examination, asked the same questions. No issue is made of the examination relating to the fact of prior trials. Then came the question which has brought on this reversal: 'This is the first time you have gone on the stand, isn't it, Willie?' There was no objection. Willie answered, 'What?' And the Government's counsel again asked the same question in identical words. Still there was no objection. Willie answered: 'I am always the stand; I am everything, I done told you.' Thereafter Willie was excused as a witness, whereupon his counsel approached the bench and made his motion for mistrial. He asked for no curative instruction. Counsel had set his trap, lain in wait and was now demanding all or nothing. The demand for a mistrial was denied.
53
A government witness then testified that on the very night of the murder Willie was playing cards, that he exhibited the pistol used in the slaying to one of the players, that he left the card game before the hour of the murder, and that he returned to the card game after the hour of the murder and continued playing cards until about 2 a.m. This witness testified, 'he (Willie) seemed normal to me.' This was followed by testimony of an aide at St. Elizabeths Hospital and a guard at the District jail as to his conduct all during the period after his arrest up until a few weeks before his third trial. All said that he was perfectly normal; that he talked freely and understood the conversation; that he used a Bible and a dictionary, played bid whist and checkers and was a 'model' patient or prisoner. His jail file revealed that he mailed letters to his wife and sister-in-law, both of whom testified in his behalf, during April, October and November, 1953; July, August, September and October 1954; October, November and December, 1955; January, February and March, 1956; and October, November and December, 1957; and forwarded his wife $10 on each of two occasions, once in 1954 and the other in 1955. On several occasions he sent memo requests for conferences with jail officials. He asked for work to pass the time while in the District jail and actually put in many hours working day-in and day-out during the time of his custody. He first did cleaning, then plumbing, and finally was continually engaged in painting cell blocks throughout the jail. In 1957 his son was ill and he requested permission, which was granted, to visit him in custody. These witnesses all related that Willie 'acted normal' during this period. In fact, his only expert witness, a psychiatrist, testified that he could not decide in June 1953 when he examined Willie whether or not he was suffering from a mental disease. However, he stated that after talking with Willie's sister-in-law and hearing the story of Willie's background, he decided that Willie suffered a manic-depressive psychosis. The three government psychiatrists, two of whom examined him in March 1953, found him 'perfectly normal.' He answered their questions freely, went through various tests cooperatively and was found to be in 'average normal range of intelligence.' Each agreed that Willie was later malingering, i.e., feigning mental illness. This began shortly before his third trial. In addition, Willie had served two enlistments in the Army before 1953. On discharge he was found 'illiterate but mentally adequate.'
54
In the light of this testimony, I find the hypotheses of the Court, with due deference, entirely unrealistic, if not completely absurd. The crucial date was the time of the killing, 1953, not the date of the third trial, 1958. Despite this and the uncontradicted evidence, detailed above, of Willie's normality all during the period 1953—1958, the Court assumes that, from the asking of the question by the prosecutor, the jury believed that Willie had not testified in the two prior trials and therefore the jury 'might' have inferred that (1) Willie 'elected to feign this 'testimony' (gibberish) out of desperation brought on by his failure to gain acquittal' previously; or (2) the jury 'might have thought' Willie suffered from a mental disease but 'concluded that it is unlikely that a disease that had manifested itself only one out of three times for exhibition at trial was active at the occasion of the homicide'; or (3) the jury 'might have thought' that the condition was worsening as indicated by his action at the trial.
55
In the first place, it seems to me a violent assumption to say that the jury believed, solely from the Government's question on cross-examination, that Willie had not testified at the prior trials, especially since he had already testified in response to a query from his own counsel on direct examination that he had never been under oath. Moreover, in opening up the issue of prior trials, the defense counsel was obviously trying to leave the impression with the jury that they had not concluded in guilty verdicts. When he received answers such as 'you talk'—'You just go ahead and explain'—'Don't ask me,' he repeated the question. And the government counsel got like answers to his questions: 'I don't care how many occasions,' etc. And the answer to the question found prejudicial was first a 'What?' and upon its repetition, 'I am always the stand.' Using the majority's speculative approach, it is the more likely that the jury thought from those questions that the previous trials resulted in hung juries and never speculated upon the nice distinctions the Court makes as to Willie's demeanor.* The uncontradicted evidence was that he was a faker. They needed no inference to so conclude. Discounting the speculative effects of his own counsel's question on oaths, and the Government's question on testifying, his answers themselves might well have led the jury to believe that he did testify on the previous trials. In any event, a simple instruction to the jury to consider this trial alone, to strike our of its minds and give no consideration whatever to any reference to a former trial or to any event or thing that might or might not have happened there, would have certainly been sufficient. But Willie did not ask for this. He wanted 'all or none' and the Court is giving him 'all.' But, returning to the hypotheses, whether or not Willie 'elected' to feign his testimony was not the question. The jury's concern was whether he did feign it, and the uncontradicted testimony was that he did so. Secondly, the only testimony as to Willie's activity on the very night of the killing was that of the card player. He stated that Willie 'seemed normal to me.' How the jury might infer from the prosecutor's question that Willie had a mental disease but it was inactive at the time of the murder is beyond me. Every witness testified to the contrary—save one psychiatrist—and even he said that his examination of Willie was inconclusive. The jury knew it had been five years since the killing and that both lay and medical evidence—uncontradicted—was that Willie was normal during all that period. Lastly, as to the disease worsening, that possibility had no relevancy to the condition in 1953 at the time of the killing.
56
I might add that, as I read the Government's brief, it conceded only that the question asked Willie 'was of but negligible importance to the government's case.' The sole issue, it said, was whether the question was prejudicial. This does not license the Court to find other and further concessions as to the Raffel and Grunewald cases. Nor do I find the Government contending, in its point that no prejudice resulted from the question, that 'the jury may not even have heard the improper question.' To so state its attitude makes the Government appear ridiculous. Its true position was that one could not assume, as the Court does, that 'the jury noted and focused attention on a question given so little emphasis that it was overlooked by the trial judge.' I add that in the light of the long trial, the uncontradicted evidence as to Willie's malingering and the fact that the question was never mentioned again during the remaining three days of the trial, the jury did not need, nor as a matter of relevancy was it able, to go through the mental gymnastics the Court supposes.
57
I note that the Court does adopt one point made by the Government. It says 'that it is regrettable when the concurrent findings of 36 jurors are not sufficient finally to terminate a case.' I, too, agree with that, but in view of the Court's approach I would add that its regret is tempered by its willingness to indulge in such hypothesizing as to effectively remove from our law the concept of harmless error in capital cases.
1
'In trial of all persons charged with the commission of offenses against the United States and in all proceedings in courts martial and courts of inquiry in any State, District, Possession or Territory, the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him.' 62 Stat. 833, 18 U.S.C. § 3481, 18 U.S.C.A. § 3481.
2
Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650.
3
'Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in prepetrating or in attempting to perpetrate any arson, as defined in section 22—401 or 22—402 of this Code, rape, mayhem, robbery, or kidnapping, or in perpetrating or in attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.' District of Columbia Code, § 22—2401. (Emphasis supplied.)
4
Section 22—2404 of the District of Columbia Code provides: 'The punishment of murder in the first degree shall be death by electrocution.'
5
The first conviction was set aside because of erroneous instructions on the defense of insanity. 94 U.S.App.D.C. 293, 214 F.2d 879. The second conviction was set aside because of improper argument by the prosecutor. 101 U.S.App.D.C. 51, 247 F.2d 42.
6
107 U.S.App.D.C. 159, 160, 275 F.2d 617, 618. The following excerpt from petitioner's testimony is entirely typical:
'Q. Who is your lawyer? A. Well, I mean, I am my own lawyer, as far as my concern.
'Q. Have I been representing you here the last couple days? A. As far as I am concerned, you all look the same to me.
'Q. Do you know what is going on in this courtroom the last couple days? A. I ain't asked about what is going on. It is up to you go on and describe yourself. I mean, don't ask me. As far as I am just sitting here.
'Q. Did you ever hear the name Harry Honigman (the man with whose murder petitioner was charged) before? A. I haven't.
'Q. Do you know you are charged with first degree murder? A. As far as I am concerned, I ain't charged with nothing.
'Q. What is first degree murder; do you know? A. I don't know.'
7
The record reveals the following exchange at the conclusion of the cross-examination of petitioner by the prosecutor, a Mr. Smithson:
'Q. Willie, you were tried on two other occasions. A. Well, I don't care how many occasions, how many case—you say case. I was a case man once in a time.
'Q. This is the first time you have gone on the stand, isn't it, Willie? A. What?
'Q. This is the first time you have gone on the stand, isn't it, Willie? A. I am always the stand; I am everything, I done told you.
'Mr. Smithson: That is all.'
8
107 U.S.App.D.C. 159, 275 F.2d 617.
9
271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054.
10
353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931.
11
363 U.S. 818, 80 S.Ct. 1266, 4 L.Ed.2d 1516. The petition for certiorari also raised objections based upon other alleged errors during the course of the trial. In view of our disposition of the primary issue and because the actions complained of may not arise at any subsequent trial, we find it unnecessary to pass upon these other objections.
12
Thus, the majority reasoned: 'The logical and permissible first step under Raffel v. United States, supra, was to have him say whether he had previously testified in order to lay the groundwork for developing an inconsistency inherent in the difference in his 'demeanor-evidence' in the two trials.' 107 U.S.App.D.C. 159, 167, 275 F.2d 617, 625.
13
This is so because the defendant's credibility is in issue whenever he testifies. If the failure to testify at a previous trial were to amount to evidence that testimony at a subsequent trial was feigned or perjurious, the fact of failure to testify would always be admissible.
14
The holding in Grunewald was that the defendant's answers to certain questions were not inconsistent with his previous reliance upon the Fifth Amendment to excuse a refusal to answer those very same questions. Since defendant's testimony placed his credibility in issue, the necessary implication of that holding is that his prior refusal to testify could not be used to impeach his general credibility.
15
III Wigmore, Evidence (3d ed.), § 780. Wigmore quotes Chitty, Practice of the Law, 2d ed., III, 901, for the proposition: 'It is an established rule, as regards cross-examination, that a counsel has no right, even in order to detect or catch a witness in a falsity, falsely to assume or pretend that the witness had previously sworn or stated differently to the fact, or that a matter had previously been proved when it had not.' This Court has previously recognized that principle. Berger v. United States, 295 U.S. 78, 84, 55 S.Ct. 629, 631, 79 L.Ed. 1314.
16
The difference between the terms 'disease' and 'defect' was explained in the charge to the jury in the following manner: 'We use 'disease' in the sense of a condition which is considered capable of either improving or deteriorating. We the 'defect' in the sense of a condition which is not considered capable of either improving or deteriorating, and which may be either congenital or the result of injury, or the residual effect of a physical or mental disease.'
17
These instructions stemmed from the test of criminal responsibility that prevails in the District of Columbia under the decision of the Court of Appeals in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430.
18
This second issue arises from the fact that the jury was not here trying the question whether petitioner was mentally competent to stand trial. Under the District of Columbia practice, that question is decided in a separate proceeding. See District of Columbia Code, § 24—301.
19
Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704, relied upon by the Government, does not sustain its argument on this point. There the defense made no objection at all, choosing instead to rest its chances upon the verdict of the jury. Petitioner here made no such choice for he has repeatedly pressed his right to a mistrial, in the District Court, in the Court of Appeals, and here.
1
Honikman's daughter took the stand and testified at the trial. A transcription of her mother's testimony at a previous trial, corroborating the daughter's account of the killing, was read to the jury.
2
This remark was made at the bench, out of the hearing of the jury.
3
In addition to the testimony of Mrs. Honikman, that of two other witnesses was read to the jury. The remaining seven appeared at this trial.
4
Three of these eight witnesses took the stand. In the case of the other five, excerpts from their testimony at prior trials were read.
5
Taft, The Administration of Criminal Law, 15 Yale L.J. 1, 15 (1905).
6
See, e.g., Frank, Courts on Trial (1949), cc. VIII, IX.
*
If there was any impression relating to Willie's failure to take the stand in prior trials, it was surely due to the questioning by his own counsel on the issue of oaths.
| 01
|
366 U.S. 187
81 S.Ct. 922
6 L.Ed.2d 218
Andja KOLOVRAT et al., Petitioners,v.OREGON.
No. 102.
Argued March 30, 1961.
Decided May 1, 1961.
Mr. Lawrence S. Lesser, Washington, D.C., for petitioners.
Miss Catherine Zorn, Salem, Or., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Joe Stoich and Muharem Zekich died in Oregon in December 1953 without having made wills to dispose of personal property they owned in that State. Their only heirs and next of kin, who but for being aliens could have inherited this Oregon property under Oregon law, were brothers, sisters, nieces and nephews who were all residents and nationals of Yugoslavia. But § 111.070 of the Oregon Revised Statutes rather severely limits the rights of aliens not living in the United States to 'take' either real or personal property or its proceeds in Oregon 'by succession or testamentary disposition.'1 And subsection (3) of the same Oregon statute provides that where there are no next of kin except ineligible aliens and the deceased made no will, the property of the deceased shall be taken by the State as escheated property.
2
The State filed petitions under this provision in an Oregon Circuit Court to take for itself the personal property of both decedents,2 alleging that there were no next of kin eligible to take under Ore.Rev.Stat. § 111.070. The answers filed by the Yugoslavian relatives and the San Francisco Consul General of that country (who are petitioners here) alleged that 'in fact and in law reciprocal rights of inheritance as prescribed by ORS 111.070 did exist' between the United States and Yugoslavia when the decedents died and that the Yugoslavian relatives therefore were eligible to take under Oregon law. After hearings in which evidence was taken, the trial court found that the reciprocal right of inheritance required by § 111.070(1)(a) did exist and that, both at the time the two deceased died and at the time of the trial, there existed 'rights of citizens of the United States to receive payment to them within the United States * * * of moneys originating from the estates of persons dying within the country of Yugoslavia' as required by § 111.070(1)(b). The State Supreme Court reversed, holding that petitioners had failed to prove 'the ultimate fact' that there existed 'as a matter of law an unqualified and enforceable right to receive as defined by ORS 111.070.'3 It found instead that such an unqualified right did not exist because the laws of Yugoslavia give discretion to Yugoslavian authorities to control foreign exchange payments in a way that might prevent Americans from receiving the full value of Yugoslavian inheritances. It was accordingly held that Oregon state law standing alone barred these Yugoslavian nationals from inheriting their relatives' personal property in Oregon.
3
The state court went on to say that this holding disposes of petitioners' claims '(u)nless the area of alien succession over which the state ofOregon seeks to control through ORS 111.070 supra, has been preempted by some treaty agreement subsisting between Yugoslavia and the United States' at the time of the decedents' death. On this point the court said:
4
'We are mindful that rights of succession to property under local law may be affected by an overriding federal policy when a treaty makes different or conflicting arrangements. In such event, the state policy must give way. Clark v. Allen, 331 U.S. 503, 517, 67 S.Ct. 1431, 91 L.Ed. 1633, (1645). * * *' 220 Or. 448, 462, 349 P.2d 255, 262—263.
5
Thus, recognizing quite properly that state policies as to the rights of aliens to inherit must give way under our Constitution's Supremacy Clause to 'overriding' federal treaties and conflicting arrangements, the state court considered petitioners' contention, supported in this Court by the Government as amicus curiae, that petitioners were entitled to inherit this personal property because of an 1881 Treaty between the United States and Serbia, which country is now a part of Yugoslavia. The state court rejected this contention on the basis of its interpretation of the Treaty although it correctly recognized that the Treaty is still in effect between the United States and Yugoslavia.4 The state court also rejected petitioners' contention that their claims could not be defeated solely because of the possible effect of the Yugoslavian Foreign Exchange Laws and Regulations since those laws and regulations admittedly meet the requirements of the Bretton Woods Agreement of 1945,5 to which both Yugoslavia and the United States are signatories. We granted certiorari because the cases involve important rights asserted in reliance upon federal treaty obligations. Kolovrat v. State of Oregon, 364 U.S. 812, 81 S.Ct. 44, 5 L.Ed.2d 44.
6
For reasons to be stated, we hold that the 1881 Treaty does entitle petitioners to inherit personal property located in Oregon on the same basis as American next of kin and that these rights have not been taken away or impaired by the monetary policies of Yugoslavia exercised in accordance with later agreements between that country and the United States.
I.
7
The parts of the 1881 Treaty most relevant to our problem are set out below.6 The very restrictive meaning given the Treaty by the Oregon Supreme Court is based chiefly on its interpretation of this language:
8
'In all that concerns the right of acquiring, possessing or disposing of every kind of property * * * citizens of the United States in Serbia and Serbian subjects in the United States, shall enjoy the rights which the respective laws grant * * * in each of these states to the subjects of the most favored nation.'
9
This, the State Supreme Court held, means that the Treaty confers a right upon a United States citizen to acquire or inherit property in Serbia only if he is 'in Serbia' and upon a Yugoslavian citizen to acquire property in the United States only if he is 'in the United States.' The state court's conclusion, therefore, was that the Yugoslavian complainants, not being residents of the United States, had no right under the Treaty to inherit from their relatives who died leaving property in Oregon. This is one plausible meaning of the quoted language, but it could just as plausibly mean that 'in Serbia' all citizens of the United States shall enjoy inheritance rights and 'in the United States' all Serbian subjects shall enjoy inheritance rights, and this interpretation would not restrict almost to the vanishing point the American and Yugoslavian nationals who would be benefited by the clause. We cannot accept the state court's more restrictive interpretation when we view the Treaty in the light of its entire language and history. This Court has many times set its face against treaty interpretations that unduly restrict rights a treaty is adopted to protect.7
10
The 1881 Treaty clearly declares its basic purpose to bring about 'reciprocally full and entire liberty of commerce and navigation' between the two signatory nations so that their citizens 'shall be at liberty to establish themselves freely in each other's territory.' Their citizens are also to be free to receive, hold and dispose of property by trading, donation, marriage, inheritance or any other manner 'under the same conditions as the subjects of the most favored nation.' Thus, both paragraphs of Art. II of the Treaty which have pertinence here contain a 'most favored nation' clause with regard to 'acquiring, possessing or disposing of every kind of property.' This clause means that each signatory grants to the other the broadest rights and privileges which it accords to any other nation in other treaties it has made or will make. In this connection we are pointed to a treaty of this country, made with Argentina before the 1881 Treaty with Serbia,8 and treaties of Yugoslavia with Poland and Czechoslovakia,9 all of which unambiguously provide for the broadest kind of reciprocal rights of inheritance for nationals of the signatories which would precisely protect the right of these Yugoslavian claimants to inherit property of their American relatives.
11
The rights conferred by the 1881 Treaty, broadly stated as they are, would fall far short of what individuals would hope or desire for their complete fulfillment if one who by work and frugality had accumulated property as his own could be denied the gratification of leaving his property to those he loved the most, simply because his loved ones were living in another country where he and they were born. Moreover, if these rights of 'acquiring, possessing or disposing of every kind of property' were not to be afforded to merchants and businessmen conducting their trade from their own homeland, the Treaty's effectiveness in achieving its express purpose of 'facilitating * * * commercial relations' would obviously be severely limited.10 It is not in such a niggardly fashion that treaties designed to promote the freest kind of traffic, communications and associations among nations and their nationals should be interpreted, unless such an interpretation is required by the most compelling necessity. There is certainly no such compulsion in the 1881 Treaty's language or history.
12
While courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.11 We have before us statements, in the form of diplomatic notes exchanged between the responsible agencies of the United States and of Yugoslavia, to the effect that the 1881 Treaty, now and always, has been construed as providing for inheritance by both countries' nationals without regard to the location of the property to be passed or the domiciles of the nationals. And relevant diplomatic correspondence and instructions issued by our State Department show that the 1881 Treaty was one of a series of commercial agreements which were negotiated and concluded on the basis of the most expansive principles of reciprocity. The Government's purpose in entering into that series of treaties was in general to put the citizens of the United States and citizens of other treaty countries on a par with regard to trading, commerce and property rights.12
13
The Oregon Supreme Court apparently thought itself bound to decide this question of treaty construction against petitioners because of our decision in Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633. We do not agree. In that case we held that a 1923 Treaty with Germany, 44 Stat. 2132 did not confer rights upon German nationals residing in Germany to inherit from American citizens. The German Treaty did contain some language which, when considered in isolation, could be thought to be sufficiently similar to the controlling provisions of the 1881 Treaty to suggest that these parts of the two treaties should be interpreted to have the same meaning.13 But the differences between the two treaties are crucial. The German Treaty covered only disposal of property; the 1881 Treaty very broadly covers acquisition of property as well as disposal. The treaty before us, as we have pointed out, contains the highly significant 'most favored nation' clause, long used to broaden the scope of rights protected by treaties; the German Treaty had no 'most favored nation' clause. Moreover, the language of other treaties which was almost identical with the pertinent provision in the German Treaty had previously been given a very limited construction by this Court, a construction from which we were unwilling to depart in Clark v. Allen. Finally, the relevant history of the negotiations for, the interpretation of and the practices under the 1881 Treaty support petitioners' claims, but no such supporting history was brought to our attention with respect to the German Treaty.
14
We hold that under the 1881 Treaty, with its 'most favored nation' clause, these Yugoslavian claimants have the same right to inherit their relatives' personal property as they would if they were American citizens living in Oregon; but, because of the grounds given for the Oregon Supreme Court's holding, we shall briefly consider whether this treaty right has in any way been abrogated or impaired by the monetary foreign exchange laws of Yugoslavia.
II.
15
Oregon law, its Supreme Court held, forbids inheritance of Oregon property by an alien living in a foreign country unless there clearly exists 'as a matter of law an unqualified and enforceable right' for an American to receive payment in the United States of the proceeds of an inheritance of property in that foreign country. The state court held that the Yugoslavian foreign exchange laws in effect in 1953 left so much discretion in Yugoslavian authorities that it was possible for them to issue exchange regulations which might impair payment of legacies or inheritances abroad and for this reason Americans did not have the kind of 'unqualified and enforceable right' to receive Yugoslavian inheritance funds in the United States which would justify permitting Yugoslavians such as petitioners to receive inheritances of Oregon property under Oregon law. Petitioners and the United States urge that no such doubt or uncertainty is created by the Yugoslavian law, but contend that even so this Oregon state policy must give way to supervening United States-Yugoslavian arrangements. We agree with petitioners' latter contention.
16
The International Monetary Fund (Bretton Woods) Agreement of 1945, supra, to which Yugoslavia and the United States are signatories, comprehensively obligates participating countries to maintain only such monetary controls as are consistent with the terms of that Agreement. The Agreement's broad purpose, as shown by Art. IV, § 4, is 'to promote exchange stability, to maintain orderly exchange arrangements with other members, and to avoid competitive exchange alterations.' Article VI, § 3, forbids any participating country from exercising controls over international capital movements 'in a manner which will restrict payments for current transactions or which will unduly delay transfers of funds in settlement of commitments * * *.' Article 8 of the Yugoslavian laws regulating payment transactions with other countries expressly recognizes the authority of 'the provisions of agreements with foreign countries which are concerned with payments.'14 In addition to all of this, an Agreement of 1948 between our country and Yugoslavia15 obligated Yugoslavia, in the words of the Senate Report on the Agreement, 'to continue to grant most-favored-nation treatment to Americans in ownership and acquisition of assets in Yugoslavia * * * (and) Yugoslavia is required, by article 10, to authorize persons in Yugoslavia to pay debts to United States nationals, firms, or agencies, and, so far as feasible, to permit dollar transfers for such purpose.'16
17
These treaties and agreements show that this Nation has adopted programs deemed desirable in bringing about, so far as can be done, stability and uniformity in the difficult field of world monetary controls and exchange. These arrangements have not purported to achieve a sufficiently rigid valuation of moneys to guarantee that foreign exchange payments will at all times, at all places and under all circumstances be based on a 'definitely ascertainable' valuation measured by the diverse currencies of the world. Doubtless these agreements may fall short of that goal. But our National Government's powers have been exercised so far as deemed desirable and feasible toward that end, and the power to make policy with regard to such matters is a national one from the compulsion of both necessity and our Constitution. After the proper governmental agencies have selected the policy of foreign exchange for the country as a whole, Oregon of course cannot refuse to give foreign nationals their treaty rights because of fear that valid international agreements might possibly not work completely to the satisfaction of state authorities. Our National Government's assent to these international agreements, coupled with its continuing adherence to the 1881 Treaty, precludes any State from deciding that Yugoslavian laws meeting the standards of those agreements can be the basis for defeating rights conferred by the 1881 Treaty.
18
The judgment of the Supreme Court of Oregon is reversed and the cause remanded for proceedings not inconsistent with this opinion.
19
Reversed and remanded.
1
'(1) The right of an alien not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this state by succession or testamentary disposition, upon the same terms and conditions as inhabitants and citizens of the United States, is dependent in each case:
'(a) Upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as inhabitants and citizens of the country of which such alien is an inhabitant or citizen;
'(b) Upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign country; and
'(c) Upon proof that such foreign heirs, distributees, devisees or legatees may receive the benefit, use or control of money or property from estates of persons dying in this state without confiscation, in whole or in part, by the governments of such foreign countries.
'(2) The burden is upon such nonresident alien to establish the fact of existence of the reciprocal rights set forth in subsection (1) of this section.'
2
The Circuit Court consolidated the two cases and they have been treated as one since.
3
220 Or. 448, 461, 349 P.2d 255, 262.
4
The Treaty is reported at 22 Stat. 963. Official recognition that it is still in effect can be found in the Settlement of Pecuniary Claims Against Yugoslavia Agreement between the United States and Yugoslavia of July 19, 1948, 62 Stat. 2658, T.I.A.S. 1803, Art. 5.
5
60 Stat. 1401, T.I.A.S. 1501.
6
'The United States of America and His Highness the Prince of Serbia, animated by the desire of facilitating and developing the commercial relations established between the two countries, have determined with this object to conclude a treaty * * *.
'Article I.
'There shall be reciprocally full and entire liberty of commerce and navigation between the citizens and subjects of the two high contracting powers, who shall be at liberty to establish themselves freely in each other's territory.
'Article II.
'In all that concerns the right of acquiring, possessing or disposing of every kind of property, real or personal, citizens of the United States in Serbia and Serbian subjects in the United States, shall enjoy the rights which the respective laws grant or shall grant in each of these states to the subjects of the most favored nation.
'Within these limits, and under the same conditions as the subjects of the most favored nation, they shall be at liberty to acquire and dispose of such property, whether by purchase, sale, donation, exchange, marriage contract, testament, inheritance, or in any other manner whatever, without being subject to any taxes, imposts or charges whatever, other or higher than those which are or shall be levied on natives or on the subjects of the most favored state.
'They shall likewise be at liberty to export freely the proceeds of the sale of their property, and their goods in general, without being subjected to pay any other or higher duties than those payable under similar circumstances by natives or by the subjects of the most favored state.'
7
See, e.g., Bacardi Corp. of America v. Domenech, 311 U.S. 150, 163, 61 S.Ct. 219, 225, 85 L.Ed. 98; Jordan v. Tashiro, 278 U.S. 123, 128—129, 49 S.Ct. 47, 48—49, 73 L.Ed. 214.
8
Treaty of Friendship, Commerce, and Navigation, Between the United States and the Argentine Confederation of 1853, 10 Stat. 1005, 1009, I Malloy 20. Article IX of this Treaty provides: 'In whatever relates to * * * acquiring and disposing of property of every sort and denomination, either by sale, donation, exchange, testament, or in any other manner whatsoever, * * * the citizens of the two contracting parties shall reciprocally enjoy the same privileges, liberties, and rights, as native citizens * * *.'
9
Yugoslav-Polish Treaty, 30 League of Nations Treaty Series 185; Yugoslav-Czechoslovakian Treaty, 85 League of Nations Treaty Series 455.
10
Besides the obvious relevance of Art. II of the Treaty even when considered alone, Art. III specifically contemplates the interchange of 'merchants, manufacturers, and trades people' or 'their clerks and agents.'
11
See, e.g., Factor v. Laubenheimer, 290 U.S. 276, 294—295, 54 S.Ct. 191, 196, 78 L.Ed. 315.
12
See, e.g., Report on Negotiations dated Nov. 30, 1850, printed as Senate Confidential Document No. 1, 31st Cong., 2d Sess., 5 Miller, Treaties and Other International Acts of the United States 861; D.S., 15 Instructions, Argentina, 19—26, 6 Miller, supra, 219.
13
The language relied upon by the Oregon Supreme Court was: 'Nationals of either High Contracting Party may have full power to dispose of their personal property of every kind within the territories of the other * * *.' (349 P.2d 265.)
14
Law to Regulate Payments to and from Foreign Countries, Foreign Exchange Law, Official Gazette of the Federal People's Republic of Yugoslavia, Oct. 25, 1946, Belgrade, No. 86, Year II.
15
See note 4, supra.
16
S.Rep. No. 800, 81st Cong., 1st Sess., p. 4.
| 910
|
366 U.S. 207
81 S.Ct. 1051
6 L.Ed.2d 233
Veron ATCHLEY, also known as Jack Atchley, petitioner,v.STATE OF CALIFORNIA.
No. 95.
Supreme Court of the United States
May 1, 1961
Miss Rosalie S. Asher, Sacramento, Cal., for petitioner.
Mrs. Doris H. Maier, Sacramento, Cal., for respondent.
On Writ of Certiorari to the Supreme Court of California.
PER CURIAM.
1
After hearing oral argument and fully examining the record, we conclude that the totality of circumstances as the record makes them manifest did not warrant bringing the case here. Accordingly, the writ is dismissed.
| 89
|
366 U.S. 208
81 S.Ct. 1050
6 L.Ed.2d 233
Lewis Lloyd ANDERSONv.STATE OF ALABAMA.
No. 326.
Supreme Court of the United States
May 1, 1961
Jack Greenberg (Peter A. Hall, Fred D. Gray, Orzell Billingsley and Thurgood Marshall, on the briefs), for petitioner.
David W. Clark, Asst. Atty. Gen. of Alabama (MacDonald Gallion, Atty. Gen. on the briefs), for respondent.
Mr. Jack Greenberg, New York City, for petitioner.
Mr. David W. Clark, Montgomery, Ala., for respondent.
On Writ of Certiorari to the Court of Appeals of Alabama.
PER CURIAM.
1
The judgment is reversed. Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866.
| 12
|
366 U.S. 169
81 S.Ct. 913
6 L.Ed.2d 206
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES et al., Appellants,v.UNITED STATES et al.
No. 681.
Argued March 28, 1961.
Decided May 1, 1961.
Mr. William G. Mahoney, Washington, D.C., for appellants.
Sol. Gen. Archibald Cox, Washington, D.C., for appellees, United States and Interstate Commerce Commission.
Mr. Ralph L. McAfee, New York City, for appellee, Erie-Lackawanna R. Co.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The dispute in this case commenced when the Delaware, lackawanna & Western Railroad Co. and the Erie Railroad Co. filed a joint application for approval by the Interstate Commerce Commission of a proposed merger, the surviving company to be known as the Erie-Lackawanna Railroad Co. Supervision by the Commission of railroad mergers is required by § 5(2) of the Interstate Commerce Act, 54 Stat. 905, 49 U.S.C. § 5(2), 49 U.S.C.A. § 5(2), and the statute directs the Commission to authorize such transactions as it finds will be 'consistent with the public interest.' The Commission concluded in this case that the public interest would be served by a merger of the two applicants and that finding has not been questioned. The point in issue is whether the conditions attached to the merger for the protection of the employees of the two railroads satisfy the congressional mandate embodied in § 5(2)(f) of the Act, which provides in relevant part that:
2
'As a condition of its approval, under this paragraph (2), of any transaction involving a carrier or carriers by railroad subject to the provisions of this part, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. In its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transaction will not result in employees of the carrier or carriers by railroad affected by such order being in a worse position with respect to their employment, except that the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employee was in the employ of such carrier or carriers prior to the effective date of such order.' (Emphasis added.) Before the Commission's hearing examiner, the railroads suggested that the 'New Orleans conditions' be imposed in satisfaction of § 5(2)(f). These conditions derive their name and substance from the Commission's decision in the New Orleans Union Passenger Terminal Case, 282 I.C.C. 271, and they provide compensation benefits for employees displaced or discharged as a result of a merger.1 After the hearing had concluded, however, appellant Railway Labor Executives' Association (RLEA) filed a brief with the examiner claiming that compensatory conditions were not enough since, in its view, the second sentence of § 5(2)(f) imposes a minimum requirement that no employee be discharged for at least the length of his prior service up to four years following consummation of the merger. The hearing examiner did not agree with the RLEA's reading of § 5(2)(f) and recommenced the New Orleans conditions to the Commission, a recommendation which the Commission unanimously adopted. 312 I.C.C. 185. Appellants then instituted proceedings in the United States District Court of Michigan, seeking to enjoin the Commission's order approving the merger. A temporary restraining order issued following testimony by a representative of the RLEA that irreparable injury to the employees would otherwise ensue. However, after hearing the case on its merits, the District Court dissolved the restraining order and dismissed appellants' complaint. 189 F.Supp. 942. Direct appeal to this Court followed and we noted probable jurisdiction. 365 U.S. 809, 81 S.Ct. 700, 5 L.Ed.2d 690.
3
Preliminarily, it must be noted that the adequacy of the New Orleans conditions is not an issue before this Court: Appellants did not challenge their sufficiency below, nor do they argue the point here.2 Rather, appellants' sole contention is that no compensation plan is adequate unless it is based on the premise that all the employees currently on the payroll remain in the surviving railroad's employ for at least the length of their previous employment up to four years. Appellants do not say that every employee must remain in his present job, but they do insist that some job must remain open for each one. We think, however, that a review of the background of § 5(2)(f) and its subsequent interpretation demonstrates the defects in appellants' position.
4
Section 5(2)(f), as it now appears, was enacted as part of the Transportation Act of 1940. A broad synopsis of the occurrences which led to the enactment of those sections on railroad consolidation of which § 5(2)(f) is a part is contained in the Appendix to this Court's opinion in St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U.S. 298, 315, 74 S.Ct. 574, 583, 98 L.Ed. 710, and it is unnecessary to reproduce that material here except to note that: 'The congressional purpose in the sweeping revision of § 5 of the Interstate Commerce Act in 1940, enacting § 5(2)(a) in its present form, was to facilitate merger and consolidation in the national transportation system.' County of Marin v. United States, 356 U.S. 412, 416, 78 S.Ct. 880, 883, 2 L.Ed.2d 879. The relevant events, for present purposes, date from 1933, when Congress passed the Emergency Railroad Transportation Act, 48 Stat. 211. That Act contemplated extensive railroad consolidations and provided for employee protection pursuant thereto in the following language:
5
'(N)or shall any employee in such service be deprived of employment such as he had during said month of May or be in a worse position with respect to his compensation for such employment, by reason of any action taken pursuant to the authority conferred by this title.'
6
Shortly before the Emergency Act expired in 1936, a great majority of the Nation's railroads and brotherhoods entered into the Washington Job Protection Agreement,3 an industry-wide collective bargaining agreement which also specified conditions for the protection of employees in the event of mergers. Unlike the Emergency Act, however, the Washington Agreement provided for compensatory protection rather than the 'job freeze' previously prescribed. Subsequently, efforts commenced to re-evaluate the law relating to railroad consolidations and a 'Committee of Six' was appointed by the President to study the matter. Those portions of the Committee's final report pertaining to employee protection urged codification of the Washington Agreement4 and a bill drafted along those lines, S. 2009, was passed by the Senate in 1939. 84 Cong.Rec. 6158. The Senate bill contained language identical to that now found in the first sentence of § 5(2)(f)—i.e., the transaction should contain 'fair and equitable' conditions.
7
A bill similar in this respect to S. 2009 was introduced in the House but, before it was sent to the Conference Committee, Representative Harrington inserted an amendment which added a second sentence to the one contained in the original version, this sentence stating that:
8
'(N)o 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.' 84 Cong.Rec. 9882.
9
The bill came out of the Conference Committee without Representative Harrington's addendum and, dissatisfaction having been expressed by Representative Harrington and others, a motion to recommit was passed by the House. This motion required that the language of the original House bill be restored 'but modified so that the sentence in section 8 which contains the provision known as the Harrington amendment' should speak as the second sentence of § 5(2)(f) now does—viz., '(the) transaction will not result in employees of said carrier * * * being in a worse position with regard to their employment.' 86 Cong.Rec. 5886. This new phraseology was adopted by the Conference Committee, with the added limitation that such protection need extend no more than four years, and the bill passed without further relevant alteration. 86 Cong.Rec. 10193, 11766.
10
It would not be productive to relate in detail the various statements offered by members of the House to explain the significance of the events outlined above. It is enough to say that they were many, sometimes ambiguous and often conflicting. However, certain points can be made with confidence. First, it is clear that there were two alterations made in the substance of the original Harrington amendment: Not only was a four-year limitation imposed, but also general language of imprecise import was used in substitution for language clearly requiring 'job freeze' such as appeared in the original amendment and the 1933 Act.5 Secondly, the representatives whose floor statements are entitled to the greatest weight are those House members who had the last word on the bill—the House conferees who explained the final version of the statute to the House at large immediately prior to passage rather than those Congressmen whose voices were heard in the early skirmishing but who did not participate in the final compromise.6 Finally, although it might be an overstatement to claim that their remarks are dispositive, the statements the House conferees gave in explanation of the final version clearly reveal an understanding that compensation, not 'job freeze,' was contemplated.7 Appellants vigorously argue that the legislative history of § 5(2)(f) supports their interpretation. However, were we to agree, it would be necessary to say that a substantial change in phraseology was made for no purpose and to disregard the statements of those House members most intimately connected with the final version of the statute.
11
The indications gleaned from the history of the statute are reinforced and confirmed by subsequent events. Immediately after the section was passed, interested parties—including the brotherhood appealing in this case—expressed the opinion that compensation protection for discharged employees was the intendment of § 5(2)(f).8 The Commission echoed this interpretation in its next annual report, I.C.C.55th Ann.Rep. 60 61, and began imposing compensatory conditions, and only compensatory conditions, in proceedings involving § 5 transactions. See, e.g., Cleveland & Pittsburgh R. Co. Purchase, 244 I.C.C. 793 (1941). The Commission has consistently followed this practice to date in over 80 cases, with the full support of the intervening brotherhoods and the RLEA;9 indeed, in one case where a variant of the present dispute arose, the RLEA argued at length that § 5(2)(f) did not impose a mandatory job freeze requirement compensatory conditions would be satisfactory.10 It is true that many of these prior transactions did not involve consolidations of the magnitude here presented. However, the relevance of this point is unclear since the statute makes no distinctions based on the type of transaction considered, and it is apparent that the underlying principle remains the same whether 100 or 1,000 employees are affected.11
12
Appellants' last point is that two cases in this Court have previously treated the present question favorably to their position. Railway Labor Executives' Ass'n v. United States, 339 U.S. 142, 70 S.Ct. 530, 94 L.Ed. 721, and Order of Railroad Telegraphers v. Chicago & North Western R. Co., 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774. However, neither the holding nor the language of these cases, in fact, supports appellants' claim. The R.L.E.A. case was not concerned with the types of protection to be afforded employees for the first four years following the merger; the only question was whether compensatory benefits could be extended beyond four years, and the Court held they could. Appellants point to passages in the opinion, 339 U.S., at pages 151—154, 70 S.Ct. at pages 534—536, in which, they assert, the Court recognized that only one change—the four-year limitation—was blended into the Harrington amendment between origination and final approval. However, this contention ignores the plain recognition of the Court, revealed on page 152 of the opinion, in 339 U.S. on page 535 of 70 S.Ct., that two changes occurred, one of which being the alteration in language pertinent to the resolution of this case. The Railroad Telegraphers case is equally inapposite. The question in that case concerned the power of a federal court to enjoin a strike over the railroad's refusal to bargain concerning a 'job freeze' proposal in the collective bargaining contract, and there is no discussion of the present problem in the opinion of the Court.
13
In short, we are unwilling to overturn a long-standing administrative interpretation of a statute, acquiesced in by all interested parties for 20 years, when all the signposts of congressional intent, to the extent they are ascertainable, indicate that the administrative interpretation is correct. Consequently, the judgment of the District Court must be affirmed.
14
Affirmed.
15
Mr. Justice DOUGLAS, dissenting.
16
This case is a minor episode in an important chapter of modern history. It concerns the impact of economic and technological changes on workers1 and the manner in which government will deal with it. The courts do not determine that policy; it is a legislative matter. But the judicial attitude has much to do with the manner in which legislative ambiguities will be resolved.
17
There are some who think that technological change will produce both our highest industrial and business activity and our greatest unemployment. Dr. Robert M. Hutchins recently stated the basic conflict between individual freedom and technology:
18
'Individual freedom is associated with doubt, hesitancy, perplexity, trial and error. These technology cannot countenance. Liberty under law presupposes the supremacy of politics. It presupposes the possibility, for example, that political deliberation might lead to the decision to postpone the introduction of a new machine. Technology, on the other hand, asserts that what we can do is worth doing; the things most worth doing are those we can do most efficiently * * *.' Two Faces of Federalism (1961), p. 22.
19
The measure of the conflict is seen only in a broad frame of reference. As Dr. Hutchins said:
20
'Technology holds out the hope that men can actually achieve at last goals toward which they have been struggling since the dawn of history: freedom from want, disease, and drudgery, and the consequent opportunity to lead human lives. But a rich, healthy, workless world peopled by bio-mechanical links is an inhuman world. The prospects of humanity turn upon its ability to find the law that will direct technology to human uses.' Two Faces of Federalism (1961), p. 24.
21
The Secretary of Labor, Arthur J. Goldberg, recently put the problem in simple terms:2
22
'The issue being joined in our economy today—one that is present in some form in every major industrial negotiation—is simply stated: how can the necessity for continued increases in productivity, based upon labor-saving techniques, be met without causing individual hardship and widespread unemployment?'
23
This case is a phase of that problem.
24
This is not the first instance of a controversy settled in Congress by adoption of ambiguous language and then transferred to the courts, each side claiming a victory in the legislative halls.3
25
The Senate passed a bill which required the Interstate Commerce Commission in approving a railroad merger to make 'a fair and equitable arrangement to protect the interest of the employees affected.'4 The House Committee adopted the same language.5 When the bill reached the floor of the House, Mr. Harrington suggested the following proviso:6
26
'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.'
27
That amendment would have prohibited permanently the displacement of employees as a result of mergers. It was adopted by the House.7 But in Conference that proviso was eliminated along with the merger provisions that gave rise to it.8 The House recommitted the bill with instructions that the provisions relating to combinations and consolidations of carriers be included in the bill, and be amended to provide that the Commission must include in its orders authorizing mergers 'terms and conditions providing that such transaction will not result in employees of said * * * carriers being in a worse position with respect to their employment.'9
28
The Congerence accepted this version, limiting the protective clause to four years. The Conference Report emphasizes that the change made in the Harrington proposal was in limiting its operation to four years.10 Mr. Lea, Chairman of the House Conferees, stated the same in the House:11
29
'The substitute that we bring in here provides two additional things. First, there is a limitation on the operation of the Harrington amendment for 4 years from the effective date of the order of the Commission approving the consolidation. In other words, the employees have the protection against unemployment for 4 years, but the Commission is not required to give them benefits for any longer period. If the employees themselves make an agreement with the railroad company for a better or a longer period, that is a matter between the railroad men and the railroads, but this 4-year limitation is established by the pending conference agreement.
30
'There is another limitation on the protective benefits afforded by the amendment. The benefit period shall not be required for a longer period than the prior employment of the employee before the consolidation occurred. In other words, under the original Harrington amendment, if a man was employed for 6 months, he would indefinitely be subject to the benefits of the amendment from the railroad company. We have changed that so the railroad company will not be required to maintain him in no worse condition as to his employment for any longer period than he worked before the consolidation occurred.
31
'We believe that is a very fair and a very liberal provision for labor. We believe that railway labor substantially agrees in that viewpoint. We take nothing from labor by this agreement.' (Italics added.) Mr. Wolverton, another House Conferee, stated:12
32
'It was recognized that the real intent of the sponsors was to save railroad employees from being suddenly thrust out of employment as the result of any consolidation or merger entered into.' (Italics added.)
33
These are the statements13 which, the Court says, 'are entitled to the greatest weight' in interpreting the proviso. I do not think that these statements—nor any part of this legislative history—'clearly reveal an understanding that compensation, not 'job freeze,' was contemplated.' Instead I find this legislative history—as the Court elsewhere seems to recognize—to be, at best, ambiguous. Compensatory relief will result in the employees' bearing the initial shock of the railroads' reduction in plant. The Commission and the railroads contend for a philosophy of firing first and picking up the social pieces later. The Court seizes on ambiguous materials to impute to Congress approval of that philosophy. I would resolve the ambiguity in favor of the employees. I would read the proviso as meaning that nothing less than four-year employment protection to every employee would satisfy the Act, though not necessarily a four-year protection in his old job. In a realistic sense a man without a job is 'in a worse position with respect to' his 'employment,' though he receives some compensation for doing nothing. Many men, at least, are not drones; and their continued activity is life itself. The toll which economic and technological changes will make on employees is so great that they, rather than the capital which they have created,14 should be the beneficiaries of any doubts that overhang these legislative controversies when they are shifted to the courts.
1
Briefly, the New Orleans conditions prescribe the following: employees retained on the job but in a lower paying position get the difference between the two salaries for four years following the merger; discharged employees get their old salaries for four years, less whatever they make in other jobs, or they may elect a lump sum payment; transferred employees get certain moving expenses, and certain fringe benefits are insured; and any additional benefits that a given employee would have received under the Washington Job Protection Agreement, discussed in the text infra, are guaranteed.
2
Appellants do relate certain objections to the adequacy of the conditions but it seems clear that these objections, which were not introduced before the Commission or the court below except at the hearing for temporary injunctive relief, have been included in appellants' brief only as background material. If appellants wish to challenge directly the adequacy of the conditions, it seems clear that they may still proceed to do so pursuant to § 5(9) of the Act.
In this connection, it should be noted that appellants have contended that the lower court erred when it refused to accept certain testimony concerning the adequacy of the conditions. The short answer to this is that the court did not refuse to accept appellants' proof; the court explicitly refrained from ruling on the matter when the offer was made and appellants never renewed their efforts. See R. 179.
3
A discussion of this agreement and its terms is found in United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208.
4
See Hearings before the House Committee on Interstate and Foreign Commerce on H.R. 2531 and H.R. 4862, 76th Cong., 1st Sess. 216—217, 275.
5
As further evidence that Congress would have specified 'job freeze' had it meant 'job freeze' in the 1940 Act, compare the 1943 amendment to § 222(f) of the Communications Act, 47 U.S.C. § 222(f), 47 U.S.C.A. § 222(f), where an employee protective arrangement was added by the following language:
'Each employee of any carrier which is a party to a consolidation or merger pursuant to this section who was employed by such carrier immediately preceding the approval of such consolidation or merger, and whose period of employment began on or before March 1, 1941, shall be employed by the carrier resulting from such consolidation or merger for a period of not less than four years from the date of the approval of such consolidation or merger, and during such period no such employee shall, without his consent, have his compensation reduced or be assigned to work which is inconsistent with his past training and experience in the telegraph industry.' See also the remarks of Senator White, a proponent of this bill, at 89 Cong.Rec. 1195 1196.
6
Appellants point out that several members of the conference committee opposed the motion to recommit. However, as appellants must concede, reliance on unexplained opposition to a proposal is untrustworthy at best. Witness the fact that all the House members on whose remarks appellants base their position (Representatives Warren, Harrington, and Thomas) voted against the final version of the bill.
7
See the remarks of conference chairman Lea at 86 Cong.Rec. 10178, particularly that part of his explanation responding to questions put by Representatives Vorys and O'Connor, where it was said:
'Mr. Vorys of Ohio. Mr. Speaker, will the gentleman yield?
'Mr. Lea. I yield to the gentleman from Ohio.
'Mr. Vorys of Ohio. Would this 4-year rule have the effect of delaying a consolidation for 4 years, or would it mean that if a consolidation were made there would still be a 4-year period during which the man would be paid?
'Mr. Lea. No; this rule does not delay consolidation. It means from the effective date of the order of the Commission the benefits are available for 4 years. The order determines the date, and the protective benefits run 4 years from that date.
'Mr. Vorys of Ohio. That would be whether or not they were still employed?
'Mr. Lea. Yes.
'Mr. O'Connor. Mr. Speaker, will the gentleman yield?
'Mr. Lea. I yield to the gentleman from Montana.
'Mr. O'Connor. As I want to see those who might lose their jobs as a result of consolidation protected, I should like to have the gentleman's interpretation of the phrase that the employee will not be placed in a worse position with respect to his employment. Does 'worse position' as used mean that his compensation will be just the same for a period of 4 years, assuming that he were employed for 4 years, as it would if no consolidation were effected?
'Mr. Lea. I take that to be the correct interpretation of those words.'
See also the statements of conference member Halleck at 86 Cong.Rec. 10187, and conference member Wolverton at 86 Cong.Rec. 10189. The Conference Report also lends itself to this interpretation. H.R.Rep. No. 2832, 76th Cong., 3d Sess., pp. 68 69.
8
In its official organ, appellant Brotherhood of Maintenance of Way Employes stated:
'Four Years' Full Pay
'2. The law provides that any employe who has been in the service of a railroad four years or more, and loses his job because of a merger or 'coordination', must be paid his full wages for four years. If he has been a railroad employe less than four years, he must be paid his full wages for a period as long as his previous service.
'No such protection and compensation have ever been guaranteed by law to the employes of any other industry, and the railroad workers secured these unprecedented benefits through the Brotherhood of Maintenance of Way Employes, in a cooperative movement with the other Standard Railroad Labor Organizations.' 49 Journal 13—14 (Oct. 1940).
See also 57 The Railway Conductor 308 (Oct. 1940); 39 Railway Clerk 467, 488. It is clear that the District Court did not err in taking cognizance of these publications, particularly since appellants raised no objections below. Cf. Texas & Pacific R. Co. v. Pottorff, 291 U.S. 245, 254, 54 S.Ct. 416, 417, 78 L.Ed. 777.
9
A comprehensive list of the decided cases, with a description of the conditions imposed, is found in the Appendix to the Brief of the United States in this case. It is noteworthy that this Court has recently affirmed a case in which the Commission imposed less comprehensive conditions than those in this case. City of Nashville v. United States, 355 U.S. 63, 78 S.Ct. 139, 2 L.Ed.2d 106.
10
See Memorandum Brief of RLEA, Finance Docket No. 12460, filed in Fort Worth & D.C.R. Co. Lease, 247 I.C.C. 119.
11
According to the findings of the hearing examiner in this case, 863 employees will be totally deprived of employment during the five-year period following the merger. Appellants argue that there is no need for these discharges since natural attrition will open up many more than 863 jobs during the same period. However, as the railroads point out, attrition does not work in a uniform or predictable manner and there is no indication that the elimination of surplus posts can be accomplished by the method appellants suggest; moreover, if attrition does open up suitable positions, the railroad is bound by the collective bargaining agreement to call back the discharged employees
1
'In California, the Bank of America installed electronic computers in its mortgage-and-loan operation, and 100 employees are now doing the work of 300. In Cleveland, an electronically controlled concrete plant can in one hour produce 200 cubic yards of concrete in any of 1,500 mixing formulas, without a single worker performing manual labor at any point in the process.
'In a bakery in Chicago, one man operates a piece of equipment
that moves 20 tons of flour an hour, replacing 24 men who used to move 10 tons an hour. In the bread-baking department of this same plant, one half of the workers were supplanted by automation, and in the wrapping department, no less than 70 per cent of the workers formerly needed have been replaced by machines.
'In the textile industry, entire plants have moved out of New England towns to set up new automated factories in the South, using a comparative handful of workers and leaving great hardship and suffering behind. In the automobile industry, new electronically controlled assembly lines helped to cut total employment by 20 per cent. between 1956 and 1958, and over 200,000 workers dropped out of the United Automobile Workers from mid-1957 to early 1959.
'In the shipping industry, huge containers are now packed and sealed at factories and loaded directly aboard special new compartmented ships, eliminating the need for thousands of longshoremen. In the transportation-equipment industry, production rose, but employment fell by a quarter of a million workers between January, 1956, and December, 1958. In the rubber industry, there was a drop of 25,000 workers. In the chemical industry, 36,000 workers were displaced by automation.' Davidson, Our Biggest Strike Peril: Fear of Automation, Look Magazine, April 25, 1961, pp. 69, 75. See also the remarks of Walter P. Reuther, President, United Automobile Workers of America, as quoted in Christian Science Monitor, Thursday, Apr. 27, 1961, p. 4, col. 2: 'When a worker is replaced by a machine, or his skill is made obsolete, or his plant moves, the change may benefit society as a whole and his employer in particular; but that worker is in trouble.'
2
Goldberg, Challenge of 'Industrial Revolution II,' N.Y. Times Magazine, Apr. 2, 1961, p. 11. And see A. H. Raskin's recent series in the New York Times. N.Y. Times, Thursday, Apr. 6, 1961, p. 1, cols. 2—3; N.Y. Times, Friday, Apr. 7, 1961, p. 1, cols. 2 3; N.Y. Times, Saturday, April 8, 1961, p. 1, cols. 2—3; N.Y. Times, Sunday, Apr. 9, 1961, p. 1, cols. 2—3.
3
See Newman and Surrey, Legislation (1955), pp. 158—178.
4
S.Rep. No. 433, 76th Cong., 1st Sess., p. 29.
5
H.R.Rep. No. 1217, 76th Cong., 1st Sess., p. 12.
6
84 Cong.Rec., pt. 9, 76th Cong., 1st Sess., pp. 9882—9883.
7
84 Cong.Rec. 9887.
8
H.R.Rep. No. 2016, 76th Cong., 3d Sess., p. 61.
9
86 Cong.Rec., pt. 6, 76th Cong., 3d Sess., p. 5886.
10
'The conference agreement on the Harrington amendment includes a provision of the instruction which provides that the order of approval shall include terms and conditions providing that the transaction shall not result in the employees being in a worse position with respect to their employment. The conference agreement, however, qualifies this provision by confining its operation to a period of 4 years from the effective date of the order approving the transaction and providing further that the protection afforded to an employee shall not be required to continue for a longer period following the effective date of the order than the period for which such employee was in the employ of an affected carrier prior to the effective date of the order.
'In order words, the Harrington amendment made all employees of the affected carriers equal beneficiaries of its provisions regardless of the length of time they may have been employed prior to a consolidation. It also required the carrier to maintain the benefits of its provisions indefinitely and without any specified limitation by time or otherwise. Under the terms of the conference agreement the benefits to employees will be required to be paid for not longer than 4 years after the consolidation, and in no case for longer than the service of the employee for the affected carriers prior to the effective date of the order authorizing the consolidation.' H.R.Rep. No. 2832, 76th Cong., 3d Sess., p. 69.
The Court refers to the 'unexplained opposition' of Mr. Harrington to the final version of the bill. But the record offers a plausible explanation for his opposition. Mr. Harrington himself apparently had decided that the proposed amendment was objectionable because it failed to cover abandonments. 86 Cong.Rec., pt. 9, 76th Cong., 3d Sess., p. 10187. And see the remarks of Mr. Crosser, 86 Cong.Rec., pt. 9, 76th Cong., 3d Sess., p. 10192.
11
86 Cong.Rec., pt. 9, p. 10178.
12
Id., p. 10189.
13
The third House Conferee on whose remarks the Court seems to rely is Congressman Halleck. But he merely says that the Proviso 'follows the principle of the so-called Washington agreement.' What that principle was he makes clear in his next sentence: 'This language gives to the employees greater protection and more far-reaching protection and recognizes the principle to which we all subscribe, that rights of employees should be protected, and, beyond that, writes it into law.' Id., p. 10187. The Court also relies on Congressman Lea's acquiescence in the assertions—more or less equivocal—of Congressmen Vorys and O'Connor. But, even assuming those assertions negative a guarantee of continuing employment, Congressman Lea's acquiescence hardly jibes fully with his more extended remarks on the same subject which I have quoted above.
14
Lincoln in his annual message to Congress, Dec. 3, 1861, stated: 'Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.' V Basler, The Collected Works of Abraham Lincoln (1953), p. 52.
| 78
|
366 U.S. 199
81 S.Ct. 929
6 L.Ed.2d 227
STATE OF ALASKA, Petitioner,v.ARCTIC MAID et al.
No. 106.
Argued March 23, 1961.
Decided May 1, 1961.
Mr. Gary Thurlow, Juneau, Alaska, for petitioner.
Mr. Martin P. Detels, Jr., Seattle, Wash., for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
While Alaska was a Territory, the Territorial Legislature amended L.1951, c. 116, its taxing statutes, to read, in relevant part, as follows:
2
'Section 1. Businesses In Alaska Fisheries Requiring Licenses: Amounts Thereof. Any person, firm or corporation prosecuting or attempting to prosecute any of the following lines of business in connection with Alaska's commercial fisheries shall first apply for and obtain, on the conditions hereinafter set forth, a license so to do on the basis of the following license taxes which are hereby levied:
3
'(b) Freezer ships and other floating cold storages: An annual license tax equal to 4% of the value of the raw halibut, halibut livers and viscera, salmon and bottom fish, shellfish or other fishing resource bought or otherwise obtained for processing through freezing. The value of the raw material under this license shall be the actual price paid for same including indirect considerations such as fuel or supplies furnished by the processor or offsets to the cash value for gear furnished etc. Such value shall apply to the raw material herein mentioned which is procured in company owned or subsidized boats operated by employees of the processor or under lease or other arrangement.'
4
Respondents1 use freezer ships for the taking and preservation of salmon along Alaska's shores. These freezer ships use 'catcher boats' which respondents own or have under contract and which catch salmon off Alaska. The freezer ships sometimes purchase salmon from independent fishermen.
5
Bristol Bay is a famous fishing ground for salmon. When operating in the Bristol Bay area, the freezer ships anchor more than three miles from the coast, because of the shallow waters in Bristol Bay. They serve as a base for their catcher boats that fish within the territorial waters. In other areas both the freezer ships and the catcher boats stay within the territorial waters.
6
When the catcher boats—which are shallow-draft and known as gillnetters—have a load or desire to discontinue fishing or when the open season ends, they return to the 'mother' ship and unload. The salmon are usually dumped into quick-freezing brine tanks. At other times they are placed in freezing compartments and frozen by blasts of air. The freezer ships eventually return to Puget Sound in the State of Washington where the salmon are canned.
7
Alaska, when a Territory, brought these suits in the District Court of Alaska for taxes claimed to be due and owing under the foregoing Act. The District Court entered judgments for the plaintiff. 140 F.Supp. 190, 16 Alaska 126. It held that the taking of the fish was the taxable event, not the freezing of the fish.
8
On appeal the Court of Appeals held that respondents were taxable for fish caught by their catcher boats within territorial waters, even though the freezer ships remained outside the three-mile limit. In its view the catcher boats 'operated by the freezer ship itself are but an extension of that ship's operations.' It held, however, that respondents were not responsible for taxes on fish taken 'by independent catcher boats but purchased by the freezer ships' outside territorial waters. There was a rehearing en banc and on the rehearing the Court of Appeals held that the tax incident was not taking fish but 'the freezing and cold storage of fish aboard freezer ships.' It held that the tax could not be levied even if the freezer ships received the salmon in territorial waters. It reasoned that the freezing and storage of the fish was an inseparable part of interstate commerce and could not be taxed locally any more than the loading and unloading of interstate carriers. Cf. Joseph v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S.Ct. 815, 91 L.Ed. 993; Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80. Accordingly it reversed the District Court. 9 Cir., 277 F.2d 120. The case is here on a petition for certiorari which we granted because of the importance of the ruling to the new State of Alaska. 364 U.S. 811, 81 S.Ct. 45, 5 L.Ed.2d 44.
9
We put to one side the specialized cases such as Richfield Oil Corp. v. State Board of Equalization, supra, which arise under the Export-Import Clause of the Constitution (Art. I, § 10, cl. 2), because none of the salmon involved in these cases was destined to a foreign country. We also consider irrelevant cases such as Joseph v. Carter & Weekes Stevedoring Co., supra, where a state tax was laid on the gross receipts of a stevedore who was loading and unloading vessels engaged in interstate commerce. A tax on an intergral part of an interstate movement might be imposed by other States 'with the net effect of prejudicing or unduly burdening commerce' as the Court said in Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 166, 74 S.Ct. 396, 401, 98 L.Ed. 583.
10
We have no such problem here. This tax is one imposed on those 'prosecuting or attempting to prosecute * * * lines of business in connection with Alaska's commercial fisheries.' The business in question is the one specified in subsection (b): 'Freezer ships and other floating cold storages.' To be sure, the tax is computed on the 'value' of the fish 'bought or otherwise obtained for processing through freezing.' That, however, is the measure of the tax, not the taxable event. The taxable event is 'prosecuting' the 'business' of 'Freezer ships and other floating cold storages.' Part of the business is, of course, transporting frozen fish interstate. Yet it is plain that a freezer ship is more—much more—than an interstate carrier. Part of its business is freezing fish. Yet these ships do more than freeze fish and transport them interstate. Taking the fish directly through their own catcher boats or obtaining them from other fishermen is also a part of respondents' business. Without the taking or obtaining of the fish, the freezer ship would have no function to perform.
11
It is clear that Alaska has power to regulate and control activity within her territorial waters, at least in the absence of conflicting federal legislation. Skiriotes v. State of Florida, 313 U.S. 69, 75, 61 S.Ct. 924, 928, 85 L.Ed. 1193. That case involved a state law forbidding the use of certain equipment in taking sponges in waters two marine leagues from mean low tide off Florida's coast. We upheld Florida's power to regulate sponge fishing in that manner and in that area, as Congress had not adopted any inconsistent regulation. See also Toomer v. Witsell, 334 U.S. 385, 393, 68 S.Ct. 1156, 1161, 92 L.Ed. 1460. Alaska's jurisdiction to tax respondents' operations within her territorial waters—whether those activities are taking fish or purchasing fish taken by others—is equally clear. See State of Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 250, 85 L.Ed. 267; Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 174, 69 S.Ct. 432, 435, 93 L.Ed. 585.
12
If the fish were taken or purchased outside Alaska's territorial waters, all of respondents' business in the Bristol Bay area would be beyond Alaska's reach. But since some of the fish in all of the cases before us were taken in Alaska's waters or otherwise acquired there, respondents are engaged in business in Alaska when they operate their 'freezer ships.' For we know from this record that in this particular business taking and freezing are practically inseparable. Fish are highly perishable and cannot be kept fresh very long even in Alaska's latitude. The process of gathering fish either through the catcher boats that are part of respondents' fleet or through independent operators is a 'local activity' (Michigan-Wisconsin Pipe Line Co. v. Calvert, supra, 347 U.S. 166, 74 S.Ct. 400) in a vivid sense of the term. We see no reason why our cases involving the taking of shrimp (Toomer v. Witsell, supra) and the extraction of ore (Oliver Iron Mining Co. v. Lord, 262 U.S. 172, 43 S.Ct. 526, 67 L.Ed. 929) are not dispositive of this controversy. The Oliver Iron case is indeed a first cousin of the present case. Here, as there, the tax is an occupation tax. Here, as there, the market for the product obtained locally is interstate, the taking being a step in a process leading to an interstate market. In both the local product is promptly loaded for interstate shipment. But in each there is a preliminary local business being conducted—an occupation made up of a series of local activities which the State can constitutionally reach. Catching the fish or obtaining them in other ways from the local market is but an extension of the freezer ship's operations within Alaska's waters.
13
It is claimed that there was no tax on salmon caught and frozen in Alaska and destined for canning in Alaska and that therefore this law is discriminatory against freezer ships. Alaskan canneries, however, paid a six-percent tax on the value of salmon obtained for canning;2 and local fish processors, which sell to the fresh-frozen consumer market, paid a one-percent tax.3 The freezer ships do not compete with those who freeze fish for the retail market. The freezer ships take their catches south for canning. Their competitors are the Alaskan canners; and we know from the record that fish canned locally usually are not frozen.4 When we look at the tax laid on local canners and those laid on 'freezer ships,' there is no discrimination in favor of the former and against the latter. For no matter how the tax on 'freezer ships' is computed, it did not exceed the six-percent tax on the local canners. Hence cases such as Commonwealth of Pennsylvania v. State of West Virginia, 262 U.S. 553, 595—596, 43 S.Ct. 658, 664 665, 67 L.Ed. 1117, which hold invalid state laws that prefer local sales over interstate sales, are inapposite. If there is a difference between the taxes imposed on these freezer ships and the taxes imposed on their competitors, they are not so 'palpably disproportionate' (International Harvester Co. v. Evatt, 329 U.S. 416, 422, 67 S.Ct. 444, 447, 91 L.Ed. 390) as to run afoul of the Commerce Clause. No 'iron rule of equality' between taxes laid by a State on different types of business is necessary. Caskey Baking Co. v. Commonwealth of Virginia, 313 U.S. 117, 119 121, 61 S.Ct. 881, 882—883, 85 L.Ed. 1223; Morf v. Bingaman, 298 U.S. 407, 414, 56 S.Ct. 756, 80 L.Ed. 1245; Capitol Greyhound Lines v. Brice, 339 U.S. 542, 546—547, 70 S.Ct. 806, 808—809, 94 L.Ed. 1053.
14
The judgment is reversed. Since we do not know how many fish, if any, were obtained outside Alaska's territorial waters,5 we remand the cause to the Court of Appeals for proceedings in conformity with this opinion.
15
Reversed.
16
Mr. Justice HARLAN, dissenting.
17
It is with reluctance that I have reached the conclusion that this Alaska tax offends the Commerce Clause of the Federal Constitution. (Art. I, § 8, cl. 3.)
18
The Court of Appeals concluded that the taxable event under this statute is the process of freezing fish aboard ship, 277 F.2d 120. This conclusion was based on the words of the statute (quoted at pages 199—200 of the Court's opinion in 366 U.S., at page 929 of 81 S.Ct.), the fact that obtaining fish for local sale or consumption is untaxed, and the fact that the present tax 'applies whether or not the fish are caught by gillnetters owned by or under contract to appellants.' Id., 277 F.2d 125—126. Accepting, as I do, this construction of the statute, I agree with the Court of Appeals that a privilege tax directed solely at shipboard freezing, preparatory to interstate shipment, exceeds the limitations the Commerce Clause imposes upon the States, for in its requirement of a license such a tax asserts a power to deny what is a necessary local incident of the right to make interstate purchases. See York Manufacturing Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 62 L.Ed. 963.*
19
As I understand the Court's opinion, it seeks to meet this objection by denying that the Alaskan tax is imposed on the privilege of freezing fish aboard ships. It says that the tax is rather upon the local taking or purchase of fish by or for freezer boats. But even on this view of the incidence of the tax, I could not agree that the present tax on obtaining fish by or for interstate freezer boats would be constitutional in the given circumstances, for I do not think that Alaska can place a higher tax on the obtaining and freezing of fish for interstate markets than it places on the obtaining and freezing of fish for local markets. See Commonwealth of Pennsylvania v. State of West Virginia, 262 U.S. 553, 596, 597, 43 S.Ct. 658, 665, 67 L.Ed. 1117. As shown in the Court's opinion, under the Alaska scheme of taxation freezer boats, which operate solely in interstate commerce, must pay a tax for taking and freezing Alaskan fish for later canning in Washington which is four times that imposed on a local freezer whose product is sold to consumers in Alaska. A shore-based freezer who sells his frozen product to Alaskan canners pays no tax at all.
20
For these reasons I would affirm the judgment of the Court of Appeals.
1
One of the respondents is a Washington corporation. Four remaining respondents are partnerships all of whose members are citizens of the United States and residents of either California or Washington. The Pacific Reefer Co. is the owner of the ship Reefer II, as to which a tax lien is asserted to exist by virtue of the activities of a previous owner. It too is a foreign corporation.
2
L.1949, c. 82, § 1(a), as amended, L.1951, c. 113, § 1.
3
L.1949, c. 97, § 1(a), as amended, L.1951, c. 116, § 1.
4
Fish are sometimes frozen for local canneries when the run is more than the canneries can take care of; but that freezing is merely an adjunct of the local canning industry.
5
Alaska contends that its territorial waters in the Bristol Bay area reach beyond the usual three-mile limit. That is a claim on the merits of which we express no opinion.
*
I also regard the tax as invalid because it in effect charges a toll for the interstate transportation of Alaska's natural resources. See Brown, The Open Economy: Justice Frankfurter and the Position of the Judiciary, 67 Yale L.J. 219, 232—233.
| 78
|
366 U.S. 211
81 S.Ct. 1091
6 L.Ed.2d 239
BINKS MANUFACTURING CO., petitioner,v.RANSBURG ELECTRO-COATING CORPORATION.
No. 501.
Supreme Court of the United States
May 8, 1961
Messrs. W. Donald McSweeney, Charles F. Meroni, Chicago, Ill., for petitioner.
Elbert R. Gilliom, Indianapolis, Ind., for respondent.
On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit.
PER CURIAM.
1
After hearing oral argument and fully examining the record, we conclude that the totality of circumstances as the record makes them manifest did not warrant bringing the case here. Accordingly, the writ is dismissed.
| 89
|
366 U.S. 259
81 S.Ct. 1076
6 L.Ed.2d 277
Laverne SLAGLE et al., Appellants,v.STATE OF OHIO.
No. 105.
Argued Feb. 27 and 28, 1961.
Decided May 15, 1961.
Mrs. Thelma C. Furry, Akron, Ohio, for appellants.
Mr. Norman J. Putman, Canton, Ohio, for appellee.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Pursuing its statutory powers and duties to investigate subversive activities in Ohio,1 the Ohio Un-American Activities Commission scheduled a hearing to commence at the Stark County Courthouse on the morning of October 21, 1953, and subpoenaed these five appellants to appear and testify before it at that time and place. Each appeared with counsel, was sworn and examined. Though having both constructive and actual knowledge of Ohio's immunity statute,2 each objected to most of the questions propounded3 on the ground that an answer would compel him to be a witness against himself, in violation of the Ohio Constitution and of the Fifth Amendment to the United States Constitution.4 Appellants were not, in most instances, directed to answer, but in a few instances some of them (Perry, Cooper and Mladajan) were directed to answer the question, yet flatly refused to do so.5
2
Acting pursuant to Ohio Rev.Code § 103.35,6 the members of the Commission who sat at the hearing authorized the chairman to cause contempt proceedings to be initiated against appellants under Ohio Rev.Code §§ 2705.02 to 2705.09,7 and on December 24, 1953, each appellant was separately indicted in the court of common pleas of Stark County on 10 counts—each count charging willful failure, in violation of § 2705.02, to answer a question propounded by the Commission. Upon a joint trial to the court, each appellant was convicted and sentenced on some of the counts.8 On consolidated appeals, the Stark County Court of Appeals affirmed,9 the Supreme Court of Ohio, finding no debatable constitutional question presented, dismissed appellants' appeals to that court, 170 Ohio St. 216, 163 N.E.2d 177, and, on appeals to this Court, we postponed further consideration of our jurisdiction to the hearing on the merits. 364 U.S. 811, 81 S.Ct. 44, 5 L.Ed.2d 40.
3
Appellants simply assert that we have jurisdiction over these appeals under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). Despite the plain import of our postponing order, see Rule 16, par. 4, of this Court, 28 U.S.C.A., they have entirely failed to show that any 'timely insistence (was made) 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. Accordingly, the appeals are dismissed. See Raley v. State of Ohio, 360 U.S. 423, 435, 79 S.Ct. 1257, 1264, 3 L.Ed.2d 1344. But since various federal constitutional claims were made below and are renewed here, 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 at least one of the questions presented, grant certiorari, 28 U.S.C. § 2103, 28 U.S.C.A. § 2103.
4
Appellants' principal contention here is that the judgments, finding them guilty of willful refusal to answer the Commission's questions although the Commission did not overrule their timely objections to the questions nor direct that they be answered, but appeared to sustain, or at least to acquiesce in, those objections, deprive appellants of due process in violation of the Fourteenth Amendment. In the peculiar factual situation presented, and limited to the questions which they were not directed to answer, we have concluded that appellants are right in this contention.
5
Surely traditional notions of fair play contemplate that a person summoned to testify before any adjudicatory or investigatory body, including a legislative investigatory committee, may object to any question put to him upon any available ground, however tenuous. And the Ohio Commission, several times and in many ways, clearly gave appellants to understand that such was their right at this hearing. Exercising that right, if not actually accepting the Commission's invitation, appellants, except for a few preliminary questions, objected to most of the questions put to them, principally on the ground of the Fifth Amendment (but see note 4). With important exceptions to be noted, instead of overruling the objection or in any way directing the witness to answer the question, the Commission gave every indication that it sustained, or at least acquiesced in, the objection by immediately passing on to the next question. That process was scores of times repeated.
6
But, and lending emphasis to its normal acquiescence in the objections, the Commission, at times, adopted another and very different procedure. When the Commission's counsel advised the Commission that he considered a particular question to be competent and important and asked that the witness be directed to answer it, the chairman, in each such instance, directed the witness to answer the question. And in every such instance care was taken, either by the Commission's counsel or its chairman, to have the record show that at least a quorum of the Commission were then present and sitting. In that manner, as more fully shown in note 5, Slagle was directed to answer one question, and thereupon promptly answered it, but he was not directed to answer any other question; Bohus was not directed to answer any question; Perry was thus directed to answer the two questions that were made the subjects of Counts 1 and 2 of her indictment (she was acquitted on Count 2), but was not directed to answer the questions upon which the other eight counts of her indictment were based; Cooper was thus directed to answer the four questions that were made the subjects of Counts 1, 2, 5 and 6 of her indictment, but was not directed to answer the questions upon which the other six counts of her indictment were based; and Mladajan was thus directed to answer the question that was made the subject of Count 6 of her indictment, but was not directed to answer the questions upon which the other nine counts of her indictment were based.
7
No particular form of words is necessary either to sustain or overrule an objection and thus either to excuse or require an answer to the question. All that is necessary is that the hearing tribunal make plain its disposition of the objection and whether or not an answer to the question is expected and required. If, as frequently happens, after an objection has been made, the hearing officer, addressing the examiner, merely says, 'Pass on to your next question,' it would indeed be plain that he had, at least temporarily, sustained or acquiesced in the objection and was not requiring an answer to be given. That is almost precisely what happened here. Though, upon these objections being made, the Commission did not formally direct its counsel to pass on to his next question, either the counsel or some member of the Commission did in fact immediately pass on to the next question. Those objections must therefore be regarded as sustained or acquiesced in by the Commission. To hold that these witnesses, in these circumstances, willfully and contumaciously refused to answer those questions would deeply offend traditional notions of fair play and deprive them of due process.
8
That 'a clear disposition of the witness' objection is a prerequisite to prosecution for contempt is supported by long-standing tradition here and in other English-speaking nations. In this country the tradition has been uniformly recognized in the procedure of both state and federal courts.' Quinn v. United States, 349 U.S. 155, 167—168, 75 S.Ct. 668, 675 676, 99 L.Ed. 964, and cases cited. See also 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, 223, 75 S.Ct. 712, 714, 99 L.Ed. 1016. 'Because of the (Commission's) consistent failure to advise (appellants) of (its) position as to (their) objections, (appellants were) left to speculate about the risk of possible prosecution for contempt; (they were) not given a clear choice between standing on (their) objection(s) and compliance with a committee ruling.' Bart v. United States, supra, 349 U.S. at page 223, 75 S.Ct. at page 714.
9
In these circumstances, to hold that these witnesses willfully and contumaciously refused to answer the questions to which they objected but which they were not directed to answer would deprive them of due process in violation of the Fourteenth Amendment.
10
As to appellants' remaining contentions, including, (1) that because the Ohio immunity statute (see note 2) does not afford immunity from federal prosecution, they could not lawfully be compelled to answer questions over their Fifth Amendment objections to them, (2) that the questions which they refused to answer were not pertinent to the inquiry, and (3) that the Commission's investigation was without legislative purpose, the Court is equally divided.
11
It follows that the judgments against Slagle and Bohus must be reversed; that the judgment against Perry must be reversed as to Counts 3, 4, 5, 7, 8 and 9, and affirmed, by an equally divided Court, as to Count 1; that the judgment against Cooper must be reversed as to Counts 3, 4, 7, 8 and 9, and affirmed, by an equally divided Court, as to Counts 1, 2, 5 and 6; and that the judgment against Mladajan must be reversed as to Counts 1, 2, 3, 4, 5, 7, 8 and 10, and affirmed, by an equally divided Court, as to Count 6.
12
Appeals dismissed and certiorari granted.
13
On writs of certiorari, judgments reversed as to Slage and Bohus; judgments reversed in part and affirmed, by an equally divided Court, in part as to Perry, Cooper and Mladajan.
14
Mr. Justice FRANKFURTER took no part in the consideration or decision of these cases.
1
Ohio Rev.Code, § 103.34 provides:
'Powers and duties.
'The un-American activities commission shall:
'(A) Investigate, study, and analyze:
'(1) All facts relating to the activities of persons, groups, and organizations whose membership includes persons who have as their objective or may be suspected of having as their objective the overthrow or reform of our constitutional governments by fraud, force, violence, or other unlawful means;
'(2) All facts concerning persons, groups, and organizations, known to be or suspected of being dominated by or giving allegiance to a foreign power or whose activities might adversely affect the contribution of this state to the national defense, the safety and security of this state, the functioning of any agency of the state or national government, or the industrial potential of this state;
'(3) The operation and effect of the laws of this state, of the several other states, and of the United States, which purport to outlaw and control the activities enumerated in this section and to recommend such additional legislation or revision of existing laws as may seem advisable and necessary;
'(B) Maintain a liaison with any agency of the federal, state, or local governments in devising and promoting means of disclosing those persons and groups who seek to alter or destroy the government of this state or of the United States by force, violence, intimidation, sabotage, or threats of the same.
'The commission has such additional rights, duties, and powers as are necessary to enable it fully to exercise those specifically set forth in this section and to accomplish its lawful objectives and purposes.'
2
Ohio Rev.Code § 101.44 provides:
'Except a person who, in writing, requests permission to appear before a committee or subcommittee of the general assembly, or of either house thereof, or who, in writing, waives the rights, privileges, and immunities granted by this section, the testimony of a witness examined before a committee or subcommittee shall not be used as evidence in a criminal proceeding against such witness, nor shall a person be prosecuted or subjected to a penalty or forfeiture on account of a transaction, matter, or thing, concerning which he testifies, or produces evidence. This section does not exempt a witness from the penalties for perjury.'
3
Except for a few preliminary questions, each appellant objected to and declined to answer most of the questions propounded—Slagle, 97 of the next 129 questions; Bohus, 97 of the next 99 questions; Perry, 110 of the next 118 questions; Cooper, 76 of the next 103 questions; and Mladajan, 88 of the next 123 questions.
4
In addition to various state grounds, each appellant based his objections to the questions on the Fifth Amendment, but Slagle also invoked the First and Fourteenth Amendments, Perry also invoked the First, Fourth, Ninth and Fourteenth Amendments, and appellant Cooper also invoked the Fourth and Ninth Amendments, to the United States Constitution.
5
Appellant Slagle, too, was directed by the chairman to answer one question, but he thereupon answered it. He was not directed to answer any other question.
Appellant Bohus was not directed to answer any of the questions.
Appellant Perry was directed by the chairman to answer the question, 'What is your husband's name?' but refused to answer and that refusal was made the subject of Count 1 of the indictment against her. She was also directed to answer the question, 'What are your parents' names?' but refused to answer and that refusal was made the subject of Court 2 of the indictment. However, the trial court acquitted her on that count on the ground that the question was immaterial. She was not directed to answer any other question.
Appellant Cooper was directed to answer the following questions:
'Where did you reside prior to September, 1948?' (Count 1.)
'What was your name at the time you were born; what was the name given you on baptism?' (Count 2.)
'Did you ever live in the City of St. Louis, Missouri?' (Count 5.)
'What is your husband's name, Mrs. Cooper?' (Count 6.)
But she nevertheless refused to answer in each instance and those refusals were made the subjects of Counts 1, 2, 5 and 6, respectively, of the indictment against her. Although she refused, when directed, to answer another question, she was not indicted for that refusal. She was not directed to answer the questions on which Counts 3, 4, 7, 8, 9 and 10 of the indictment were based.
Appellant Mladajan was directed to answer the question, 'Mrs. Mladajan, have you ever been in meetings at the Croatian Hall at any time except in your capacity as an employee?' but she refused to answer and that refusal was made the subject of Count 6 of the indictment against her. She was not directed to answer any other question.
6
Ohio Rev.Code, § 103.35 provides, in relevant part, that '(i)n case of * * * the refusal of any person * * * to testify to any matters regarding which he may be lawfully interrogated * * * the chairman may be authorized by a majority of the members sitting at the time the alleged offense is committed, to cause a proceeding for contempt to be filed and prosecuted in the court of common pleas of any county under sections 2705.03 to 2705.09, inclusive, of the Revised Code. * * *'
7
Ohio Rev.Code § 2705.02 provides, in pertinent part:
'A person guilty of any of the following acts may be punished as for a contempt:
'(C) A failure * * * to answer as a witness, when lawfully required.'
Ohio Rev.Code § 2705.05 provides:
'Upon the day fixed for the trial in a contempt proceeding the court shall investigate the charge, and hear any answer or testimony which the accused makes or offers.
'The court shall then determine whether the accused is guilty of the contempt charge. If it is found that he is guilty, he may be fined not more than five hundred dollars or imprisoned not more than ten days, or both.'
8
Appellant Slagle was convicted on Counts 3 to 10, inclusive; Bohus was convicted on Counts 1, 2, 3, 4, 5, 7, 8 and 9; Perry was convicted on Counts 1, 3, 4, 5, 7, 8 and 9; Cooper was convicted on Counts 1 to 9, inclusive; Mladajan was convicted on Counts 1 to 8, inclusive, and 10. Each was sentenced to imprisonment for 10 days on each count—the sentences on all counts, in each instance, to run concurrently—and was fined $500 on each count, but the fines, other than the first one, were remitted in each instance.
9
The opinion of the Stark County Court of Appeals is not reported.
| 23
|
366 U.S. 213
81 S.Ct. 1052
6 L.Ed.2d 246
Eugene C. JAMES, Petitioner,v.UNITED STATES.
No. 63.
Argued Nov. 17, 1960.
Decided May 15, 1961.
Mr. Richard E. Gorman, Chicago, Ill., for petitioner.
Mr. Howard A. Heffron, New York City, for respondent.
Mr. Chief Justice WARREN announced the judgment of the Court and an opinion in which Mr. Justice BRENNAN, and Mr. Justice STEWART concur.
1
The issue before us in this case is whether embezzled funds are to be included in the 'gross income' of the embezzler in the year in which the funds are misappropriated under § 22(a) of the Internal Revenue Code of 19391 and § 61(a) of the Internal Revenue Code of 1954.2
2
'(a) General definition.—Except as otherwise provided in this subtitle, gross income means all income from whatever source derived * * *.' 26 U.S.C. § 61(a), 26 U.S.C.A. § 61(a).
3
The facts are not in dispute. The petitioner is a union official who, with another person, embezzled in excess of $738,000 during the years 1951 through 1954 from his employer union and from an insurance company with which the union was doing business.3 Petitioner failed to report these amounts in his gross income in those years and was convicted for willfully attempting to evade the federal income tax due for each of the years 1951 through 1954 in violation of § 145(b) of the Internal Revenue Code of 19394 and § 7201 of the Internal Revenue Code of 1954.5 He was sentenced to a total of three years' imprisonment. The Court of Appeals affirmed. 273 F.2d 5. Because of a conflict with this Court's decision in Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752, a case whose relevant facts are concededly the same as those in the case now before us, we granted certiorari. 362 U.S. 974, 80 S.Ct. 1059, 4 L.Ed.2d 1009.
4
In Wilcox, the Court held that embezzled money does not constitute taxable income to the embezzler in the year of the embezzlement under § 22(a) of the Internal Revenue Code of 1939. Six years later, this Court held, in Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833, that extorted money does constitutes taxable income to the extortionist in the year that the money is received under § 22(a) of the Internal Revenue Code of 1939. In Rutkin, the Court did not overrule Wilcox, but stated:
5
'We do not reach in this case the factual situation involved in Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752. We limit that case to its facts. There embezzled funds were held not to constitute taxable income to the embezzler under § 22(a).' Id., 343 U.S. at page 138, 72 S.Ct. at page 576.6
6
However, examination of the reasoning used in Rutkin leads us inescapably to the conclusion that Wilcox was thoroughly devitalized.
7
The basis for the Wilcox decision was 'that a taxable gain is conditioned upon (1) the presence of a claim of right to the alleged gain and (2) the absence of a definite, unconditional obligation to repay or return that which would otherwise constitute a gain. Without some bona fide legal or equitable claim, even though it be contingent or contested in nature, the taxpayer cannot be said to have received any gain or profit within the reach of Section 22(a).' Commissioner of Internal Revenue v. Wilcox, supra, 327 U.S. at page 408, 66 S.Ct. at page 549. Since Wilcox embezzled the money, held it 'without any semblance of a bona fide claim of right,' ibid., and therefore 'was at all times under an unqualified duty and obligation to repay the money to his employer,' ibid., the Court found that the money embezzled was not includible within 'gross income.' But, Rutkin's legal claim was no greater than that of Wilcox. It was specifically found 'that petitioner had no basis for his claim * * * and that he obtained it by extortion.' Rutkin v. United States, supra, 343 U.S. at page 135, 72 S.Ct. at page 574. Both Wilcox and Rutkin obtained the money by means of a criminal act; neither had a bona fide claim of right to the funds.7 Nor was Rutkin's obligation to repay the extorted money to the victim any less than that of Wilcox. The victim of an extortion, like the victim of an embezzlement, has a right to restitution. Furthermore, it is inconsequential that an embezzler may lack title to the sums he appropriates while an extortionist may gain a voidable title. Questions of federal income taxation are not determined by such 'attenuated subtleties.' Lucas v. Earl, 281 U.S. 111, 114, 50 S.Ct. 241, 74 L.Ed. 731; Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 337, 74 L.Ed. 916. Thus, the fact that Rutkin secured the money with the consent of his victim. Rutkin v. United States, supra, 343 U.S. at p. 138, 72 S.Ct. at page 575, is irrelevant. Likewise unimportant is the fact that the sufferer of an extortion is less likely to seek restitution than one whose funds are embezzled. What is important is that the right to recoupment exists in both situations.
8
Examination of the relevant cases in the courts of appeals lends credence to our conclusion that the Wilcox rationale was effectively vitiated by this Court's decision in Rutkin.8 Although this case appears to be the first to arise that is 'on all fours' with Wilcox, the lower federal courts, in deference to the undisturbed Wilcox holding, have earnestly endeavored to find distinguishing facts in the cases before them which would enable them to include sundry unlawful gains within 'gross income.'9
9
It had been a well-established principle, long before either Rutkin or Wilcox, that unlawful, as well as lawful, gains are comprehended within the term 'gross income.' Section II B of the Income Tax Act of 1913 provided that 'the net income of a taxable person shall include gains, profits, and income * * * from * * * the transaction of any lawful business carried on for gain or profit, or gains or profits and income derived from any source whatever * * *.' (Emphasis supplied.) 38 Stat. 167. When the statute was amended in 1916, the one word 'lawful' was omitted. This revealed, we think, the obvious intent of that Congress to tax income derived from both legal and illegal sources, to remove the incongruity of having the gains of the honest laborer taxed and the gains of the dishonest immune. Rutkin v. United States, supra, 343 U.S. at page 138, 72 S.Ct. at page 575; United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 71 L.Ed. 1037. Thereafter, the Court held that gains from illicit traffic in liquor are includible within 'gross income.' Ibid. See also Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704; United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546. And, the Court has pointed out, with approval, that there 'has been a widespread and settled administrative and judicial recognition of the taxability of unlawful gains of many kinds,' Rutkin v. United States, supra, 343 U.S. at page 137, 72 S.Ct. at page 575. These include protection payments made to racketeers, ransom payments paid to kidnappers, bribes, money derived from the sale of unlawful insurance policies, graft, black market gains, funds obtained from the operation of lotteries, income from race track bookmaking and illegal prize fight pictures. Ibid.
10
The starting point in all cases dealing with the question of the scope of what is included in 'gross income' begins with the basic premise that the purpose of Congress was 'to use the full measure of its taxing power.' Helvering v. Clifford, 309 U.S. 331, 334, 60 S.Ct. 554, 556, 84 L.Ed. 788. And the Court has given a liberal construction to the broad phraseology of the 'gross income' definition statutes in recognition of the intention of Congress to tax all gains except those specifically exempted. Commissioner of Internal Revenue v. Jacobson, 336 U.S. 28, 49, 69 S.Ct. 358, 369, 93 L.Ed. 477; Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87—91, 55 S.Ct. 50, 51—53, 79 L.Ed. 211. The language of § 22(a) of the 1939 Code, 'gains or profits and income derived from any source whatever,' and the more simplified language of § 61(a) of the 1954 Code, 'all income from whatever source derived,' have been held to encompass all 'accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.' Commissioner of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 477, 99 L.Ed. 483. A gain 'constitutes taxable income when its recipient has such control over it that, as a practical matter, he derives readily realizable economic value from it.' Rutkin v. United States, supra, 343 U.S. at page 137, 72 S.Ct. at page 575. Under these broad principles, we believe that petitioner's contention, that all unlawful gains are taxable except those resulting from embezzlement, should fail.
11
When a taxpayer acquires earnings, lawfully or unlawfully, without the consensual recognition, express or implied, of an obligation to repay and without restriction as to their disposition, 'he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.' North American Oil Consolidated v. Burnet, supra, 286 U.S. at page 424, 52 S.Ct. at page 615. In such case, the taxpayer has 'actual command over the property taxed—the actual benefit for which the tax is paid,' Corliss v. Bowers, supra (281 U.S. 376, 50 S.Ct. 336). This standard brings wrongful appropriations within the broad sweep of 'gross income'; it excludes loans. When a law-abiding taxpayer mistakenly receives income in one year, which receipt is assailed and found to be invalid in a subsequent year, the taxpayer must nonetheless report the amount as 'gross income' in the year received. United States v. Lewis, supra; Healy v. Commissioner, supra. We do not believe that Congress intended to treat a law-breaking taxpayer differently. Just as the honest taxpayer may deduct any amount repaid in the year in which the repayment is made, the Government points out that, 'If, when, and to the extent that the victim recovers back the misappropriated funds, there is of course a reduction in the embezzler's income.' Brief for the United States, p. 24.10
12
Petitioner contends that the Wilcox rule has been in existence since 1946; that if Congress had intended to change the rule, it would have done so; that there was a general revision of the income tax laws in 1954 without mention of the rule; that a bill to change it11 was introduced in the Eighty-sixth Congress but was not acted upon; that, therefore, we may not change the rule now. But the fact that Congress has remained silent or has re-enacted a statute which we have construed, or that congressional attempts to amend a rule announced by this Court have failed, does not necessarily debar us from re-examining and correcting the Court's own errors. Girouard v. United States, 328 U.S. 61, 69—70, 66 S.Ct. 826, 829—830, 90 L.Ed. 1084; Helvering v. Hallock, 309 U.S. 106, 119—122, 60 S.Ct. 444, 451—453, 84 L.Ed. 604. There may have been any number of reasons why Congress acted as it did. Helvering v. Hallock, supra. One of the reasons could well be our subsequent decision in Rutkin which has been thought by many to have repudiated Wilcox. Particularly might this be true in light of the decisions of the Courts of Appeals which have been riding a narrow rail between the two cases and further distinguishing them to the disparagement of Wilcox. See notes 8 and 9, supra.
13
We believe that Wilcox was wrongly decided and we find nothing in congressional history since then to persuade us that Congress intended to legislate the rule. Thus, we believe that we should now correct the error and the confusion resulting from it, certainly if we do so in a manner that will not prejudice those who might have relied on it. Cf. Helvering v. Hallock, supra, 309 U.S. at page 119, 60 S.Ct. at page 451. We should not continue to confound confusion, particularly when the result would be to perpetuate the injustice of relieving embezzlers of the duty of paying income taxes on the money they enrich themselves with through theft while honest people pay their taxes on every conceivable type of income.
14
But, we are dealing here with a felony conviction under statutes which apply to any person who 'willfully' fails to account for his tax or who 'willfully' attempts to evade his obligation. In Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 368, 87 L.Ed. 418, the Court said that § 145(b) of the 1939 Code embodied 'the gravest of offenses against the revenues,' and stated that willfulness must therefore include an evil motive and want of justification in view of all the circumstances. Id., 317 U.S. at page 498, 63 S.Ct. at page 367. Willfulness 'involves a specific intent which must be proven by independent evidence and which cannot be inferred from the mere understatement of income.' Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 137, 99 L.Ed. 150.
15
We believe that the element of willfulness could not be proven in a criminal prosecution for failing to include embezzled funds in gross income in the year of misappropriation so long as the statute contained the gloss placed upon it by Wilcox at the time the alleged crime was committed. Therefore, we feel that petitioner's conviction may not stand and that the indictment against him must be dismissed.
16
Since Mr. Justice HARLAN, Mr. Justice FRANKFURTER, and Mr. Justice CLARK agree with us concerning Wilcox, that case is overruled. Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice WHITTAKER believe that petitioner's conviction must be reversed and the case dismissed for the reasons stated in their opinions.
17
Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court with directions to dismiss the indictment.
18
It is so ordered.
19
Reversed and remanded with directions.
20
Mr. Justice BLACK, whom Mr. Justice DOUGLAS joins, concurring in part and dissenting in part.
21
On February 25, 1946, fifteen years ago, this Court, after mature consideration, and in accordance with what at that time represented the most strongly supported judicial view, held, in an opinion written by Mr. Justice Murphy to which only one Justice dissented, that money secretly taken by an embezzler for his own use did not constitute a taxable gain to him under the federal income tax laws. Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752. The Treasury Department promptly accepted this ruling in a bulletin declaring that the 'mere act of embezzlement does not of itself in taxable income,' although properly urging that 'taxable income may result to the embezzler, depending on the facts in the particular case.'1 During the fifteen years since Wilcox was decided, both this Court and Congress, although urged to do so, have declined to change the Wilcox interpretation of statutory 'income' with respect to embezzlement. In this case, however, a majority of the Court overrules Wilcox. Only three of the members of the Court who decided the Wilcox case are participating in this case—Mr. Justice FRANKFURTER, Mr. Justice DOUGLAS, and myself. Mr. Justice DOUGLAS and I dissent from the Court's action in 'overruling' Wilcox and from the prospective way in which this is done. We think Wilcox was sound when written and is sound now.
I.
22
We dissent from the way the majority of the Court overrules Wilcox. If the statutory interpretation of 'taxable income' in Wilcox is wrong, then James is guilty of violating the tax evasion statute for the trial court's judgment establishes that he embezzled funds and wilfully refrained from reporting them as income. It appears to us that District Courts are bound to be confused as to what they can do hereafter in tax-evasion cases involving 'income' from embezzlements committed prior to this day. Three Justices vote to overrule Wilcox under what we believe to be a questionable formula, at least a new one in the annals of this Court, and say that although failure to report embezzled funds has, despite Wilcox, always been a crime under the statute, people who have violated this law in the past cannot be prosecuted but people who embezzle funds after this opinion is announced can be prosecuted for failing to report these funds as a 'taxable gain.' Three other Justices who vote to overrule Wilcox say that past embezzlers can be prosecuted for the crime of tax evasion although two of those Justices believe the Government must prove that the past embezzler did not commit his crime in reliance on Wilcox. Thus, although it was not the law yesterday, it will be the law tomorrow that funds embezzled hereafter are taxable income; and although past embezzlers could not have been prosecuted yesterday, maybe they can and maybe they cannot be prosecuted tomorrow for the crime of tax evasion. (The question of the civil tax liability of past embezzlers is left equally unclear.) We do not challenge the wisdom of those of our Brethren who refuse to make the Court's new tax evasion crime applicable to past conduct. This would be good governmental policy even though the ex post facto provision of the Constitution has not ordinarily been thought to apply to judicial legislation. Our trouble with this aspect of the Court's action is that it seems to us to indicate that the Court has passed beyond the interpretation of the tax statute and proceeded substantially to amend it.
23
We realize that there is a doctrine with wide support to the effect that under some circumstances courts should make their decisions as to what the law is apply only prospectively.2 Objections to such a judicial procedure, however, seem to us to have peculiar force in the field of criminal law. In the first place, a criminal statute that is so ambiguous in scope that an interpretation of it brings about totally unexpected results, thereby subjecting people to penalties and punishments for conduct which they could not know was criminal under existing law, raises serious questions of unconstitutional vagueness.3 Moreover, for a court to interpret a criminal statute in such a way as to make punishment for past conduct under it so unfair and unjust that the interpretation should be given only prospective application seems to us to be the creation of a judicial crime that Congress might not want to create. This country has never been sympathetic with judge-created crimes. Their rejection under our Constitution was said to have been 'long since settled in public opinion' even as early as 1812 when the question first reached this Court in United States v. Hudson & Goodwin, 7 Cranch 32, 3 L.Ed. 259. In that case this Court emphatically declared that the federal courts have no common-law jurisdiction in criminal cases. They are not 'vested with jurisdiction over any particular act done by an individual in supposed violation of the peace and dignity of the sovereign power.' Rather, '(t)he legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.'4
24
In our judgment one of the great inherent restraints upon this Court's departure from the field of interpretation to enter that of lawmaking has been the fact that its judgments could not be limited to prospective application. This Court and in fact all departments of the Government have always heretofore realized that prospective lawmaking is the function of Congress rather than of the courts. We continue to think that this function should be exercised only by Congress under the constitutional system.
II.
25
We think Wilcox was right when it was decided and is right now. It announced no new, novel doctrine. One need only look at the Government's briefs in this Court in the Wilcox case to see just how little past judicial support could then be mustered had the Government sought to send Wilcox to jail for his embezzlement under the guise of a tax evasion prosecution. The Government did cite many cases from many courts saying that under the federal income tax law gains are no less taxable because they have been acquired by illegal methods. This Court had properly held long before Wilcox that there is no 'reason why the fact that a business is unlawful should exempt it from paying the taxes that if lawful it would have to pay.'5 We fully recognize the correctness of that holding in Wilcox:
26
'Moral turpitude is not a touchstone of taxability. The question, rather, is whether the taxpayer in fact received a statutory gain, profit or benefit. That the taxpayer's motive may have been reprehensible or the mode of receipt illegal has no bearing upon the application of Section 22(a).'6
27
The Court today by implication attributes quite a different meaning or consequence to the Wilcox opinion. One opinion argues at length the 'well-established principle * * * that unlawful, as well as lawful, gains are comprehended within the term 'gross income." Wilcox did not deny that; we do not deny that. This repeated theme of our Brethren is wholly irrelevant since the Wilcox holding in no way violates the sound principle of treating 'gains' of honest and dishonest taxpayers alike. The whole basis of the Wilcox opinion was that an embezzlement is not in itself 'gain' or 'income' to the embezzler within the tax sense, for the obvious reason that the embezzled property still belongs, and is known to belong, to the rightful owner. It is thus a mistake to argue that petitioner's contention is 'that all unlawful gains are taxable except those resulting from embezzlement.'
28
As stated in Wilcox, that case was brought to us because of a conflict among the Circuits. The Ninth Circuit in Wilcox had held that embezzled funds were not any more 'taxable income' to the embezzler than borrowed funds would have been.7 The Fifth Circuit, in McKnight v. Commissioner, had decided the same thing.8 The Eighth Circuit, however, had decided in Kurrle v. Helvering that embezzled funds were taxable income.9 Comparison of the three opinions readily shows that the arguments of the Fifth and Ninth Circuits against taxability of such funds were much stronger than the arguments of the Eighth Circuit for such taxability. The whole picture can best to obtained from the court's opinion in McKnight v. Commissioner, written by Judge Sibley, one of the ablest circuit judges of his time. He recognized that the taxpayer could not rely upon the unlawfulness of his business to defeat taxation if he had made a 'gain' in that business. He pointed out, however, that the ordinary embezzler 'got no title, void or voidable, to what he took. He was still in possession as he was before, but with a changed purpose. He still had no right nor color of right. He claimed none.'10 Judge Silbley's opinion went on to point out that the 'first takings (of an embezzler) are, indeed, nearly always with the intention of repaying, a sort of unauthorized borrowing. It must be conceded that no gain is realized by borrowing, because of the offsetting obligation.'11 Approaching the matter from a practical standpoint, Judge Sibley also explained that subjecting the embezzled funds to a tax would amount to allowing the United States 'a preferential claim for part of the dishonest gain, to the direct loss and detriment of those to whom it ought to be restored.'12 He was not willing to put the owner of funds that had been stolen in competition with the United States Treasury Department as to which one should have a preference to get those funds.
29
It seems to us that Judge Sibley's argument was then and is now unanswerable. The rightful owner who has entrusted his funds to an employee or agent has troubles enough when those funds are embezzled without having the Federal Government step in with its powerful claim that the embezzlement is a taxable event automatically subjecting part of those funds (still belonging to the owner) to the waiting hands of the Government's tax gatherer. We say part of the owner's funds because it is on the supposed 'gain' from them that the embezzler is now held to be duty-bound to pay the tax and history probably records few instances of independently wealthy embezzlers who have had nonstolen assets available for payment of taxes.
30
There has been nothing shown to us on any of the occasions when we have considered this problem to indicate that Congress ever intended its income tax laws to be construed as imposing what is in effect a property or excise tax on the rightful owner's embezzled funds, for which the owner has already once paid income tax when he rightfully acquired them. In our view, the Court today does Congress a grave injustice by assuming that it has imposed this double tax burden upon the victim of an embezzlement merely because someone has stolen his money, particularly when Congress has refused requests that it do so. The owner whose funds have been embezzled has done nothing but entrust an agent with possession of his funds for limited purposes, as many of us have frequent occasion to do in the course of business or personal affairs. Ordinarily the owner is not, and has no reason to be, at all aware of an embezzlement until long after the first misuse occurs. If Congress ever did manifest an intention to select the mere fact of embezzlement as the basis for imposing a double tax on the owner, we think a serious question of confiscation in violation of the Fifth Amendment would be raised. All of us know that with the strong lien provisions of the federal income tax law an owner of stolen funds would have a very rocky road to travel before he got back, without paying a good slice to the Federal Government, such funds as an embezzler who had not paid the tax might, perchance, not have dissipated. An illustration of what this could mean to a defrauded employer is shown in this very case by the employer's loss of some $700,000, upon which the Government claims a tax of $559,000.
31
It seems to be implied that one reason for overruling Wilcox is that a failure to hold embezzled funds taxable would somehow work havoc with the public revenue or discriminate against 'honest' taxpayers and force them to pay more taxes. We believe it would be impossible to substantiate either claim. Embezzlers ordinarily are not rich people against whom judgments, even federal tax judgments, can be enforced. Judging from the meager settlements that those defrauded were apparently compelled to make with the embezzlers in this very case, it is hard to imagine that the Treasury will be able to collect the more than $500,000 it claims. And certainly the Wilcox case does not seem to have been one in which the Government could have collected any great amount of tax. The employer's embezzled $11,000 there went up in gambling houses. The scarcity of cases involving alleged taxes due from embezzlers is another indication that the Government cannot expect to make up any treasury deficits with taxes collected from embezzlers and thieves, especially when the cost to the Government of investigations and court proceedings against suspected individuals is considered. And, as already indicated, to the extent that the Government could be successful in collecting some taxes from embezzlers, it would most likely do so at the expense of the owner whose money had been stolen.
32
It follows that, except for the possible adverse effect on rightful owners, the only substantial result that one can foresee from today's holding is that the Federal Government will, under the guise of a tax evasion charge, prosecute people for a simple embezzlement. But the Constitution grants power to Congress to get revenue not to prosecute local crimes. And if there is any offense which under our dual system of government is a purely local one which the States should handle, it is embezzlement or theft. The Federal Government stands to lose much money by trying to take over prosecution of this type of local offense. It is very doubtful whether the further congestion of federal court dockets to try such local offenses is good for the Nation, the States or the people. Here the embezzler has already pleaded guilty to the crime of embezzlement in a state court, although the record does not show what punishment he has received. Were it not for the novel formula of applying the Court's new law prospectively, petitioner would have to serve three years in federal prison in addition to his state sentence. This graphically illustrates one of the great dangers of opening up the federal tax statutes, or any others, for use by federal prosecutors against defendants who not only can be but are tried for their crimes in local state courts and punished there. If the people of this country are to be subjected to such double jeopardy and double punishment, despite the constitutional command against double jeopardy, it seems to us it would be far wiser for this Court to wait and let Congress attempt to do it.
III.
33
The Wilcox case was decided fifteen years ago. Congress has met every year since then. All of us know that the House and Senate Committees responsible for our tax laws keep a close watch on judicial rulings interpreting the Internal Revenue Code. Each committee has one or more experts at its constant disposal. It cannot possibly be denied that these committees and these experts are, and have been, fully familiar with the Wilcox holding. When Congress is dissatisfied with a tax decision of this Court, it can and frequently does act very quickly to overturn it.13 On one occasion such an overruling enactment was passed by both the House and Senate and signed by the President all within one day after the decision was rendered by this Court.14 In 1954 Congress, after extended study, completely overhauled and recodified the Internal Revenue Code. The Wilcox holding was left intact. In the Eighty-sixth Congress and in the present Eighty-seventh Congress bills have been introduced to subject embezzled funds to income taxation.15 They have not been passed. This is not an instance when we can say that Congress may have neglected to change the law because it did not know what was going on in the courts or because it was not asked to do so, as was the case in Helvering v. Hallock.16 Nor is this a case in which subsequent affirmative congressional action manifested a view inconsistent with our prior decision, as was true in Girouard v. United States.17 What we have here instead is a case in which Congress has not passed bills that have been introduced to make embezzled funds taxable and thereby make failure to report them as imcome a federal crime. For this Court to hold under such circumstances that the inherent ambiguity of legislative inaction gives the Court license to repudiate the long-standing interpretation of the income tax statute and thereby bring additional conduct within the tax evasion criminal statute seems to us to be flagrantly violative of the almost universally accepted axiom that criminal statutes are narrowly and strictly construed. Our Brethren cite no precedent in which this or any other court in the English-speaking world has so deliberately overruled a long-standing prior interpretation of a statute in order to create a crime which up to that time did not exist.
34
This Court as well as Congress was fully apprised of the various criticisms made in some Courts of Appeals opinions and elsewhere against the Wilcox holding, yet it has likewise until today steadfastly refused to overrule that holding during these fifteen years. This has been in the face of the fact that the Government expressly urged that we do so in 1955, nine years after Wilcox was decided and three years after the decision in Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833. On that occasion the Court of Appeals for the Second Circuit, speaking through Judge Frank for himself and Judge Medina, had held in the case of J. J. Dix, Inc. v. Commissioner that embezzled funds were not taxable as income, relying wholly on the Wilcox decision.18 Judge Hincks dissented, saying that if the facts of Dix were not enough to distinguish it from Wilcox he would not follow Wilcox. In urging us to grant certiorari, the Government said that the case presented a recurring problem in the administration of the income tax laws. One of the arguments the Government presented for overruling Wilcox, strange as it may seem, was that '(s)everal prosecutions have recently been authorized and are now pending in various District Courts, even though the disputed income in those cases apparently came from embezzlements or closely analogous crimes.'19 And the next to the last sentence of its petition was: 'In short, the question whether the proceeds of embezzlement, unlike other illegal income, are to enjoy a preferred tax-exempt status, will continue to perplex the lower courts until it is settled by this Court.'20 We denied certiorari.21 There is surely less reason to repudiate and 'devitalize' Wilcox now, six years after the Court, as composed at that time, refused to overrule it.
35
Of course the rule of stare decisis is not and should not be an inexorable one. This is particularly true with reference to constitutional decisions involving determinations beyond the power of Congress to change, but Congress can and does change statutory interpretations. It is perfectly proper and right that it should do so when it believes that this Court's interpretation of a statute embodies a policy that Congress is against. But Congress has not taken favorable action on bills introduced to overturn our Wilcox holding even after we declined the Government's request to reverse the identical holding in Dix, the latter having occurred three years after the decision in Rutkin which our Brethren now say may have misled Congress into thinking that we had repudiated the Wilcox holding.
36
It seems to us that we gave the doctrine of stare decisis its proper scope in our treatment of this Court's decision in Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898. In that case this Court had held for reasons given that professional baseball was not covered by the antitrust acts. Congress was asked through the years to change the law in this respect but declined to do so. In Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 79, 98 L.Ed. 64, we followed the holding of that case without re-examination of the underlying issues 'so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.' Later we were asked to extend the Federal Baseball case and to hold that the business of boxing could not without congressional action be brought within the antitrust laws. We emphatically declined to do so in United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290, nor did we overrule Toolson in that case, despite strong arguments that the reasoning of the Court in the first baseball case was equally applicable to the business of boxing. We said about the proposed exemption of boxing from the antitrust laws that '(t)heir remedy, if they are entitled to one, lies in further resort to Congress.'22 That case and that statement fit this case precisely. In fact, as we are about to explain, a far more meaningful distinction can be made between embezzlement and extortion for purposes of this case than it was possible to make between baseball and boxing for purposes of that case, as Mr. Justice FRANKFURTER'S dissenting opinion in that case demonstrates.
37
If the Government wants to prosecute the local crime of embezzlement, ostensibly because of 'tax evasion,' it seems clear to us that it should take its request to Congress which has power to pass on it and which has, to date, refused to do what the Government asks us to do in this case.
IV.
38
Our Brethren advance as a reason for overruling Wilcox the 1952 decision in Rutkin v. United States, which was decided three years before we denied certiorari in the Dix case. They say that 'the reasoning used in Rutkin leads us inescapably to the conclusion that Wilcox was thoroughly devitalized.' This follows, to some extent, the statement in the Government's brief that 'Wilcox and Rutkin cannot be reconciled on the basis of asserted technical differences between the extortionist and the embezzler. * * * The proper course, we submit, * * * is to recognize that the Wilcox rationale was rejected in Rutkin, is unsound, and can no longer be regarded as having vitality. Embezzled funds represent taxable gains.'23
39
There is no doubt that some of the reasoning in the Rutkin opinion rejected some of the reasoning in the Wilcox opinion. But this it true only with respect to the broad general standards formulated in the two cases, and such standards of course cannot be accepted as universal panaceas to be mechanically applied to solve all the concrete problems in cases like these. Moreover, the Rutkin opinion expressly purported not to overrule Wilcox and specifically said that Wilcox was still to govern cases fitting its facts, clearly meaning embezzlement cases.24 And the Government had not asked in Rutkin that Wilcox be overruled. Its argument was that Wilcox was 'inapplicable' to the facts in the Rutkin record. The Government's brief went on to emphasize that the record in Wilcox showed only the bare receipt of money wholly belonging to another, while Rutkin had received the money 'as a result of a bilateral agreement' and, as the Court of Appeals had pointed out, 'with a 'semblance of a bona fide claim of right', a conclusion fully substantiated by the testimony of both the petitioner and the Government witness Reinfeld.'25 The Government went on to distinguish Rutkin further by pointing out that there was 'not the slightest hint in the record' that Rutkin ever had an obligation to repay the funds he took.
40
After this Court was persuaded by the Government in Rutkin to accept its distinctions between Rutkin and Wilcox, it seems rather odd to have the Government now contend that the two cases are irreconcilable. While we disagreed, we can understand why the majority in Rutkin drew the distinctions it did. Although the victim of either embezzlement or extortion ordinarily has a legal right to restitution, the extortion victim, like a blackmail victim, can in a sense be charged with complicity in bringing about the taxable event in that he knowingly surrendered the funds to the extortionist, sometimes in payment of an actual obligation. Unlike the victim of an ordinary theft, he generally knows who has taken the property from him and he consents to the taking though under duress; and unlike most victims of embezzlement, he is able to report the taking to law enforcement officers during the taxable year and his failure to do so might be considered a kind of continuing consent to the extortionist's dominion over the property. The longer he acquiesces the less likely it becomes that the extortion victim ever will demand restitution;26 but once the victim of an embezzlement finds out that his property has been stolen, he most likely will immediately make efforts to get it back. Thus, although we still think Rutkin was wrongly decided for the reasons expressed in the dissenting opinion in that case, we can understand the argument for application of a sort of caveat emptor rule to persons who submit to blackmail or extortion, since it is far from certain that they will ever expose themselves by seeking repayment of what they paid out. The distinctions between crimes like embezzlement and crimes like blackmail and extortion, therefore, are not merely technical, legalistic 'attenuated subleties' for purposes of this decision, but are differences based upon practicalities such as often underlie the distinctions that have been developed in our law.
41
In departing from both the Wilcox and Rutkin decisions today, our Brethren offer no persuasive reasons to prove that their judgment in overruling Wilcox is better than that of the Justices who decided that case. It contributes nothing new to the analysis of this problem to say repeatedly that the dishonest man must be subject to taxation just as the honest. As already said, Chief Justice Stone and the others sitting with him on the Wilcox Court fully accepted that general principle and we do still. Applying it here, we would say the embezzler should be treated just like the law-abiding, honest borrower who has obtained the owner's consent to his use of the money.27 It would be unthinkable to tax the borrower on his 'gain' of the borrowed funds and thereby substantially impair the lender's chance of ever recovering the debt. The injury that the Government would inflict on the lender by making the borrower less able to repay the loan surely would not be adequately compensated by telling the lender that he can take a tax deduction for the loss, and it is equally small comfort to the embezzlement victim for the Government, after taking part of his property as a tax on the embezzler, to tell the victim that he can take a deduction for his loss if he has any income against which to offset the deduction. There is, of course, one outstanding distinction between a borrower and an embezzler, and that is that the embezzler uses the funds without the owner's consent. This distinction can be of no importance for purposes of taxability of the funds, however, because as a matter of common sense it suggests that there is, if anything, less reason to tax the embezzler than the borrower. But if this distinction is to be the reason why the embezzlement must be taxed just as 'the gains of the honest laborer,' then the use of this slogan in this case is laid bare as no more than a means of imposing a second punishment for the crime of embezzlement without regard to revenue considerations, the effect on the rightful owner, or the proper role of this Court when asked to overrule a criminal statutory precedent. The double jeopardy implications would seem obvious,28 and discussion of the serious inadvisability for other reasons of thus injecting the Federal Government into local law enforcement can be found in the dissenting opinion in Rutkin.
42
We regret very much that it seems to be implied that the writer of the Rutkin opinion and those who agreed to it intended to overrule Wilcox when it is manifest that the language the Court used in Rutkin was meant to leave precisely the opposite impression. We are sure that our Brethren at that time did not intend to mislead the public, and it would be hard to imagine why they said what they did in the Rutkin opinion had they not specifically considered and rejected the possibility of overruling Wilcox then and there. We think it is unjustifiable to say nine years after Rutkin that it 'devitalized' or 'repudiated' the Wilcox holding when the Rutkin opinion said explicitly that Wilcox is still the rule as to embezzlement. Congress has seen fit to let both decisions stand, and we think the present Court should do the same.
V.
43
Even if we were to join with our Brethren in accepting the Government's present contention that Wilcox and Rutkin cannot both stand, we would disagree as to which of the two decisions should now be repudiated. This is true not only because we would feel less inhibition about narrowing rather than broadening the reach of a previously construed criminal statute. Regardless of such considerations, our conviction that the Rutkin case was wrongly decided in this Court remains undiminished and has been further substantiated by the subsequent events in that controversy, which show all the more clearly the deplorable consequences that can result when federal courts subject people who violate state criminal laws to a double or treble prosecution for the state crime under the guise of attempted enforcement of federal tax laws.29
44
For the foregoing reasons, as well as the reasons stated in Mr. Justice WHITTAKER'S opinion, we would reaffirm our holding in Commissioner of Internal Revenue v. Wilcox, reverse this judgment and direct that the case be dismissed.
45
Mr. Justice CLARK, concurring in part and dissenting in part as to the opinion of THE CHIEF JUSTICE.
46
Although I join in the specific overruling of Commissioner of Internal Revenue v. Wilcox, 1946, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752, in The Chief Justice's opinion, I would affirm this conviction on either of two grounds. I believe that the Court not only devitalized Wilcox, by limiting it to its facts in Rutkin v. United States, 1952, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833, but that in effect the Court overruled that case sub silentio in Commissioner of Internal Revenue v. Glenshaw Glass Co., 1955, 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed. 483. Even if that not be true, in my view the proof shows conclusively that petitioner, in willfully failing to correctly report his income, placed no bona fide reliance on Wilcox.
47
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins, concurring in part and dissenting in part as to the opinion of THE CHIEF JUSTICE.
48
I fully agree with so much of The Chief Justice's opinion as dispatches Wilcox to a final demise. But as to the disposition of this case, I think that rather than an outright reversal, which his opinion proposes, the reversal should be for a new trial.
49
I share the view that it would be inequitable to sustain this conviction when by virtue of the Rutkin-Wilcox dilemma it might reasonably have been thought by one in petitioner's position that no tax was due in respect of embezzled moneys. For as is pointed out, Rutkin did not expressly overrule Wilcox, but instead merely confined it 'to its facts.' Having now concluded that Wilcox was wrongly decided originally, the problem in this case thus becomes one of how to overrule Wilcox 'in a manner that will not prejudice those who might have relied on it.' 366 U.S. at page 221, 81 S.Ct. at page 1056.
50
It is argued, in reliance on Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418, and Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, that so long as Wilcox remained on the books the element of 'willfulness' required in prosecutions of this kind1 'could not be proven,' and hence, that the conviction of this petitioner fails without more. This would mean, I take it, that no future prosecution or past conviction involving tax derelictions of this nature, occurring during the Wilcox period, may be brought or allowed to stand I cannot agree to such a disposition, which, in my view, is warranted by neither principle nor authority and would carry mischievous implications for the future.
51
The Spies and Holland cases, which are said to support outright reversal, stand for no more than that where, as here, a criminal tax statute makes 'willfulness' an element of the offense, the Government must prove an 'evil motive and want of justification in view of all the financial circumstances' on the part of the defendant, in failing to do what was required of him. While I agree that in the present case this made germane on the issue of willfulness the petitioner's reliance or nonreliance on the continued vitality of the Wilcox doctrine,2 I can find nothing in Spies or Holland which justifies the view that the mere existence of Wilcox suffices alone to vitiate petitioner's conviction as a matter of law. If, as appears to have been the case, there was erroneous failure to take that factor into account at the trial on the issue of willfulness, the most that should happen is that petitioner should be given a new trial. This indeed is what Spies and Holland affirmatively indicate as the right solution of the problem this case presents. In Spies, it was said (317 U.S. at pages 499—500, 63 S.Ct. at pages 368):
52
'* * * 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.
53
'In this case there are several items of evidence apart from the default in filing the return and paying the tax which the Government claims will support an inference of willful attempt to evade or defeat the tax. These go to establish that petitioner insisted that certain income be paid to him in cash, transferred it to his own bank by armored car, deposited it, not in his own name but in the names of others of his family, and kept inadequate and misleading records. Petitioner claims other motives animated him in these matters. We intimate no opinion. Such inferences are for the jury. If on proper submission the jury found these acts, taken together with willful failure to file a return and willful failure to pay the tax, to constitute a willful attempt to defeat or evade the tax, we would consider conviction of a felony sustainable.' To the same effect, see Holland, supra, 348 U.S. at page 139, 75 S.Ct. at page 137.
54
In the case at hand, the evidence of devious financial arrangements might well support the inference that petitioner's purpose was not only to commit the embezzlement but also to secrete and immunize his gains from what he considered to be his tax liabilities in respect of those gains. The District Court, as the trier of the facts (there having been no jury), found that petitioner's acts were 'willful and were done in a knowing and conscious attempt to evade and defeat' his tax obligations. But since it does not appear that petitioner's possible reliance on the Wilcox doctrine was considered below, Spies and Holland make it appropriate for us to send the case back for a new trial. They do not support foreclosing the Government from even undertaking to prove that the petitioner's conduct was 'willful' in this respect.
55
An outright reversal is equally unsound on principle. I take it that our decisions in the tax and any other field for that matter relate back to the actual transactions with which they are concerned, and that that is only the normal concomitant of the fact that we do not sit as an administrative agency making rulings for the future, but rather adjudicate actual controversies as to rights and liabilities under the laws of the United States. There can be, I think, two justifications for barring a prosecution of this petitioner in the unusual circumstances presented here: (1) that by reason of Rutkin having formally left intact the Wilcox doctrine, petitioner did not have due warning of his possible criminal liability; and (2) that the Court, in making new 'law' in Rutkin, should, like the legislature, not impose criminal liability ex post facto.
56
As to the first consideration, where the defendant is charged in a case like this with having 'willfully' violated the law, I believe that both reason and authority require no more than that the trier of fact be instructed that it must take into account in determining the defendant's 'evil motive and want of justification,' Spies v. United States, 317 U.S. at page 498, 63 S.Ct. at page 368, his possible reliance on Wilcox, which not until now has this Court explicitly stated was wrongly decided. As far as fairness to this petitioner is concerned, I do not see why that is not amply accorded by the disposition which Spies itself exemplifies. See page 243 of 366 U.S., page 1068 of 81 S.Ct., supra. On the other hand, if the trier of fact, properly instructed, finds that the petitioner did not act in bona fide reliance on Wilcox, but deliberately refused to report income and pay taxes thereon knowing of his obligation to do so and not relying on any exception in the circumstances, I do not see why even the strictest definition of the element of 'willfulness' would not have been satisfied. Willfulness goes to motive, and the quality of a particular defendant's motive would not seem to be affected by the fact that another taxpayer similarly situated had a different motive.
57
An altogether analogous situation was presented in United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 226, 78 L.Ed. 381. In that case the respondent had been convicted of willfully failing to supply information to the Bureau of Internal Revenue in that he relied on the possibility of state prosecution as justifying his invoking the federal privilege against self-incrimination. The Court said in that case:
58
'* * * He whose conduct is defined as criminal is one who 'willfully' fails to pay the tax, to make a return, to keep the required records, or to supply the needed information. Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, * * * should become a criminal by his mere failure to measure up to the prescribed standard of conduct. * * *
59
'It follows that the respondent was entitled to the charge he requested with respect to his good faith and actual belief. Not until this court pronounced judgment in United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, (82 A.L.R. 1376,) had it been definitely settled that one under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law. The question was involved but not decided in Ballman v. Fagin, 200 U.S. 186, 195, 26 S.Ct. 212, 50 L.Ed. 433, and specifically reserved in United States ex rel. Vajtauer v. Com'r of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 71 L.Ed. 560. The trial court could not therefore properly tell the jury the defendant's assertion of the privilege was so unreasonable and illfounded as to exhibit bad faith and establish willful wrongdoing. This was the effect of the instructions given. We think the Circuit Court of Appeals correctly upheld the respondent's right to have the question of absence of evil motive submitted to the jury * * *.' (Emphasis supplied.)
60
It would seem that precisely the same disposition is in order in this case. Nor do I think that distinctions in terms of the nature of the defendant's legal misapprehension, its degree, its justifiability, or its source are either warranted or would be manageable as a basis for deciding future cases.
61
Coming now to the other possible rationale for barring the prosecution of this petitioner, it might be argued that petitioner at the time he failed to make his return was not under any misapprehension as to the law, but indeed that at the time and under the decisions of this Court his view of the law was entirely correct. The argument not only seems to beg the question, but raises further questions as to the civil liability of one situated in the circumstances of this petitioner. Petitioner's obligation here derived not from the decisions of this or any other court, but from the Act of Congress imposing the tax. It is hard to see what further point is being made, once it is conceded that petitioner, if he was misled by the decisions of this Court, is entitled to plead in defense that misconception. Only in the most metaphorical sense has the law changed: the decisions of this Court have changed, and the decisions of a court interpreting the acts of a legislature have never been subject to the same limitations which are imposed on legislatures themselves, United States Constitution, Art, I, §§ 9, 10, forbidding them to make any ex post facto law3 and in the case of States to impair the obligation of a contract. Ross v. State of Oregon, 227 U.S. 150, 33 S.Ct. 220, 57 L.Ed. 458; New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U.S. 18, 8 S.Ct. 741, 31 L.Ed. 607.
62
The proper disposition of this case, in my view, is to treat as plain error, Fed.Rules Crim.Proc. 52(b), 18 U.S.C.A., the failure of the trial court as trier of fact to consider whatever misapprehension may have existed in the mind of the petitioner as to the applicable law, in determining whether the Government had proved that petitioner's conduct had been willful as required by the statute. On that basis I would send the case back for a new trial.
63
Mr. Justice WHITTAKER, whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, concurring in part and dissenting in part.
64
The starting point of any inquiry as to what constitutes taxable income must be the Sixteenth Amendment, which grants Congress the power 'to lay and collect taxes on incomes, from whatever source derived * * *.' It has long been settled that Congress' broad statutory definitions of taxable income were intended 'to use the full measure of (the Sixteenth Amendment's) taxing power.' Helvering v. Clifford, 309 U.S. 331, 334, 60 S.Ct. 554, 556, 84 L.Ed. 788; Douglas v. Willcuts, 296 U.S. 1, 9, 56 S.Ct. 59, 62, 80 L.Ed. 3. Equally well settled is the principle that the Sixteenth Amendment 'is to be taken as written and is not to be extended beyond the meaning clearly indicated by the language used.' Edwards v. Cuba R. Co., 268 U.S. 628, 631, 45 S.Ct. 614, 615, 69 L.Ed. 1124.1 The language of the Sixteenth Amendment as well as our prior controlling decisions, compels me to conclude that the question now before us—whether an embezzler receives taxable income at the time of his unlawful taking—must be answered negatively. Since the prevailing opinion reaches an opposite conclusion, I must respectfully dissent from that holding, although I concur in the Court's judgment reversing petitioner's conviction. I am convinced that Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752, which is today overruled, was correctly decided on the basis of every controlling principle used in defining taxable income since the sixteenth Amendment's adoption.
65
The Chief Justice's opinion, although it correctly recites Wilcox's holding that 'embezzled money does not constitute taxable income to the embezzler in the year of the embezzlement' (emphasis added), fails to explain or to answer the true basis of that holding. Wilcox did not hold that embezzled funds may never constitute taxable income to the embezzler. To the contrary, it expressly recognized that an embezzler may realize a taxable gain to the full extent of the amount taken, if an when it ever becomes his. The applicable test of taxable income, i.e., the 'presence of a claim of right to the alleged gain,' of which Wilcox spoke, was but a correlative statement of the factor upon which the decision placed its whole emphasis throughout, namely, the 'absence of a definite, unconditional obligation to repay or return (the money).' 327 U.S. at page 408, 66 S.Ct. at page 549. In holding that this test was not met at the time of the embezzlement, the Wilcox opinion repeatedly stressed that the embezzler had no 'bona fide legal or equitable claim' to the embezzled funds, ibid.; that the victim never 'condoned or forgave the taking of the money and still holds him liable to restore it,' id., 327 U.S. at page 406, 66 S.Ct. at page 548; and that the 'debtor-creditor relationship was definite and unconditional.' Id., 327 U.S. at page 409, 66 S.Ct. at page 549. These statements all express the same basic fact—the fact which is emphasized most strongly in the opinion's conclusion explaining why the embezzler had not yet received taxable income: 'Sanctioning a tax under the circumstances before us would serve only to give the United States an unjustified preference as to part of the money which rightfully and completely belongs to the taxpayer's employer.' Id., 327 U.S. at page 410, 66 S.Ct. at page 550. (Emphasis added.)
66
However, Wilcox plainly stated that 'if the unconditional indebtedness is cancelled or retired taxable income may adhere, under certain circumstances, to the taxpayer.' 327 U.S. at page 408, 66 S.Ct. at page 549. More specifically, it recognized that had the embezzler's victim 'condoned or forgiven any part of the (indebtedness), the (embezzler) might have been subject to tax liability to that extent,' id., 327 U.S. at page 410, 66 S.Ct. at page 550, i.e., in the tax year of such forgiveness.
67
These statements reflect an understanding of, and regard for, substantive tax law concepts solidly entrenched in our prior decisions. Since our landmark case of United States v. Kirby Lumber Co., 284 U.S. 1, 52 S.Ct. 4, 76 L.Ed. 131, it has been settled that, upon a discharge of indebtedness by an event other than full repayment, the debtor realizes a taxable gain in the year of discharge to the extent of the indebtedness thus extinguished. Such gains are commonly referred to as ones realized through 'bargain cancellations' of indebtedness, and it was in this area, and indeed, in Kirby Lumber Co. itself, that the 'accession' theory or 'economic gain' concept of taxable income, upon which The Chief Justice's opinion today mistakenly relies, found its genesis. In that case, the taxpayer, a corporation, had reduced a portion of its debt, with a corresponding gain in assets, by purchasing its bonds in the open market at considerably less than their issue price. Mr. Justice Holmes, who wrote the Court's opinion, found it unnecessary to state the elementary principle that, so long as the bonds remained a fully enforceable debt obligation of the taxpayer, there could be no taxable gain. However, when the taxpayer retired the debt by purchasing the bonds for less than their face value, it 'made a clear (taxable) gain' and 'realized within the year an accession to income' in the amount of its bargain. 284 U.S. at page 3, 52 S.Ct. at page 4.
68
This doctrine has since been reaffirmed and strengthened by us, see e.g., Helvering v. American Chicle Co., 291 U.S. 426, 54 S.Ct. 460, 78 L.Ed. 891; Commissioner of Internal Revenue v. Jacobson, 336 U.S. 28, 69 S.Ct. 358, 93 L.Ed. 477, and by the lower federal courts in numerous decisions involving a variety of 'bargain cancellations' of indebtedness, as by a creditor's release condoning or forgiving the indebtedness in whole or in part,2 or by the running of a Statute of Limitations barring the legal enforceability of the obligation.3 In none of these cases has it been suggested that a taxable gain might be realized by the debtor at any time prior to the effective date of discharge, and as Wilcox recognized, there is no rational basis on which to justify such a rule where the debt arises through embezzlement.
69
An embezzler, like a common thief, acquires not a semblance of right, title, or interest in his plunder, and whether he spends it or not, he is indebted to his victim in the full amount taken as surely as if he had left a signed promissory note at the scene of the crime. Of no consequence from any standpoint is the absence of such formalities as (in the words of the prevailing opinion) 'the consensual recognition, express or implied, or an obligation to repay.' The law readily implies whatever 'consensual recognition' is needed for the rightful owner to assert an immediately ripe and enforceable obligation of repayment against the wrongful taker. These principles are not 'attenuated subtleties' but are among the clearest and most easily applied rules of our law. They exist to protect the rights of the innocent victim, and we should accord them full recognition and respect.
70
The fact that an embezzler's victim may have less chance of success than other creditors in seeking repayment from his debtor is not a valid reason for us further to diminish his prospects by adopting a rule that would allow the Commissioner of Internal Revenue to assert and enforce a prior federal tax lien against that which 'rightfully and completely belongs' to the victim. Commissioner of Internal Revenue v. Wilcox, supra, 327 U.S. at page 410, 66 S.Ct. at page 550. The Chief Justice's opinion quite understandably expresses much concern for 'honest taxpayers,' but it attempts neither to deny nor justify the manifest injury that its holding will inflict on those honest taxpayers, victimized by embezzlers, who will find their claims for recovery subordinated to federal tax liens. Statutory provisions, by which we are bound, clearly and unequivocally accord priority to federal tax liens over the claims of others, including 'judgment creditors.'4
71
However, if it later happens that the debtor-creditor relationship between the embezzler and his victim is discharged by something other than full repayment, such as by the running of a Statute of Limitations against the victim's claim, or by a release given for less than the full amount owed, the embezzler at that time, but not before, will have made a clear taxable gain and realized 'an accession to income' which he will be required under full penalty of the law to report in his federal income tax return for that year. No honest taxpayer could be harmed by this rule.
72
The inherent soundness of this rule could not be more clearly demonstrated than as applied to the facts of the case before us. Petitioner, a labor union official, concededly embezzled sums totaling more than $738,000 from the union's funds, over a period extending from 1951 to 1954. When the shortages were discovered in 1956, the union at once filed civil actions against petitioner to compel repayment. For reasons which need not be detailed here, petitioner effected a settlement agreement with the union on July 30, 1958, whereby, in exchange for releases fully discharging his indebtedness, he repaid to the union the sum of $13,568.50. Accordingly, at least so far as the present record discloses, petitioner clearly realized a taxable gain in the year the releases were executed, to the extent of the difference between the amount taken and the sum restored. However, the Government brought the present action against him, not for his failure to report this gain in his 1958 return, but for his failure to report that he had incurred 'income' from—actually indebtedness to—the union in each of the years 1951 through 1954. It is true that the Government brought a criminal evasion presecution rather than a civil deficiency proceeding against petitioner, but this can in no way alter the substantive tax law rules which alone are determinative of liability in either case.
73
There can be no doubt that until the releases were executed in 1958, petitioner and the union stood in an absolute and unconditional debtor-creditor relationship, and, under all of our relevant decisions, no taxable event could have occurred until the indebtedness was discharged for less than full repayment. Application of the normal rule in such cases will not hinder the efficient and orderly administration of the tax laws, any more than it does in other situations involving 'bargain cancellations' of indebtedness. More importantly, it will enhance the creditor's position by assuring that prior federal tax liens will not attach to the subject of the debt when he seeks to recover it.
74
Notwithstanding all of this, The Chief Justice's opinion concludes that there is no difference between embezzled funds and 'gains' from other 'illegal sources,' and it points to the fact that Congress, in its 1916 revision of the 1913 Income Tax Act, omitted the word 'lawful' in describing businesses whose income was to be taxed. The opinion then cites United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, in which it was held that, under the revised statute, gains from illicit traffic in liquor must be reported in gross income, since there is no 'reason why the fact that a business is unlawful should exempt it from paying the taxes that if lawful it would have to pay.' Id., 274 U.S. at page 263, 47 S.Ct. at page 607. (Emphasis added.) That theory has been the primary basis for taxing 'unlawful gains of many kinds' which the prevailing opinion today recites, such as black market profits, gambling proceeds, money derived from the sale of unlawful insurance policies, etc.5 For, even if lawful, the gains from such activities would clearly not be exempted from taxation. However, as applied to embezzled funds, the holding in Sullivan contradicts, rather than supports, the Court's conclusion today. Obviously, embezzlement could never become 'lawful' and still retain its character. If 'lawful,' it would constitute nothing more than a loan, or possibly a gift, to the 'embezzler,' neither of which would produce a taxable gain to him.
75
There is still another obvious and important distinction between embezzlement and the varieties of illegal activity listed by the prevailing opinion—one which clearly calls for a different tax treatment. Black marketeering, gambling, bribery, graft and like activities generally give rise to no legally enforceable right of restitution—to no debtorcreditor relationship which the law will recognize.6 Condemned either by statute or public policy, or both, such transactions are void ab initio. Since any consideration which may have passed is not legally recoverable, its recipient has realized a taxable gain, an 'accession to in come,' as clearly as if his 'indebtedness' had been descharged by a full release or by the running of a Statute of Limitations. As we have already shown at length, quite the opposite is true when an embezzlement occurs; for then the victim acquires an immediately ripe and enforceable claim to repayment, and the embezzler assumes a legal debt equal to his acquisition.
76
To reach the result that it does today, The Chief Justice's opinion constructs the following theory for defining taxable income:
77
'When a taxpayer acquires earnings, lawfuly or unlawfully, without the consensual recognition, express or implied, of an obligation to repay and without restriction as to their disposition, 'he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.' North American Oil Consolidated v. Burnet, supra, 286 U.S. 417, at page 424, 52 S.Ct. 613, at page 615, 76 L.Ed. 1197. In such case, the taxpayer has 'actual command over the property taxed—the actual benefit for which the tax is paid,' Corliss v. Bowers, supra. This standard brings wrongful appropriations within the broad sweep of 'gross income'; it excludes loans. When a law-abiding taxpayer mistakenly receives income in one year, which receipt is assailed and found to be invalid in a subsequent year, the taxpayer must nonetheless report the amount as 'gross income' in the year received. United States v. Lewis, supra; Healy v. Commissioner, supra.'
78
This novel formula finds no support in our prior decisions, least of all in those which are cited. Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916, involved nothing more than an inter vivos trust created by the taxpayer to pay the income to his wife. Since he had reserved the power to alter or abolish the trust at will, its income was taxable to him under the express provisions of § 219(g), (h) of the Revenue Act of 1924, 26 U.S.C.A. §§ 166, 167. North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S.Ct. 613, 615, 76 L.Ed. 1197, is the case which introduced the principle since used to facilitate uniformity and certainty in annual tax accounting procedure, i.e., that a taxpayer must report in gross income, in the year in which received, money or property acquired under a 'claim of right'—a colorable claim of the right to exclusive possession of the money or property. Thus, in its complete form, the sentence in North American Oil from which the above-quoted fragment was extracted reads: 'If a taxpayer receives earnings under a claim of right and without restriction as to its (sic) disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.' Id., 286 U.S. at page 424, 52 S.Ct. at page 615. (Emphasis added.) But embezzled funds, like stolen property generally, are not 'earnings' in any sense and are held without a vestige of a colorable claim of right; they constitute the principal of a debt. Of no significance whatever is the formality of 'consensual recognition, express or implied' of an obligation to repay. By substituting this meaningless abstraction in place of the omitted portion of the North American Oil test of when a receipt constitutes taxable income, the prevailing opinion today goes far beyond overruling Wilcox—it reduces a substantial body of tax law into uncertainty and confusion. The above-cited case of United States v. Lewis, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560, decided 19 years after North American Oil, demonstrates the truth of this. For there we said:
79
'The 'claim of right' interpretation of the tax laws has long been used to give finality to (the accounting) period, and is not deeply rooted in the federal tax system. * * * We see no reason why the Court should depart from this well-settled interpretation merely because it results in an advantage or disadvantage to a taxpayer.' 340 U.S. at page 592, 71 S.Ct. at page 523.
80
The same principle was reiterated and applied in Healy v. Commissioner, 345 U.S. 278, 73 S.Ct. 671, 97 L.Ed. 1007.
81
The supposed conflict between Wilcox and Rutkin, upon which The Chief Justice's opinion seeks to justify its repudiation of Wilcox,7 has been adequately treated in the opinion of Mr. Justice BLACK, and I agree with him that those cases were fully intended to be, and are, reconcilable, both on their controlling facts and applicable law. If the unnecessarily broad language used in the Rutkin opinion has misled any of the lower federal courts in their understanding of the principles underlying Wilcox, we should clarify their understanding at this time, and continue our adherence to 'a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.' Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604.
1
§ 22. Gross Income.
'(a) General definitions.—'Gross income' includes gains, profits, and income derived from salaries, wages, or compensation for personal service * * * of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. * * *' 26 U.S.C. (1952 ed.) § 22(a), 26 U.S.C.A. § 22(a).
2
§ 61. Gross Income Defined.
3
Petitioner has pleaded guilty to the offense of conspiracy to embezzle in the Court of Essex County, New Jersey.
4
§ 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. (1952 ed.) § 145(b), 26 U.S.C.A. § 145(b).
5
§ 7201. Attempt to Evade or Defeat Tax.
'Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.' 26 U.S.C. § 7201, 26 U.S.C.A. § 7201.
6
The dissenters in Rutkin stated that the Court had rejected the Wilcox interpretation of § 22(a). Id., 343 U.S. at page 140, 72 S.Ct. at page 577.
7
The Government contends that the adoption in Wilcox of a claim of right test as a touchstone of taxability had no support in the prior cases of this Court; that the claim of right test was a doctrine invoked by the Court in aid of the concept of annual accounting, to determine when, not whether, receipts constituted income. See North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197; United States v. Lewis, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560; Healy v. Commissioner, 345 U.S. 278, 73 S.Ct. 671, 97 L.Ed. 1007. In view of our reasoning set forth below, we need not pass on this contention. The use to which we put the claim of right test here is only to demonstrate that, whatever its validity as a test of whether certain receipts constitute income, it calls for no distinction between Wilcox and Rutkin.
8
In Marienfeld v. United States, 214 F.2d 632, the Eighth Circuit stated, 'We find it difficult to reconcile the Wilcox case with the later opinion of the Supreme Court in Rutkin * * *.' Id., at page 636. The Second Circuit announced, in United States v. Bruswitz, 219 F.2d 59, 'It is difficult to perceive what, if anything, is left of the Wilcox holding after Rutkin * * *.' Id., at page 61. The Seventh Circuit's prior decision in Macias v. Commissioner, 255 F.2d 23, observed, 'If this reasoning (of Rutkin) had been employed in Wilcox, we see no escape from the conclusion that the decision in that case would have been different. In our view, the Court in Rutkin repudiated its holding in Wilcox; certainly it repudiated the reasoning by which the result was reached in that case.' Id., at page 26.
9
For example, Kann v. Commissioner, 3 Cir., 210 F.2d 247, was differentiated on the following grounds: the taxpayer was never indicted or convicted of embezzlement; there was no adequate proof that the victim did not forgive the misappropriation; the taxpayer was financially able to both pay the income tax and make restitution; the taxpayer would have likely received most of the misappropriated money as dividends. In Marienfeld v. United States, supra, the court believed that the victim was not likely to repudiate. In United States v. Wyss, 7 Cir., 239 F.2d 658, the distinguishing factors were that the district judge had not found as a fact that the taxpayer embezzled the funds and the money had not as yet been reclaimed by the victim. See also Briggs v. United States, 4 Cir., 214 F.2d 699, 702; Prokop v. Commissioner, 7 Cir., 254 F.2d 544, 554—555. Cf. J. J. Dix, Inc., v. Commissioner, 2 Cir., 223 F.2d 436.
10
Petitioner urges upon us the case of Alison v. United States, 344 U.S. 167, 73 S.Ct. 191, 97 L.Ed. 186. But that case dealt with the right of the victim of an embezzlement to take a deduction, under § 23(e) and (f) of the 1939 Code, in the year of the discovery of the embezzlement rather than the year in which the embezzlement occurred. The Court held only 'that the special factual circumstances found by the District Courts in both these cases justify deductions under I.R.C., § 23(e) and (f) and the longstanding Treasury Regulations applicable to embezzlement losses.' Id., 344 U.S. at page 170, 73 S.Ct. at page 192. The question of inclusion of embezzled funds in 'gross income' was not presented in Alison.
11
H.R. 8854, 86th Cong., 1st Sess.
1
G.C.M. No. 24945, 1946—2 Cum.Bull. 27, 28. This was precisely in accord with this Court's statement of the proper rule in the Wilcox opinion:
'Taxable income may arise, to be sure, from the use or in connection with the use of such (embezzled) property. * * * But apart from such factors the bare receipt of property or money wholly belonging to another lacks the essential characteristics of a gain or profit within the meaning of Section 22(a).' 327 U.S. at page 408, 66 S.Ct. at page 549.
2
See, for example, Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360.
3
See, for example, United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516.
4
7 Cranch at page 34, 3 L.Ed. 259. And see United States v. Coolidge, 1 Wheat. 415, 4 L.Ed. 124.
5
United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 71 L.Ed. 1037.
6
327 U.S. at page 408, 66 S.Ct. at page 549.
7
Wilcox v. Commissioner, 148 F.2d 933.
8
127 F.2d 572.
9
126 F.2d 723.
10
127 F.2d at page 573.
11
Ibid. The same reasoning can be found in our opinion in Alison v. United States, 344 U.S. 167, 169—170, 73 S.Ct. 191, 192, 97 L.Ed. 186.
12
127 F.2d at page 574.
13
E.g., Commissioner of Internal Revenue v. Smith, 324 U.S. 177, 65 S.Ct. 591, 89 L.Ed. 830 (compensation through exercise of stock option), led to § 218 of the Revenue Act of 1950, adding § 130A to the 1939 Code, 26 U.S.C.A. § 130A; Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670; Lusthaus v. Commissioner, 327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679; and Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 93 L.Ed. 1659 (family partnerships), led to § 340 of the Revenue Act of 1951, adding § 191 to the 1939 Code, 26 U.S.C.A. § 191; United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 ('employees' for purpose of Social Security employment tax), led to the Joint Resolution of June 14, 1948, c. 468, 62 Stat. 438, amending several sections of the 1939 Code; Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 93 L.Ed. 288, and Estate of Spiegel v. Commissioner, 335 U.S. 701, 69 S.Ct. 301, 93 L.Ed. 330 (estate tax), led to the Act of October 25, 1949, § 7, 63 Stat. 891, 894, amending § 811(c) of the 1939 Code, 26 U.S.C.A. § 811(c); Wilmette Park Dist. v. Campbell, 338 U.S. 411, 70 S.Ct. 195, 94 L.Ed. 205 (amusement tax), led to § 402 of the Revenue Act of 1951, adding § 1701(d) to the 1939 Code, 26 U.S.C.A. § 1701(d); Commissioner of Internal Revenue v. Korell, 339 U.S. 619, 70 S.Ct. 905, 94 L.Ed. 1108 (amortization of bond premium), led to § 217 of the Revenue Act of 1950, amending § 125(b)(1) of the 1939 Code, 26 U.S.C.A. § 125(b)(1).
14
46 Stat. 1516; see 74 Cong.Rec. 7078—7079, 7198—7199.
15
H.R. 8854, 86th Cong., 1st Sess.; H.R. 312, 87th Cong., 1st Sess.
16
'To explain the cause of non-action by Congress when Congress itself sheds no light is to venture into speculative unrealities. Congress may not have had its attention directed to an undesirable decision; and there is no indication that as to the St. Louis Trust cases it had, even by any bill that found its way into a committee pigeon-hole.' 309 U.S. 106, 119—120, 60 S.Ct. 444, 451, 84 L.Ed. 604. (Emphasis supplied.)
17
'Thus the affirmative action taken by Congress in 1942 negatives any inference that otherwise might be drawn from its silence when it reenacted the oath in 1940.' 328 U.S. 61, 70, 66 S.Ct. 826, 830, 90 L.Ed. 1084.
18
223 F.2d 436.
19
Petition for certiorari, p. 14, n. 6, Commissioner of Internal Revenue v. Estate of Dix, 350 U.S. 894, 79 S.Ct. 151, 100 L.Ed. 786.
20
Id., at page 15.
21
350 U.S. 894, 76 S.Ct. 150, 100 L.Ed. 786.
22
348 U.S. at page 244, 75 S.Ct. at page 263.
23
Brief for the United States, pp. 32—33.
24
'We do not reach in this case the factual situation involved in Commissioner of Internal Revenue v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752. We limit that case to its facts. There embezzled funds were held not to constitute taxable income to the embezzler under § 22(a). The issue here is whether money extorted from a victim with his consent induced solely by harassing demands and threats of violence is included in the definition of gross income under § 22(a).' 343 U.S. at page 138, 72 S.Ct. at page 576.
25
Brief for the United States in Opposition to Petition for Certiorari, pp. 13—14, Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833. The full sentence in the Court of Appeals opinion from which the Government quoted was: 'So he (Rutkin) did receive the money with a 'semblance of a bona fide claim of right' as the embezzler had not in Commissioner of Internal Revenue v. Wilcox, supra, 327 U.S. at page 408, 66 S.Ct. at page 549.' United States v. Rutkin, 3 Cir., 189 F.2d 431, 435.
26
This factual distinction was clearly emphasized in the Court's opinion in Rutkin: '(Rutkin) induced Reinfeld to consent to pay the money by creating a fear in Reinfeld that harm otherwise would come to him and to his family. Reinfeld thereupon delivered his own money to petitioner. Petitioner's control over the cash so received was such that, in the absence of Reinfeld's unlikely repudiation of the transaction and demand for the money's return, petitioner could enjoy its use as fully as though his title to it were unassailable.' Rutkin v. United States, 343 U.S. 130, 136—137, 72 S.Ct. 571, 575, 96 L.Ed. 833. (Emphasis supplied.)
27
The analogy between the borrower and the embezzler was lucidly analyzed by Judge Sibley in McKnight v. Commissioner, 5 Cir., 127 F.2d 572, 573—574.
The several cases relied on by the Court do not, in our judgment, justify imposing a tax upon embezzled money. Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916, involved income accumulating in a trust fund belonging to the taxpayer and over which he retained control. North American Oil Consolidated v. Burnet, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197; United States v. Lewis, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560; and Healy v. Commissioner, 345 U.S. 278, 73 S.Ct. 671, 97 L.Ed. 1007, were cases in which the taxpayer had asserted a bona fide, though mistaken, claim of right. In North American Oil, the taxpayer not only had a bona fide claim to the money taxed, but there had been an adjudication that he was entitled to it, and there was only the tenuous possibility that a competing claimant might later upset that adjudication. The Lewis and Healy cases involved a tax on payments made and received as a result of mutual mistake, and it was held that the administration of the tax laws on an annual basis need not be upset for the convenience of those who caused the mistaken payments to be made and reported as income. But contrast, the victims do not cause embezzlements, and the Government is not misled or inconvenienced under Wilcox because the embezzler is always fully aware that the embezzled funds are not rightfully his and presumably will not report otherwise.
28
See the dissenting opinion in Bartkus v. People of State of Illinois, 359 U.S. 121, 150, 79 S.Ct. 676, 695, 3 L.Ed.2d 684. It is interesting to note that on July 22, 1959, shortly after the Bartkus decision, Illinois, in order to avoid the danger of prosecuting men in both state and federal courts for the same crime, passed a statute making conviction or acquittal in a federal prosecution a defense to a state prosecution for the same criminal act. Illinois Laws, 1959, p. 1893, § 1; 38 Ill.Ann.Stat. (Cum.Supp.1960) § 601.1. Thus, while Illinois is moving away from such double prosecutions, this Court is moving even further than Bartkus in the direction of authorizing such prosecutions.
29
The subsequent history of the Rutkin-Reinfeld controversy can, in part, be read in United States v. Rutkin, 3 Cir., 208 F.2d 647, especially Judge Kalodner's dissenting opinion, at page 655; United States v. Rutkin, 3 Cir., 212 F.2d 641, especially at page 644; and Rutkin v. Reinfeld, D.C., 122 F.Supp. 265, reversed, 2 Cir., 229 F.2d 248.
1
The relevant statutes are set forth in footnotes 1—2, 4—5 of The Chief Justice's opinion. 366 U.S. at pages 214—215, 81 S.Ct. at pages 1052—1053.
2
Compare American Law Institute, Model Penal Code, tentative draft No. 4, § 2.04:
'(1) Ignorance or mistake as to a matter of fact or law is a defense if:
'(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense * * *.'
3
Aside from problems of warning and specific intent, the policy of the prohibition against ex post facto legislation would seem to rest on the apprehension that the legislature, in imposing penalties on past conduct, even though the conduct could properly have been made criminal and even though the defendant who engaged in that conduct in the past believed he was doing wrong (as for instance when the penalty is increased retroactively on an existing crime), may be acting with a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons. That this policy is inapplicable to decisions of the courts seems obvious: their opportunity for discrimination is more limited than the legislature's, in that they can only act in construing existing law in actual litigation. Given the divergent pulls of flexibility and precedent in our case law system, it is disquieting to think what perplexities and what subtleties of distinction would be created in applying this policy, which so properly limits legislative action, to the decisions of the courts.
1
'A proper regard for its genesis, as well as its very clear language, requires also that (the Sixteenth) Amendment shall not be extended by loose construction * * *. Congress cannot by any definition (of income) it may adopt conclude the matter, since it cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully exercised.' Eisner v. Macomber, 252 U.S. 189, 206, 40 S.Ct. 189, 193, 64 L.Ed. 521.
2
See, e.g., Spear Box Co. v. Commissioner, 2 Cir., 182 F.2d 844; Helvering v. Jane Holding Corp., 8 Cir., 109 F.2d 933; Pacific Magnesium, Inc., v. Westover, D.C.S.D.Cal., 86 F.Supp. 644.
3
See, e.g., Schweppe v. Commissioner, 9 Cir., 168 F.2d 284; North American Coal Corp. v. Commissioner, 6 Cir., 97 F.2d 325; Securities Co. v. United States, D.C.S.D.N.Y., 85 F.Supp. 532.
4
26 U.S.C. §§ 6321—6323, 6331, 26 U.S.C.A. §§ 6321—6323, 6331; Bankruptcy Act, § 64, sub. a, 11 U.S.C. § 104, sub, a, 11 U.S.C.A. § 104, sub. a. Moreover, R.S. § 3466 (1975), now codified in 31 U.S.C. § 191, 31 U.S.C.A. § 191, pertaining to state insolvency proceedings against debtors, commands that 'the debts due to the United States shall be first satisfied.' We long ago established that the term 'debts' in this statute includes delinquent federal taxes. Price v. United States, 269 U.S. 492, 499—500, 46 S.Ct. 180, 181, 70 L.Ed. 373. And even though the tax claim of the Government may be only a general lien, with notice thereof not yet filed in the proper local office pursuant to 26 U.S.C. § 6323, 26 U.S.C.A. § 6323, we have held that it must be accorded priority over the claims of all prior general lienholders, under R.S. § 3466, 31 U.S.C. § 191, 31 U.S.C.A. § 191. United States v. City of New Britain, 347 U.S. 81, 84—85, 74 S.Ct. 367, 369—370, 98 L.Ed. 520; United States v. Gilbert Associates, 345 U.S. 361, 366, 73 S.Ct. 701, 704, 97 L.Ed. 1071; United States v. State of Texas, 314 U.S. 480, 488, 62 S.Ct. 350, 354, 86 L.Ed. 356. See Mertens, Law of Federal Income Taxation, § 12.103, note 67; Id., §§ 54.10—54.56.
5
See cases cited in Rutkin v. United States, 343 U.S. 130, 137, note 8, 72 S.Ct. 571, 575, 96 L.Ed. 833. See also United States v. Bruswitz, 2 Cir., 219 F.2d 59; Steinberg v. United States, 2 Cir., 14 F.2d 564; Barker v. United States, 26 F.Supp. 1004, 88 Ct.Cl. 468; Silberman v. Commissioner, 44 B.T.A. 600.
6
Restatement, Contracts, § 598; 6 Corbin, Contracts, §§ 1373 et seq. (1951). That the rule applies even as to 'unlawful insurance polices' is undoubted. Patterson, Essentials of Insurance Law (2d ed. 1957), § 43, at 186.
7
I cannot agree with The Chief Justice's assertion that Wilcox has been 'thoroughly devitalized' by Rutkin. See, e.g., the recent case of United States v. Peelle, D.C.E.D.N.Y.1958, 159 F.Supp. 45. There the Government sought to enforce liens for federal income taxes claimed to be due on items of 'income' aggregating $678,461.22, which the taxpayer had embezzled from his corporate employer during the years 1945 through 1949. The items in question consisted of customers' payments intended for the corporation, and had been embezzled by the taxpayer and kept by him in secret bank accounts. In 1951 and 1952, he discharged his indebtedness by making full restitution of the embezzled funds to the corporation. The corporation, which used the accrual method of accounting, paid deficiencies which the Government determined in its 1945—1949 income tax returns, based on its accrued right to receive the embezzled customers' payments in those years. Not satisfied with this, the Government took the position that the payments were taxable twice during the same years—once to the corporation when it accrued the right to receive them, and again to the embezzler when he diverted them into the secret bank accounts. Had this effort at double taxation succeeded, the Government's combined tax claims would have been far in excess of the amount being taxed.
In rejecting the Government's argument that the embezzler received taxable income at the time of the embezzlements, the District Court relied wholly upon the decision which the Court today overrules, Commissioner of Internal Revenue v. Wilcox, supra.
| 01
|
366 U.S. 299
81 S.Ct. 1343
6 L.Ed.2d 306
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Jerry LESTER.
No. 376.
Argued April 25, 1961.
Decided May 22, 1961.
Mr. C. Guy Tadlock, Washington, D.C., for petitioner.
Mr. Louis Mandel, New York City, fr respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
The sole question presented by this suit, in which the Government seeks to recover personal income tax deficiencies, involves the validity of respondent's deductions from his gross income for the taxable years 1951 and 1952 of the whole of his periodic payments during those years to his divorced wife pursuant to a written agreement entered into by them and approved by the divorce court. The Commissioner claims that language in this agreement providing '(i)n the event that any of the (three) children of the parties hereto shall marry, become emancipated, or die, then the payments herein specified shall * * * be reduced in a sum equal to one-sixth of the payments which would thereafter otherwise accrue' sufficiently identifies one-half of the periodic payments as having been 'payable for the support' of the taxpayer's minor children under § 22(k) of the Internal Revenue Code of 1939 and, therefore, not deductible by him under § 23(u) of the Code.1 The Tax Court approved the Commissioner's disallowance, 32 T.C. 1156, but the Court of Appeals reversed, 279 F.2d 354, holding that the agreement did not 'fix' with requisite clarity any specific amount or portion of the periodic payments as payable for the support of the children and that all sums paid to the wife under the agreement were, therefore, deductible from respondent's gross income under the alimony provision of § 23(u). To resolve a conflict among the Courts of Appeals on the question,2 we granted certiorari. 364 U.S. 890, 81 S.Ct. 220, 5 L.Ed.2d 186. We have concluded that the Congress intended that, to come within the exception portion of § 22(k), the agreement providing for the periodic payments must specifically state the amounts or parts thereof allocable to the support of the children. Accordingly, we affirm the judgment of the Court of Appeals.
2
Prior to 1942, a taxpayer was generally not entitled to deduct from gross income amounts payable to a former spouse as alimony, Douglas v. Willcuts, 1935, 296 U.S. 1, 56 S.Ct. 59, 89 L.Ed. 3. Except in situations in which the divorce decree, the settlement agreement and state law operated as a complete discharge of the liability for support. Helvering v. Fitch, 1940, 309 U.S. 149, 60 S.Ct. 427, 84 L.Ed. 665. The hearings, Senate debates and the Report of the Ways and Means Committee of the House all indicate that it was the intention of Congress, in enacting § 22(k) and § 23(u) of the Code, to eliminate the uncertain and inconsistent tax consequences resulting from the many variations in state law. '(T)he amendments are designed to remove the uncertainty as to the tax consequences of payments made to a divorced spouse * * *.' S.Rep. No. 673 Pt. 1, 77th Cong., 1st Sess. 32. They 'will produce uniformity in the treatment of amounts paid * * * regardless of variance in the laws of different States * * *.' H.R.Rep. No. 2333, 77th Cong., 2d Sess. 72. In addition, Congress realized that the 'increased surtax rates3 would intensify' the hardship on the husband who, in many cases, 'would not have sufficient income left after paying alimony to meet his income tax obligations,' H.R.Rep. No. 2333, 77th Cong., 2d Sess. 46, and perhaps also that, on the other hand, the wife, generally being in a lower income tax bracket than the husband, could more easily protect herself in the agreement and in the final analysis receive a larger net payment from the husband if he could deduct the gross payment from his income.
3
The first version of § 22(k) was proposed by the Senate as an amendment to the Revenue Act of 1941. The sums going to child support were to be includible in the husband's gross income only if the amount thereof was 'specifically designated as a sum payable for the support of minor children of the spouses.' H.R. 5417, 77th Cong., 1st Sess., § 117. The proposed amendment thus drew a distinction between a case in which the amount for child support was 'specifically designated' in the agreement, and one in which there was no such designation. In the latter event, 'the whole of such amounts are includible in the income of the wife * * *.' S.Rep. No. 673, Pt. 1, 77th Cong., 1st Sess. 35. Action on the bill was deferred by the conference committee4 and hearings on the measure were again held the following year. The subsequent Report of the Senate Finance Committee on § 22(k) carried forward the term 'specifically designated,' used in the 1941 Report (No. 673), with this observation:
4
'If, however, the periodic payments * * * are received by the wife for the support and maintenance of herself and of minor children of the husband without such specific designation of the portion for the support of such children, then the whole of such amounts is includible in the income of the wife as provided in section 22(k) * * *.' S.Rep. No. 1631, 77th Cong., 2d Sess. 86.
5
As finally enacted in 1942, the Congress used the word 'fix' instead of the term 'specifically designated,' but the change was explained in the Senate hearings as 'a little more streamlined language.' Hearings before Senate Committee on Finance on H.R. 7378, 77th Cong., 2d Sess. 48. As the Office of the Legislative Counsel reported to the Senate Committee:
6
'If an amount is specified in the decree of divorce attributable to the support of minor children, that amount is not income of the wife * * *. If, however, that amount paid the wife includes the support of children, but no amount is specified for the support of the children, the entire amount goes into the income of the wife * * *.' Ibid. (Italics supplied.)
7
This language leaves no room for doubt. The agreement must expressly specify or 'fix' a sum certain or percentage of the payment for child support before any of the payment is excluded from the wife's income. The statutory requirement is strict and carefully worded. It does not say that 'a sufficiently clear purpose' on the part of the parties is sufficient to shift the tax. It says that the 'written instrument' must 'fix' that 'portion of the payment' which is to go to the support of the children. Otherwise, the wife must pay the tax on the whole payment. We are obliged to enforce this mandate of the Congress.
8
One of the basic precepts of the income tax law is that '(t)he income that is subject to a man's unfettered command and that he is free to enjoy at his own option may be taxed to him as his income, whether he sees fit to enjoy it or not.' Corliss v. Bowers, 1930, 281 U.S. 376, 378, 50 S.Ct. 3 6, 337, 74 L.Ed. 916. Under the type of agreement here, the wife is free to spend the monies paid under the agreement as she sees fit. 'The power to dispose of income is the equivalent of ownership of it.' Helvering v. Horst, 1940, 311 U.S. 112, 118, 61 S.Ct. 144, 147, 85 L.Ed. 75. Including the entire payments in the wife's gross income under such circumstances, therefore, comports with the underlying philosophy of the Code. And, as we have frequently stated, the Code must be given 'as great an internal symmetry and consistency as its words permit.' United States v. Olympic Radio & Television, 1955, 349 U.S. 232, 236, 75 S.Ct. 733, 736, 99 L.Ed. 1024.
9
It does not appear that the Congress was concerned with the perhaps restricted uses of unspecified child-support payments permitted the wife by state law when it made those sums includible within the wife's alimony income. Its concern was with a revenue measure and with the specificity, for income tax purposes, of the amount payable under the terms of the written agreement for support of the children. Therefore, in construing that revenue act, we too are unconcerned with the variant legal obligations, if any, which such an agreement, by construction of its nonspecific provisions under local rules, imposes upon the wife to use a certain portion of the payments solely for the support of the children. The Code merely affords the husband a deduction for any portion of such payment not specifically earmarked in the agreement as payable for the support of the children.
10
As we read § 22(k), the Congress was in effect giving the husband and wife the power to shift a portion of the tax burden from the wife to the husband by the use of a simple provision in the settlement agreement which fixed the specific portion of the periodic payment made to the wife as payable for the support of the children. Here the agreement does not so specifically provide. On the contrary, it calls merely for the payment of certain monies to the wife for the support of herself and the children. The Commissioner makes such of the fact that the agreement provides that as if, and when any one of the children married, became emancipated or died the total payment would be reduced by one-sixth, saying that this provision did 'fix' one-half (one-sixth multiplied by three, the number of children) of the total payment as payable for the support of the children. However, the agreement also pretermitted the entire payment in the event of the wife's remarriage and it is as consistent to say that this provision had just the opposite effect. It was just such uncertainty in tax consequences that the Congress intended to and, we believe, did eliminate when it said that the child-support payments should be 'specifically designated' or, as the section finally directed, 'fixed.' It does not say that 'a sufficiently clear purpose' on the part of the parties would satisfy. It says that the written instrument must 'fix' that amount or 'portion of the payment' which is to go to the support of the children.
11
The Commissioner contends that administrative interpretation has been consistently to the contrary. It appears, however, that there was such a contrariety of opinion among the Courts of Appeals that the Commissioner was obliged as late as 1959 to issue a Revenue Ruling which stated that the Service would follow the rationale of Eisinger v. Commissioner, 9 Cir., 1957, 250 F.2d 303,5 but that Weil v. Commissioner, 2 Cir., 1957, 240 F.2d 584 ,6 would be followed 'in cases involving similar facts and circumstances.' Rev.Rul. 59—93, 1959—1 Cum.Bull. 22, 23.
12
All of these considerations lead to the conclusion that if there is to be certainty in the tax consequences of such agreements the allocations to child support made therein must be 'specifically designated' and not left to determination by inference or conjecture. We believe that the Congress has so demanded in § 22(k). After all, the parties may for tax purposes act as their best interests dictate, provided, as that section requires, their action be clear and specific. Certainly the Congress has required no more and expects no less.
13
Affirmed.
14
Mr. Justice DOUGLAS, concurring.
15
While I join the opinion of the Court, I add a few words. In an early income tax case, Mr. Justice Holmes said 'Men must turn square corners when they deal with the Government.' Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188. The revenue laws have become so complicated and intricate that I think the Government in moving against the citizen should also turn square corners. The Act, 1939 I.R.C. § 22(k), makes taxable to the husband that part of alimony payments 'which the terms of the decree or written instrument fix, in terms of an amount of money or a portion of the payment, as a sum' payable for support of minor children.
16
I agree with the Court that this agreement did not 'fix' any such amount. To be sure, an amount payable in support of minor children may be inferred from the proviso that one-sixth of the payment shall no longer be due, if the children marry, become emancipated, or die. But Congress in enacting this law realized that some portion of alimony taxable to the wife might be used for support of the children, as the opinion of the Court makes clear.
17
The present agreement makes no specific designation of the portion that is intended for the support of the children. It is not enough to say that the sum can be computed. Congress drew a clear line when it used the word 'fix.' Resort to litigation, rather than to Congress, for a change in the law is too often the temptation of government which has a longer purse and more endurance than any taxpayer.
1
Section 22(k) of the Internal Revenue Code of 1939, 56 Stat. 816—817, 26 U.S.C.A. § 22(k), provided in part that
'* * * periodic payments * * * received (by the wife) subsequent to (a decree of divorce) * * * in discharge of * * * a legal obligation which, because of the marital or family relationship, is imposed upon or incurred by such husband under * * * a written instrument incident to such divorce * * * shall be includible in the gross income of such wife * * *. This subsection shall not apply to that part of any such periodic payment which the terms of the * * * written instrument fix, in terms of * * * a portion of the payment, as a sum which is payable for the support of minor children of such husband.' (Emphasis added.)
Section 23(u), 56 Stat. 817, 26 U.S.C.A. § 23(u), stated in pertinent part that there shall be allowed as a deduction
'(i)n the case of a husband described in section 22(k), amounts includible under section 22(k) in the gross income of his wife, payment of which is made within the husband's taxable year.'
2
Both Metcalf v. Commissioner, 1 Cir., 1959, 271 F.2d 288, and Eisinger v. Commissioner, 9 Cir., 1957, 250 F.2d 303, have arrived at conclusions contrary to those of the court below.
3
Sections 22(k) and 23(u) were enacted as part of the Revenue Act of 1942 which provided for greatly increased tax revenue to meet the expenses of World War II.
4
H.R.Rep. No. 1203, 77th Cong., 1st Sess. 11.
5
The court there approved the rule that 'when the settlement agreement, read as a whole, discloses that the parties have earmarked or designated * * * the payments to be made, one part to be payable for alimony, and another part to be payable for the support of children, with sufficient certainty and specificity to readily determine which is which, without referec e to contingencies which may never come into being, then the 'part of any periodic payment' has been fixed 'by the terms of the decree or written instrument' * * *.' 250 F.2d at page 308.
6
In that case the agreement provided for reduction only in the event the divorced wife remarried. The court stated that '(t)he fortuitous or incidental mention of a figure in a provision meant to be inoperative, unless some more or less probable future event occurs, will not suffice to shift the tax burden from the wife to the husband.' 240 F.2d at page 588.
| 1112
|
366 U.S. 417
81 S.Ct. 1355
6 L.Ed.2d 380
Augustine BALDONADO, petitioner,v.STATE OF CALIFORNIA. Luis Estrada MOYA, petitioner, v. STATE OF CALIFORNIA. Elizabeth Ann DUNCAN, petitioner, v. STATE OF CALIFORNIA.
Nos. 185-187.
Supreme Court of the United States
May 22, 1961
Mr. A. L. Wirin, Los Angeles, Cal., for petitioners in all three cases.
Mr. Burt M. Henson, Ventura, Cal., for petitioner in No. 186.
Mr. Arthur Warner, Los Angeles, Cal., for petitioner in No. 187.
Mr. William E. James, Los Angeles, Cal., for respondent in all three cases.
On Writs of Certiorari to the Supreme Court of California.
PER CURIAM.
1
After hearing oral argument and on due examination of the record, we conclude that the totality of circumstances disclosed fails to support the substantial due process issues tendered in the petitions for certiorari, and so we dismiss the writs.
| 89
|
366 U.S. 272
81 S.Ct. 1341
6 L.Ed.2d 284
H. K. PORTER CO., Inc., et al., Appellants,v.CENTRAL VERMONT RAILWAY, INC., et al. INTERSTATE COMMERCE COMMISSION, Appellant, v. CENTRAL VERMONT RAILWAY, INC., et al. UNITED STATES, Appellant, v. CENTRAL VERMONT RAILWAY, INC., et al.
Nos. 257, 258, 266.
Decided May 22, 1961.
Argued April 20, 1961.
Mr. Richard A. Solomon, Washington, D.C., for appellant in no. 266.
Mr. Robert W. Ginnane, Washington, D.C., for appellant in No. 258.
Submitted on briefs by Mr. E. B. Ussery, Columbia, S.C., and Mr. John D. Carbine, Rutland, Vt., for appellants in No. 257.
Mr. J. Edgar McDonald, New York City, for appellees in each case.
Mr. Justice BLACK delivered the opinion of the Court.
1
The Interstate Commerce Act confers broad powers upon the Interstate Commerce Commission to regulate railroad transportation in the United States or to or from a foreign country, 'but only insofar as such transportation * * * takes place within the United States.'1 In this case, here on appeal under 28 U.S.C. §§ 1253 and 2101(b), 28 U.S.C.A. §§ 1253, 2101(b), a three-judge District Court set aside a Commission order on the ground that the Commission was attempting to regulate railroad transportation in Canada in excess of the Commission's jurisdiction.2
2
The Province of Quebec, Canada, is a principal source of asbestos for manufacturers of asbestos products in this country. It is transported by Canadian railroads through southern Canada to points in Vermont three to five miles south of the border and carried from there by the various appellee railroads to other points in the United States. Canadian and American carriers have joined in the publication of joint through rates available to consignees in 'official territory' in the Northeastern States,3 which rates are substantially lower than the combination of separate or local rates that are published and available as combination through rates for consignees in the Southern States. On the basis of these and other facts the Commission found after hearings that the higher combination rates to complainants in the South were: (a) 'unjust and unreasonable' and therefore in violation of § 1(5) of the Act,4 and (b) 'unduly prejudicial' to the southern consignees and 'undulyp referential' to the northern consignees enjoying the lower joint rates, and therefore in violation of § 3(1).5 The Commission then entered its order directing the railroads to cease and desist from continuing to practice the undue prejudice and preference it had found and to establish, post and maintain rates and practices which would thereafter 'prevent and avoid' such prejudice and preference.6
3
The District Court's holding that the Commission was without jurisdiction was based on its assumption that the Commission's order attempted to control the Canadian part of the transportation. But the order did not run against any transportation except that taking place 'within the United States.' The order directed the defendant railroads, 'according as they participate in the transportation within the United States,' to take action within their power to cease their participation in a transportation practice that the Commission had found to be prejudicial in violation of § 3(1). The affected transportation within this country was that 'from a foreign country' over which § 1(1)(a) specifically gives the Commission jurisdiction, and the order did nothing more than direct railroads engaged in that transportation to adjust their transportation practices 'within the United States' in such a way as to eliminate illegal discriminations. These railroads operating within the United States undoubtedly have complete power to stop these discriminations. Mere withdrawal by the American railroads from the preferential joint through-rate agreements would be an obvious way to do so, and an alternative method would be to lower the combination through rates to southern territory by reduction of the rates from the Vermont interchange points to the South.
4
It has long been settled that the Commission's power to forbid unlawful rate discriminations is in no way diminished because the rates are published as joint through rates or combination through rates.7 This power likewise is not lost merely becaue the particular transportation by railroads carrying goods in this country happens to be a continuation of carriage from another country. Otherwise the Commission's mandate to protect shippers against all undue discriminations would be frustrated with respect to rates that in part include payment for transportation that takes place in a foreign country.8
5
It was error to set aside the Commission's order for lack of jurisdiction, and therefore the District Court's judgment is reversed.
6
Reversed.
1
49 U.S.C. § 1(1)(a) and § 1(2), 49 U.S.C.A. § 1(1)(a), (2).
2
182 F.Supp. 516.
3
'Official territory' is in general that area of the United States lying east of the Mississippi River and north of the Potomac and Ohio Rivers. See Class Rate Investigation, 1939, 262 I.C.C. 447, 457.
4
49 U.S.C. § 1(5), 49 U.S.C.A. § 1(5).
5
49 U.S.C. § 3(1), 49 U.S.C.A. § 3(1).
6
Since the challenged order prescribed no 'reasonable rates' to be observed, we have no occasion to consider the contention that the Commission was without jurisdiction to prescribe such rates. Nor did the Commission enter any final order that a complainant is entitled to an award of damages because it had been charged unlawful rates. Such an order, when and if made, can be challenged before a single judge under 49 U.S.C. § 16(2), 49 U.S.C.A. § 16(2). See United States v. I.C.C., 337 U.S. 426, 442—443, 69 S.Ct. 1410, 1419—1420, 93 L.Ed. 1451; Pennsylvania R. Co. v. United States, 363 U.S. 202, 205, 80 S.Ct. 1131, 1133, 4 L.Ed.2d 1165.
7
See United States v. Illinois Central R. Co., 263 U.S. 515, 527, 44 S.Ct. 189, 194, 68 L.Ed. 417.
8
Cf. Commissioner Eastman's concurring opinion in Cyanamid and Crude Cyanide from Niagara Falls, Ontario, 155 I.C.C. 488, 501 502.
| 78
|
366 U.S. 393
81 S.Ct. 1230
6 L.Ed.2d 365
Otho G. BELL et al., Petitioners,v.UNITED STATES.
No. 92.
Argued Jan. 11, 1961.
Decided May 22, 1961.
Mr. Robert E. Hannon, Castro Valley, Cal., for petitioners.
Acting Assistant Attorney General George S. Leonard, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The petitioners were enlisted men in the United States Army who were captured during the hostilities in Korea in 1950 and 1951. In the prison camps to which they were taken they behaved with utter disloyalty to their comrades and to their country. After the Korean Armistice in the summer of 1953 they refused repatriation and went to Communist China. They were formally discharged from the Army in 1954. In 1955 they returned to the United States. Later that year they filed claims with the Department of the Army for accrued pay and allowances. When these claims were denied they brought the present action in the Court of Claims for pay and allowances from the time of their capture to the date of their discharge from the Army.1 The Court of Claims decided against them, stating that '(n)either the light of reason nor the logic of analysis of the undisputed facts of record can possibly justify the granting of a judgment favorable to these plaintiffs.' 181 F.Supp. 668, 674. Judge Madden dissented.2 We granted certiorari to consider a seemingly important statutory question with respect to military pay. 363 U.S. 837, 80 S.Ct. 1612, 4 L.Ed.2d 1723.
2
The Court of Claims made detailed findings of fact with respect to the petitioners' conduct as prisoners of war, based upon a stipulation filed by the parties.3 These circumstances need not be set out in minute detail. They are adequately summarized in the opinion of the Court of Claims, as follows:
3
'(D)uring the period of their confinement each of the three plaintiffs became monitors for the 'forced study groups,' the sessions of which the prisoners were compelled to attend. Armed guards attended these sessions. The programs included lectures picturing what were declared to be the bad aspects of life in the United States as contrasted with idyllic life under communism. As monitors, they procured and distributed propaganda literature, and threatened to turn in names of any prisoners who refused to read and discuss favorably these propaganda handouts.
4
'Each of the plaintiffs made tape recordings which were used as broadcasts and over the camp public address system. Each of them wore Chinese uniforms and were permitted to attend meetings outside the camp. The details of the plaintiffs' consorting, fraternizing and cooperating with their captors and the devious ways in which they sought favors for themselves, thus causing hardship and suffering to the other prisoners, are set out in our findings * * *.
5
'Two of Bell's recordings were broadcast over the Peiping radio, stating among other things that on the orders of his platoon leader, his men had killed North Korean prisoners of war, and that President Truman was a warmonger. In written articles for the camp newspaper he alleged that American troops had committed atrocities and he personally had been ordered to kill women and children and not to take prisoners of war, and that if given the opportunity he would run a tank over the President's body.
6
'Bell was paid money to write these articles. He also delivered lectures before his company and to the camp on American aggression. He appeared voluntarily in a motion picture and appeared in bi-monthly plays. He stated that if given a weapon he would fight against the United States. He sold food intended for the sick to other prisoners of war. By making reports to the Chinese, he caused one man to be bayonetted and others to be placed in solitary confinement.
7
'Cowart did many similar things, wrote propaganda articles accusing American soldiers of atrocities and of using germ warfare. He drew posters and cartoons for the enemy, acted in plays, walked and talked with the Chinese officers, guards and interpreters, lived part of the time at Chinese regimental headquarters, stated he hated America, desired to study in China and to return to the United States in five years to help in the overthrow of the government.
8
'Griggs did many similar things, attended enemy parties, visited Chinese headquarters frequently, referred to the Chinese as comrades, was accorded special privileges, made broadcasts, signed leaflets, wrote articles accusing the American soldiers of atrocities and declared the United States had used germ warfare.'
9
As stated in their brief, the petitioners do not admit to the alleged acts of dishonor contained in the Stipulation and the Findings of Fact, but rather demur to them on the grounds that such facts are irrelevant and immaterial in a civil action for military pay provided by statute.' The statute upon which the petitioners rely is an ancient one. It was first enacted in 1814 and has been reenacted many times. It provides:
10
'Every noncommissioned officer and private of the Regular Army, and every officer, noncommissioned officer, and private of any militia or volunteer corps in the service of the United States who is captured by the enemy, shall be entitled to receive during his captivity, notwithstanding the expiration of his term of service, the same pay, subsistence, and allowance to which he may be entitled while in the actual service of the United States; but this provision shall not be construed to entitle any prisoner of war of such militia corps to any pay or compensation after the date of his parole, except the traveling expenses allowed by law.' 37 U.S.C. § 242, 37 U.S.C.A. § 242.4
11
Although the plain language of this law appears to entitle the petitioners to their Army pay and allowances during their imprisonment in Korea, the Government has urged various grounds upon which we should hold that the provisions of the statute are inapplicable. We have concluded that none of the theories advanced by the Government can serve as a valid basis to circumvent the unabmiguous financial obligation which the law imposes.
12
The Army's refusal to pay the petitioners was based upon an administrative determination that all prisoners of war who had declined repatriation after the Korean Armistice 'advocate, or are members of an organization which advocates, the overthrow of the United States Government by force or violence.'5 In refusing to honor the petitioners' claims upon this ground, the Army was apparently relying upon a statute enacted in 1939 which made it unlawful to pay from funds appropriated by any Act of Congress the compensation of 'any person employed in any capacity by any agency of the Federal Government' who was a member of 'any political party or organization which advocates the overthrow of our constitutional form of government in the United States.'6 That this statute was the basis of the Army's decision is evident not only in the language employed in rejecting the petitioners' demands, but also in the pleadings filed in the Court of Claims.7 We need not, however, now decide the applicability of this statute to members of the Armed Forces, for the reason that the statute was repealed more than a year before the Army relied upon it in refusing to pay the petitioners.8
13
Although this was the only ground ever advanced for the administrative denial of the petitioners' claims, the Government's brief in this Court, for understandable reasons, does not even mention this repealed statute. Instead, the Government now relies upon other grounds to avoid the provisions of 37 U.S.C. § 242, 37 U.S.C.A. § 242. It says that the petitioners violated their obligation of faithful service,9 and points to the principle of contract law that 'one who wilfully commits a material breach of a contract can recover nothing under it. 4 Williston, Contracts (1936 ed.) § 1022, pp. 2823—4; 5 Williston, Contracts (1936 ed.) § 1477; 5 Corbin, Contracts (1951 ed.) § 1127, pp. 564—5, see also Restatement Contracts, § 357(1)(a).'
14
In accord with this principle, the Government argues that in the Missing Persons Act,10 a statute first enacted in 1942,11 Congress provided a statutory basis for denying the petitioners' claims. We do not so construe that statute.
15
Preliminarily, it is to be observed that common-law rules governing private contracts have no place in the area of military pay. A soldier's entitlement to pay is dependent upon statutory right. In the Armed Forces, as everywhere else, there are good men and rascals, courageous men and cowards, honest men and cheats. If a soldier's conduct falls below a specified level he is subject to discipline, and his punishment may include the forfeiture of future but not of accrued pay.12 But a soldier who has not received such a punishment from a duly constituted court-martial is entitled to the statutory pay and allowances of his grade and status, however ignoble a soldier he may be.13
16
This basic principle has always been recognized. It has been reflected throughout our history in numerous court decisions and in the opinions of Attorneys General and Judge Advocates General. 'Enlistment is a contract; but it is one of those contracts which changes the status; and, where that is changed, no breach of the contract destroys the new status or relieves from the obligations which its existence imposes. * * * By enlistment the citizen becomes a soldier. His relations to the State and the public are changed. He acquires a new status, with correlative rights and duties; and although he may violate his contract obligations, his status as a soldier is unchanged.' In re Grimley, 137 U.S. 147, 151, 152, 11 S.Ct. 54, 55, 34 L.Ed. 636.
17
Almost a hundred years ago Attorney General Hoar rendered an opinion to the Secretary of War regarding the right to pay of a Major Herod, who had been 'charged with murder, arrested, tried by a court-martial, and sentenced to be hung.' The Attorney General stated:
18
'It was not expressly a part of the sentence that Herod should forfeit his pay from the date of his arrest, and I know of no statute imposing a forfeiture of pay from the date of arrest in a case like this of Herod's. The sentence that he be hung necessarily implied a dismissal from the service, but not, as it seems to me, the forfeiture of back pay. I can find no authority for the opinion of the Comptroller that, as Herod was withdrawn from actual military service by his arrest made on account of a crime committed by him, on the general principle that pay follows services, he should not be paid for the time he was under arrest. The monthly pay of officers of the Army is prescribed by statute, and so long as a person is an officer of the Army he is entitled to receive the pay belonging to the office, unless he has forfeited it in accordance with the provisions of law, whether he has actually performed military service or not.' 13 Op.Atty.Gen. 103, 104.
19
A similar opinion was rendered by Attorney General Alphonso Taft a few years later. He rejected the theory of the Second Comptroller of the Treasury that '(i)f the man, by his misconduct and necessary withdrawal from service, does not perform his part of the contract, the Government cannot be held to the fulfillment of its part thereof.' The Attorney General said:
20
'The Comptroller has, I think, misconceived the true basis of the right to (military) pay * * *. In the naval, as in the military service, the right to compensation does not depend upon, nor is it controlled by, 'general principles of law'; it rests upon, and is governed by, certain statutory provisions or regulations made in pursuance thereof, which specially apply to such service. These fix the pay to which officers and men belonging to the Navy are entitled; and the rule to be deduced therefrom is that both officers and men become entitled to the pay thus fixed so long as they remain in the Navy, whether they actually perform service or not, unless their right thereto is forfeited or lost in some one of the modes prescribed in the provisions or regulations adverted to.' 15 Op.Atty.Gen. 175, 176.
21
This principle has received consistent recognition in the Court of Claims. 'It would, we think, be an anomalous proceeding to permit resort to the courts to ascertain whether, under all the various provisions with respect to pay and allowances of officers and men of the Army, Navy, and Marine Corps, investigations should obtain to determine as a matter of fact whether the soldier involved had by conscientious service earned what the statutes allow him.' White v. United States, 72 Ct.Cl. 459, 468. '(Th e mere fact that an officer or soldier is under charges does not deprive him of his pay and allowances, * * * such forfeiture can only be imposed by the sentence of a lawful court-martial.' Walsh v. United States, 43 Ct.Cl. 225, 231.14
22
The statute upon which the petitioners rely applies this same principle to a specialized situation. A serviceman captured by the enemy and thus unable to perform his normal duties is nonetheless entitled to his pay. The rule has commanded unquestioned adherence throughout our history, as two cases will suffice to illustrate.
23
In 1807 a sailor named John Straughan was a member of the crew of the American frigate Chesapeake. After that vessel's ill-starred engagement with the British man-of-war Leopard off Hampton Roads, Straughan was taken aboard the Leopard and impressed into service in the British Navy. There he served for five years and nine days before he finally was repatriated. Years later his widow sued for his pay and rations as a member of the United States Navy during the period he had been held by the British. The Court of Claims ruled that, even though we had not been at war in 1807, the Chesapeake had nevertheless been 'taken by an enemy,' and that Straughan's widow was entitled to the United States Navy pay and allowances that had accrued while he was serving with the British. Straughan v. United States, 1 Ct.Cl. 324.15
24
In October, 1863, a lieutenant in the Union Army named Henry Jones was taken prisoner by Confederate guerrillas near Elk Run, Virginia. Jones was confined in Libby Prison until March 1, 1865, when he was exchanged and returned to the Union lines. Upon his return he found that he had been administratively dismissed from the service in November, 1863, because he had been in disobedience of orders at the time of his capture. When the Army for that reason refused his demand for pay and allowances, he filed suit in the Court of Claims. The court entered judgment in his favor, stating that '(t)he contrary would be to hold that an executive department could annul and defy an act of Congress at its pleasure.' Jones v. United States, 4 Ct.Cl. 197, 203.
25
It is against this background that we turn to the Government's contention that the Missing Persons Act authorized the Army to refuse to pay the petitioners their statutory pay and allowances in this case. The provisions of the Act which the Government deems pertinent are set out in the margin.16 Originally enacted in 1942 as temporary legislation,17 the Act was amended and reenacted several times,18 and finally was made permanent in 1957.19 So far as relevant here, this legislation provides that any person in active service in the Army 'who is officially determined to be absent in a status of * * * captured by a hostile force' is entitled to payand allowances; that '(t)here shall be no entitlement to pay and allowances for any period during which such person may be officially determined absent from his post of duty without authority'; that the Secretary of the Army or his designated subordinate shall have authority to make all determinations necessary in the administration of the Act, ad for purposes of the Act determinations so made as to any status dealt with by the Act shall be conclusive.
26
We are asked first to hold that '(s)ince the Missing Persons Act is later in time, is comr ehensive in scope, and includes within its provisions the whole subject matter of R.S. 1288 (the statute upon which the petitioners rely), any inconsistency consistency or repugnancy between the two statutes should be resolved in favor of the Missing Persons Act.' This step having been taken, we are asked to decide that the petitioners, because of their behavior after their capture, were no longer in the 'active service in the Army * * * of the United States,' and that they were therefore not covered by the Act. It is also suggested, alternatively, that the Secretary of the Army might have determined that each of the petitioners after capture was 'absent from his post of duty without authority,' and therefore, not entitled to pay and allowances under the Act. We can find no support for these contentions in the language of the statute, in its legislative history, or in the Secretary's administrative determination.
27
The Missing Persons Act was a response to unprecedented personnel problems experienced by the Armed Forces in the early months after our entry into the Second World War. Originally proposed by the Navy Department, the legislation was amended on the floor of the House to cover the other services. As the Committee Reports make clear, the primary purpose of the legislation was to alleviate financial hardship suffered by the dependents of servicemen reported as missing.20
28
To hold that the Missing Persons Act operated to repeal the statute upon which the petitioners rely would be a long step to take, for at least two reasons. In the first place, the record of the hearings of the Senate Committee on Naval Affairs clearly discloses that at the time the Missing Persons Act was being considered, the Committee was made fully aware of the 1814 statute, and manifested no inclination to disturb it.21 Secondly, it is not entirely accurate to say, as does the Government, that the Missing Persons Act is 'later in time.' After the original passage of that Act in 1942, the statute upon which the petitioners rely was recodified in 1952 and again in 1958.22
29
But the question whether there was a repeal by implication is one that we need not determine here, for it is clear that under either statute the petitioners are entitled to the pay and allowances that accrued during their detention as prisoners of war. The Missing Persons Act unambiguously provides that any person 'in the active service * * * officially determined to be absent in a status of * * * captured by a hostile force * * * (is) entitled to receive or to have credited to his account the same * * * pay (and allowances) to which he was entitled at the beginning of such period of absence * * *.' It affirmatively appears on this record that the petitioners were in the active service of the Army, that they were in fact captured by the enemy, and that they were later officially determined to be 'absent in a status of * * * captured by a hostile force.' The terms of the Missing Persons Act are therefore expressly applicable.
30
The argument that it was open to the Secretary of the Army to determine that the petitioners in the prison camps to which they were taken were thereafter not 'in the active service' cannot survive even cursory analysis. In the Armed Forces the term 'active service' has a precise meaning, a meaning not dependent upon individual conduct. 10 U.S.C. § 101, 10 U.S.C.A. § 101.23 Moreover, the verbal structure of the Act, re-enforced by common sense, clearly leads to the conclusion that 'active service' refers to a person's status at the time he became missing. Nothing in the legislative history of the original statute or of its many re-enactments offers support for any other construction. That history simply reflects a continuing purpose to widen the classes of persons to whom the benefactions of the law were to be extended, from the time those persons became missing.24
31
The Government's alternative argument seems, as a matter of statutory construction, equally invalid. The legislative history discloses that the provision denying pay to a person officially determined to have been 'absent from his post of duty without authority' was enacted to cover the case of a person found to have been 'missing' in the first place only by reason of such unauthorized authorized absence.25 Moreover, desertion and absence without leave are technically defined offenses. 10 U.S.C. § 885, 10 U.S.C.A. § 885, 10 U.S.C. § 886, 10 U.S.C.A. § 886; see Manual for Courts-Martial, United States, p. 315 (1951). It is open to serious question whether the conduct of the petitioners after their capture could conceivably have been determined to be tantamount either to desertion or absence without leave. See Avins, Law of AWOL, p. 167 (1957); Snedeker, Military Justice under the Uniform Code, p. 562 (1953).
32
These are questions which we need not, however, pursue. We need not decide in this case that the Secretary of the Army was wholly without power under the statute to determine administratively that the petitioners after their capture were no longer in active service, or that they were absent from their posts of duty. Nor need we finally decide whether either such determination by the Secretary would have been valid as a matter of law. The simple fact is that no such administrative determination has ever been made. The only reason the Army ever advanced for refusing to pay the petitioners was its determination that they had 'advocated, or were members of an organization which advocated * * * the overthrow of the United States Government by force or violence.'26 That determination has now been totally abandoned. The Army has never even purported to determine that the petitioners were not in active service or that they were absent from their posts of duty.27 The Army cannot rely upon something that never happened, upon an administrative determination that was never made, even if it be assumed that such a determination would have been permissible under the statute and supported by the facts.28 See Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012. For these reasons we hold that the petitioners were entitled under the applicable statutes to the pay and allowances that accrued during their detention as prisoners of war.
33
Throughout these proceedings no distinction has been made between the petitioners' pay rights while they were prisoners and their rights after the Korean Armistice when they voluntarily declined repatriation and went to Communist China. Since both the Army and the Court of Claims denied the petitioners' claims entirely, no separate consideration was given to the petitioners' status after their release as prisoners of war until the date of their administrative discharges. Nor did the petitioners in this Court address themselves to the question of the petitioners' rights to pay during that interval. Yet, it is evident that the petitioners' status during that period might be governed by considerations different from those which have been discuse d. Other statutory provisions and regulations would come into play. Accordingly we express no view as to the petitioners' pay rights for the period between the Korean Armistice and their administrative discharges, leaving that question to be fully canvassed in the Court of Claims, to which in any event this case must be remanded for computation of the judgments.
34
The disclosure of grave misconduct by numbers of servicemen captured in Korea was a sad aftermath of the hostilities there. The consternation and self-searching which followed upon that disclosure are still fresh in the memories of many thoughtful Americans.29 The problem is not a new one.30 Whether the solution to it lies alone in subsequent prosecution and punishment is not for us to inquire.31 Congress may someday provide that members of the Army who fail to live up to a specified code of conduct as prisoners of war shall forfeit their pay and allowances.32 Today we hold only that the Army did not lawfully impose that sanction in this case.
35
The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
36
Reversed and remanded.
1
Each of the petitioners was dishonorably discharged by administrative order of the Secretary of the Army on January 23, 1954. The validity of these administrative discharges is not in issue here, since the petitioners have made no claim for pay and allowances after that date. Compare memorandum to the Chief of Staff from the Judge Advocate General of February 3, 1954, J.A.G.A. 1954/1627, with Opinion Memorandum for the Secretary of Defense from the General Counsel of the Department of Defense of January 25, 1954. See Pasley, Sentence First—Verdict Afterwards: Dishonorable Discharges Without Trial by Court-Martial? 41 Cornell L.Q. 545; Note, Misconduct in the Prison Camp: A Survey of the Law and an Analysis of the Korean Cases, 56 Col.L.Rev. 709, 735.
2
Judge Madden stated:
'It is noteworthy that after Congress abolished the historical power of courtsmartial to forfeit accrued pay, the Army, apparently for the first time in history, forfeited the pay already accrued to these plaintiffs, not by the process of trial and sentence, which was forbidden by statute, but by the crude and primitive method of refusing to give them their money. Finding nothing in the law books to justify its refusal to pay these men, it threw the books away and just refused to pay them. It could have set before these confused young men a better example of government by law.' 181 F.Supp. at page 675.
3
The petitioners did not stipulate that these facts were true, but did agree 'that the facts hereinafter set forth shall, for the purposes of this case, he deemed to have been elicited from defendant's witnesses testifying under oath,' and that '(t)he facts so elicited, and hereinafter set forth, have not been rebutted by plaintiffs or by plaintiffs' witnesses, and plaintiffs, and each of them, hereby waive the right to e stify or to call witnesses to testify in rebuttal of these facts.'
4
The statute was originally enacted on March 30, 184 , as § 14 of 'An Act for the better organizing, paying, and supplying the army of the United States.' C. 37, § 14, 3 Stat. 113, 115. The provision next appeared as R.S. § 1288. In the 1952 edition of the Code, it appeared at 10 U.S.C. § 846. Title 10, at that time, dealt with the Army and the Air Force. In the 1958 edition of the Code, the provision was transferred to Title 37, c. 4, which covers basic pay and allowances of military personnel.
5
This position was set out in a letter from the Army Chief of Finance to the petitioners' lawyer, rejecting the petitioners' claims. The letter in its entirety read as follows:
'2 October 1956
'Dear Mr. Brown:
'Further reference is made to your inquiries concerning the claims of Otho G. Bell, Lewie W. Griggs, and William A. Cowart.
'I have been advised that the following determinations have been made regarding the status of all United States Army Voluntary Non-Repatriates who elected not to accept repatriation to United States control under the terms of the Korean Armistice Agreement prior to 23 January 1954:
'a. That all Voluntary Non-Repatriates who refused to elect repatriation prior to 23 January 1954, under the terms of the Korean Armistice Agreement have, as demonstrated by their refusal to elect repatriation to the United States and their records as prisoners of war, adopted, adhered to or supported the aims of Communism, one of which is the overthrow of all non-Communist governments, including the Government of the United States, by force or violence.
'b. That all Voluntary Non-Repatriates who refused to elect repatriation prior to 23 January 1954 under the terms of the Korean Armistice Agreement now advocate, or are members of an organization which advocates, the overthrow of the United States Government by force or violence.
'c. That all Voluntary Non-Repatriates who refused to elect repatriation prior to 23 January 1954 under the terms of the Korean Armistice Agreement advocated, or were members of an organization which advocated, during the period from the date of their capture in Korea through the date of their Dishonorable Discharge from the Army, the overthrow of the United States Government by force or violence.
'd. That such persons are not entitled to the payment of salary or wages for the period beginning with their respective dates of capture through the date they were given Dishonorable Discharges.
'The claims of Otho G. Bell, Lewie W. Griggs, and William A. Cowart may not, therefore, be favorably considered.
'Sincerely yours,
'(Signed) H. W. Crandall
'Major General, USA
'Chief of Finance'
6
'(1) It shall be unlawful for any person employed in any capacity by any agency of the Federal Government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any Act of Congress, to have membership in any political party or organization which advocates the overthrow of our constitutional form of government in the United States.
'(2) Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person.' § 9A of the Act of August 2, 1939, 53 Stat. 1148.
7
The 'Second Affirmative Defense' read in part as follows:
'During the period for which they seek to recover pay and allowances herein, plaintiffs advocated the overthrow of the Government of the United States or were members of a political party or organization which so advocated. Therefore, plaintiffs are not entitled to recover under the provisions of Section 9A of the Act of August 2, 1939 (53 Stat. 1148), as amended * * *.'
8
August 9, 1955, c. 690, § 4(2), 69 Stat. 625.
9
'I, .........., do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of American; that I will serve them honestly and faithfully against all their enemies whomsoever; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.' 10 U.S.C. § 501, 10 U.S.C.A. § 501.
10
50 U.S.C.A.Appendix, § 1001 et seq., 50 U.S.C.A.Appendix, § 1001 et seq.
11
56 Stat. 143.
12
See Article 57, Uniform Code of Military Justice, 10 U.S.C. § 857, 10 U.S.C.A. § 857.
13
Unless he is absent without leave or a deserter, United States v. Landers, 92 U.S. 77, 23 L.Ed. 603; Dodge v. United States, 33 Ct.Cl. 28; Dig.Op. JAG Army 265 (1868); Dig.Op. JAG Army 850 (1912); JAGA 1952/5875, 2 Dig.Op. SENT. & PUN. s3 5.7; JAGA 1953/1074, 3 Dig.Op.PAY § 21.15; Davis, Military Laws of the United States, p. 371, n. 2 (1897); Winthrop, Military Law and Precedents, pp. 645—646 (2d ed. 1920). But see Comment, Mil.L.Rev., July 1960 (DA Pam 27—100—9, 1 Jul 60), p. 151. And see generally U.S. Army Special Text 27—157, Military Affairs (1955), pp. 1605—1612.
14
See Conrad v. United States, 32 Ct.Cl. 139; Carrington v. United States, 46 Ct.Cl. 279. See also Dig.Op. JAG Army 265 (1868); Dig.Op. JAG Army 850 (1912). The rule cuts both ways, as the case of Ward v. United States, 8 Cir., 158 F.2d 499, illustrates. There the plaintiff, a yeoman in the Navy, had actually performed the duties of a land title attorney. He sued to recover the reasonable value of his services, less what he had received as a yeoman. The Court of Appeals approved a dismissal of the complaint, with the comment that '(h)is rating fixed his status and his pay.' 158 F.2d at page 502.
15
The case was decided under a statute specifically applicable to naval personnel, originally enacted in 1800, 2 Stat. 45, now 37 U.S.C. § 244, 37 U.S.C.A. § 244. See note 32, infra.
16
'$x 1001. Definitions.
'For the purpose of this Act (sections 1001—1012 and 1013 1016 of this Appendix)—
'(b) the term 'active sertice' means active service in the Army, Navy, Marine Corps, and Coast Guard of the United States, including active Federal service performed by personnel of the retired and reserve components of these forces, the Coast and Geodetic Survey, the Public Health Service, and active Federal service performed by the civilian officers and employees defined in paragraph (a)(3) above * * *;' 50 U.S.C.Appendix, § 1001, 50 U.S.C.A.Appendix, § 1001.
§ 1002. Missing interned or captive persons. (a) Continuance of pay and allowances.
'Any person who is in the active service * * * and who is officially determined to be absent in a status of missing, missing in action, interned in a foreign country, captured by a hostile force, beleaguered by a hostile force, or besieged by a hostile force shall, for the period he is officially carried or determined to be in any such status, be entitled to receive or to have credited to his account the same * * * pay (and allowances) * * * to which he was entitled at the beginning of such period of absence or may become entitled thereafter * * * and entitlement to pay and allowances shall terminate upon the date of receipt by the department concerned of evidence that the person is dead or upon the date of death prescribed or determined under provisions of section 5 of this Act (section 1005 of this Appendix). Such entitlement to pay and allowances shall not terminate upon the expiration of a term of service during absence and, in case of death during absence, shall not terminate earlier than the dates herein prescribed. There shall be no entitlement to pay and allowances for any period during which such person may be officially determined absent from his post of duty without authority and he shall be
indebted to the Government for any payments from amounts credited to his account for such period. * * *' 50 U.S.C.Appendix, § 1002, 50 U.S.C.A.Appendix, § 1002.
§ 1009. Determinations by department heads or designees; conclusiveness relative to status of personnel, payments, or death.
'(a) The head of the department concerned, or such subordinate as he may designate, shall have authority to make all determinations necessary in the administration of this Act (sections 1001—1012 and 1013—1016 of this Appendix), and for the purposes of this Act (said sections) determinations so made shall be conclusive as to death or finding of death, as to any other status dealt with by this Act (said sections), and as to any essential date including that upon which evidence or information is received in such department or by the head thereof. * * * Determinations are authorized to be made by the head of the department concerned, or by such subordinate as he may designate, of entitlement of any person, under provisions of this Act (sections 1001—1012 and 1013—1016 of this Appendix), to pay and allowances, including credits and charges in his account, and all such determinations shall be conclusive: * * * When circumstances warrant reconsideration of any determination authorized to be made by this Act (said sections) the head of the department concerned, or such subordinate as he may designate, may change or modify a previous determination. * * *' 50 U.S.C.Appendix, § 1009, 50 U.S.C.A.Appendix, § 1009.
17
Act of March 7, 1942, 56 Stat. 143.
18
Act of December 24, 1942, 56 Stat. 1092; Act of July 1, 1944, 58 Stat. 679; § 4(e) of Selective Service Act of 1948, 62 Stat. 608, 50 U.S.C.A.Appendix, 454(e); Act of July 3, 1952, 66 Stat. 330, 331; Act of April 4, 1953, 67 Stat. 20—21; Act of January 30, 1954, 68 Stat. 7; Act of June 30, 1955, 69 Stat. 238; Act of July 20, 1956, 70 Stat. 595; Act of August 7, 1957, 71 Stat. 341.
19
Act of August 29, 1957, 71 Stat. 491.
20
'In general, the purposes of this bill are to provide authorization for the continued payment or credit in the accounts, of the pay and allowances of missing persons for 1 year following the date of commencement of absence from their posts of duty or until such persons have been officially declared dead (In December, 1942, the statute was amended so as to permit a department head to continue personnel in a missing status for an indefinite period. 56 Stat. 1092.); the continued payment for the same period of the allotments for the support of dependents and for the payment of insurance premiums, and for regular monthly payments to the dependents of missing persons, in the same manner in which allotments are paid, in those instances in which the missing persons had neglected to provide for their dependents through the medium of allotments, such payments to be deducted from the pay of the missing persons in the same manner in which allotments are paid.
'The Navy Department advised the committee that many instances have occurred during recent months of personnel having been reported as missing, and in accordance with requests received from disbursing officers carrying the pay accounts, the allotments of such persons were discontinued. Because of stoppage of allotments and the withholding of pay of missing persons, dependents of personnel concerned have experienced great hardships in a large number of cases. The committee are advised that this situation is aggravated by the fact that, so long as a person is declared to be missing and has not been officially declared dead, the 6 months' death gratuity is not payable.' H.R.Rep. No. 1680, 77th Cong., 2d Sess., pp. 3, 5.
21
The committee was advised by a representative of the Marine Corps as follows: 'Section 1288, Revised Statutes (sec. 846, title 10, U.S.Code), provides that noncommissioned officers and privae § shall be entitled to receive during their captivity by an enemy, notwithstanding the expiration of their terms of service, the same pay, subsistence, and allowances to which they may be entitled while in the actual service of the United States. This applies only to enlisted personnel, and I know of no such law affecting the pay and allowances of officers and nurses. The proposed legislation would also authorize the crediting, in the account of the individual concerned, of the same pay and allowances received at the time an individual is reported as missing or missing in action until his status is determined by competent authority.' Hearings before the Senate Committee on Naval Affairs on H.R. 6446, 77th Cong., 2d Sess., pp. 13—14.
22
See note 4.
23
A House Committee Report concerning a proposed amendment to the Act sets forth a letter from the Secretary of the Army clearly showing his understanding that 'active service' was employed in the statute as a technical phrase embodying a technical status: 'Also, the proposal would amend section 2 of the Missing Persons Act to provide coverage for persons on training duty under certain conditions, in addition to persons on active service.' H.R.Rep. No. 2535, 84th Cong., 2d Sess., p. 7. See also H.R.Rep. No. 204, 85th Cong., 1st Sess., p. 8; H.R.Rep. No. 888, 85th Cong., 1st Sess., p. 3; H.R.Rep. No. 2354, 84th Cong., 2d Sess., p. 3; S.Rep. No. 573, 85th Cong., 1st Sess., p. 4; S.Rep. No. 970, 85th Cong., 1st Sess., p. 7; S.Rep. No. 2552, 84th Cong., 2d Sess., p. 3.
24
For example, when the statute was amended in 1957 to extend coverage to those in 'full-time training duty, other full-time duty, or inactive duty training,' an Army spokesman testifying before the House Subcommittee expressed the clear view that 'active service' referred to the moment the person entered a missing status. 'The purpose of that * * * is to insure that people who are in a nonpay status at the time they enter in a missing or missing-in-action status are covered. * * * Under the present wording of the bill it is conceivable that being in a nonpay status at the time that he enters into a missing status his survivors would not be entitled to any pay or allowances. This would insure that they would be entitled to the pay and allowances that he would have had, had he been on active duty at the time that he entered into a missing status.' Hearings before Subcommittee No. 1 of the House Committee on Armed Services on H.R. 2404, 85th Cong., 1st Sess., p. 563.
In S.Rep. No. 970, 85th Cong., 1st Sess., the Committee on Armed Services stated: 'Coverage would be extended to members of the Reserve components while they are performing full-time training duty, other full-time duty, and inactive duty training with or without pay. Members of the Reserve components entering a missing status while performing duty of the types enumerated would have credited to their pay accounts the same pay and allowances that they would receive if they were performing full-time active duty. Some reservists participate in training without pay, such as weekend proficiency flights in aircraft, and this amendment is intended to treat them as if they were on active duty when they entered a missing status.' P. 3. Similar statements may be found in H.R.Rep. No. 2535, 84th Cong., 2d Sess., p. 3, and H.R.Rep. No. 204, 85th Cong., 1st Sess., p. 2. Certainly the thrust of these statements is a primary concern with status at the time the missing status is first entered.
25
See H.R.Rep. No. 1680, 77th Cong., 2d Sess., p. 5; Hearings before House Committee on Naval Affairs on H.R. 4405, 78th Cong., 2d Sess., p. 2316.
26
See note 5, supra.
27
Nor has the Army everp urported to determine that the petitioners were not in 'captivity' or 'in the actual service of the United States' within the meaning of 37 U.S.C. § 242, 37 U.S.C.A. § 242.
28
The record of a 1954 hearing before the House Armed Services Committee on a bill to extend the life of the Missing Persons Act indicates that some thought was being given at that time to the possibility of an administrative determination that the petitioners were absent from their posts of duty:
'Mr. Bates. General, what is the pay status of prisoners who have refused repatriation?
'General Powell. Those prisoners, sir, are carried in pay status. In negotiating the armistice we agreed that until this matter was settled they would be carried as prisoners of war.
'Mr. Kilday. When does that stop?
Mr. Bates. Does that stop next week?
'General Powell. The method of stopping the pay and allowances, allotments and status of military personnel of those 21 prisoners is a matter to be decided by the Secretary of Defense for all services involved. He has announced no decision.
'Mr. Bates. Aren't they absent without leave?
'General Powell. No, sir.
'Mr. Bates. What is it?
'General Powell. In the armistice agreement, the United States agreed to carry them as prisoners of war until the matter was settled.
'Mr. Bates. I thought there was also an understanding that they would be considered a.w.o.l. as of a certain date?
'General Powell. That is a matter still to be decided by the Secretary of Defense.
'Mr. Bates. Or deserters, you know.
'General Powell. The Secretary of Defense is deciding for all services.
'The Chairman. Call the roll. It is not necessary to call the roll. There is no objection, is there?
'(Chorus of 'No.')
Mr. Kilday. I would like it understood that they are going to be cut off as soon as you can.
'General Powell. Sir, the Secretary of Defense must make a decision, including phychological (sic) factors, individual rights, the law involved, and national policy.
'Mr. Vinson. That is right.
'General Powell. He has not as yet announced such a decision to us.
'Mr. Cunningham. Should the pay and allotments, benefits to the members of the family, ever be cut off?
'The Chairman. Sure.
'Mr. Van Zandt. Oh, yes.
'Mr. Cunningham. Why so? They are not to blame for this.
'Mr. Bishop. No, they are not.
'Mr. Vinson. Well, if a man is absent without leave—
'Mr. Cunningham. A man has children or wife and he is over there in Korea and decided to stay with the Communists. Why should the children be punished?
'The Chairman. Wait, one at a time. The Reporter can't get it.
'Mr. Cunningham. I think it is a good question. The pay for the individual: he should never have that, and his citizenship. But here is a woman from Minnesota, goes over there and pleads with her son and went as far as Tokyo. Now that mother needs an allotment as that boy's dependent. Why should she be punished because the boy stayed over there? I think there are a lot of things to be considered; not just emotion.
'Mr. Kilday. That is inherent. When a man is court-martialed—
'The Chairman. Without objection, the bill is favorably reported.' Hearings before House Committee on Armed Services on H.R. 7209, 83d Cong., 2d Sess., pp. 3071—3072.
29
See Report by the Secretary of Defense's Advisory Committee on Prisoners of War (1955).
30
In 1333 John Culwin was charged with having sworn allegiance to his Scottish captors. 1 Hale, Historia Placitorum Coronae 167—168 (1736). The earliest reported American case of prisoner of war misconduct appears to be Respublica v. McCarty, 2 Dall. 86, 1 L.Ed. 300 (Supreme Court of Pennsylvania, 1781). During the Civil War thousands of captives on each side defected to the enemy. See H.R.Rep. No. 45, 40th Cong., 3d Sess., pp. 229, 742—777 (1869); Report by the Secretary of Defense's Advisory Committee on Prisoners of War, p. 51 (1955). Two treason trials grew out of prisoner of war misconduct during World War II. United States v. Provoo, D.C., 124 F.Supp. 185, reversed 2 Cir., 215 F.2d 531, second indictment dismissed D.C., 17 F.R.D. 183, affirmed 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761; United States ex rel. Hirshberg v. Malanaphy, D.C., 73 F.Supp. 990, reversed 2 Cir., 168 F.2d 503, reversed sub nom. United States ex rel. Hirshberg v. Cooke, 336 U.S. 210, 69 S.Ct. 530, 93 L.Ed. 621. More than forty British prisoners of war were brought to trial for misconduct. See note, 56 Col.L.Rev. 709—721 (1956).
31
Upon their return to the United States in July 1955, the petitioners were confined by the United States Army in San Francisco, California, to await trial by general court-martial for violation of Article 104 of the Uniform Code of Military Justice, 10 U.S.C.A. § 904. In November of that year they were released from confinement by virtue of writs of habeas corpus issued by a Federal District Court, on the authority of United States ex rel. Toth V. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8. There have been several court-martial prosecutions growing out of alleged misconduct by Army prisoners of war in Korea. See United States v. Dickenson, 17 C.M.R. 438, affirmed 6 U.S.C.M.A. 438, 20 C.M.R. 154; United States v. Floyd, 18 C.M.R. 362; United States v. Batchelor, 19 C.M.R. 452, affirmed 7 U.S.C.M.A. 354, 22 C.M.R. 144; United State v. Olson, 20 C.M.R. 461, affirmed 7 U.S.C.M.A. 460, 22 C.M.R. 250; United States v. Gallagher, 21 C.M.R. 435; United States v. Bayes, 22 C.M.R. 487; United States v. Alley, 8 U.S.C.M.A. 559, 25 C.M.R. 63; United States v. Fleming, 19 C.M.R. 438. See the discussion of these cases in Prugh, Justice for all RECAP—K'S, Army Combat Forces Journal, November 1955, p. 15; Note, 56 Col.L.Rev. 709.
32
A statute relating to the right to pay of members of the United States Navy who are taken prisoner does appear to require a standard of conduct after capture:
'The pay and emoluments of the officers and men of any vessel of the United States taken by an enemy who shall appear, by the sentence of a court-martial or otherwise, to have done their utmost to preserve and defend their vessel, and, after the taking thereof, to have behaved themselves agreeably to the discipline of the Navy, shall go on and be paid to them until their ec hange, discharge, or death.' 37 U.S.C. § 244, 37 U.S.C.A. § 244.
No reported case has been found holding that this standard of conduct was not met. Cf. Straughan v. United States, 1 Ct.Cl. 324, discussed in text, supra, at page 404 of 366 U.S., at page 1237, of 81 S.Ct.
| 12
|
366 U.S. 380
81 S.Ct. 1326
6 L.Ed.2d 356
UNITED STATES, Petitioner,v.CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
No. 357.
Argued April 24, 1961.
Decided May 22, 1961.
Mr. John B. Jones, Jr., Washington, D.C., for petitioner.
Mr. James K. Polk, New York City, for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Respondent brought this action in the United States District Court for the Southern District of New York to recover a claimed overpayment of federal income taxes for the year 1951. It keeps its books and files its returns on a calendar-year accrual basis. The case turns on the correct determination of the proper year of accrual and deduction of certain contested real estate taxes. Specifically, the question is whether the contested part of a real estate tax accrued (1) in the year it was assessed and, for the purpose—and as the only mode recognized by the local law—of avoiding seizure and sale of the property for the contested tax while the contest was pending, was 'paid' by the taxpayer, or (2) in the year the contest was finally determined.
2
The District Court, following the holding of the Court of Claims in Consolidated Edison Co. v. United States, 135 F.Supp. 881, 133 Ct.Cl. 376, that such a 'payment' of the tax ' accrues the item even though payment is made under protest and even though litigation is started within the taxable year to obtain repayment,' id., 135 F.Supp. at page 885, 133 Ct.Cl. at pages 383 384, held, without opinion, that the contested part of the tax accrued in the year of the 'payment.' On appeal, the Court of Appeals, by a divided court, held that the contested part of the tax accrued in the year the contest was finally determined, and reversed the judgment. 279 F.2d 152. It reasoned that inasmuch as respondent was 'keeping its books on the accrual basis,' the contested part of the tax accrued 'only when all events (had) occurred which determine(d) the fact and amount of the tax liability.' Id., at page 155. To resolve the conflict between the decision below and Consolidated Edison Co. v. United States, supra, we granted certiorari. 364 U.S. 890, 81 S.Ct. 220, 5 L.Ed.2d 186.
3
During the years involved—1946 through 1950—respondent owned numerous tracts of real estate in New York City which were subject to annual local property taxes. Under the New York law, the City Council annually fixes the tax rate, and the City Tax Commission annually fixes the property valuations. Thus the amount of the tax on each tract is determined by multiplying the valuation by the tax rate. The tax rate is not contestable, but a timely application (commonly called a 'protest') may be made to the City Tax Commission to correct an erroneous valuation. Among other things, the protest must state the amount which the taxpayer 'consider(s) was the full value of the property on January 25 (of the current) year' thus to establish the amount of the tax that is not contested. Upon exhaustion of this administrative procedure, a review of the Commission's determination may be had by a judicial proceeding, commonly called a certiorari proceeding, in the State Supreme Court, which is the taxpayer's o le and exclusive remedy. But the institution of such a suit does not stay or suspend the maturity of the tax bill, the accrual of 7% interest on it, nor the seizure and sale of the property to satisfy the tax lien. Thus, to obtain review, the taxpayer must either 'pay' the tax or suffer the interest penalty and run the risk of seizure and sale of its property.1
4
Though taxes for each of five years on hundreds of tracts are involved and the aggregate amount is very substantial, the parties very commendably stipulated in the District Court that the facts are sufficiently reflected, for the purposes of this suit, in the following simplified example: In each of the years 1946 through 1950, respondent was notified of a tentative valuation which, at the established tax rate, would produce a tax of $100. Respondent then timely filed a bona fide protest (in respect of many, but not nearly all, of its tracts) stating a valuation which, at the established tax rate, would produce a tax of $85, and asking that the balance of the proposed valuation be stricken as excessive. After hearing, the Commission rejected the protest, and an assessment in the amount of $100 was made. Thereupon respondent, under protest and for the honestly stated purpose of avoiding the interest penalty and the seizure and sale of its property while it was contesting the Commission's valuation by certiorari proceedings in the state court, remitted to the city cash in an amount equal to the tax of $100, and immediately thereafter commenced a certiorari proceeding in the proper court, in which it again admitted liability for a tax in the amount of $85, but denied all liability for any tax in excess of that amount. In December 1951, the court, upon the consent of the parties to the action, entered its order in (each of) the certiorari proceedings fixing respondent's tax liability at $95, and thereupon the city forthwith returned $5 to respondent.
5
Although it was then engaged in a contest with the Commissioner in the Court of Claims over an identical question, namely, the proper income tax treatment to be accorded the $15 for each of the years 1938, 1939 and 1941—which issue was decided by the Court of Claims in December 1955 in favor of the Government, Consolidated Edison Co. v. United States, supra—respondent, in terms of the illustrative example, accrued on its books and deducted on its federal income tax returns, for each of the years 1946 through 1950, the full $100; and in its return for the year 1951—in which year the real estate tax liability was determined to be $95—respondent failed to deduct the $10 from, and included the $5 in, its gross income for that year.2
6
Believing that this treatment of the $15 in 1951 was erroneous and resulted in its paying a lesser amount of federal income taxes in each of the years 1946 through 1950, and more in the year 1951, than it should have paid,3 respondent filed in February 1955 its claim for refund of so much of its 1951 income taxes as resulted (1) from its failure to deduct the $10 of real estate tax that was determined, in that year, to be valid, and (2) from its inclusion in gross income of the $5 returned to it in that year. Upon rejection of that claim, respondent timely brought this action in the District Court to recover the refund claimed, and obtained the result already stated.
7
It is settled that each 'taxable year' must be treated as a separate unit, and all items of gross income and deduction must be reflected in terms of their posture at the close of such year. Burnet v. Sanford & Brooks Co., 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383; Heiner v. Mellon, 304 U.S. 271, 58 S.Ct. 926, 82 L.Ed. 1337; Guaranty Trust Co. of New York v. Commissioner, 303 U.S. 493, 58 S.Ct. 673, 82 L.Ed. 975; Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725. And the parties agree that, under the applicable federal statutes,4 neither the Government nor an accrual-basis taxpayer may cause an item to be deducted in a year other than the one in which it accrued. United States v. Anderson, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347; Security Flour Mills Co. v. Commissioner, supra; United States v. Olympic Radio & Television, 349 U.S. 232, 75 S.Ct. 733, 99 L.Ed. 1024. They also agree that the 'touchstone' for determining the year in which an item of deduction accrues is the 'all events' test established by this Court in United States v. Anderson, supra,5 and since reaffirmed by this Court on numerous occasions, so that it is now a fundamental principle of tax accounting. See, e.g., Lucas v. American Code Co., 280 U.S. 445, 50 S.Ct. 202, 74 L.Ed. 538; Brown v. Helvering, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725; Dixie Pine Products Co. v. Commissioner, 320 U.S. 516, 64 S.Ct. 364, 88 L.Ed. 270; Security Flour Mills Co. v. Commissioner, supra.6 The parties also recognize that this Court amplified, or as the Government says 'added a refinement to,' the 'all events' test by its holding, in Dixie Pine Products Co. v. Commissioner, supra, that an accrual-basis taxpayer could not, while 'contesting liability in the courts,' deduct 'the amount of the tax, on the theory that the state's exaction constituted a fixed and certain liability,' but 'must, in the circumstances, await the event of the state court litigation and might claim a deduction only for the taxable year in which its liability for the tax was finally adjudicated.' 320 U.S. at page 519, 64 S.Ct. at page 365. That principle was specifically reaffirmed in Security Flour Mills Co. v. Commissioner, supra.7
8
That $85 of the $100 assessment was admitted to be owing and was intended to be paid and satisfied by the remittance, and thus accrued in the year of the remittance, is not in dispute. Respondent's good faith, in contesting $15 of the assessment, is not in dispute, for the Government expressly 'disavow(s) any suggestion that the respondent * * * filed its claims against the City of New York in bad faith, * * * calculatingly inflated those claims, or * * * failed to prosecute them with diligence.' Nor is it questioned that accrual of such taxes in the proper year accords with 'good accounting' principles.
9
But concordance of the views of the parties ends at this point. The Government contends that the remittance by respondent to the city, in each of the years in question, of cash in an amount equal to the whole of the assessed tax admitted liability for, and was intended to and did constitute 'payment' and 'satisfaction' of, both the disputed and undisputed parts of the assessment; and that when 'the taxpayer pays the item and thereby discharges its liability, the expense has been incurred and there is no longer any contingency which would prevent its accrual.' Respondent, on the other hand, insists that its remittance to the city was not intended to and did not admit liability for, nor constitute 'payment' and 'satisfaction' of, the contested $15 of the assessment, but was, in effect, a mere deposit, in the nature of a cash bond, required of respondent, in a practical sense, by the local law as the only available mode of avoiding the risk of seizure and sale of the property for the contested tax while its validity was being diligently contested in the only way allowed by the laws of the State.
10
Thus the very narrow issue here is whether the remittance admitted liability for, and constituted 'payment' and 'satisfaction' of, the contested part of the assessment and thereby rendered it accruable in the year of the remittance. Like the Court of Appeals, we think the respondent is right in its contention, and that $10 of the contested $15 of the tax accrued when liability in that amount was finally determined by the New York court in 1951, and that the $5, for which respondent was by that judgment held not liable, and which was returned to it by the city, was not income to respondent in 1951.
11
Although the Government attempts to distinguish the Anderson, Dixie Pn e and Security Flour Mills cases on the ground that 'payment' of the contested taxes had not been made in those cases, it primarily relies on the decisions of the Court of Claims in Chestnut Securities Co. v. United States, 62 F.Supp. 574, 104 Ct.Cl. 489 and Consolidated Edison Co. v. United States, 135 F.Supp. 881, 133 Ct.Cl. 376.
12
The Chestnut Securities case turned on the question whether certain judicially contested state income taxes (for the years 1936—1938) accrued when they were paid in 1940, as claimed by the accrual-basis taxpayer, or when the final judgment upholding their validity was rendered in 1942, as contended by the Government. Squarely contrary by the contention here, the Government, relying on Security Flour Mills Co. v. Commissioner, supra, there contended that 'since the (taxpayer's) accounts were kept and its tax returns made on the accrual basis, it could not take its deduction for the taxes * * * paid to the State * * * until the year 1942, when its suit for their return was finally decided adversely to it.' (62 F.Supp. 576, 104 Ct.Cl. 489.) On the facts of that case, the Court of Claims held that 'the Government (was) wrong' in that contention. Although, in full consonance with the Security Flour Mills case, the Court of Claims said '(o)ne is not entitled to accrue a debt or other liability which is asserted against him but which he disputes and litigates, until the litigation is concluded,' it went on to say '(b)ut if a liability is asserted against him and he pays it, though under protest, and though he promptly begins litigation to get the money back, the status of the liability is that it has been discharged by payment. It is hardly conceivable that a liability asserted against him, which he has discharged by payment, has not yet 'accrued' within the meaning of the tax laws and the terminology of accounting. Accrual, from the debtor's standpoint, precedes payment, and does not survive it.' 62 F.Supp. at page 576, 104 Ct.Cl. at pages 494 495. And after pointing to this Court's use of the phrase 'and failed to pay' in its holding in the Security Flour Mills case that 'Since (the taxpayer) denied liability for, and failed to pay, the tax during the taxable year 1935, it was not in a position in its tax accounting to treat the Government's claim as an accrued liability,' the Court of Claims concluded: 'In the instant case the taxpayer denied liability, but paid. We think it thereby 'accrued' the taxes and interest, if accrual is requisite at all, in the case of the debtor, when actual payment has occurred.' 62 F.Supp. at page 576, 104 Ct.Cl. at page 495.
13
The Consolidated Edison case involved the same parties, facts and questions as the present case, though in respect to earlier tax years. Although recognizing that this Court's opinions in Security Flour Mills Co. v. Commissioner, supra, and Dixie Pine Products Co. v. Commissioner, supra, had 'settled' the law to be 'that a taxpayer may not accrue an expense when he is denying liability and refusing and contesting its payment,' the Court of Claims rejected, as 'not necessarily true,' the taxpayer's argument 'that there must therefore be an admission or absence of denial of liability before an item may be accrued and that the payment of the liability within the taxable year has no effect on its accrual since payment was made under protest and litigation was immediately started to obtain a repayment' (135 F.Supp. at page 884, 133 Ct.Cl. at page 382); and, purporting to follow, but seemingly departing from, its decision in the Chestnut Securities case, the Court concluded 'that payment of an item which is otherwise accruable in the taxable year accrues the item even though payment is made under protest and even though litigation is started within the taxable year to obtain repayment.' 135 F.Supp. at page 885, 133 Ct.Cl. at pages 383—384. (Emphasis added.) On that conclusion the Court rendered judgment for the Government.
14
Just what the Court mean by the phrase we have italicized was not explained, but it is evident that if the tax item was 'otherwise accruable in the taxable year,' payment—whether of a character that would constitute an admission of the asserted liability or a mere deposit to enable contest of the liability certainly would not render the item nonaccruable; and if, in the absence of payment, the item was 'otherwise accruable in the taxable year,' payment would be immaterial, or at least unnecessary, to the question of accruability. It thus appears that the Court's judgment was contrary to its rule in that case, for, although it regarded the remittance as 'payment' of the asserted tax liability, admittedly the contested part of the tax was not 'otherwise accruable in the taxable year.'
15
Disagreeing with the conclusion of the Court of Claims in the Consolidated Edison case, the Court of Appeals concluded, we think correctly, that the question of accruability of the tax—apart from the issue respecting 'payment' and 'satisfaction'—was governed by the 'all events' test established by this Court in United States v. Anderson, supra (see note 5), as amplified and affirmed in Dixie Pine Products Co. v. Commissioner, supra, and reaffirmed as amplified in Security Flour Mills Co. v. Commissioner, supra. See notes 6 and 7.
16
As to whether respondent's remittance of the full $100 to the city, in the circumstances of this case, constituted an admission of liability for, and a 'payment' and 'satisfaction' of, the contested $15 of the assessment, the Court of Appeals recognized that this Court's opinions in the Anderson, Dixie Pine and Security Flour Mills cases refer to the fact that 'payment' of the taxes sought to be deducted in those cases had not been made by the taxpayers, but it thought, and we agree, that those references were made only for the sake of complete accuracy to an important but, so far as those cases were concerned, a collateral matter, and not to the determinative considerations of those cases, which were the 'all events' test as they state it.
17
'Payment' is not a talismanic word. It may have many meanings depending on the sense and context in which it is used. As correctly observed by the Court of Appeals, 'A payment may constitute a capital expenditure, an exchange of assets, a prepaid expense, a deposit, or a current expense,' and '(w)hen the exact nature of the payment is not immediately ascertainable because it depends on some future event, such as the outcome of litigation, its treatment for income tax purposes must await that event.' 279 F.2d at page 156. (Emphasis added.)
18
Of course, an unconditional 'payment' made by a taxpayer in apparent 'satisfaction' of an asserted matured tax liability is, without more, plain and persuasive evidence, at least against the taxpayer, that 'all the events (have) occur(red) which fix the amount of the tax and determine the liability of the taxpayer to pay it,' United States v. Anderson, supra, 269 U.S. at page 441, 46 S.Ct. at page 134, and that the item so paid and satisfied has accrued.
19
But where, as stipulated by the parties in this case, the remittance or 'payment' did not admit, but specifically denied, liability for, and was not intended to satisfy, the contested $15 of the assessment, but was, in effect, a mere deposit, 'in the nature of a cash bond for the payment of (so much, if any, of the contested) taxes (as might) thereafter (be) found to be due' (Rosenman v. United States, 323 U.S. 658, 662, 65 S.Ct. 536, 538, 89 L.Ed. 535, and see Lewyt Corp. v. Commissioner, 2 Cir., 215 F.2d 518, 523), and was made for the sole purpose of staying—there being no other way to stay—an otherwise possible seizure and sale of the property for the contested tax while its validity was being honestly and diligently contested in the only way allowed by the law of the State, it will not do to say that the taxpayer has made an unconditional 'payment' in apparent 'satisfaction' of the contested part of an asserted matured tax lib ility, and thereby rendered it immediately accruable.
20
We therefore conclude that $10 of the contested $15 tax liability accrued not in the year of the remittance, but in 1951 when the New York court entered its final order determining that liability; and that the $5, for which respondent was held not liable by that judgment and which was returned to it by the city, was not income to respondent in 1951.
21
Affirmed.
1
The procedures allowed by the laws of New York for the contest of real property taxes are more fully set forth in Consolidated Edison Co. v. United States, 135 F.Supp. 881, 882, 133 Ct.Cl. 376, 378.
2
Respondent asserts that this treatment of the $15 in its 1951 federal income tax return was made under compulsion of the Commission's erroneous G.C.M. 25298, issued directly to it in 1947 (1947—2 Cum.Bull. 39), saying, 'a contested tax liability accrues not later than time of payment, notwithstanding continuation of contest. The accrual basis of accounting relates to the deductibility of unpaid items,' and that the Commissioner insisted upon that treatment, despite his modification thereof in Mim. 6444 (1949—2 Cum.Bull. 11), saying in pertinent part, that 'payment of (a) contested tax liability as a prerequisite for appeal is not deductible under G.C.M. 25298.'
3
The economic consequences to the parties arise from the fact that corporate income tax rates (normal plus surtax) were increased from 38% in 1946 to 50 3/4% in 1951, and, in this particular instance, more revenue would be produced by taking the deduction in 1946—1950 than in 1951. The taxpayer recognizes that, if its position be sustained, the Commissioner will have one year after entry of final judgment herein to reaudit the taxpayer's 1946—1950 returns and to assess deficiencies based upon deduction of the $15 in those years, in accordance with the provisions of §§ 1311—1315 of the Internal Revenue Code of 1954, 26 U.S.C.A. §§ 1311—1315.
4
The applicable statutes are §§ 23(c), 41, 42, 43 and 48 of the Internal Revenue Code of 1939 (26 U.S.C. (1952 ed.), §§ 23(c), 41, 42, 43, 48, 26 U.S.C.A. §§ 23(c), 41, 42, 43, 48). These provisions are the same as their counterparts in prior Revenue Acts and in the Internal Revenue Code of 1954. Inasmuch as those statutes are not really in contest in this case, it would serve no useful purpose even to abstract them here.
5
In the Anderson case, this Court declared the so-called 'all events' test as follows: 'In a technical legal sense it may be argued that a tax does not accrue until it has been assessed and becomes due; but it is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it. In this respect, for purposes of accounting and of ascertaining true income fr a given accounting period, the munitions tax here in question did not stand on any different footing than other accrued expenses appearing on appellee's books. In the economic and bookkeeping sense with which the statute and Treasury decision were concerned, the taxes had accrued.' 269 U.S. at page 441, 46 S.Ct. at page 134.
6
In the Dixie Pine case, this Court reaffirmed the 'all events' test as follows: 'It has long been held that in order truly to reflect the income of a given year, all the events must occur in that year which fix the amount and the fact of the taxpayer's liability for items of indebtedness deducted though not paid; and this cannot be the case where the liability is contingent and is contested by the taxpayer.' 320 U.S. at page 519, 64 S.Ct. at page 365.
In the Security Flour Mills case, this Court reaffirmed that test as follows: 'It is settled by many decisions that a taxpayer may not accrue an expense the amount of which is unsettled or the liability for which is contingent, and this principle is fully applicable to a tax, liability for which the taxpayer denies, and payment whereof he is contesting.' 321 U.S. at page 284, 64 S.Ct. at page 5979
7
In the Security Flour Mills case, after saying 'that a taxpayer may not accrue an expense the amount of which is unsettled or the liability for which is contingent,' the Court concluded that '(s)ince (the taxpayer) denied liability for, and failed to pay, the tax during the taxable year 1935, it was not in a position in its tax accounting to treat the (tax) claim as an accrued liability.' 321 U.S. at page 284, 64 S.Ct. at page 597.
| 1112
|
366 U.S. 418
81 S.Ct. 1356
6 L.Ed.2d 386
James M. BUSHNELL, petitioner,v.O. B. ELLIS, Director, Texas Department of Corrections.
No. 561.
Supreme Court of the United States
May 22, 1961
Percy Williams, Houston, Texas, for petitioner.
B. H. Timmins, Jr., for respondent.
On Writ of Certiorari to the Court of Criminal Appeals of Texas.
PER CURIAM.
1
The judgment of the Court of Criminal Appeals of Texas is reversed and the cause is remanded to that court with directions to grant petitioner a hearing upon his petition for a writ of habeas corpus. Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557; McNeal v. Culver, 365 U.S. 109, 81 S.Ct. 413, 5 L.Ed.2d 445.
2
Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, dissenting.
3
This application for the issuance of a writ of habeas corpus was filed as an original action in the Court of Criminal Appeals of Texas. Neither the record, the briefs, nor argument of counsel indicate that such an action has ever been filed in a District Court of Texas as appears to be required by Texas procedure. See Ex parte Rodriguez, 1960, 169 Tex.Cr.R. ——, 334 S.W.2d 294; Ex parte Fitzpatrick, 1959, 167 Tex.Cr.R. 376, 320 S.W.2d 683; Ex parte Brooks, 1919, 85 Tex.Cr.R. 397, 212 S.W. 956. The judgment of the Court of Criminal Appeals might, therefore, have been based upon an independent state ground. In this condition of the record, I would affirm the judgment without prejudice to the petitioner filing in any appropriate Texas District Court an application for a writ of habeas corpus to test out the validity of his detention. See Vernor's Tex.Code Crim.Proc. Art. 119.
4
Mr. Justice STEWART took no part in the consideration or decision of this case.
| 01
|
366 U.S. 293
81 S.Ct. 1333
6 L.Ed.2d 301
LOUISIANA ex rel. Jack P. F. GREMILLION, Attorney General, et al., Appellants,v.NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al.
No. 294.
Argued April 26, 1961.
Decided May 22, 1961.
Messrs. William P. Schuler and M. E. Culligan, New Orleans, La., for appellants.
Mr. Robert L. Carter, New York City, for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
One of the suits that is consolidated in this appeal was instituted in 1956 by the then Attorney General of Louisiana against appellee, the National Association for the Advancement of Colored People, in a Louisiana court and sought to enjoin it from doing business in the State. It was removed to the federal court.1 Thereafter NAACP sued appellants in the federal court asking for a declaratory judgment that two laws of Louisiana were unconstitutional. A three-judge court was convened (28 U.S.C. § 2281, 28 U.S.C.A. § 2281) and the cases were consolidated. After a hearing (on affidavits) and oral argument, the court entered a temporary injunction that denied relief to appellants and enjoined them from enforcing the two laws in question. D.C., 181 F.Supp. 37. The case is here on appeal. 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. We noted probable jurisdiction. 364 U.S. 869, 81 S.Ct. 112, 5 L.Ed.2d 90.
2
One of the two statutes of Louisiana in question prohibits any 'non-trading' association from doing business in Louisiana if it is affiliated with any 'foreign or out of state non-trading' association 'any of the officers or members of the board of directors of which are members of Communist, Communist-front or subversive organizations, as cited by the House of Congress (sic) un-American Activities Committee, or the United States Attorney.'2 Every non-trading association affiliated with an out-of-state association must file annually with Louisiana's Secretary of State an affidavit that 'none of the officers' of the affiliate is 'a member' of any such organization.3 Penalties against the officers and members are provided for failure to file the affidavit and for false filings.
3
The NAACP is a New York corporation with some forty-eight directors, twenty vice-presidents, and ten chief executive officers. Only a few reside or work in Louisiana. The District Court commented that the statute 'would require the impossible' of the Louisiana residents or workers. 181 F.Supp. at page 40. We have received no serious reply to that criticism. Such a requirement in a law compounds the vices present in statutes struck down on account of vagueness. Cf. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. It is not consonant with due process to require a person to swear to a fact that he cannot be expected to know (cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519) or alternatively to refrain from a wholly lawful activity.
4
The other statute4 requires the principal officer of 'each fraternal, patriotic, charitable, benevolent, literary, scientific, athletic, military, or social organization, or organization created for similar purposes' and operating in Louisiana to file with the Secretary of State annually 'a full, complete and true list of the names and addresses of all of the members and officers' in the State. Members of og anizations whose lists have not been filed are prohibited from holding or attending any meeting of the organization. Criminal penalties are attached both to officers and to members.
5
We are told that this law was passed in 1924 to curb the Ku Klux Klan, but that it was never enforced against any other organization until this litigation started; that when the State brought its suit some affiliates of NAACP in Louisiana filed membership lists; and that after those filings, members were subjected to economic reprisals. 181 F.Supp. at page 39. The State denies that this law is presently being enforced only against NAACP; it also challenges the assertions that disclosure of membership in the NAACP results in reprisals. While hearings were held before the temporary injunction issued, the case is in a preliminary stage and we do not know what facts further hearings before the injunction becomes final may disclose. It is clear from our decisions that NAACP has standing to assert the constitutional rights of its members. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488. We deal with a constitutional right, since freedom of association is included in the bundle of First Amendment rights made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Id., 357 U.S. at page 460, 78 S.Ct. at page 1171; Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480. And where it is shown, as it was in N.A.A.C.P. v. State of Alabama, supra, 357 U.S. 462—463, 78 S.Ct. 1171—1172, that disclosure of membership lists results in reprisals against and hostility to the members, disclosure is not required. And see Bates v. City of Little Rock, supra, 361 U.S. 523—524, 80 S.Ct. 416—417.
6
We are in an area where, as Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, emphasized, any regulation must be highly selective in order to survive challenge under the First Amendment. As we there stated: '* * * even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Id., 364 U.S. 488, 81 S.Ct. 252.
7
The most frequent expressions of that view have been made in cases dealing with local ordinances regulating the distribution of literature. Broad comprehensive regulations of those First Amendment rights have been repeatedly struck down (Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213), though the power to regulate the time, manner, and place of distribution was never doubted. As stated in Schneider v. State, supra, 308 U.S. 160—161, 60 S.Ct. 150, the municipal authorities have the right to 'regulate the conduct of those using the streets,' to provide traffic regulations, to prevent 'throwing literature broadcast in the streets,' and the like. Yet, while public safety, peace, comfort, or convenience can be safeguarded by regulating the time and manner of solicitation (Cantwell v. State of Connecticut, supra, 310 U.S. 306—307, 60 S.Ct. 904—905), those regulations need to be 'narrowly drawn to prevent the supposed evil.' Id., 310 U.S. 307, 60 S.Ct. 905. And see Talley v. State of California, 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559.
8
Our latest application of this principle was in Shelton v. Tucker, supra, where we held that, while a State has the undoubted right to inquire into the fitness and competency of its teachers, a detailed disclosure of every conceivable kind of associational tie a teacher has had probed into relationships that 'could have no possible bearing upon the teacher's occupational competence or fitness.' Id., 364 U.S. 488, 81 S.Ct. 252.
9
At one extreme is criminal conduct which cannot have shelter in the First Amendmn t. At the other extreme are regulatory measures which, no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights. These lines mark the area in which the present controversy lies, as the District Court rightly observed.
10
Affirmed.
11
Mr. Justice HARLAN and Mr. Justice STEWART concur in the result.
12
Mr. Justice FRANKFURTER, whom Mr. Justice CLARK joins, concurring in the judgment.
13
One of the important considerations that led to the enactment of the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C.A. § 101 et seq., limiting the jurisdiction of the District Courts to grant injunctions in labor controversies, was that such injunctions were granted, usually by way of temporary relief, on the basis of affidavits. I am of the view that the issues that arise in controversies like the present one are likewise more securely adjudicated upon a foundation of oral testimony rather than affidavits. At all events, I am dubious about a fixed rule, such as that which is apparently in effect in the District Court for the Eastern District of Louisiana, barring oral testimony—subject to the usual safeguards of cross-examination—in proceedings for a temporary injunction. I assume that oral testimony will be available in a proceeding to make the temporary injunction permanent.
14
In this understanding I concur in the judgment of the Court.
1
See also State v. N.A.A.C.P., La.App., 90 So.2d 884.
2
La.Rev.Stat., 1950, § 14:385 (1958 Supp.).
3
La.Rev.Stat., 1950, § 14:386 (1958 Supp.).
4
La.Rev.Stat., 1950, §§ 12:401 to 12:409.
| 23
|
366 U.S. 276
81 S.Ct. 1316
6 L.Ed.2d 288
ELI LILLY AND COMPANY, Appellant,v.SAV-ON-DRUGS, INC,, et al.
No. 203.
Argued March 20, 21, 1961.
Decided May 22, 1961.
Rehearing Denied June 19, 1961.
See 366 U.S. 978, 81 S.Ct. 1913.
Mr. Everett I. Willis, New York City, for appellant.
Mr. Samuel M. Lane, New York City, for appellee, Sav-On-Drugs, Inc.
Mr. David M. Satz, Jr., Trenton, N.J., for appellee, State of New Jersey.
Mr. Justice BLACK delivered the opinion of the Court.
1
The appellant Eli Lilly and Company, an Indiana corporation dealing in pharmaceutical products, brought this action in a New Jersey state court to enjoin the appellee Sav-On-Drugs, Inc., a New Jersey corporation, from selling Lilly's products in New Jersey at prices lower than those fixed in minimum retail price contracts into wi ch Lilly had entered with a number of New Jersey drug retailers. Sav-On had itself signed no such contract but, under the New Jersey Fair Trade Act, prices so established become obligatory upon nonsigning retailers who have notice that the manufacturer has made these contracts with other retailers.1 Sav-On moved to dismiss this complaint under a New Jersey statute that denies a foreign corporation transacting business in the State the right to bring any action in New Jersey upon any contract made there unless and until it files with the New Jersey Secretary of State a copy of its charter together with a limited amount of information about its operations2 and obtains from him a certificate authorizing it to do business in the State.3
2
Lilly opposed the motion to dismiss, urging that its business in New Jersey was entirely in interstate commerce and arguing, upon that ground, that the attempt to require it to file the necessary information and obtain a certificate for its New Jersey business was forbidden by the Commerce Clause of the Federal Constitution. Both parties offered evidence to the Court in the nature of affidavits as to the extent and kind of business done by Lilly with New Jersey companies and people. On this evidence, the trial court made findings of fact and granted Sav-On's motion to dismiss, stating as its ground that 'the conclusion is inescapable that the plaintiff (Lilly) was in fact doing business in this State at the time of the acts complained of and was required to, but did not, comply with the provisions of the Corporation Act.'4 On appeal to the Supreme Court of New Jersey, this constitutional attack was renewed and the State Attorney General was permitted to intervene as a party-defendant to defend the validity of the statute. The State Supreme Court then affirmed the judgment upholding the statute, relying entirely upon the opinion of the trial court.5 We noted probable jurisdiction to consider Lilly's contention that the constitutional question was improperly decided by the state courts.6
3
The record shows that the New Jersey trade in Lilly's pharmaceutical products is carried on through both interstate and intrastate channels. Lilly manufactures these products and sells them in interstate commerce to certain selected New Jersey wholesalers. These wholesalers then sell the products in intrastate commerce to New Jersey hospitals, physicians and retail drug stores, and these retail stores in turn sell them, again in intrastate commerce, to the general public. It is well established that New Jersey cannot require Lilly to get a certificate of authority to do business in the State if its participation in this trade is limited to its wholly interstate sales to New Jersey wholesalers.7 Under the authority of the so-called 'drummer' cases, such as Robbins v. Shelby County Taxing District8 Lilly is free to send salesmen into New Jersey to promote this interstate trade without interference from regulations imposed by the State. On the other hand, it is equally well settled that if Lilly is engaged in intrastate as well as interstate aspects of the New Jersey drug business, the State can requr e it to get a certificate of authority to do business.9 In such a situation, Lilly could not escape state regulation merely because it is also engaged in interstate commerce. We must then look to the record to determine whether Lilly is engaged in intrastate commerce in New Jersey.
4
The findings of the trial court, based as they are upon uncontroverted evidence presented to it, show clearly that Lilly is conducting an intrastate as well as an interstate business in New Jersey:
5
'The facts are these: Plaintiff maintains an office at 60 Park Place, Newark, New Jersey. Its name is on the door and on the tenant registry in the lobby of the building. (The September 1959 issue of the Newark Telephone Directory lists the plaintiff, both in the regular section and in the classified section under 'Pharmaceutical Products,' as having an office at 60 Park Place, Newark.) The lessor of the space is plaintiff's employee, Leonard L. Audino, who is district manager in charge of its marketing division for the district known as Newark. Plaintiff is not a party to the lease, but it reimburses Audino 'for all expenses incidental to the maintenance and operation of said office.' There is a secretary in the office, who is paid directly by the plaintiff on a salary basis. There are 18 'detailmen' under the supervision of Audino. These detailmen are paid on a salary basis by the plaintiff, but receive no commissions. Many, if not all of them, reside in the State of New Jersey. Whether plaintiff pays unemployment or other taxes to the State of New Jersey is not stated. It is the function of the detailmen to visit retail pharmacists, physicians and hospitals in order to acquaint them with the products of the plaintiff with a view to encouraging the use of these products. Plaintiff contends that their work is 'promotional and informational only.' On an occasion, these detailmen, 'as a service to the retailer,' may receive an order for plaintiff's products for transmittal to a wholesaler. They examine the stocks and inventory of retailers and make recommendations to them relating to the supplying and merchandising of plaintiff's products. They also make available to retail druggists, free of charge, advertising and promotional material. When defendant opened its store in Carteret, plaintiff offered to provide, and did provide, announcements for mailing to the medical profession, without cost to defendant. The same thing occurred when defendant opened its Plainfield store.'10
6
We agree with the trial court that '(t)o hold under the facts above recited that plaintiff (Lilly) is not doing business in New Jersey is to completely ignore reality.'11 Eighteen 'detailmen,' working out of a big office in Newark, New Jersey, with Lilly's name on the door and in the lobby of the building, and with Lilly's district manager and secretary in charge, have been regularly engaged in work for Lilly which relates directly to the intrastate aspects of the sale of Lilly's products. These eighteen 'detailmen' have been traveling throughout the State of New Jersey promoting the sales of Lilly's products, not to the wholesalers, Lilly's interstate customers, but to the physicians, hospitals and retailers who buy those products in intrastate commerce from the wholesalers. To this end, they have provided these hospitals, physicians and retailers with up-to-date knowledge of Lilly's products and with free advertising and promotional material designed to encourage the general public to make more intrastate purchases of Lilly's products. And they sometimes even directly participate in the intrastate sales themselves by transmitting orders from the hospitals, physicians and drugstores they service to the New Jersey wholesalers.
7
This Court had a somewhat similar problem before it in Cheney Brothers Co. v. Com. of Massachusetts.12 In that case, the Northwestern Consolidated Milling Company of Minnesota had been conducting business in Massachusetts in a manner quite similar to that being used by Lilly in New Jersey—a number of wholesalers were buying Northwestern's flour in interstate commerce and selling it to retail stores in Massachusetts in intrastate commerce. Northwestern had in Massachusetts, in addition to any force of drummers it may have had to promote its interstate sales to the wholesalers, a group of salesmen who traveled the State promoting the sale of flour by Massachusetts wholesalers to Massachusetts retailers. These salesmen also solicited orders from the retail dealers and turned them over to the nearest Massachusetts wholesaler. Despite this substantial connection with the intrastate business in Massachusetts, Northwestern contended that its business was wholly in interstate commerce—a contention that this Court disposed of summarily in the following words: 'Of course this is a domestic business—inducing one local merchant to buy a particular class of goods from another.'13
8
Lilly attempts to distinguish the holding in the Cheney case on the ground that here its detailmen are not engaged in a systematic solicitation of orders from the retailers. It is true that the record in the Cheney case shows a more regular solicitation of orders than does the record here. But that difference is not enough to distinguish the cases. For the record shows that Lilly here, no less than Northwestern there, engages in a 'domestic business—inducing,' as the Court said of Northwestern, 'one local merchant to buy a particular class of goods from another.' The fact that the business of 'inducing' intrastate sales, as engaged in by Lilly, is primarily a promotional and service business which does not include a systematic solicitation of orders goes only to the nature of the intrastate business Lilly is carrying on, not to the question of whether it is carrying on an intrastate business.
9
Lilly also contends that even if it is engaged in intrastate commerce in New Jersey and can by virtue of that fact be required to get a license to do business in that State, New Jersey cannot properly deny it access to the courts in this case because the suit is one arising out of the interstate aspects of its business. In this regard, Lilly relies upon such cases as International Textbook Co. v. Pigg,14 holding that a State cannot condition the right of a foreign corporation to sue upon a contract for the interstate sale of goods. We do not think that those cases are applicable here, however, for the present suit is not of that kind. Here, Lilly is suing upon a contract entirely separable from any particular interstate sale and the power of the State is consequently not limited by cases involving such contracts.
10
What we have said would be enough to dispose of this case were it not for the contention that the question whether Lilly is engaged in intrastate commerce in New Jersey is not properly before us. This contention is based upn Lilly's interpretation of the decision of the New Jersey court as resting upon the assumption that Lilly has been engaged in interstate commerce only. We cannot accept that contention because, in the first place, it rests upon a completely erroneous interpretation of the New Jersey court's opinion. That court was called upon to decide whether appellant was 'transacting business' in New Jersey within the meaning of the statute which requires the registration of foreign corporations. In deciding that question, the court relied upon the facts set out in the affidavits with regard to the various local activities of Lilly as summarized in the findings quoted above. The only reasonable inference from these findings is that the trial court interpreted the phrase 'transacting business' in the New Jersey statute to mean transacting local intrastate business and concluded from the facts it found that Lilly was transacting such business. This conclusion is reinforced by a subsequent New Jersey opinion that distinguishes the decision in this case on precisely that ground.15
11
But even if the opinion of the court below should, as is urged, be interpreted as resting upon the mistaken belief that appellant could be required to register, even though it transacted no business whatever in New Jersey except interstate business, we think it would still be necessary to affirm the decision of that court on the record presently before us. That record clearly shows that Lilly was, as a matter of fact, engaged in local intrastate business in New Jersey through the employees it kept there to induce retailers, physicians and hospitals to buy Lilly's products from New Jersey wholesalers in intrastate commerce. So even if the state court had rested its conclusions on an improper ground, this Court could not, in view of the undisputed facts establishing its validity declare a solemn act of the State of New Jersey unconstitutional. The record clearly supports the judgment of the New Jersey Supreme Court and that judgment must therefore be and is affirmed.
12
Affirmed.
13
Mr. Justice HARLAN, concurring.
14
On the premise that New Jersey cannot impede an out-of-state seller's access to the state market,1 the difficult issue presented in this case is how much more than shipping its goods into New Jersey Lilly may do within the State without subjecting itself to the requirements and sanctions of New Jersey's licensing laws. In joining the Court's opinion, I think some further observations appropriate.
15
It is clear that sending 'drummers' into New Jersey seeking customers to whom Lilly's goods may be sold and shipped, Robbins v. Shelby County Taxing District, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694, and suing in the state courts to enforce contracts for sales from an out-of-state store of goods, International Textbook v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, are both so intimately connected with Lilly's right to access to the local market, free of local controls, that they cannot be separated off as 'local business' even if they are conducted wholly within New Jersey. However, I do not think that the systematic promt ion of Lilly's products among local retailers and consumers who, as Lilly conducts its affairs, can only purchase them from a New Jersey wholesaler bears the same close relationship to the necessities of keeping the channels of interstate commerce state-unburdened. I believe that New Jersey can treat as 'local business' such promotional activities, which are pointed at and result initially in local sales by Lilly's customers, and not in direct sales from its own out-of-state store of goods.2 Three factors, particularly, persuade me to that view.
16
First: A licensing requirement, as applied in this situation, does not deny Lilly a significant opportunity to reach New Jersey customers. Appellant remains free, and is constitutionally entitled to remain free, to solicit purchases directly by New Jersey retailers and consumers or, alternatively, to rely on its wholesalers to develop the New Jersey market. Thus, Lilly is not in the position of the manufacturer with whose protection Mr. Justice Bradley was concerned when, in Robbins v. Shelby County, supra, 120 U.S. at page 494, 7 S.Ct. at page 595 he asked: 'How is a manufacturer, or a merchant, of one state to sell his goods in another state, without, in some way, obtaining orders therefor? Must he be compelled to send them at a venture, without knowing whether there is any demand for them?'
17
Second: Were Lilly, for a distinct consideration, to enter into an arrangement with its New Jersey wholesalers to promote or solicit business within the State for their account, I would suppose it scarcely doubtful that such an endeavor would constitute a local incident subject to the State's licensing power, even though the ultimate purpose and effect of the arrangement itself were also to enhance Lilly's own interstate business. I do not see why New Jersey must treat differently Lilly's present activities, which in fact redound both to the wholesalers' benefit, by lessening the need for promotional effort and expense on their part, and to Lilly's profit, in the form of increased orders from wholesalers. See Cheney Brothers v. Com. of Massachusetts, 246 U.S. 147, 38 S.Ct. 295, 62 L.Ed. 632;3 cf. Norton Co. v. Department of Revenue, 340 U.S. 534, 536, 537—539, 71 S.Ct. 377, 379, 380—381, 95 L.Ed. 517. A different constitutional result is not indicatd by the circumstance that no consideration, other than the purchase price for goods bought, is paid Lilly by the wholesalers and that the benefit to Lilly from such local service comes from the resulting increase in interstate sales. The essential point is that Lilly's New Jersey activities were 'wholly separate from interstate commerce, involved no question of the delivery of property shipped in interstate commerce or of the right to complete an interstate commerce transaction, but concerned merely the doing of a local act after interstate commerce had completely terminated.' Browning v. City of Waycross, 233 U.S. 16, 22—23, 34 S.Ct. 578, 580, 58 L.Ed. 828.4
18
Third: I cannot agree that the effect of the decision in this case 'is to repudiate the whole line of 'drummer' cases.' We have not been referred to any case in which an interstate seller has been granted an immunity from a state-license requirement where the seller has promoted or participated in transactions between a local vendor and a local purchaser involving goods already within the State. Cf. Wagner v. City of Covington, 251 U.S. 95, 40 S.Ct. 93, 64 L.Ed. 157. The only aspect of the present case that resembles the 'drummer' cases is the fact that Lilly's promotion of local sales ultimately serves to increase its interstate sales. To treat this factor as bringing the present situation within the drummer cases would, in my view, be substantially to extend the reach of those cases. I am not prepared to subscribe to such an extension at the expense of state power to regulate the promotion of sales of goods owned and located within the State when the countervailing federal considerations are as thin as they seem to me to be here, and when the interstate seller remains free to enjoy the immunities of interstate commerce by simply restricting its promotion to those who may buy from its own out-of-state store of goods.
19
Finally, while I am less clear than the rest of the majority that the state courts based their decision on a finding of 'local business,' I do not believe that any doubt on that score forecloses us from now sustaining the State on that ground where as here, the facts leadin to that conclusion are not in dispute. See Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254.5
20
Mr. Justice DOUGLAS, with whom Mr. Justice FRANKFURTER, Mr. Justice WHITTAKER and Mr. Justice STEWART concur, dissenting.
21
The Court, with all deference, blends in this opinion three distinct lines of decisions which until today have been considered separate. They do indeed present different problems one from the other. I refer to our decisions concerning the power of a State (1) to tax an interstate enterprise, (2) to subject it to local suits, and (3) to license it.
22
(1) If New Jersey sought to collect from appellant a tax apportioned to some local business activity which it carries on in that State, I would see no constitutional objection to it. Northwestern Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421. Such an apportioned tax imposed by New Jersey would have relation 'to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred.' State of Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 250, 85 L.Ed. 267.
23
(2) If appellant were sued in New Jersey, I think its connections with that State have been sufficient to make it subject to the jurisdiction of the state courts (International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95), at least as to suits which reveal a 'substantial connection' with the State. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. Cf. Hanson v. Denckla, 357 U.S. 235, 250—255, 78 S.Ct. 1228, 1237—1240, 2 L.Ed.2d 1283.
24
(3) The present case falls in neither of those two categories. New Jersey demands that appellant obtain from it a certificate authorizing it to do business in the State, absent which she denies appellant access to her courts. The case thus presents the strikingly different issue—whether an interstate business can be subjected to a licensing system.
25
I put to one side cases such as Union Brokerage Co. v. Jensen, 322 U.S. 202, 64 S.Ct. 967, 88 L.Ed. 1227, and Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447, where the issue was whether a company doing business in the State was exempt from a regulation of this kind because Congress had subjected it to a licensing system. I also put to one side Railway Express Agency v. Com. of Virginia, 282 U.S. 440, 51 S.Ct. 201, 75 L.Ed. 450, where a company, doing an intrastate* as well as an interstate express business, was required to obtain a certificate authorizing it to conduct an intrastate business. The question here is whether a State can require a license for the doing of an interstate business. The power to license the exercise of a federal right, like the power to tax it, is 'the power to control or suppress its enjoyment.' Murdock v. Com. of Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 870, 874, 87 L.Ed. 1292. Soliciting interstate business has up to this day been on the same basis as doing an interstate business, so far as the protection of the Commerce Clause is concerned. It has usually been argued that soliciting interstate business is a 'local activity' that can be licensed by a State or on which a State may lay a privilege tax. That was the argument in Nippert v. Richmond, 327 U.S. 416, 420, 66 S.Ct. 586, 588, 90 L.Ed. 760; Memphis Steam Laundry v. Stone, 342 U.S. 389, 392, 72 S.Ct. 424, 426, 96 L.Ed. 436. We rejected it, pointing out that in the long line of case beginning with Robbins v. Shelby County, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694, 'this Court has held that a tax imposed upon the solicitation of interstate business is a tax upon interstate commerce itself.' 342 U.S. at pages 392—393, 72 S.Ct. at page 426.
26
What appellant's employees do in New Jersey is certainly no more than what a 'drummer' for an interstate house does. The record shows that petitioner's employees engage in the following activities in New Jersey:
27
'It is the function of the detailmen to visit retail pharmacists, physicians and hospitals in order to acquaint them with the products of the plaintiff with a view to encouraging the use of these products.
28
Plaintiff contends that their work is 'promotional and informational only.' On an occasion, these detailmen, 'as a service to the retailer,' may receive an order for plaintiff's products for transmittal to a wholesaler. They examine the stocks and inventory of retailers and make recommendations to them relating to the supplying and merchandising of plaintiff's products. They also make available to retail druggists, free of charge, advertising and promotional material. When defendant opened its store in Carteret, plaintiff offered to provide, and did provide, announcements for mailing to the medical profession, without cost to defendant. The same thing occurred when defendant opened its Plainfield store.'
29
In Robbins v. Shelby County Taxing District, supra, 120 U.S. at page 491, 7 S.Ct. at page 593, the 'drummer' who failed to take out a license from the State was doing the following:
30
'Sabine Robbins * * * a citizen and resident of Cincinnati, Ohio, * * * was engaged in the business of drumming in the taxing district of Shelby county, Tenn.; i.e., soliciting trade, by the use of samples, for the house or firm for which he worked as (a) drummer; said firm being the firm of 'Rose, Robbins & Co.,' doing business in Cincinnati, and all the members of said firm being citizens and residents of Cincinnati, Ohio.'
31
In this case, appellant's employees within the State were engaged solely in the 'drumming up' of appellant's interstate trade. They did this, not by direct solicitation of the interstate buyers, but by contacts with the customers of the buyers. Such activities were said to be 'exclusively in furtherance of interstate commerce' only two years ago in Northwestern States Portland Cement Co. v. Minnesota, supra, 358 U.S. 452, 455, 79 S.Ct. 359. Yet today the Court finds these activities to be separable from appellant's interstate business; appellant is 'inducing' sales, not 'soliciting' them. It is not a distinction I can accept.
32
We deal here with a general state regulatory measure. Under our precedents, access to state courts cannot be barred to 'a foreign corporation merely coming into (the State) to contribute to or to conclude a unitary interstate transaction.' Union Brokerage Co. v. Jensen, 322 U.S. 202, 211, 64 S.Ct. 967, 973. Yet that is what New Jersey claims the power to do. We have struck down similar state requirements which barred access to state courts to recover the purchase price on an interstate contract, International Textbook Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, to recover for the breach of an interstate contract of sale, Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239, and to attack as fraudulent the transfer of assets of a domestic debtor, Buck Stove & Range Co. v. Vickers, 226 U.S. 205, 33 S.Ct. 41, 57 L.Ed. 189. Surely, the cause of action here asserted does not involve a state interest more compelling than the protection of domestic debtors or the stability of title to domestic lands.
33
The Court places special reliance on Cheney Bros. Co. v. Com. of Massachusetts, 246 U.S. 147, 155, 38 S.Ct. 295, 297, 62 L.Ed. 632, where Massachusetts' imposition of an e xcise tax' on the Northwestern Consolidated Milling Company was upheld. There the entire activity of the foreign corporation in the State was the direct solicitation of orders for local wholesalers. Here the dominant activity is nothing more than advertising and public relations. These are the minimum activities in which every 'drummer' for an out-of-state concern engages.
34
To hold that New Jersey can license appellant in this case is to repudiate the whole line of 'drummer' cases.
35
This case on its own may do little injury. But it provides the formula whereby a State can stand over the channels of interstate commerce in a way that promises to do great harm to the national market that heretofore the Commerce Clause has protected.
1
N.J.Rev.Stat. 56:4—6, N.J.S.A. The legality of such arrangements insofar as the antitrust laws are concerned was provided for by the McGuire Act, 66 Stat. 632, 15 U.S.C. § 45(a), 15 U.S.C.A. § 45(a).
2
The information required is: (1) the amount of the corporation's authorized capital stock; (2) the amount of stock actually issued by the corporation; (3) the character of the business which the corporation intends to transact in New Jersey; (4) the principal office of the corporation in New Jersey; and (5) the name and place of abode of an agent upon whom process against the corporation may be served. N.J.Rev.Stat. 14:15—3, N.J.S.A.
3
N.J.Rev.Stat. 14:15—4, N.J.S.A.
4
57 N.J.Super. 291, 302, 154 A.2d 650, 656.
5
31 N.J. 591, 158 A.2d 528.
6
364 U.S. 860, 81 S.Ct. 102, 5 L.Ed.2d 84.
7
See, e.g., Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649; International Textbook Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678; Sioux Remedy Co. v. Cope, 235 U.S. 197, 35 S.Ct. 57, 59 L.Ed. 193.
8
120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694. The Robbins case has been followed in a long line of subsequent decisions by this Court. A partial list of these cases is set out in Memphis Steam Laundry Cleaner v. Stone, 342 U.S. 389, 392—393, note 7, 72 S.Ct. 424, 426, 96 L.Ed. 436.
9
See, e.g., Railway Express Co. v. Virginia, 282 U.S. 440, 51 S.Ct. 201, 75 L.Ed. 450. Cf. Union Brokerage Co. v. Jensen, 322 U.S. 202, especially at pages 211—212, 64 S.Ct. 967, at page 973, 88 L.Ed. 1227.
10
57 N.J.Super. at pages 298—299, 154 A.2d at page 654.
11
Id., at page 300, 154 A.2d at pages 655.
12
246 U.S. 147, 38 S.Ct. 295, 62 L.Ed. 632.
13
Id., 246 U.S. at page 155, 38 S.Ct. at page 297.
14
217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678. See also Furst v. Brewster, 282 U.S. 493, 51 S.Ct. 295, 75 L.Ed. 478; Sioux Remedy Co. v. Cope, 235 U.S. 197, 35 S.Ct. 57, 59 L.Ed. 193.
15
United States Time Corp. v. Grand Union Co., 64 N.J.Super. 39, especially at pages 45—46, 165 A.2d 310, 313—314.
1
Because I am of the view that Eli Lilly has engaged in 'local business' in New Jersey, there is no need now to consider whether a wholly interstate business enjoys the same degree of immunity from state licensing provisions when the state requirement is regulatory as it does when the state requirement is purely a tax measure. Compare State of California v. Thompson, 313 U.S. 109, 61 S.Ct. 930, 85 L.Ed. 1219, and Union Brokerage Co. v. Jensen, 322 U.S. 202, 64 S.Ct. 967, 88 L.Ed. 1227, with Nippert v. Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760, and Spector Motor Service, Inc., v. O'Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573; and see Powell, Vagaries and Varieties in Constitutional Interpretation, 172—176, 186—187.
2
There can be no doubt that the 'promotional and informational' activities of Lilly in New Jersey were specifically aimed at securing retail and consumer trade for its local wholesalers. One of the two affidavits submitted by Lilly in opposition to the motion below states:
'The primary purpose of said employees (stationed in New Jersey) is to acquaint retail pharmacists, physicians, and hospitals with the products of Eli Lilly and Company so that the said retail pharmacists, physicians, and hospitals will order Lilly products from local wholesale distributors.'
The other such affidavit states:
'It is the function of said detail men (Lilly employees stationed in New Jersey) only to visit retail pharmacists, physicians and hospitals and to acquaint same with the various products of Eli Lilly and Company, with a view to encouraging the purchase and use of said retail products by such institutions and professional men. The work of the detail men is promotional and informational only. They do not accept orders under any circumstances for the purchase of Eli Lilly and Company products. Products of Eli Lilly and Company are sold to retailers in the State of New Jersey by wholesale distributors. On occasion, detail men of Eli Lilly and Company may, as a service to the retailer, receive an order for Eli Lilly and Company products only for the purpose of transmitting same to the wholesaler. Orders so received and transmitted are then subject to acceptance or rejection by the wholesaler.'
To the same effect are the findings of the state court which are set forth in this Court's opinion, 366 U.S. at page 279, 81 S.Ct. at page 1319.
3
I recognize that the force of the Cheney Brothers case, at least in the field of state income taxation, has been impaired by the Act of September 14, 1959, Pub.L. 86—272, 73 Stat. 555, 15 U.S.C.A. §§ 381—384, which was passed by the Congress in response to our decision in Northwestern States Portland Cement Co. v. State of Minnesota, 358 U.S. 450, 79 S.Ct. 357, 359, 3 L.Ed.2d 421. Even so, it should be observed that the statute, which immunizes from the reach of state income taxation a foreign concern's intrastate solicitation of orders 'for the benefit of a prospective (interstate) customer,' does not include within such immunity situations where the foreign seller maintains a local office for the purpose of such solicitation. See § 101(c) of the statute and 105 Cong.Rec. 16469—16477. Lilly maintains an office in New Jersey in connection with its promotional activities. Reliance on the Northwestern Cement opinion's characterization of activities similar to those of Lilly as being 'exclusively in furtherance of interstate commerce' seems to me to be stretching too far a casual reference which was quite unnecessary to the issue decided by the Court in that case.
4
In the Browning case and agent of an out-of-state seller of lightning rods, who was engaged in installing lightning rods, purchased in interstate commerce, for the customers of such seller, was held subject to a state tax on the occupation of erecting lightning rods, despite the fact that the contract for the purchase of such rods obligated the seller to install the rods at its own expense. The Court observed that 'it was not within the power of the parties by the form of their contract to convert what was exclusively a local business, subject to state control, into an interstate commerce business protected by the commerce clause.' Id., 233 U.S. at page 23, 34 S.Ct. at page 580.
5
I do not regard such cases as Sprout v. City of South Bend, 277 U.S. 163, 48 S.Ct. 502, 72 L.Ed. 833, and Leloup v. Port of Mobile, 127 U.S. 640, 8 S.Ct. 1380, 32 L.Ed. 311, as controlling contrary authority in light of the opinion of the New Jersey Superior Court which suggests that the state statute may apply only to constitutionally licensable local business. In this regard see the Superior Court's later opinion in United States Time Corp. v. Grand Union Co., 64 N.J.Super. 39, 165 A.2d 310.
*
In that case the express company picked up and delivered articles within Virginia as well as shipped other articles into and out of the State.
| 78
|
366 U.S. 308
81 S.Ct. 1336
6 L.Ed.2d 313
Mauro John MONTANA, Petitioner,v.Robert F. KENNEDY.
No. 198.
Argued March 22, 1961.
Decided May 22, 1961.
Miss Anna R. Lavin, Chicago, Ill., for petitioner.
Mr. Charles Gordon, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Having been ordered deported as an alien on grounds which are not contested, petitioner, claiming to be a citizen, brought the present declaratory judgment action under 8 U.S.C. § 1503, 8 U.S.C.A. § 1503 to determine his citizenship status.
2
Petitioner, whose mother is a native-born United States citizen and whose father is a citizen of Italy (their marriage having been in the United States), was born in Italy in 1906 while his parents were temporarily residing there, and entered the United States with his mother later the same year. He has continuously resided in the United States since that time and has never been naturalized. His claim of United States citizenship is based primarily upon two statutes: (1) Section 2172 of the Revised Statutes (1878 ed.);1 and (2) Section 5 of an Act of 1907.2 The Court of Appeals found that neither statute obtained as to one in the circumstances of this petitioner, 278 F.2d 68. We granted certiorari to review that conclusion, 364 U.S. 861, 81 S.Ct. 102, 5 L.Ed.2d 84, in view of the apparent harshness of the result entailed. For reasons given hereafter, we agree with the Court of Appeals.
I.
3
In 1874 Congress re-enacted two statutes which seem to defy complete reconciliation. R.S. § 2172, a re-enactment of § 4 of an Act of April 14, 1802 (2 Stat. 155), provided that
4
'children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof * * *.' (Emphasis added.)
5
R.S. § 1993, substantially a re-enactment of § 1 of an Act of February 10, 1855 (10 Stat. 604), provided that
6
'All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.' (Emphasis added.)
7
Since R.S. § 2172 spoke broadly of chid ren of citizen 'persons'—perhaps citizen mothers as well as citizen fathers—while R.S. § 1993 spoke only of children of citizen 'fathers' (and even then embraced only citizen fathers who had been United States residents), there is a conflict in the apparent reach of the simultaneously re-enacted provisions.
8
In this circumstance petitioner, claiming that 'persons' in R.S. § 2172 included, in the disjunctive, both citizen fathers and mothers, contends that we are faced with deciding either that R.S. § 1993 simply repeats, with modifications, that part of R.S. § 2172 relating to 'fathers,' (leaving its provisions relating to 'mothers' intact), or that it repeals that part of R.S. § 2172 relating to 'mothers.' He suggests that we make the former choice to avoid the admitted severity of deporting a fifty-five-year-old man who has resided in this country since he was an infant. The Government, on the other hand, asserts that R.S. § 2172 should be read as embracing only children both of whose parents were American citizens. Whatever the force of these opposing contentions may be, other considerations unmistakably lead to the conclusion that petitioner's claim to citizenship under R.S. § 2172 must be rejected.
9
In 1854 Horace Binney, one of the country's leading lawyers and a recognized authority on the immigration laws, published an article entitled 'The Alienigenae of the United States'3 in which he argued that the words 'who now are, or have been' in the 1802 predecessor of R.S. § 2172 had the effect of granting citizenship to the foreign-born children only of persons who were citizens of the United States on or before the effective date of the 1802 statute (April 14, 1802), in other words that the statute had no prospective application. Foreign-born children of persons who became American citizens between April 14, 1802 and 1854, were aliens, Mr. Binney argued. In 1855 Congress responded to the situation by enacting the predecessor (10 Stat. 604) of R.S. § 1993.4 The provision had retroactive as well as prospective effect, but was clearly intended to apply only to children of citizen fathers.5
10
The view of Mr. Blinney and the 1855 Congress that the Act of 1802 had no application to the children of persons who were not citizens in 1802 has found acceptance in the decisions of this Court. See United States v. Wong Kim Ark, 169 U.S. 649, 673—674, 18 S.Ct. 456, 466, 42 L.Ed. 890; Weedin v. Chin Bow, 274 U.S. 657, 663—664, 47 S.Ct. 772, 773—774, 71 L.Ed. 1284; see also Mock Gum Ying v. Cahill, 9 Cir., 81 F.2d 940. The commentators have agreed. See 2 Kent, Commentaries, at 53; 3 Hackworth, Digest of International Law, § 222; cf. Matter of Owen, 36 Op.Atty.Gen. 197, 200. Finally Congress has repeatedly stated and acted upon that premise. See, e.g., H.R.Rep. No. 1110, 67th Cong., 2d Sess., at p. 3. Indeed when, in 1934, Congress finally granted citizenship rights to the foreign-born children of citizen mothers, 48 Stat. 797, it not only specifically made the provision prospective, but further made clear its view that this was a reversal of prior law. See H.R.Rep. No. 131, 73d Cong., 1st Sess., p. 2, and S.Rep. No. 865, 73d Cong., 2d Sess., p. 1.
11
Whatever may have been the reason for the 1874 re-enactment of the Act of 1802, as R.S. § 2172, we find nothing in that action which suggests a purpose to reverse the structure of inherited citizenship that Congress created in 1855 and recognized and reaffirmed until 1934. On this basis and in the light of our precedents, we hold that at the time of petitioner's birth in 1906, R.S. § 1993 provided the sole source of inherited citizenship status for foreign-born children of American parents. That statute cannot avail this petitioner, who is the foreign-born child of an alien father.
II.
12
Petitioner's second ground for claiming citizenship is founded upon § 5 of an Act of March 2, 1907 (34 Stat. 1229), which provided in relevant part '(T)hat a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of * * * resumption of American citizenship by the parent * * *.'6 Petitioner's claim in this regard necessarily depends upon our finding (1) that his mother was an alien at the time of his birth, having lost her citizenship either when she married an alien or when she traveled abroad with her alien husband in 1906, and (2) that his mother resumed her citizenship on her return to the United States.
13
It is sufficient to dispose of the contention that we find that mere marriage to an alien, without change of domicile, did not terminate the citizenship of an American woman either at the time of petitioner's birth or his mother's return to the United States, both of which occurred in 1906.7 This view, which is supported by the weight of authority,8 is indeed not contested by petitioner, who instead asks this Court to construe § 5 of the 1907 Act so as to avoid the obvious paradox of giving preferred treatment to the children of a woman who has lost her citizenship over that afforded to the children of a woman who has never lost her citizenship.9 Paradoxical though this may be, we have no power to 'construe' away the unambiguous statutory requirement of § 5 that petitioner's mother must have lost her citizenship at the time of his birth.10
III.
14
Petitioner makes a further contention. It is urged that the Government should not be heard to say that petitioner was born outside the United States because of its own misconduct. Petitioner's mother testified that she had been prevented from leaving Italy prior to petitioner's birth by the refusal of an American Consular Officer to issue her a passport because of her pregnant condition. However, it is uncontested that the United States did not require a passport for a citizen to return to the country in 1906. Moreover, petitioner has presented no evidence of any Italian requirement of an American passport to leave Italy at that time. In this light the testimony by petitioner's mother as to what may have been only the consular official's wellmeant advice—'I am sorry, Mrs., you cannot (return to the United States) in that condition'—falls far short of misconduct such as might prevent the United States from relying on petitioner's foreign birth. In this situation, we need not stop to inquire whether, as some lower courts have held, there may be circumstances in which the United States is estopped to deny citizenship because of the conduct of its officials.11
15
Affirmed.
16
Mr. Justice DOUGLAS dissents.
1
See 366 U.S. at page 310, 81 S.Ct. at page 1338, infra.
2
See 366 U.S. at pages 312—313, 81 S.Ct. at pages 1339 1340, infra.
3
2 American Law Register 193.
4
That the enacting Congress accepted and acted upon the view that the Act of 1802 (later re-enacted as R.S. § 2172) had no effect as to parents who became citizens after 1802 is clear from the following statement of Congressman Cutting:
'* * * the children of a man (U.S. citizen) who happened to be in the world on the 14th of April, 1802, born abroad, are American citizens, while the children of persons born on the 15th of April, 1802, are aliens to the country.' Cong.Globe, 33d Cong., 1st Sess. 170 (1854).
5
Congressman Cutting explained:
'In the reign of Victoria, in the year 1844, the English Parliament provided that the children of English mothers, though married to foreigners, should have the rights and privileges of English subjects, though born out of allegiance. I have not, in this bill, gone to that extent, as the House will have observed from the reading of it.' (Emphasis added.) Cong.Globe, 33d Cong., 1st Sess. 170.
6
In the context of the section it is clear that the word 'parent' refers both to fathers and mothers. Section 2 of the Act of May 24, 1934 (48 Stat. 797), on which petitioner alternatively relies, is in all respects here material a re-enactment of the above provision.
7
By § 3 of the Act of March 2, 1907 (34 Stat. 1228), marriage to an alien did terminate the citizenship of an American woman.
8
See, e.g., Comitis v. Parkerson, C.C.E.D.La., 56 F. 556, 559—560, 22 L.R.A. 148, writ of error dismissed sub nom. Comitiz v. Parkerson, 163 U.S. 681, 16 S.Ct. 1200, 41 L.Ed. 307; Ruckgaber v. Moore, C.C.E.D.N.Y., 104 F. 947, 948—949, affirmed 2 Cir., 114 F. 1020; Wallenburg v. Missouri Pacific R. Co., C.C.D.Neb., 159 F. 217, 219; In re Fitzroy, D.C.D.Mass., 4 F.2d 541, 542; In re Lynch, D.C.S.D.Cal., 31 F.2d 762; Petition of Zogbaum, D.C.D.S.D., 32 F.2d 911, 912—913; In re Wright, D.C.E.D.Pa., 19 F.Supp. 224, 225; Watkins v. Morgenthau, D.C.E.D.Pa., 56 F.Supp. 529, 530—531.
9
Such a construction was espoused by Attorney General William D. Mitchell in 1933, 37 Op.Atty.Gen. 90, and is also indicated in two District Court cases. See Petition of Black, D.C., 64 F.Supp. 518; Petition of Donsky, D.C., 77 F.Supp. 832. But see D'Alessio v. Lehman, D.C., 183 F.Supp. 345, which takes a contrary view.
10
Moreover, even if petitioner's mother had suffered a loss of citizenship which was later reacquired, petitioner's case would still not come within the statutory definition of 'resumption of American citizenship.' Congress gave explicit content to this requirement of § 5 of the Act of 1907, § 3 of the same Act providing:
'At the termination of the marital relatio she may resume her American citizenship * * *.' (Emphasis added.) 34 Stat. 1228. Petitioner's mother has never terminated her marital relation with petitioner's alien father.
11
See, e.g., Podea v. Acheson, 2 Cir., 179 F.2d 306; Lee You Fee v. Dulles, 7 Cir., 236 F.2d 885, 887.
| 12
|
366 U.S. 316
81 S.Ct. 1243
6 L.Ed.2d 318
UNITED STATES, Appellant,v.E. I. DU PONT DE NEMOURS AND COMPANY et al.
No. 55.
Argued Feb. 20, 21, 1961.
Decided May 22, 1961.
[Syllabus from pages 316-317 intentionally omitted]
Mr. John F. Davis, Washington, D.C., for appellant.
Mr. Hugh B. Cox, New York City, for appellee, E. I. du Pont de Nemours and co.
Mr. Robert L. Stern, Chicago, Ill., for appellee, General Motors Corp.
Mr. Wilkie Bushby, New York City, for appellees, Christiana Securities Co. and Delaware Realty and Investment Co.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The United States filed this action in 1949 in the District Court for the Northern District of Illinois. The complaint alleged that the ownership and use by appellee E. I. du Pont de Nemours & Co. of approximately 23 percent of the voting common stock of appellee General Motors Corporation was a violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, 15 U.S.C.A. §§ 1, 2, and of section 7 of the Clayton Act, 15 U.S.C. § 18, 15 U.S.C.A. § 18. After trial, the District Court dismissed the complaint. D.C.N.D.Ill.1954, 126 F.Supp. 235. On the Government's appeal, we reversed. We held that du Pont's acquisition of the 23 percent of General Motors stock had led to the insulation from free competition of most of the General Motors market in automobile finishes and fabrics, with the resultant likelihood, at the time of suit, of the creation of a monopoly of a line of commerce, and, accordingly, that du Pont had violated § 7 of the Clayton Act. United States v. E. I. du Pont de Nemours & Co., 1957, 353 U.S. 586, 77 S.Ct. 872, 885, 1 L.Ed.2d 1057.1 We did not, however, determine what equitable relief was necessary in the public interest. Instead, we observed that '(t)he District Courts * * * are clothed 'with large discretion to model their judgments to fit the exigencies of the particular case.' International Salt Co. v. United States, 332 U.S. 392, 400—401, 68 S.Ct. 12, 17, 92 L.Ed. 20,' and remanded the cause to the District Court 'for a determination, after further hearing, of the equitable relief necessary and appropriate in the public interest to eliminate the effects of the acquisition offensive to the statute.' 353 U.S. at pages 607—608, 77 S.Ct. at page 885.
2
On remand, the District Court invited the Government to submit a plan of relief which in its opinion would be effective to remedy the violation. The court also appointed two amici curiae to represent the interests of General Motors and du Pont shareholders, respectively, most of whom, of course, had not been made parties to this litigation. The Government submitted a proposed plan of relief. That plan included diverse forms of injunctive relief, but its principal feature was a requirement that within 10 years the du Pont company completely divest itself of its approximately 63 million General Motors shares. The Government proposed that about two-thirds of these shares be distributed pro rata to the generality of du Pont shareholders in the form of dividends over the 10-year period. The other one-third of du Pont's General Motors holdings—stock which would have gone to appellees Christiana Securities Company and Delaware Realty and Investment Company, holding companies long identified with the du Pont family itself—weret o go to a court-appointed trustee, to be sold gradually over the same 10-year period. Du Pont objected that the Government's plan of complete divestiture entailed harsh income-tax consequences for du Pont stockholders and, if adopted, would also threaten seriously to depress the market value of du Pont and General Motors stock. Du Pont therefore proposed its own plan designed to avoid these results. The slient feature of its plan was substitution for the Government's proposed complete divestiture of a plan for partial divestiture in the form of a so-called 'pass through' of voting rights, whereby du Pont would retain all attributes of ownership of the General Motors stock, including the right to receive dividends and a share of assets on liquidation, except the right to vote. The vote was to be 'passed through' to du Pont's shareholders proportionally to their holdings of du Pont's own shares, except that Christiana and Delaware would 'pass through' the votes allocable to them to their own shareholders. The amici curiae also proposed plans of compliance, substantially equivalent to the du Pont plan. The amicus representing the generality of du Pont shareholders proposed in addition a program of so-called 'take-downs,' by which du Pont shareholders would be allowed to exchange their du Pont common stock for a new class of du Pont 'Special Common,' plus their pro rata share of du Pont-held General Motors common stock.
3
The District Court held several weeks of hearings. The evidence taken at the hearings, largely of expert witnesses, fills some 3,000 pages in the record before us, and, together with the numerous financial charts and tables received as exhibits, bears mainly not on the competition-restoring effect of the several proposals, but rather on which proposal would have the more, and which the less, serious tax and market consequences for the owners of the du Pont and General Motors stock. The District Court concluded that although '* * * there is no need for the Court to resolve the conflict in the evidence as to how severe those consequences would be(, t)he Court is persuaded beyond any doubt that a judgment of the kind proposed by the Government would have very serious adverse consequences.' D.C.N.D.Ill.1959, 177 F.Supp. 1, 42. The court for this reason rejected the Government's plan and adopted the du Pont proposal, with some significant modifications. The 'pass through' of voting rights, for example, was so limited that neither Christiana, Delaware, nor their officers and directors (plus resident members of the latter's families), should be able to vote any of the du Pont-held General Motors stock; General Motors shares allocable to the two companies or to their officers and directors, or to the officers and directors of du Pont, or to resident members of the families of the officers and directors of the several companies, were to be sterilized, voted by no one. Du Pont, Christiana, and Delaware were forbidden to acquire any additional General Motors stock. Du Pont and General Motors might not have any preferential or discriminatory trade relations or contracts with each other. No officer or director of du Pont, Christiana, or Delaware might also serve as an officer or director of General Motors. Nor might du Pont, Christiana, or Delaware nominate or propose any person to be a General Motors officer or director, or seek in any way to influence the choice of persons to fill those posts. The Government objected that without a provision ordering complete divestiture the decree, although otherwise satisfactory, was inadequate to redress the antitrust violation, and filed its appeal here under § 2 of the Expediting Act, 15 U.S.C. § 29, 15 U.S.C.A. § 29. We noted probable jurisdiction. 1960, 362 U.S. 986, 80 S.Ct. 1075, 4 L.Ed.2d 1020.
4
A threshold question—and one which, although subsidiary, is most important—concerns the scope of our review of the District Court's discharge of the duty delegated by our judgment to formulate a decree. In u r former opinion we alluded to the 'large discretion' of the District Courts in matters of remedy in antitrust cases. Many opinions of the Court in such cases observe that '(t) he formulation of decrees is largely left to the discretion of the trial court * * *,' Maryland & Virginia Milk Producers Ass'n v. United States, 1960, 362 U.S. 458, 473, 80 S.Ct. 847, 856, 4 L.Ed.2d 880; '(i)n framing relief in antitrust cases, a range of discretion rests with the trial judge,' Besser Mfg. Co. v. United States, 1952, 343 U.S. 444, 449, 72 S.Ct. 838, 841, 96 L.Ed. 1063; '(t)he determination of the scope of the decree to accomplish its purpose is peculiarly the responsibility of the trial court,' United States v. United States Gypsum Co., 1950, 340 U.S. 76, 89, 71 S.Ct. 160, 169, 95 L.Ed. 89; '(t) he framing of decrees should take place in the District rather than in Appellate Courts,' International Salt Co. v. United States, 1947, 332 U.S. 392, 400, 68 S.Ct. 12, 17, 92 L.Ed. 20. The Court has on occasion said that decrees will be upheld in the absence of a showing of an abuse of discretion. See, e.g., Maryland & Virginia Milk Producers Ass'n v. United States, supra, 362 U.S. at page 473, 80 S.Ct. at page 856; United States v. W. T. Grant Co., 1953, 345 U.S. 629, 634, 73 S.Ct. 894, 898, 97 L.Ed. 1303; Timken Roller Bearing Co. v. United States, 1951, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199;2 United States v. National Lead Co., 1947, 332 U.S. 319, 334—335, 67 S.Ct. 1634, 1640—1641, 91 L.Ed. 2077; United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 185, 65 S.Ct. 254, 260, 89 L.Ed. 160.3 These expressions are not, however, to be understood to imply a narrow review here of the remedies fashioned by the District Courts in antitrust cases. On the contrary, our practice, particularly in cases of a direct appeal from the decree of a single judge, is to examine the District Court's action closely to satisfy ourselves that the relief is effective to redress the antitrust violation proved. 'The relief granted by a trial court in an antitrust case and brought here on direct appeal, thus by-passing the usual appellate review, has always had the most careful scrutiny of this Court. Though the records are usually most voluminous and their review exceedingly burdensome, we have painstakingly undertaken it to make certain that justice has been done.' International Boxing Club of New York v. United States, 1959, 358 U.S. 242, 253, 79 S.Ct. 245, 252, 3 L.Ed.2d 270; see also id., at page 263, 79 S.Ct. at page 256 (dissenting opinion). We have made it clear that a decree formulated by a District Court is not 'subject only to reversal for gross abuse. Rather we have felt an obligation to intervene in this most significant phase of the case when we concluded there were inappropriate provisions in the decree.' United States v. United States Gypsum Co., supra, 340 U.S. at page 89, 71 S.Ct. at page 169.
5
In sum, we assign to the District Courts the responsibility initially to fashion the remedy, but recognize that while we accord due regard and respect to the conclusion of the District Court, we have a duty ourselves to be sure that a decree is fashioned which will effectively redress proved violations of the antitrust laws. The proper disposition of antitrust cases is obviously of great public importance, and their remedial phase, more often than not, is crucial. For the suit has been a futile exercise if the Government proves a violation but fails to secure a remedy adequate to redress it. 'A public interest served by such civil suits is that they effectively pry open to competition a market that has been closed by defendants' illegal restraints. If this decree accomplishes less than that, the Government has won a lawsuit and lost a cause.' International Salt Co. v. United States, supra, 332 U.S. at page 401, 68 S.Ct. at page 17.
6
Our practice reflects the situation created by the congressional authorization, under § 2 of the Expediting Act,4 of a direct appeal to this Court from the judgment of relief fashioned by a single judge. Congress has deliberately taken away the shield of intermediate appellate review by a Court of Appeals, and left with us alone the responsibility of affording the parties a review of his determination.5 This circumstance imposes a special burden upon us, for, as Mr. Justice Roberts said for the Court, '* * * it is unthinkable that Congress has entrusted the enforcement of a statute of such far-reaching importance to the judgment of a single judge, without review of the relief granted or denied by him,' Hartford-Empire Co. v. United States, 1945, 324 U.S. 570, 571, 65 S.Ct. 815, 817, 89 L.Ed. 1198, clarifying 1945, 323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322.
7
These principles alone would require our close examination of the District Court's action. But the necessity for that examination in this case further appears in the light of additional considerations. First of all, the decree was fashioned in obedience to the judgment which we sent down to the District Court after our reversal of that court's dismissal of the Government's complaint. We have plenary power to determine whether our judgment was scrupulously and fully carried out. Chief Justice Taft, speaking for the Court, said in Continental Ins. Co. v. United States, 1922, 259 U.S. 156, 166, 42 S.Ct. 540, 543, 66 L.Ed. 871, 'We delegated to the District Court the duty of formulating a decree in compliance with the principles announced in our judgment of reversal, and that gives us plenary power, where the compliance has been attempted and the decree in any proper way is brought to our attention, to see that it follows our opinion.'6 Secondly, the record is concerned mainly with the alleged adverse tax and market ef ects of the Government's proposal for complete divestiture. But the primary focus of inquiry, as we shall show, is upon the question of the relief required effectively to eliminate the tendency of the acquisition condemned by § 7. For it will be remembered that the violation was not actual monopoly but only a tendency towards monopoly. The required relief therefore is a remedy which reasonably assures the elimination of that tendency. Does partial divestiture in the form of the 'pass through' of voting power, together with the ancillary relief, give an effective remedy, or is complete divestiture necessary to assure effective relief? Little in the record or in the District Court's opinion is concerned with that crucial question. The findings of possible harsh consequences relied upon to justify rejection of complete divestiture are thus hardly of material assistance in reaching judgment on the central issue. If our examination persuades us that the remedy decreed leaves the public interest in the elimination of the tendency inadequately protected, we should be derelict in our duty if we did not correct the error.
8
Before we examine the adequacy of the relief allowed by the District Court, it is appropriate to review some general considerations concerning that most drastic, but most effective, of antitrust remedies—divestiture. The key to the whole question of an antitrust remedy is of course the discovery of measures effective to restore competition. Courts are not authorized in civil proceedings to punish antitrust violators, and relief must not be punitive. But courts are authorized, indeed required, to decree relief effective to redress the violations, whatever the adverse effect of such a decree on private interests. Divestiture is itself an equitable remedy designed to protect the public interest. In United States v. Crescent Amusement Co., supra, where we sustained divestiture provisions against an attack similar to that successfully made below, we said, at page 189 of 323 U.S., at page 262 of 65 S.Ct.: 'It is said that these provisions are inequitable and harsh income tax wise, that they exceed any reasonable requirement for the prevention of future violations, and that they are therefore punitive. * * * Those who violate the Act may not reap the benefits of their violations and avoid an undoing of their unlawful project on the plea of hardship or inconvenience.'7
9
If the Court concludes that other measures will not be effective to redress a violation, and that complete divestiture is a necessary element of effective relief, the Government cannot be denied the latter remedy because economic hardship, however severe, may result. Economic hardship can influence choice only as among two or more effective remedies. If the remedy chosen is not effective, it will not be saved because an effective remedy would entail harsh consequences. This proposition is not novel; it is deeply rooted in antitrust law and has never been successfully challenged.8 The criteria were announced in one of the earliest cases. In United States v. American Tobacco Co., 1911, 221 U.S 106, 185, 31 S.Ct. 632, 650, 55 L.Ed. 663, we said:
10
'In considering the subject * * * three dominant influences must guide our action: 1. The duty of giving complete and efficacious effect to the prohibitions of the statute; 2, the accomplishing of this result with as little injury as possible to the interest of the general public; and, 3, a proper regard for the vast interests of private property which may have become vested in many persons as a result of the acquisition either by way of stock ownership or otherwise of interests in the stock or securities of the combination without any guilty knowledge or intent in any way to become actors or participants in the wrongs which we find to have inspired and dominated the combination from the beginning.'
11
The Court concluded in that case that, despite the alleged hardship which would be involved, only dissolution of the combination would be effective, and therefore ordered dissolution. Plainly, if the relief is not effective, there is no occasion to consider the third criterion.
12
Thus, in this case, the adverse tax and market consequences which the District Court found would be concomitants of complete divestiture cannot save the remedy of partial divestiture through the 'pass through' of voting rights if, though less harsh, partial divestiture is not an effective remedy. We do not think that the 'pass through' is an effective remedy and believe that the Government is entitled to a decree directing complete divestiture.
13
It cannot be gainsaid that complete divestiture is peculiarly appropriate in cases of stock acquisitions which violate § 7.9 That statute is specific and 'narrowly directed,'10 Standard Oil Co. of California and Standard Stations v. United States, 1949, 337 U.S. 293, 312, 69 S.Ct. 1051, 1061, 93 L.Ed. 1371, and it outlaws a particular form of economic control stock acquisitions which tend to create a monopoly of any line of commerce. The very words of § 7 suggest that an undoing of the acquisition is a natural remedy. Divestiture or dissolution has traditionally been the remedy for Sherman Act violations whose heart is intercorporate combination and control,11 and it is reasonable to think immediately of the same remedy when § 7 of the Clayton Act, which particularizes the Sherman Act standard of illegality, is involved. Of the very few litigated12 § 7 cases which have been reported, most decreed divestiture as a matter of course.13 Divestiture has been called the most important of antitrust remedies.14 It is simple, relatively easy to administer, and sure. It should always be in the forefront of a court's mind when a violation of § 7 has been found.
14
The divestiture only of voting rights does not seem to us to be a remedy adequate to promise elimination of the tendency of du Pont's acquisition offensive to § 7. Under the decree, two-thirds of du Pont's holdings of General Motors stock will be voted by du Pont shareholders—upwards of 40 million shares. Common sense tells us that under this arrangement there can be little assurance of the dissolution of the intercorporate community of interest which we found to violate the law. The du Pont shareholders will ipso facto also be General Motors voters. It will be in their interest to vote in such a way as to induce General Motors to favor du Pont, the very result which we found illegal on the first appeal. It may be true, as appellees insist, that these shareholders will not exercise as much influence on General Motors as did du Pont when it held and voted the shares as a block. And it is true that there is no showing in this record that the du Pont shareholders will combine to vote together, or that their information about General Motors' activities will be detailed enough to enable them to vote their shares as strategically as du Pont itself has done. But these arguments misconceive the nature of this proceeding. The burden is not on the Government to show de novo that a 'pass through' of the General Motors vote, like du Pont's ownership of General Motors stock, would violate § 7. United States v. Aluminum Co. of America, D.C.S.D.N.Y.1950, 91 F.Supp. 333, 346. It need only appear that the decree entered leaves a substantial likelihood that the tendency towards monopoly of the acquisition condemned by § 7 has not been satisfactorily eliminated. We are not required to assume, contrary to all human experience, that du Pont's shareholders will not vote in their own self-interest. Moreover, the General Motors management, which over the years has become accustomed to du Pont's special relationship,15 would know that the relationship continues to a substantial degree, and might well act accordingly. The same is true of du Pont's competitors. They might not try so vigorously to break du Pont's hold on General Motors' business, as if complete divestiture were ordered. And finally, the influence of the du Pont company itself would not be completely dissipated. For under the decree du Pont would have the power to sell its General Motors shares; the District Court expressly held that '(t)here would be nothing in the decree to prevent such dispositions.' 177 F.Supp. at page 41. Such a sale would presumably restore the vote separated from the sold stock while du Pont owned it. This power to transfer the vote could conceivably be used to induce General Motors to favor du Pont products. In sum, the 'pass through' of the vote does not promise elimination of the violation offensive to § 7. What was said of the Sherman Act in United States v. Union Pacific R. Co., 1913, 226 U.S. 470, 477, 33 S.Ct. 162, 165, 57 L.Ed. 306, applies here: 'So far as is consistent with this purpose a court of equity, dealing with such combinations, should conserve the property interests involved, but never in such wise as to sacrifice the object and purpose of the statute. The decree of the courts must be faithfully executed, and no form of dissolution be permitted that, in substance or effect, amounts to restoring the combination which it was the purpose of the decree to terminate.'
15
Du Pont replies, inter alia, that it would be willing for all of its General Motors stock to be disenfranchised, if that would satisfy the requirement for effective relief. This suggestion, not presented to the District Court, is distinctly an afterthought. If the suggestion is disenfranchisement only while du Pont retains the stock, it would not avoid the hazards inherent in du Pont's power to transfer the vote. If the suggestion is permanent loss of the vote, it would create a large and permanent separation of corporate ownership from control, which would not only run directly counter to accepted principles of corporate democracy, but also reduce substantially the number of voting General Motors shares, thereby making it easier for the owner of a block of shares far below an absolute majority to obtain working control, perhaps creating new antitrust problems for both General Motors and the Department of Justice in the future. And finally, we should be reluctant to effect such a drastic change in General Motors' capital structure, established under state corporation law.
16
Appellees argue further that the injunctive provisions of the decree supplementary to the 'pass through' of voting rights adequately remove any objections to the effectiveness of the 'pass through.' Du Pont is enjoined, for example, from in any way influencing the choice of General Motors' officers and directors, and from entering into any preferential trade relations with General Motors. And, under IX of the decree, the Government may reapply in the future should this injunctive relief prove inadequate. Presumably this provision could be used to prevent the exercise of the power to transfer the vote. But the public interest should not in this case be required to depend upon the often cumbersome and time-consuming injunctive remedy. Should a violation of one of the prohibitions be thought to occur, the Government would have the burden of initiating contempt proceedings and of proving by a preponderance of the evidence that a violation had indeed been committed.16 Such a remedy would, judging from the history of this litigation, take years to obtain. Moreover, an injunction can hardly be detailed enough to cover in advance all the many fashions in which improper influence might manifest itself. And the policing of an injunction would probably involve the courts and the Government in regulation of private affairs more deeply than the administration of a simple order of divestiture.17 We think the public is entitled to the surer, cleaner remedy of divestiture. The same result would follow even if we were in doubt. For it is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be resolved in its favor.18
17
We therefore direct complete divestiture. Since the District Court's decree was framed around the provision directing only partial divestiture, and since General Motors, Christiana, and Delaware c quiesced in its provisions only on that basis, we shall not pass upon the provisions for ancillary relief but shall vacate the decree in its entirety except as to the provisions of VI enjoining du Pont itself from exercising voting rights in respect of its General Motors stock. In this way the District Court will be free to fashion a new decree consistent with this opinion at a new hearing at which all parties may be heard. General Motors, Christiana, and Delaware will thus be able to renew, for the District Court's decision in the first instance, any objections they may have to the power of the Court to grant relief against them.
18
We believe, however, that this already protracted litigation should be concluded as soon as possible. To that end we direct the District Court on receipt of our judgment to enter an order requiring du Pont to file within 60 days a proposed judgment providing for complete divestiture of its General Motors stock, to commence within 90 days, and to be completed within not to exceed 10 years, of the effective date of the District Court's judgment, and requiring the Government to file, within 30 days after service upon it of du Pont's proposed judgment, either proposed specific amendments to such du Pont judgment or a proposed alternative judgment of divestiture. The District Court shall give precedence to this cause on its calendar.
19
The judgment of the District Court, except to the extent VI is affirmed, is vacated and remanded for further proceedings consistent with this opinion. It is so ordered.
20
Judgment, except to the extent VI is affirmed, vacated and case remanded for further proceedings.
21
Mr. Justice CLARK and Mr. Justice HARLAN took no part in the consideration or decision of this case.
22
Mr. Justice FRANKFURTER, whom Mr. Justice WHITTAKER and Mr. Justice STEWART join, dissenting.
23
In United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057, the Court held that the acquisition and continued ownership by E. I. du Pont de Nemours & Co. of twenty-three percent of the stock of the General Motors Corporation constituted a violation of § 7 of the Clayton Act.1 The question now before us is the adequacy of the terms of the enforcement of that judgment by the United States District Court for the Northern District of Illinois, 177 F.Supp. 1. In order to determine whether the district judge satisfactorily discharged the duties assigned him, it is necessary to be clear about these underlying elements of the question for decision: (1) What did this Court hold and say in finding that du Pont had violated § 7? (2) What considerations guided the district judge in fashioning his decree? (3) What principles has this Court laid down for the formulation of decrees by District Courts, particularly under the antitrust laws, and for review of those decrees here?
I.
24
As the Court described it, the 'primary issue' in the Government's suit against du Pont, General Motors, and related parties was 'whether du Pont's commanding position as General Motors' supplier of automotive finishes and fabrics was achieved on competitive merit alone, or because its acquisition of the General Motors' stock, and the consequent close intercompany relationship, led to the insulation of most of the General Motors' market from free competition, with the resultant likelihood, at the time of suit, of the creation of a monopoly of a line of commerce.' 353 U.S. at pages 588—589, 77 S.Ct. at page 875. The question was asked in the context of these facts.
25
The transaction out of which the case arose was the acquisition by du Pont, during the period 1917—1919, of a twenty-three percent stock interest in General Motors. That 'colossus of the giant automobile industry' absorbed 'upwards of two-fifths of the total sales of automotive vehicles in the Nation' over the period from 1938 to 1955. In 1955 it ranked first in sales and second in assets among all United States industrial corporations. Purchases of automotive fabrics and finishes by General Motors from du Pont ran into millions of dollars annually in the years immediately preceding the institution of the Government's suit in 1949. Du Pont supplied sixty-seven percent of General Motors' requirements for finishes in 1946 and sixty-eight percent in 1947. The figures for fabrics supplied to General Motors by du Pont in those years are fifty-two and three-tenths percent and thirty-eight and five-tenths percent respectively.
26
Du Pont's 'commanding position as a General Motors supplier' was not achieved until after its acquisition of a substantial fraction of General Motors' stock. At the time of this purchase, du Pont was actively seeking markets for its nitrocellulose, artificial leather, celluloid, rubber-coated goods, and paints and varnishes used by automobile manufacturers. Leading du Pont executives in 1917 and 1918 indicated that the acquisition of General Motors stock was due in part to a belief that it would secure for du Pont an important market for its automotive products.
27
'This background of the acquisition, particularly the plain implications of the contemporaneous documents, destroys any basis for a conclusion that the purchase was made 'solely for investment.' Moreover, immediately after the acquisition, du Pont's influence growing out of it was brought to bear within General Motors to achieve primacy for du Pont as General Motors' supplier of automotive fabrics and finishes.' 353 U.S. at page 602, 77 S.Ct. at page 882.
28
A former du Pont official became a General Motors vice president and set about maximizing du Pont's share of the General Motors market. Lines of communications were established between the two companies and several du Pont Products were actively promoted. Within a few years various du Pont manufactured items were filling the entire requirements of from four to seven of General Motors' eight operating divisions. The Fisher Body division, long controlled by the Fisher brothers under a voting trust even though General Motors owned a majority of its stock, followed an independent course for many years, but by 1947 and 1948 'resistance had collapsed' and its purchases from du Pont 'compared favorably' with purchases by other General Motors divisions. Competitors came to receive higher percentages of General Motors business in later years, but it is 'likely' that this trend stemmed 'at least in part' from the needs of General Motors outstripping du Pont's capacity.
29
'The fact that sticks out in this voluminous record is that the bulk of du Pont's production has always supplied the largest part of the requirements of the one customer in the automobile industry connected to du Pont by a stock interest. The inference is overwhelming that du Pont's commanding position was promoted by its stock interest and was not gained solely on competitive merit.' 353 U.S. at page 605, 77 S.Ct. at page 883.
30
This Court agreed with the trial court 'that considerations of price, quality and service were not overlooked by either du Pont or General Motors.' 353 U.S. at page 606, 77 S.Ct. at page 884. However, it determined that neither this factor, nor 'the fact that all concerned in high executive posts in both companies acted honorably and fairly, each in the honest conviction that his actions were in the best interests of his own company and without any design to overreach anyone, including du Pont's competitors,' 353 U.S. at page 607, 77 S.Ct. at page 884, outweighed the Government's claim for relief. This claim, as submitted to the District Court and dismissed by it, 126 F.Supp. 235, alleged violation not only of § 7 of the Clayton Act, but also of §§ 1 and 2 of the Sherman Act.2 The lattr provisions proscribe any contract, combination, or conspiracy in restraint of interstate or foreign trade, and monopolization of, or attempts, combinations, or conspiracies to monopolize, such trade. However, this Court put to one side without consideration the Government's appeal from the dismissal of its Sherman Act allegations.3 It rested its decision solely on § 7, which reads in pertinent part:
31
'(N)o corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.
32
'This section shall not apply to corporations purchasing such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition * * *.'
33
The purpose of this provision was thus explained in the Court's opinion:
34
'Section 7 is designed to arrest in its incipiency not only the substantial lessening of competition from the acquisition by one corporation of the whole or any part of the stock of a competing corporation, but also to arrest in their incipiency restraints or monopolies in a relevant market which, as a reasonable probability, appear at the time of suit likely to result from the acquisition by one corporation of all or any part of the stock of any other corporation. The section is violated whether or not actual restraints or monopolies, or the substantial lessening of competition, have occurred or are intended. * * *' 353 U.S. at page 589, 77 S.Ct. at page 875.
35
Thus, a finding of conspiracy to restrain trade or attempt to monopolize was excluded from the Court's decision. Indeed, as already noted, the Court proceeded on the assumption that the executives involved in the dealings between du Pont and General Motors acted 'honorably and fairly' and exercised their business judgment only to serve what they deemed the best interests of their own companies. This, however, did not bar finding that du Pont had become preeminent as a supplier of automotive fabrics and finishes to General Motors; that these products constituted a 'line of commerce' within the meaning of the Clayton Act; that General Motors' share of the market for these products was substantial; and that competition for this share of the market was endangered by the financial relationship between the two concerns:
36
'The statutory policy of fostering free competition is obviously furthered when no supplier has an advantage over his competitors from an acquisition of his customer's stock likely to have the effects condemned by the statute. We repeat, that the test of a violation of § 7 is whether, at the time of suit, there is a reasonable probability that the acquisition is likely to result in the condemned restraints. The conclusion upon this record is inescapable that such likelihood was proved as to this acquisition. * * *' 353 U.S. at page 607, 77 S.Ct. at page 884.
37
On the basis of the findings which led to this conclusion, the Court remanded the case to the District Court to determine the appropriate relief. The sole guidance given the Court for discharging the task committed to it was this:
38
'The judgment must therefore be reversed and the cause remanded to the District Court for a determination, after further hearing, of the equitable relief necessary and appropriate in the public interest to eliminate the effects of the acquisition offensive to the statute. The District Courts, in the framing of equitable decrees, are clothed 'with large discretion to modelt heir judgments to fit the exigencies of the particular case.' International Salt Co. v. United States, 332 U.S. 392, 400—401, 68 S.Ct. 12, 17, 92 L.Ed. 20.' 353 U.S. at pages 607—608, 77 S.Ct. at page 885.
39
This brings us to the course of the proceedings in the District Court.
II.
40
This Court's judgment was filed in the District Court on July 18, 1957. The first pretrial conference—held to appoint amici curiae to represent the interests of the stockholders of du Pont and General Motors and to consider the procedure to be followed in the subsequent hearings—took place on September 25, 1957. At the outset, the Government's spokesman explained that counsel for the Government and for du Pont had already held preliminary discussions with a view to arriving at a relief plan that both sides could recommend to the court. Du Pont, he said, had proposed disenfranchisement of its General Motors stock along with other restrictions on the du Pont-General Motors relationship. The Government, deeming these suggestions inadequate, had urged that any judgment include divestiture of du Pont's shares of General Motors. Counsel for the Government invited du Pont's views on this proposal before recommending a specific program, but stated that if the court desired, or if counsel for du Pont thought further discussion would not be profitable, the Government was prepared to submit a plan within thirty days.
41
Counsel for du Pont indicated a preference for the submission of detailed plans by both sides at an early date. No previous antitrust case, he said, had involved interests of such magnitude or presented such complex problems of relief. The submission of detailed plans would place the issues before the court more readily than would discussion of divestiture or disenfranchisement in the abstract. The Court adopted this procedure with an appropriate time schedule for carrying it out.
42
The Government submitted its proposed decree on October 25, 1957. The plan called for divestiture by du Pont of its 63,000,000 shares of General Motors stock by equal annual distributions to its stockholders, as a dividend, over a period of ten years. Christiana Securities Company and Delaware Realty & Investment Company, major stockholders in du Pont, and the stockholders of Delaware were dealt with specially by provisions requiring the annual sale by a trustee, again over a ten-year period, of du Pont's General Motors stock allocable to them, as well as any General Motors stock which Christiana and Delaware owned outright. If, in the trustee's judgment, 'reasonable market conditions' did not prevail during any given year, he was to be allowed to petition the court for an extension of time within the ten-year period. In addition, the right to vote the General Motors stock held by du Pont was to be vested in du Pont's stockholders, other than Christiana and Delaware and the stockholders of Delaware; du Pont, Christiana, and Delaware were to be enjoined from acquiring stock in or exercising control over General Motors; du Pont, Christiana, and Delaware were to be prohibited to have any director or officer in common with General Motors, and vice versa; and General Motors and du Pont were to be ordered to terminate any agreement that provided for the purchase by General Motors of any specified percentage of its requirements of any du Pont manufactured product, or for the grant of exclusive patent rights, or for a grant by General Motors to du Pont of a preferential right to make or sell any chemical discovery of General Motors, or for the maintenance of any joint commercial enterprise by the two companies.
43
On motion of the amici curiae, the court directed that a ruling be obtained from the Commissioner of Internal Revenue as to the federal income tax consequences of the Government's plan. On May 9, 1958, the Commissioner announced his rulings. The annual dividends paid to du Pont stockholders in shares of General Motors stock would be taxable as ordinary income to the extent of duP ont's earnings and profits. The measure, for federal income tax purposes, of the dividend to individual stockholders would be the fair market value of the shares at the time of each annual distribution. In the case of taxpaying corporate stockholders, the measure would be the lesser of the fair market value of the shares or du Pont's tax basis for them, which is approximately $2.09 per share. The forced sale of the General Motors stock owned by or allocable to Christiana, Delaware, and the stockholders of Delaware, and deposited with the trustee, would result in a tax to those parties at the capital gains rate.
44
Du Pont's counterproposal was filed on May 14, 1958. Under its plan du Pont would retain its General Motors shares but be required to pass on to its stockholders the right to vote those shares. Christiana and Delaware would, in turn, be required to pass on the voting rights to the General Motors shares allocable to them to their own stockholders. Du Pont would be enjoined from having as a director, officer, or employee anyone who was simultaneously an officer or employee of General Motors, and no director, officer, or employee of du Pont could serve as a director of General Motors without court approval. Du Pont would be denied the right to acquire any additional General Motors stock except through General Motors' distributions of stock or subscription rights to its stockholders.
45
On June 6, 1958, General Motors submitted its objections to the Government's proposal. It argued, inter alia, that a divestiture order would severely depress the market value of the stock of both General Motors and du Pont, with consequent serious loss and hardship to hundreds of thousands of innocent investors, among them thousands of small trusts and charitable institutions; that there would be a similar decline in the market values of other automotive and chemical stocks, with similar losses to the stockholders of those companies; that the tremendous volume of General Motors stock hanging over the market for ten years would hamper the efforts of General Motors and other automobile manufacturers to raise equity capital; and that all this would have a serious adverse effect on the entire stock market and on general business activity. General Motors comprehensively contended that the Government plan would not be 'in the public interest' as required by the mandate of this Court.
46
The decrees proposed by the amici curiae were filed in August of 1958. These plans, like du Pont's, contained provisions for passing the vote on du Pont's General Motors shares on to the ultimate stockholders of du Pont, Christiana, and Delaware, except that officers and directors of the three companies, their spouses, and other people living in their households, as well as other specified persons, were to be totally disenfranchised. Both plans also prohibited common directors, officers, or employees between du Pont, Christiana, and Delaware, on the one hand, and General Motors on the other. Further, both plans placed restrictions on trade relations between du Pont and General Motors. Amicus Dallstream, representing the du Pont stockholders, proposed in addition a program termed a 'takedown,' by which du Pont would create a new class of stock, 'du Pont Special Common,' which would have no rights in du Pont's General Motors stock and which du Pont stockholders could obtain, along with their allocable portion of the General Motors shares owned by du Pont, at times suitable to them, in exchange for their present du Pont common. This proposal would have different, and in several respects more favorable, tax consequences than those of the Government's plan.4
47
In a memorandum filed on September 26, 1958, the Government, on the assumption that divestiture was required under the Clayton Act, suggested various ways in which its decree might be modified to amelirate its harsh tax consequences. The Government stated that it would have no objections to the modifications discussed in the memorandum but it did not submit amendments to its original proposal.
48
On the same day, the Government filed a motion for a preliminary injunction, seeking to restrain du Pont, Christiana, and Delaware from exercising their voting rights in General Motors stock, to prevent du Pont, Christiana, and Delaware from having any director, officer, or employee in common with General Motors or nominating any such person to serve in General Motors, and to prohibit further acquisitions of General Motors stock by the three corporations. The Government urged that since all parties were in substantial agreement on these measures as the minimum appropriate relief, the court should adopt them without delay. The court denied the motion on November 3, 1958, on the ground that the Government had failed to show a likelihood of irreparable injury in the absence of immediate relief and that, with final determination of the case not far distant, it would be undesirable to begin deciding issues piecemeal at that late date.
49
After further preliminaries which need not be recounted, the trial of the issues on the appropriate relief commenced on February 16, 1959, and continued to a conclusion on April 9, 1959. The Government presented its evidence on twelve hearing days; the defendants and amici also presented evidence on twelve days; and the Government took four more hearing days for the presentation of rebuttal evidence. Briefs were filed and the case was submitted to the court in June 1959. The court's decision was announced on October 2, 1959.
50
The printed record of the proceedings below covers 3,340 pages. Of this, trial of the issues pertaining to the terms of the decree fills 2,380 pages. An additional 543 pages contain exhibits. In the course of the trial twenty-nine witnesses were called by the Government and thirty-two by the defendants and amici. The printed exhibits number 193 submitted by the Government, thirty-two by du Pont, thirty by General Motors, nine by Christiana and Delaware, and one by amicus Dallstream. The bulk of this mass of evidence bore principally upon disputes over the market and tax consequences of divestiture of du Pont's General Motors stock and upon the requirement of resort to this remedy for the effective enforcement of § 7.
51
On occasion the Government objected to the attention that was being focused on the details of its proposed decree. The Government insisted that its ultimate aim was not to further a specific plan but to obtain any reasonable order of divestiture. However, late in the trial the Government indicated that its original divestiture proposal stood before the court unamended in any detail.
52
'Mr. Reycraft (chief counsel for the Government): * * *.
53
'I might also add that it is rather an obvious thought that the judgment which we did file was approved by not only the Assistant Attorney General but the Attorney General, and that while I am authorized here to represent the Government, I have no authority to change the decisions they make.
54
'The Court: It is my understanding then that you are standing on the decree that you proposed before this hearing started?
55
'Mr. Reycraft: That is right, sir.
56
'Mr. Cox (counsel for du Pont): * * *.
57
'* * * I understand Mr. Reycraft's position now to be that he stands on the judgment that was filed. But if the Government should come in on its brief with a brand new proposal sometime, may it please the Court, we may find outselves in a position where we will have to come into Court and ask for some kind of an opportunity to have a look at that.
58
'The Court: That will depend entirely on the extent or the character of the deviation from the original proposal.
59
'Mr. Cox: I would assume that would be true.
60
'The Court: From what Mr. Reycraft has said, I am assuming that that is the decree, with probably minor changes.
61
'Mr. Reycraft: I have nothing further, your Honor.'5 (Emphasis added throughout.)
62
Thus it appears that the Government stood on its original proposal, rather than on alternative suggestions.
63
And so one comes to consider how the court dealt with the issues presented by the parties.
III.
64
After disposing of two preliminary questions—ruling in favor of the amenability of General Motors, Christiana, and Delaware, as parties not condemned as violators of § 7, to the enforcing power of the court, and against the amenability to direct enforcement of holders of both du Pont and Delaware stock who were not parties to the suit—the court thus defined the central issue before it:
65
'Under the mandate of the Supreme Court it is the responsibility of this Court to frame a judgment which will eliminate the effects of du Pont's acquisition of stock of General Motors which are offensive to the statute. The effect of the acquisition which the Supreme Court found to be offensive to the statute was the 'reasonable probability' that the acquisition might result in restraint or monopolization of the market for automotive fabrics and finishes. 353 U.S. 586, 595, 607, 77 S.Ct. 872, 1 L.Ed.2d 1057. Accordingly, the problem before this Court is one of devising a judgment that will effectively guard against the probability of restraint or monopolization which the Supreme Court found to exist.' 177 F.Supp. at pages 12—13.
66
In discharging its duty under this mandate, particularly since relevant circumstances might offer a choice between effective alternatives, the court deemed it appropriate not to exclude from consideration the vast multiform interests at stake both the hundreds of thousands of truly innocent stockholders and the bearing on the national economy of the nature of the disposition of du Pont's General Motors holdings.
67
'This does not mean that the private interests of the stockholders can outweigh the public interest in a judgment that will effectively dissipate the effects of the acquisition found to be unlawful. But it does mean that in the opinion of this Court the primary public purpose should be achieved so far as possible without inflicting unnecessary injury upon innocent stockholders in the various corporations involved. The purpose of the judgment should be remedial and not punitive. Hartford-Empire Co. v. United States, 323 U.S. 386, 409, 65 S.Ct. 373, 89 L.Ed. 322; United States v. National Lead Co., 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077. No harsh and oppressive consequences should be visited upon the stockholders unless it can be shown on the facts that these results are inescapable if a decree is to be framed that will comply with the mandate of the Supreme Court. The cases leave no doubt that these are considerations which the Court should weigh in the framing of its final judgment. United States v. American Tobacco Co., 221 U.S. 106, 185, 31 S.Ct. 632, 55 L.Ed. 663. Compare Timken Roller Bearing Co. v. United States, 341 U.S. 593, 604, 71 S.Ct. 971, 95 L.Ed. 1199.' 177 F.Supp. at pages 13—14.
68
The Government's first major contention—that by the terms of the Clayton Act the court had no choice but to order total divestiture—was rejected on the basis of an analysis of the statute and this Court's reaffirmation of the 'large discretion' possessed by the District Courts 'to model their judgments to fit the exigencies of the particular case.' The court proceeded to a consideration of the evidence introduced by the parties. The first subject was the tax impact of the Government's proposed decree. Extensive expert evidence (much of which was derived from a statistical survey found by the court to have been soundly and objectively conducted) indicated that individual stockholders of du Pont would pay income taxes at a rate of fifty percent to sixty percent under the Government's plant, and that the taxes payable by such persons could amount to $1,000,000,000 if the value of the General Motor shares were $50 per share, and approximately $770,000,000 if $40 per share. The capital gains tax on the sale of the General Motors stock allocable to Christiana and Delaware would be perhaps as much as $200,000,000. The court determined that variations of the Government's plan would also result in vast tax levies. If found, for example, that if a single distribution were employed to dispose of the 63,000,000 General Motors shares, at an assumed market value of $45 per share the total tax cost would be $588,044,000.
69
A second economic consequence of the Government's divestiture scheme would be its impact on the market value of the securities involved. The Government relied on three types of evidence to show that its plan would have little influence on the market prices of General Motors and du Pont stock. The first type was expert testimony that there was a regular flow of investment money coming into the market. However, upon detailed review of the testimony of a dozen witnesses, the court concluded that 'there was no convincing evidence in this category that any substantial portion of this investment money would be directed to buying General Motors stock at the true value of the stock, if the Government decree were in effect.' 177 F.Supp. at page 22.
70
The Government's second type of evidence relating to the market consequences of its decree was the statistical testimony of academic and professional analysts. The court noted that it was shown no charts or statistics relating to a situation 'remotely approaching' the forced sale of 2,000,000 shares of General Motors stock each year for ten years, attended by additional sales of both General Motors and du Pont stock for tax and other purposes. Further, it found that one Government expert admitted he would defer to the judgment of investment bankers in the matter of the price for which the General Motors stock could be sold; another testified that in the past an increase in stock supply of twenty percent had been associated with price declines of between ten and fifteen percent; the testimony of another Government witness was based on inadequately drawn statistical tables, and his demeanor on the witness stand deprived his evidence of credibility; a fourth witness' opinions had no foundation in factual evidence.
71
The Government's third type of evidence related to securities offerings in the recent past. The court determined that the circumstances of these offerings—i.e., their background, magnitude, timing and duration—made them dissimilar to a divestiture of du Pont's interest in General Motors. In any event most of these offerings did have a depressing effect on the market value of the stock involved. None of this evidence, the court found, gave assurance that the Government proposal would not cause serious loss on the sale of General Motors and du Pont stock during the divestiture period.
72
The defendants countered the Government's case with a variety of evidence. Two experienced underwriters testified that the Government's ten-year divestiture plan would result in a decline in the value of General Motors stock of from twenty percent to thirty percent; that heavy tax sales of du Pont would lower its price at least twenty-five percent; that distribution of General Motors stock in lieu of cash dividends would be even worse from this standpoint; that even an extension of the divestiture period to twenty years would not prevent declines in the neighborhood of fifteen percent; that a further loss estimated at from $1.50 to $2 per share sold in underwriting expense would be incurred by Christiana and Delaware; and, finally, that the trustee could never make the sales during the divestiture period anyway, since he could not realize a price, in the words of the Government's proposed final judgment, 'sufficiently high to reflect the fair value and true worth of the stock.'
73
Several trust management executives testified that because of the tax consequences of the Government's decree and the difficulites of allocating equitably the General Motors shares received as dividends by the trusts, they, and presumably others in their position throughout the country, would be forced to make mass sales of du Pont stock. Executives of several insurance companies and an investment trust company predicted declines in the value of General Motors stock and expressed an intention to buy it for their concerns only at considerably reduced prices. Many witnesses concurred in the view that the Government's decree would render future financing by General Motors highly uneconomic and very difficult to accomplish.
74
The court then appraised the evidence bearing on possible voting control of General Motors, under a decree of less than total divestiture, by corporations or individuals affiliated with du Pont. It determined that the Government's broadest grouping individuals who were stockholders of Delaware, additional individuals named du Pont, and certain corporations in which both groups (sixty-five persons in all) own stock or on whose boards they sit would, under the du Pont plan's 'pass-through' of voting rights, aggregate the vote of about eight percent of the total vote of General Motors. It was unclear to the court either that this combination had a reasonable basis in fact or that, even if it did represent a cohesive block of votes, it was a large enough block to exercise any real control over General Motors. However, the court deemed it unnecessary to resolve these questions, since it intended to frame a decree to guarantee that concerted action by these stockholders would be precluded.
75
On the basis of its appraisal of the evidence, the court reached its essential conclusions. The first question was what provision to make with respect to du Pont's 63,000,000 shares of General Motors. It determined that a careful and detailed plan for a 'pass-through' of the votes of these shares to du Pont's stockholders and an injunction to prevent du Pont and General Motors from sharing common officers, directors, and employees were necessary. The court then considered whether title to the stock, stripped of these vital incidents of ownership, must also be taken from du Pont, 'in order to remove and to guard against the probability of restraint or monopolization of trade which was the consequence the Supreme Court found to be offensive to the statute.' 177 F.Supp. at page 40. 'There is no evidence,' it concluded, 'on which the Court could make such a finding.' 177 F.Supp. at page 40.
76
'In essence, therefore, what would be left in du Pont would be the most sterile kind of an investment. The Court notes in this connection that Section 7 of the Clayton Act expressly excludes from its operation 'corporations purchasing such stock solely for investment and not using the same by voting or otherwise' to bring about anti-competitive effects. There would thus appear to be a recognition on the part of Congress that the holding of stock does not in all instances carry with it the power to bring about consequences offensive to the statute. The Court recognizes that the Supreme Court has held that in the past du Pont has not held its stock in General Motors solely for investment. This Court is of the opinion, however, that the divestiture and ancillary injunctive provisions referred to hereafter will be effective to assure that hereafter General Motors stock will be held by du Pont solely for investment.
77
'In the circumstances, therefore, the Court finds that there is nothing in the record made in the hearing on relief or in the record in the trial in chief which would support, even by inference, the conclusion that du Pont's possession of the bare legal title to General Motors stock, stripped of its right to vote and of its right to representation on the Board of General Motors, would create any possibility that the stock would have any influence on the practices and policies of General Motors or could be used in any way that would be inconsistent with the mandate of the SupremeC ourt.' 177 F.Supp. at page 41.
78
What was on the other side of the ledger? The evidence indicated that divestiture of legal title would visit upon thousands of innocent investors adverse tax and market consequences, always severe even if varying in detail depending on the variation of the Government's plan. The court concluded that any plan for divestiture of legal title to du Pont's interest in General Motors would either impair the value of the property interests involved or impose severe tax consequences on du Pont's stockholders. Moreover, any plan that produced as a by-product the accumulation of vast amounts of cash by du Pont would have the undesirable result of enhancing greatly du Pont's economic power and position. All this led the court to hold that total divestiture, while unnecessary to remove the anticompetitive consequences of du Pont's ownership of the General Motors stock, would impose unfair injury on the stockholders of those companies.
79
The court dealt with the Government's two objections to its result. The fear that block voting of the passed-through votes on the General Motors shares by investors who were related by blood or business interest would leave control of General Motors in the hands of du Pont's close associates was met by precluding the stockholders of Christiana and Delaware, as well as other specified persons, from voting their allocable shares of du Pont's General Motors stock. The objection that retention by du Pont of any financial stake in General Motors, even on behalf of its stockholders, would provide incentive to intercorporate favoritism between the two, while deemed merely a 'naked suggestion,' was answered by providing specific relief against preferential trade relations between du Pont and General Motors. In light of the proof and of these precautionary prohibitions, the court concluded that to order divestiture of du Pont's title to the General Motors stock would 'constitute a serious abuse of discretion.' 177 F.Supp. at page 49.6
IV.
80
The questions presented by this appeal must be considered in the setting of the proceedings, summarized above, that led to the District Court's conclusions in formulating its decree. Since the Court rejects the Government's claim that total divestiture is statutorily required upon a finding of a violation of § 7 of the Clayton Act, I need say no more about it.
81
If a District Court is not subject to any statutory requirement to order divestiture in a § 7 case, is it left without guidance or direction in fashioning an appropriate decree as a court of equity? Of course not. There is a body of authority, both procedural and substantive, by which it is to be guided. It is, however, well to remember that the wise admonition that general principles do not decide concrete cases has sharp applicability to equity decrees. Any apparently applicable policy or rule, abstractly stated, must be related to the specific circumstances of a particular case in which it is invoked and applied. Care must be taken to consider phrases used in relation to the particular facts of the cases relied on.
82
One principle has comprehensive application. It is that courts of equity, as this Court advised the District Court in remanding the case to it to fashion the appropriate relief, 'are clothed 'with large discretion to model their judgments to fit the exigencies of the particular case." 353 U.S. at pages 607—608, 77 S.Ct. at page 885. This is a common-place,7 but one of compelling importance. To forget it is to forget equity's special function and historic significance. The transcendence of this doctrine derives from the recognition that without it the effort to dispense equal justice under law would all too often be frustrated. The landmark sentences of Hecht Co. v. Bowles, 321 U.S. 321, 329—330, 64 S.Ct. 587, 591, 88 L.Ed. 754, express the principles that must guide the chancellor:
83
'We are dealing here with the requirements of equity practice with a background of several hundred years of history * * * The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment an reconciliation between the public interest and private needs as well as between competing private claims * * *'
84
If, indeed, equity's characteristic flexibility is deeply rooted in history, the administration of justice makes greater demands upon it now than ever before. As business transactions become increasingly complex, they multiply and complicate the issues presented to courts even in litigation of ordinary dimensions. How much more is this true of a suit of the magnitude and reach of the one before us, with inevitable impact far beyond the interests of the immediate parties. In such a case we need to be specially mindful that the purpose of equity jurisdiction is to adapt familiar principles of law to intricate, elusive, and unfamiliar facts. As one member of this Court recently put it: '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.' United Steelworkers of America v. United States, 361 U.S. 39, 62, 71, 80 S.Ct. 1, 9, 4 L.Ed.2d 12 (dissenting opinion).8
85
The District Court was duty bound to exercise discretion which means to weigh contending considerations and conflicting evidence as a matter of judgment—in framing a decree to meet the needs of the case. It could not escape exercising discretion—that is, exercising its judgment within an area of allowable choice which this Court committed to it. Discretion precludes whimsy or caprice. Discretion means the judicial discretion of a court of equity. Where precedent or judicial tradition has established limitations on the chancellor's range of choice, he must respect them. What limitations confined the court below? Consideration of the relevant authorities on the formulation of antitrust decrees becomes necessary.
86
First, what was open to consideration in the District Court? Its overriding concern had to be for the protection of the public interest. It was its duty to hear all the evidence bearing on that question and in any conflict with private interests decisively to resolve doubts in favor of the general welfare. The account of the District Court's procedures, and of the considerations on which it reached its reflective conclusions, in Parts II and III of this opinion establishes, I submit, that it fully conformed to this essential requirement. Although it considered the Government's case on the likelihood of block voting of the votes of the General Motors shares passed through to Delaware and Christiana of doubtful strength, it sterilized those shares to prevent their being voted at all. Again, although it found no proof in the record to support the Government's 'naked suggestion' concerning the probability of future preferential trade relations between General Motors and du Pont, it constructed a set of prohibitions against such dealing between the two enterprises. As already noted, the court fashioned its decree in deference to its conception of its 'primary duty' to devise a judgment 'that will effectively guard against the probability of restraint or monopolization which the Supreme Court found to exist.' 177 F.Supp. at page 13.
87
Did the District Court fail in its duty because it deemed relevant for consideration as one factor in striking the balance involved in its conclusion the consequences of divestiture to thousands upon thousands of blameless stockholders and other so-called private interests? The decisions of this Court gave full warrant to the District Court that it did not exceed its discretionary powers in doing so. The weighty words of United States v. American Tobacco Co., 221 U.S. 106, 185, 31 S.Ct. 632, 650, 55 L.Ed. 663, are apposite:
88
'In considering the subject * * * three dominant influences must guide our action: 1. The duty of giving complete and efficacious effect to the prohibitions of the statute; 2, the accomplishing of this result with as little injury as possible to the interest of the general public; and, 3, a proper regard for the vast interests of private property which may have become vested in many persons as a result of the acquisition either by way of stock ownership or otherwise, of interests in the stock or securities of the combination without any guilty knowledge or intent in any way to become actors or participants in the wrongs which we find to have inspired and dominated the combination from the beginning. * * *'
89
And in Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 78, 31 S.Ct. 502, 523, 55 L.Ed. 619, the Court admonished that 'the fact must not be overlooked that injury to the public by the prevention of an undue restraint on, or the monopolization of, trade or commerce is the foundation upon which the prohibitions of the statute rest, and moreover that one of the fundamental purposes of the statute is to protect, not to destroy, rights of property.' The importance of these considerations was reiterated in Continental Ins. Co. v. United States, 259 U.S. 156, 42 S.Ct. 540, 66 L.Ed. 871, with the Government actively championing their propriety, and suggesting that "it seemed wise not to amputate any more than was necessary to secure the great policy of the Sherman law." 259 U.S. at page 169, 42 S.Ct. at page 544. In United States v. United Shoe Machinery Co., 247 U.S. 32, 46, 38 S.Ct. 473, 478, 62 L.Ed. 968, the Court labeled dissolution a remedy 'extreme, even in its mildest demands' and counseled 'If there be need for this the difficulties of achievement should not deter; but the difficulties may admonish against the need * * *.' This holds for divestiture.9
90
This Court's decisions leave no doubt that it was proper for the District Court to attend to the likelihood of danger to the public welfare that might arise from the serious adverse market consequences of divestiture and to the likelihood of extensive loss to innocent investors through both market decline and tax levy. It is apparent that the Department of Justice recognized the relevance of the tax impact. In a statement on proposed legislation to alleviate the tax burden of divestiture decrees, Robert A. Bicks, then Acting Assistant Attorney General in charge of the Antitrust Division of the Justice Department, said:
91
'Bear in mind, the 1890 Sherman and the 1914 Clayton Acts, the basic antitrust statutes, became law before the income tax was a reality. And the landmark antitrust cases—dissolving illegal trusts and monopolies via divestiture—were largely a product of an era marked by no income tax or much lower tax rates. Indeed, there is real basis for concluding that some bench-mark antitrust divestiture cases * * * might well not have been decreed had today's tax rates prevailed.' Bicks, Statement on H.R. 7361 and H.R. 8126 before the House Committee on Ways and Means, July 20, 1959, 4 Antitrust Bulletin 557 (1959).
92
It is obvious from the context of these remarks that their immediate objective was to smooth the way towardo btaining divestiture in this very case.10
93
In a case such as du Pont, in which the challenged transaction occurred approximately thirty years prior to the initiation of suit, the force of these considerations is greatly enhanced. The relationship between General Motors and du Pont stood uncondemned by the Government through successive administrations throughout that period. This is not remotely to hint any form of estoppel against resort to divestiture as relief for the illegality, however belatedly established, were it otherwise the required means for correction of past misconduct or its future avoidance. I do maintain that, as this Court has recognized, it was altogether proper for the District Court—even incumbent upon it—to take 'account of what was done during that time—the many millions of dollars spent, the developments made, and the enterprises undertaken, the investments by the public that have been invited and are not to be ignored.' United States v. United States Steel Corp., 251 U.S. 417, 453, 40 S.Ct. 293, 299, 64 L.Ed. 343.
94
In short, the factors that influenced the District Court were fit considerations for judicial scrutiny. But we still have to inquire what criteria were open to the District Court for appraising the relevant variables and how that court's determinations are to be reviewed by this Court.
95
The very foundation for judgment in reviewing a District Court's decree in a case like this is the inherent nature of its task in adjudicating claims arising under the antitrust laws. The sweeping generality of the antitrust laws differentiates them from ordinary statutes. 'As a charter of freedom,' wrote Mr. Chief Justice Hughes for the Court, 'the (Sherman) Act has a generality and adaptability comparable to that found to be desirable in constitutional provisions.' Appalachian Coals, Inc., v. United States, 288 U.S. 344, 359—360, 53 S.Ct. 471, 474, 77 L.Ed. 825. This is no less true of the Clayton Act's prohibition 'where the effect * * * may be to substantially lessen competition.' 38 Stat. 730, 731. Correspondingly broad is the area within which a District Court must move to fit the remedy to the range of the outlawry. Far-reaching responsibility is vested in the court charged with fashioning a decree and the decree it fashions must be judged on review in light of this responsibility.
96
'In the anti-trust field the courts have been accorded, by common consent, an authority they have in no other branch of enacted law. * * * They would not have been given, or allowed to keep, such authority in the anti-trust field, and they would not so freely have altered from time to time the interpretation of its substantive provisions, if courts were in the habit of proceeding with the surgical ruthlessness that might commend itself to those seeking absolute assurance that there will be workable competition, and to those aiming at immediate realization of the social, political, and economic advantages of dispersal of power.' United States v. United Shoe Machinery Corp., D.C., 110 F.Supp. 295, 348 (a decision affirmed by this Court without opinion, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910).
97
Partly on the basis of these views, the Attorney General's National Committee to Study the Antitrust Laws recommended that divestiture 'not be decreed as a penalty,' that it 'not be invoked where less drastic remedies will accomplish the purpose of the litigation,' and that possible disruption of industry and markets as well as effect on the public, investors, customers, an employees be taken into account. Report of the Attorney General's National Committee to Study the Antitrust Laws (1955), pp. 355 356. This statement fairly reflects the views of this Court, to the effect that a decree must not 'impose penalties in the guise of preventing future violations,' Hartford-Empire Co. v. United States, 323 U.S. 386, 409, 65 S.Ct. 373, 385, 89 L.Ed. 322; that the least harsh of available measures should be adopted when the Court is satisfied that they will be effective, e.g., Timken Roller Bearing Co. v. United States, 341 U.S. 593, 603, 71 S.Ct. 971, 977, 95 L.Ed. 1199 (concurring opinion); and that injunctive relief may well be an adequate sanction against continued wrongdoing, id., 341 U.S. at page 604, 71 S.Ct. at page 977 (concurring opinion), and Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 77, 31 S.Ct. 502, 522, 55 L.Ed. 619. Add to this that we have recognized a sound basis in reason for distinguishing palpably illegal activity from conduct that was arguably permissible, and for dealing with the latter less severely than the former. See Federal Trade Comm. v. National Lead Co., 352 U.S. 419, 429, 77 S.Ct. 502, 509, 1 L.Ed.2d 438; United States v. United States Gypsum Co., 340 U.S. 76, 89—90, 71 S.Ct. 160, 169—170, 95 L.Ed. 89.
98
The principles thus pronounced by this Court were duly heeded by the District Court. The salient feature of its attitude was its disposition to favor the Government's claims on behalf of the public interest. It even rejected the defendants' argument, based on National Lead and Gypsum, supra,11 that it should take into account that the question whether the acquisition violated the law was, to say the least, reasonably in doubt, and that therefore no blame should be imputed to the officers and directors of the defendants. 'The Court * * * approaches the problem on the assumption that the appropriate relief is that which is necessary to eliminate the effects of the acquisition offensive to the statute, notwithstanding that the acquisition might reasonably have been believed to be permissible when made.' 177 F.Supp. at page 14.
99
The Government urges, however, that divestiture is, if not the required relief, at least the normal and ordinary relief in stock acquisition cases. The contention is that, as the safest remedy, i.e., the surest of anticompetitive results, divestiture is, and has been considered to be, the preferred relief for all save a few exceptional cases. Support for this view is drawn from a long line of cases in which divestiture has been decreed. The contention calls for detailed scrutiny.
100
The objectives of divestiture were thus stated in Schine Chain Theatres, Inc., v. United States, 334 U.S. 110, 128—129, 68 S.Ct. 947, 957, 92 L.Ed. 1245:
101
'Divestiture or dissolution must take account of the present and future conditions in the particular industry as well as past violations. It serves several functions: (1) It puts an end to the combination or conspiracy when that is itself the violation. (2) It deprives the antitrust defendants of the benefits of their conspiracy. (3) It is designed to break up or render impotent the monopoly power which violates the Act * * *.'12
102
This tripartite formulation summarizes the considerations that have guided this Court's rulings on divestiture. In Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, the source of modern antitrust law, the defendants were charged with combination and conspiracy to restrain trade in and monopolize it erstate and foreign commerce in petroleum products, in violation of §§ 1 and 2 of the Sherman Act. The lower court found both provisions offended by a combination of seven individual defendants and thirty-eight corporate defendants to lodge in the Standard Oil Co. of New Jersey substantial stock ownership of and control over many subsidiary corporations in the petroleum industry and to cause Standard Oil to manage their affairs so as to throttle competition, findings sustained here. Coming to the problem of remedy, while acknowledging that 'ordinarily' injunctive relief would be adequate to restrain repetition of the illegal activity, the Court found that the situation presented by the Standard Oil aggrandizement called for stiffer measures: 'But in a case like this, where the condition which has been brought about in violation of the statute, in and of itself, is not only a continued attempt to monopolize, but also a monopolization, the duty to enforce the statute requires the application of broader and more controlling remedies.' 221 U.S. at page 77, 31 S.Ct. at page 523. (Emphasis added.) Recognition of this need—that intercorporate connections call for severance when persistence of the relationship in itself would constitute a violation of the antitrust laws—has been steadfastly adhered to. 'Dissolution of the combination will be ordered where the creation of the combination is itself the violation.' United States v. Crescent Amusement Co., 323 U.S. 173, 189, 65 S.Ct. 254, 262, 89 L.Ed. 160. It has been the controlling factor in the majority of the divestiture decrees in the intervening years, since most situations before the Court have similarly demanded this relief.13
103
The second element of the Schine rationale—depriving antitrust defendants 'of the benefits of their conspiracy'—is equally well established. United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160, was a Sherman Act suit in which certain motion picture exhibitors were found to have used their combined buying power to obtain terms more favorable than those received by their independent competitors in licensing films, whereby independents were driven from the field and a monopoly in theater operation developed in many towns. Each corporate exhibitor was required to divest itself of its interest in any other corporate defendant or its affiliates.
104
'Those who violate the Act may not reap the benefits of their violations and avoid an undoing of their unlawful project on the plea of hardship or inconvenience. That principle is adequate here to justify divestiture of all interest in some of the affiliates since their acquisition was part of the fruits of the conspiracy.' 323 U.S. at page 189, 65 S.Ct. at page 262.14
105
The third Schine objective of divestitur was 'to break up or render impotent the monopoly power which violates the Act.' The role of divestiture in meeting this need was spelled out in the Crescent case:
106
'Common control was one of the instruments in bringing about unity of purpose and unity of action and in making the conspiracy effective. If that affiliation continues, there will be tempting opportunity for these exhibitors to continue to act in combination against the independents. The proclivity in the past to use that affiliation for an unlawful end warrants effective assurance that no such opportunity will be available in the future. * * *.' 323 U.S. at pages 189—190, 65 S.Ct. at page 262.
107
These, then, are the justifiable bases for compelling divestiture. They explain and define the authorities on which the Government relies. Do they, or any of them, invalidate the District Court's refusal to decree divestiture in the circumstances of this case and justify this Court in overruling that court's exercise of discretion in finding divestiture uncalled for?
108
The notion that the very existence of an interest by du Pont in the stock of General Motors constitutes a violation of the Act need not detain us. It cannot be questioned that, as the Court's opinion on the merits in this case makes clear, the violation condemned is the effect of the stockholding on competition, not the stockholding as such.15 To be sure, this illegal tendency to lessen competition may be ended by termination any intercorporate relationship. But just as surely the unlawfulness of the tendentious stockholding may be ended by preventing its harmful consequences.
109
Nor is divestiture required as a means of depriving the defendant of the fruits of its violation. While du Pont's interest in General Motors might serve as a tool for the accomplishment of antitrust violations, it is certainly not the fruit of any such violation. The fruit—the benefit—of a violation of § 7 is the unfair competitive position of one corporation through its stock interest in another. Effective termination of this competitive advantage was precisely the design of the elaborate injunctive provisions devised by the District Court.
110
The final desideratum—vitiating a monopoly power—is not literally applicable to the du Pont situation, since the District Court dismissed the monopoly charge under the Sherman Act and this Court refused to review the dismissal. 353 U.S. at page 588, note 5, 77 S.Ct. at page 875. But even if this criterion were carried over into a Clayton Act setting to enforce the desirability of avoiding every potentiality of monopoly power, there is no compulsion to decree divestiture. Such argumentative power does not preclude restraints, by injunctive relief, that render it 'impotent,' to use the language of the Schine case. Nor is there in the record before us any basis in fact for the fears that have evoked the application of this principle in previous divestiture cases. There is no finding in this case, as there were in Crescent and Schine, of a deliberate conspiracy aimed at the destruction of competition. We cannot point in this case, as we have on occasion in the past, to any blatantly anticompetitive scheme. See, e.g., United States v. Reading Co., 253 U.S. 26, 59, 40 S.Ct.4 25, 433, 64 L.Ed. 760. Instead we have only the finding that 'there is a reasonable probability that the acquisition is likely to result in the condemned restraints,' 353 U.S. at page 607, 77 S.Ct. at page 884, i.e., to restrain commerce. Moreover, the Court explicitly ruled executive misconduct out of the case—'without any design to overreach anyone, including du Pont's competitors.' 353 U.S. at page 607, 77 S.Ct. at page 884.
111
Even in the Crescent case, the Court voiced its concern for the future only by way of support for its conclusion that the District Court's severance of the defendants could not be reversed for abuse of discretion. 323 U.S. at page 190, 65 S.Ct. at page 262. The Court sustained, rather than overturned, the lower court's judgment. To infer that the Court would have found an abuse of discretion had the District Court in Crescent limited itself to a decree of injunctive relief is an unwarranted assumption. But the Government in effect draws such an inference for the purpose of this case, even though the facts of du Pont's violation do not faintly resemble the offense of the movie exhibitors in Crescent. When the powerful interests of James J. Hill and J. Pierpont Morgan coalesce to place in one controlling parent the stock of the Great Northern and Northern Pacific Railways, Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679; when the Standard Oil Co. or the American Tobacco Co. obtain monopoly positions in their vast industrial empires, see Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, and United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663; when the rail carriers controlling the means of transportation of anthracite coal combine to destroy a potential competitor, United States v. Reading Co., 226 U.S. 324, 33 S.Ct. 90, 57 L.Ed. 243, the facts demand the major surgery of divestiture—destruction of the offending combinations. But to hold that the treatment of these conscious conspiracies to restrain trade and to achieve monopoly power is compelling precedent for determining the relief necessary and appropriate to remedy the only wrong judicially found by this Court under § 7, is to treat situations flagrantly different as though they were the same. Surely there is merit to the notion of shaping the punishment to fit the crime, even beyond the precincts of the Mikado's palace.
112
The grounds thus canvassed furnish the relevant considerations for this Court's review of the District Court's decree. The obvious must be restated. We do not sit to draft antitrust decrees de novo. This is a court of appeal, not a trial court. We do not see the witnesses, sift the evidence in detail, or appraise the course of extended argument, session after session, day after day. (A review of Part III of this opinion abundantly shows the extent to which the District Court's appraisal of the credibility of witnesses, analysis of expert testimony, and reconciliation of the claims of counsel entered into the painstaking process that led to the court's views on complicated issues and ultimately to the formulation of its decree.) In short, this Court does not partake of the procedure and is not charged with the responsibility demanded of the court entrusted with the task of devising the details of a decree appropriate for the governance of a vastly complicated situation arising out of unique circumstances. By its nature, this Court, as an appellate tribunal, lacks the means—the procedural facilities to evolve a decree in a case like this. For these reasons this Court sent this case back to the District Court, quoting in part (353 U.S. at page 608, 77 S.Ct. at page 885), without specific limitation, the comprehensively general guidelines of an earlier case:
113
'The framing of decrees should take place in the District rather than in Appellate Courts. They are invested with large discretion to model their judgments to fit the exigencies of the particular cs e.' International Salt Co. v. United States, 332 U.S. 392, 400—401, 68 S.Ct. 12, 17, 92 L.Ed. 20.16
114
To tell a trial judge that he has discretion in certain matters is to tell him that there is a range of choices available to him. It is to tell him that the responsibility is his, and that he will not be reversed except for straying outside the permissible range of choice, i.e., for abuse of discretion. See, e.g., United States v. Crescent Amusement Co., 323 U.S. 173, 189, 65 S.Ct. 254, 262, 89 L.Ed. 160; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 600—601, 71 S.Ct. 971, 975—976, 95 L.Ed. 1199. In sustaining the judgment in Lorain Journal Co. v. United States, 342 U.S. 143, 156, 72 S.Ct. 181, 188, 96 L.Ed. 162, the Court stated its standard for upholding the trial court's decree as simply that 'The decree is reasonably consistent with the requirements of the case and remains within the control of the court below.' (Emphasis in the original.) Certainly we ought not to reverse the carefully wrought results of a conscientious trial judge without a showing amounting almost to a demonstration that he exceeded the fair limits of judicial choice which this Court explicitly reposed in him.17
115
When a district judge has failed to accord parties an adequate hearing or has been otherwise wanting in the administration of fair procedure, there is the best of reasons for this Court to secure for them the full measure of judicial consideration which they are owed but failed to receive. But when, as in this case, the comprehensiveness of the hearing, the full consideration of the issues, both through evidence and argument, the evident diligence and searching competence of the judge reflected throughout the long hearing—and his care in expounding the reasons for his judgment demonstrate a deep awareness of the duty with h ich this Court charged him without any restrictions on his task except that he was entrusted 'with large discretion,' reversal of the lower court's result can be justified only by a showing of patent misconception of governing law or want of conscientious regard for 'the exigencies of the particular case.' When judged by the relevant decisions and pronouncements of this Court, such legal defects or inadequacies are impressively disproved by this record.
116
It may be suggested that however faithfully the trial court abided by the other teachings of this Court, it forgot one, namely, 'that relief, to be effective, must go beyond the narrow limits of the proven violation.' United States v. United States Gypsum Co., 340 U.S. 76, 90, 71 S.Ct. 160, 170, 95 L.Ed. 89. See International Salt Co. v. United States, 332 U.S. 392, 400, 68 S.Ct. 12, 17, 92 L.Ed. 20. This principle is important but it carries no warrant for reversal in this case. It has already been pointed out that the District Court specifically applied this principle in significant provisions of its decree. This Court found a danger of restraint of trade only in the market for automobile fabrics and finishes. The District Court nevertheless extended the injunctive provisions of its decree to all trade relations between du Pont and General Motors, regardless of the products involved. This Court proceeded on the assumption that the officers and directors of the companies had acted honorably and in the best interests of their respective corporations. Yet the District Court, responsive to the Government's urging, though without substantial evidence in the record, chose to sterilize the voting power not only of du Pont's officers and directors, but also of a major block of its large shareholders, the shareholders of Christiana and Delaware. In fact, the District Court exceeded the Government's requests in several substantial respects. This is true with respect to the injunction against cooperative and preferential business practices between du Pont and General Motors,18 the prohibition against interlocking corporate personnel,19 and the detail of the retention of jurisdiction and reopening clauses.20
117
Moreover, the principle of extending relief beyond the narrow limits of the violation has an important limiting corollary. The trial court is not authorized to order relief which it is without findings to support. 'A full exploration of facts is usually necessary in order properly to draw such a decree.' Associated Press v. United States, 326 U.S. 1, 22, 65 S.Ct. 1416, 1426, 89 L.Ed. 2013. This Court has unhesitatingly reversed remedial action by the lower courts, both for and against the Government, when wanting in supporting findings. See Hartford-Empire Co. v. United States, 323 U.S. 386, 418, 65 S.Ct. 373, 89 L.Ed. 322; Schine Chain Theatres, Inc., v. United States, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245; United States v. Paramount Pictures, 334 U.S. 131, 170—174, 68 S.Ct. 915, 935—937, 92 L.Ed. 1260; Hughes v. United States, 342 U.S. 353, 357—358, 72 S.Ct. 306, 308, 96 L.Ed. 394. But if findings on questions of fact, or mixed questions of law and fact, are essential to the formulation of a decree, it becomes virtually impossible to develop a basis for a divestiture order at this stage on this record. The District Court found that once all of du Pont's ties to General Motors, save its stock interest, were severed the record is barren of justification for an inference of reasonable probability of restraint of trade. Conversely, it found that the tax and market consequences of divestiture would be so onerous that, in the absence of any serious anticompetitive danger, it would have constituted an abuse of dic retion to enter such a decree. These conclusions were based in significant measure on the firsthand factual analysis that only a trial judge is in a position to make. For the Court to require divestiture, thereby overturning a trial court judgment founded on an appraisal of voluminous conflicting evidence and opinion, is in effect to displace the trial court's function as a fact-finder.
118
The Government suggests that possibly, in 'exceptional' cases, some remedy other than divestiture may suffice, but that this is not the 'exceptional' case. If this is not an 'exceptional' case, what would be? Is it really tenable to regard this an ordinary, a conventional, a run-of-the-mill case?
119
Du Pont began to acquire General Motors stock while World War I was still in progress. It owned that stock openly for three decades before this suit was instituted to challenge the validity of the acquisition. During that period the number of General Motors and du Pont stockholders expanded from a few thousand to many hundreds of thousands. The value of the General Motors stock greatly increased. The tax laws were substantially changed. The District Court has fashioned a closely knit network of provisions to prevent preferential dealings between General Motors and du Pont. So certain was it that divestiture would, on the basis of its findings, work great and unjustifiable loss on wholly innocent investors, that it considered a divestiture order beyond its discretionary power. The precedents of this Court to which the District Court could look for guidance in the discharge of its duty permitted, at the least, the inferences (1) that the framing of the decree lay within its discretion, (2) that within the scope of that discretion it was free to consider all relevant consequences, both public and private, of the plans proposed, (3) that it was under no compulsion to order divestiture, (4) that there was ample reason to avoid a harsh remedy if it were to conclude that a less severe one would be effective, (5) that both the facts and the formulated reasoning of prior divestiture cases made them distinguishable from the du Pont problem, and (6) that unless the District Court abused its discretion by disregarding this Court's guides for its decision, its judgment would stand on review. In the face of all this, it is indeed 'exceptional' for this Court to upset the lower court's judgment that its decree met the needs established in the proceeding before it.
120
The essential appeal of the Government's position lies in its excitation of fear of any intercorporate relationship between two such colossi as du Pont and General Motors. It is easy to calm this fear by a requirement of divestiture. Insofar as the Court yields to that fear, it is strange, indeed, that this was not obvious to the Court when it found the illegality for which it directed the District Court to evolve a corrective remedy. Not a single consideration now advanced by the Court for directing divestiture was not available when the case was originally here. For not one of these considerations is based on evidence elicited at the hearing before the District Court, directed by this Court, for determining the relief. Such a limitation on the discretionary decree-fashioning power, upon full hearing in the District Court, certainly could not have been in this Court's mind when it remitted that function to the District Court, otherwise it would have spoken its mind and not left it all to the 'large discretion' of the court. In any event it requires prophetic confidence to conclude that that decree is so obviously inadequate as to require reversal before it can be tried in practice. Neither the record when the case was first here nor the facts adduced at the hearing on molding the decree give warrant for this Court to set aside the trial court's finding on the improbability of future restraint of trade in view of the safeguarding terms of the decree. If the Court were to allow the District Court's maturely considered schm e for protecting the dominant public interest with less than 'surgical ruthlessness' to proceed, time might show that the relief granted by the District Court was well based, and that this Court's willingness to give it a try properly averted reasonably founded fear of serious economic dislocation.
121
Reversal by way of commanding divestiture is a 'judgment from speculation,' carrying with it irreversible consequences, whereas the District Court's decree leaves the door open for 'judgment from experience,' Tanner v. Little, 240 U.S. 369, 386, 36 S.Ct. 379, 384, 60 L.Ed. 691, under its clauses retaining jurisdiction to modify the judgment in the light of changed circumstances. Resort to such safety valve clauses is an established practice in review of antitrust remedies, for they allow the courts to act on the basis of informed hindsight rather than treacherous conjecture. In International Salt Co. v. United States, 332 U.S. 392, 401, 68 S.Ct. 12, 17, 92 L.Ed. 20, the Court enunciated this principle in language pertinent here:
122
'The District Court has retained jurisdiction, by the terms of its judgment, for the purpose of 'enabling any of the parties to apply to the court at any time for such further orders and directions as may be necessary or appropriate for the construction or carrying out of the judgment' and 'for the amendment, modification or termination of any of the provisions * * *.' We think it would not be good judicial administration to strike paragraph VI from the judgment to meet a hypothetical situation when the District Court has purposely left the way open to remedy any such situations if and when the need arises. The factual basis of the claim for modification should appear in evidentiary form before the District Court rather than in the argumentative form in which it is before us * * *.' The wisdom of this policy is reflected in many of our decisions.21 Why should it not guide the Court's decision in this case? The Government's presentation boils down to an unsubstantiated assertion that any tie between du Pont and General Motors gravely jeopardizes the play of competitive forces. When we are asked to assume this, we are asked to assume that even after a decree fashioned with the circumspection with which this was, a 'reasonable probability' exists that the defendants will, in a wholly undefined way, combine to violate the antitrust laws. We are asked, in essence, to enter Alice's Wonderland where proof is unnecessary and the governing rule of law is 'Sentence first, verdict after.'
123
The District Court here concluded that the relief it devised would dispel all potential restraints upon free competition as effectively as would divestiture, while divestiture was likely to cause serious economic disturbance unwarranted by a need for that remedy. Neither in its procedures nor in its consideration of the data presented to it did the court fail to discharge the obligations placed upon it by the decisions of this Court and by the only instruction—to exercise 'large discretion'—given it by the Court in this case. In no way did the District Court abuse the discretion entrusted to it. Its judgment should therefore be affirmed.
1
Since a holding that the Clayton Act had been violated sufficed to dispose of the case, we did not decide whether du Pont had also violated the Sherman Act. See 353 U.S. at page 588 note 6, 77 S.Ct. at page 875.
2
In this case, however, a majority of the Court substantially modified the District Court's decree, in spite of expressions of deference written into the principal opinion.
3
In Crescent Amusement the Court relied in part on the fact that the district judge had initially found the violation of law. This circumstance was said to enhance the deference owed to the district judge's determination of the measures appropriate to eliminate the violation, 323 U.S. at page 185, 65 S.Ct. at page 260. This factor is not present in the case before us.
4
32 Stat. 823, as amended, 15 U.S.C. § 29, 15 U.S.C.A. § 29. The purpose of this statute was to expedite determination of antitrust cases by allowing the Attorney General to obtain a special Circuit (now District) Court of several judges by filing a certificate of public importance under § 1 of the Act, 32 Stat. 823, as amended, 15 U.S.C. § 28, 15 U.S.C.A. § 28 (no such certificate was filed in this case), and by providing for direct appeal to the Supreme Court from the decree of the trial court, whether composed of one or several judges, such appeal to be within this Court's obligatory jurisdiction. Congress was moved by the 'far-reaching importance of the cases arising under (the) antitrust laws * * *.' 36 Cong.Rec. 1679 (remarks of Senator Fairbanks, Feb. 4, 1903). See also H.R.Rep. No. 3020, 57th Cong., 2d Sess., 2 (1903).
5
In one case this elimination of the normal review by the Court of Appeals almost prevented there being any review of the District Court at all. See United States v. Aluminum Co. of America, 1943, 320 U.S. 708, 64 S.Ct. 73, 88 L.Ed. 415 (noting the absence of a quorum in this Court to hear an Expediting Act appeal from a District Court). But Congress acted to keep such an important matter from going unreviewed, see H.R.Rep. No. 1317, 78th Cong., 2d Sess. (1944), and enacted a special statute, 58 Stat. 272, 15 U.S.C. § 29, 15 U.S.C.A. § 29, pursuant to which this Court immediately certified the case to a Circuit Court of Appeals, 1944, 322 U.S. 716, 64 S.Ct. 1281, 88 L.Ed. 1557, which proceeded to decide the appeal. 2 Cir., 1945, 148 F.2d 416. See also United States v. United States District Court, 1948, 334 U.S. 258, 68 S.Ct. 1035, 92 L.Ed. 1351.
6
Government counsel at the trial advised the District Court that he had no authority to suggest modes of divestiture different from the plan presented by the Government to the District Court. Appellees suggest that the Government is thus estopped from urging other modes of divestiture on this appeal. But plainly, under the rule of Continental Insurance, no stipulation by the Government could circumscribe this Court's power to see that its mandate is carried out.
7
Bills were introduced in the Eighty-sixth Congress to ameliorate the income-tax consequences of gain on disposition of stock pursuant to orders enforcing the antitrust laws. See Hearings on S. 200 before the Senate Committee on Finance, 86th Cong., 1st Sess. (1959); Hearings on H.R. 8126 before the House Committee on Ways and Means, 86th Cong., 1st Sess. (1959); H.R.Rep. No. 1128, 86th Cong., 1st Sess. (1959).
8
See, e.g., United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 189, 65 S.Ct. 254, 262, 89 L.Ed. 160; United States v. Corn Products Refining Co., D.C.S.D.N.Y.1916, 234 F. 964, 1018, appeal dismissed on motion of appellant 1919, 249 U.S. 621, 39 S.Ct. 291, 63 L.Ed. 805; United States v. E. I. du Pont de Nemours & Co., C.C.D.Del.1911, 188 F. 127, 153, modified D.C.D.Del.1921, 273 F. 869; In re Crown Zellerbach Corp., CCH Trade Reg.Rep.1957 1958 26,923, at p. 36,462 (F.T.C.1958).
9
We reject the Government's argument that the Federal Trade Commission and other administrative agencies charged with the duty of enforcing the statute are required by § 11, of the Clayton Act to order divestiture whenever they find a violation of § 7, and that therefore courts acting under § 15 must give the same relief. Even if the administrative agencies were so limited, a question which we do not decide, Congress would not be deemed to have restricted the broad remedial powers of courts of equity without explicit language doing so in terms, or some other strong indication of intent. Hecht Co. v. Bowles, 1944, 321 U.S. 321, 329, 64 S.Ct. 587.
10
The words were actually used of § 3 of the Clayton Act, but they are equally applicable to § 7.
11
See Northern Securities Co. v. United States, 1904, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679; Standard Oil Co. of New Jersey v. United States, 1911, 221 U.S. 1, 31 S.Ct. 502; United States v. American Tobacco Co., 1911, 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663; United States v. Union Pacific R. Co., 1912, 226 U.S. 61, 33 S.Ct. 53, 57 L.Ed. 124, modified 1913, 226 U.S. 470, 33 S.Ct. 162, 57 L.Ed. 306; United States v. Reading Co., 1912, 226 U.S. 324, 33 S.Ct. 90, 57 L.Ed. 243, modified 1913, 228 U.S. 158, 33 S.Ct. 509, 57 L.Ed. 779; United States v. Reading Co., 1920, 253 U.S. 26, 40 S.Ct. 425, 64 L.Ed. 760, modified after remand Continental Ins. Co. v. United States, 1922, 259 U.S. 156, 42 S.Ct. 540, 66 L.Ed. 871; United States v. Lehigh Valley R. Co., 1920, 254 U.S. 255, 41 S.Ct. 104, 65 L.Ed. 253; United States v. Southern Pacific Co., 1922, 259 U.S. 214, 42 S.Ct. 496, 66 L.Ed. 907; United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160; Hartford-Empire Co. v. United States, 1945, 323 U.S. 386, 65 S.Ct. 373, 89 L.Ed. 322, clarified 1945, 324 U.S. 570, 65 S.Ct. 815, 89 L.Ed. 1198; United States v. National Lead Co., 1947, 332 U.S. 319, 67 S.Ct. 1634, 91 L.Ed. 2077; Schine Chain Theatres, Inc. v. United States, 1948, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245; United States v. Paramount Pictures, Inc., 1948, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260; Besser Mfg. Co. v. United States, 1952, 343 U.S. 444, 72 S.Ct. 838, 96 L.Ed. 1063; International Boxing Club of New York v. United States, 1959, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270; United States v. E. I. du Pont de Nemours & Co., C.C.D.Del.1911, 188 F. 127, modified D.C.D.Del.1921, 273 F. 869; United States v. Lake Shore & M.S.R. Co., D.C.S.D.Ohio 1912, 203 F. 295, modified D.C.S.D.Ohio 1916, 281 F. 1007; United States v. International Harvester Co., D.C.D.Minn.1914, 214 F. 987, modification denied D.C.D.Minn.1926, 10 F.2d 827 affirmed 1927, 274 U.S. 693, 47 S.Ct. 748, 71 L.Ed. 1302; United States v. Eastman Kodak Co., D.C.W.D.N.Y.1915, 226 F. 62, decree entered D.C.W.D.N.Y.1916, 230 F. 522, appeal dismissed on motion of appellant 1921, 255 U.S. 578, 41 S.Ct. 321, 65 L.Ed. 795; United States v. Corn Products Refining Co., D.C.S.D.N.Y.1916, 234 F. 964, appeal dismissed on motion of appellant 1919, 249 U.S. 621, 39 S.Ct. 291, 63 L.Ed. 805; United States v. Minnesota Mining & Mfg. Co., D.C.D.Mass.1950, 92 F.Supp. 947, modified D.C.D.Mass.1951, 96 F.Supp. 356; United States v. Imperial Chemical Indus., Ltd., D.C.S.D.N.Y.1951, 100 F.Supp. 504, decree entered D.C.S.D.N.Y.1952, 105 F.Supp. 215.
In many of these cases the courts referred to 'dissolution' or 'divorcement' instead of 'divestiture.' These terms have traditionally been treated as to a large degree interchangeable, and we so regard them. See Hale and Hale, Market Power: Size and Shape Under the Sherman Act 370 (1958); Adams, Dissolution, Divorcement, Divestiture: the Pyrrhic Victories of Antitrust, 27 Ind.L.J. 1, note 1 (1951).
12
Appellees rely on several Clayton Act consent decrees granting relief short of divestiture, but the circumstances surrounding such negotiated agreements are so different that they cannot be persuasively cited in a litigation context.
13
See, e.g., Maryland & Virginia Milk Producers Ass'n v. United States, 1960, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880; Aluminum Co. of America v. Federal Trade Comm., 3 Cir., 1922, 284 F. 401, certiorari denied 1923, 261 U.S. 616, 43 S.Ct. 362, 67 L.Ed. 828, modification denied, 3 Cir., 1924, 299 F. 361. United States v. New England Fish Exchange, D.C.D.Mass.1919, 258 F. 732, modification denied D.C.D.Mass.1923, 292 F. 511, on which appellees place great reliance, is not a clear exception. It is true that defendants there were allowed to retain the asserts (not the stock) of one of the eight corporations whose stock they had acquired in violation of § 7. But probably acquisition of only one of those corporations' stock would not have been illegal. The only clear exception in the courts is American Crystl Sugar Co. v. Cuban-American Sugar Co., D.C.S.D.N.Y.1957, 152 F.Supp. 387, affirmed on the defendant's appeal, 2 Cir., 1958, 259 F.2d 524. But the authority of that case is somewhat diminished by the fact that it was brought not by the Government but by a private plaintiff, and by the absence of any discussion in the opinion of the issue of divestiture vel non. See 152 F.Supp. at pages 400—401 and note 16.
14
See Hale and Hale, op cit., supra, note 11, at 370.
15
For the significance of such long habit, see North American Co. v. Securities & Exchange Comm., 1946, 327 U.S. 686, 693, 66 S.Ct. 785, 790, 90 L.Ed. 945; Unt ed States v. Imperial Chemical Indus., Ltd., D.C.S.D.N.Y.1952, 105 F.Supp. 215, 236—237; Douglas, Democracy and Finance 33 (1940).
16
United States v. Corn Products Refinding Co., D.C.S.D.N.Y.1916, 234 F. 964, 1018, appeal dismissed on motion of appellant 1919, 249 U.S. 621, 39 S.Ct. 291, 63 L.Ed. 805; 12 Ala.L.Rev. 214, 220—221 (1959); Note, 56 Col.L.Rev. 420, 430 (1956) ('contempt citations are a poor method of restoring competition * * *'); Berge, Some Problems in the Enforcement of the Antitrust Laws, 38 Mich.L.Rev. 462, 469 (1940).
17
See Hale and Hale, op. cit., supra, note 11, at 379.
18
United States v. Bausch & Lomb Optical Co., 1944, 321 U.S. 707, 726, 64 S.Ct. 805, 815, 88 L.Ed. 1024; Local 167 of International Brotherhood of Teamsters, etc. v. United States, 1934, 291 U.S. 293, 299, 54 S.Ct. 396, 399, 78 L.Ed. 804. Cf. William R. Warner & Co. v. Eli Lilly & Co., 1924, 265 U.S. 526, 532, 44 S.Ct. 615, 618, 68 L.Ed. 1161 (same principle applied to private litigation).
1
38 Stat. 731, 15 U.S.C. (1946 ed.) § 18, 15 U.S.C.A. § 18. The suit was brought prior to the enactment in 1950 of amendments to the Act which, by their terms, are inapplicable to previous acquisitions. 64 Stat. 1125, 15 U.S.C. § 18, 15 U.S.C.A. § 18.
2
26 Stat. 209, as amended, 50 Stat. 693, 15 U.S.C. §§ 1, 2, 15 U.S.C.A. §§ 1, 2.
3
See 353 U.S. at page 588, 77 S.Ct. at page 875, note 5.
4
For a discussion of amicus Dallstream's recommendations, see the opinion of the District Court, 177 F.Supp. at pages 9—10.
5
Transcript of Proceedings, March 31, 1959.
6
A summary of the detailed provisions of the decree carrying out the direction and purposes of the court's opinion follows.
Du Pont, Christiana, and Delaware were enjoined from acquiring additional General Motors stock except as stock or rights might be distributed to them as stockholders by General Motors.
Du Pont, Christiana, and Delaware, on the one hand, and General Motors, on the other, were prohibited to have common officers, directors, or employees. The former three were also restrained from nominating any person to be an officer or director of General Motors.
Du Pont and General Motors were compelled to terminate, for as long as du Pont, Christiana, or Delaware own any General Motors stock, any agreement between them which (1) requires General
Motors to purchase from du Pont a specified percentage of its requirements of any product (with certain time provisos), or (2) grants to either concern exclusive patent rights, or grants to du Pont preferential rights to make or sell any chemical discovery of General Motors.
Du Pont, Christiana, and Delaware were restrained, for the same period, from entering into any joint business venture with General Motors and from knowingly holding stock in any business enterprise in which General Motors holds stock. The same restrictions were applied to General Motors.
Du Pont was enjoined, again for the stock-holding period, from dealing with General Motors with respect to du Pont products on terms more favorable than those on which it is willing to deal with General Motors' competitors. The same restriction was placed upon General Motors in its dealings with du Pont.
Du Pont, Christiana, and Delaware, and their directors and officers, and the members of the families of their directors and officers who reside in the same household with them, were enjoined from exercising their voting rights in General Motors stock owned by them or allocable to them under the decree, and from attempting to influence anyone voting General Motors stoc.
The vote on the General Motors shares owned by du Pont was ordered 'passed through' to the stockholders of du Pont (subject to the prohibitions of the preceding paragraph), and the notification and proxy machinery necessary to effectuate this provision was outlined. Provision was made for the appointment of a monitor of these voting procedures.
A procedure was established whereby du Pont and Christiana might sell or otherwise dispose of their General Motors stock.
Two separate provisions preserved the right of any party to apply to the court for modification of the decree in the event of a change of circumstances (such as the advent of legislative tax relief) and for further orders necessary for carrying out the judgment.
Du Pont, Christiana, and Delaware were directed to obtain from
their officers and directors, and their families, written consents to be bound by the voting restrictions of the judgment.
For the purpose of securing compliance with the judgment, the Department of Justice was authorized to conduct reasonable inspections of the records and interviews with the employees of du Pont, Christiana, and Delaware and to apply to the court for similar privileges as to General Motors upon a showing of good cause.
7
See, e.g., United States v. Crescent Amusement Co., 323 U.S. 173, 185, 65 S.Ct. 254, 260, 89 L.Ed. 160; International Salt Co. v. United States, 332 U.S. 392, 400—401, 68 S.Ct. 12, 17, 92 L.Ed. 20; Besser Mfg. Co. v. United States, 343 U.S. 444, 449—450, 72 S.Ct. 838, 841—842, 96 L.Ed. 1063; International Boxing Club of New York, Inc., v. United States, 358 U.S. 242, 253, 79 S.Ct. 245, 251, 3 L.Ed.2d 270.
8
In addition, see, for example, McClintock, Equity (2d ed. 1948), § 30:
'A court of equity may frame its decree so as to protect to the greatest extent possible the conflicting interests of the parties; to accomplish this it may require the performance of conditions, may experiment to determine how best to accomplish its purpose, and may use either the negative or the positive form of decree.'
Pomeroy, Equity Jurisprudence (5th ed. 1941), § 109:
'Equitable remedies * * * are distinguished by their flexibility, their unlimited variety, their adaptability to circumstances, and the natural rules which govern their use. There is in fact no limit to their variety and application; the court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties.'
9
See also United States v. Terminal R. Ass'n, 224 U.S. 383, 32 S.Ct. 507, 56 L.Ed. 810; United States v. American Can Co., D.C., 234 F. 1019; United States v. Great Lakes Towing Co., D.C., 208 F. 733; D.C., 217 F. 656.
10
The Bicks statement itself makes repeated reference to the pending du Pont case. See 4 Antitrust Bulletin, at 561, n. 7, 562, n. 8, 567, n. 13. And the Committee Report and Hearings recur again and again to the serious tax problem engendered by the case. See H.R.Rep. No. 1128, 86th Cong., 1st Sess.; Hearings on H.R. 8126 before the House Committee on Ways and Means, 86th Cong., 1st Sess.; Hearings on S. 200 before the Senate Committee on Finance, 86th Cong., 1st Sess.
11
And see United States v. United Shoe Machinery Corp., D.C., 110 F.Supp. 295, 348.
12
For a similar statement see United States v. Minnesota Mining & Mfg. Co., D.C., 96 F.Supp. 356, 357.
'In general the object of the remedies under the anti-trust laws is to prevent the continuance of wrongful conduct, and to deprive the wrongdoers of the fruits of their unlawful conduct, and to prevent the creation anew of restraint forbidden by law * * *.'
13
In the Crescent case, 323 U.S., at page 189, 65 S.Ct. at page 262, the Court placed in this category Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679; Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619; United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663; United States v. Union Pacific R. Co., 226 U.S. 61, 33 S.Ct. 53, 57 L.Ed. 124; United States v. Reading Co., 253 U.S. 26, 40 S.Ct. 425, 64 L.Ed. 760; United States v. Lehigh Valley R. Co., 254 U.S. 255, 41 S.Ct. 104, 65 L.Ed. 253; and United States v. Southern Pacific Co., 259 U.S. 214, 42 S.Ct. 496, 66 L.Ed. 907. Our survey of these cases sustains this classification. To this list may be added International Boxing Club v. United States, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270, in which the Court accepted the District Court's finding that "The great evil" in the case "was the combination that Wirtz and Norris caused and created by joining up with Madison Square Garden." 358 U.S. at page 256, 79 S.Ct. at page 253.
14
See additionally, International Boxing Club v. United States, 358 U.S. 242, 253, 79 S.Ct. 245, 251, 3 L.Ed.2d 270.
15
This construction of the statute had long been settled. See International Shoe Co. v. Federal Trade Comm., 280 U.S. 291, 297—298, 50 S.Ct. 89, 91, 74 L.Ed. 431.
'Section 7 of the Clayton Act, as its terms and the nature of the remedy prescribed plainly suggest, was intended for the protection of the public against the evils which were supposed to flow from the undue lessening of competition * * *.
'Mere acquisition by one corporation of the stock of a competitor, even though it result in some lessening of competition, is not forbidden; the act deals only with such acquisitions as probably will result in lessening competition to a substantial degree * * * that is to say, to such a degree as will injuriously affect the public * * *.'
16
To the same effect, see Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013; Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162; International Boxing Club v. United States, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270; Maryland & Virginia Milk Producers Ass'n v. United States, 362 U.S. 458, 80 S.Ct. 847, 4 L.Ed.2d 880.
17
The Court should not allow itself to be led to a contrary conclusion by the language of United States v. United States Gypsum Co., 340 U.S. 76, 71 S.Ct. 160, 95 L.Ed. 89; or Hartford-Empire Co. v. United States, 324 U.S. 570, 65 S.Ct. 815, 89 L.Ed. 1198. The Gypsum case says only that the District Court's
conclusions should not be subject to reversal merely for gross abuse of discretion, and that this Court must intervene when the provisions of the decree are 'inappropriate.' I could not agree more, either with these views or with those expressed in the remarks that formed their preface:
'The determination of the scope of the decree to accomplish its purpose is peculiarly the responsibility of the trial court. Its opportunity to know the record and to appraise the need for prohibitions or affirmative actions normally exceeds that of any reviewing court.' 340 U.S. at page 89, 71 S.Ct. at page 169.
In Hartford-Empire the opinion of the Court says 'it is unthinkable that Congress has entrusted the enforcement of a statute of such far-reaching importance to the judgment of a single judge, without review of the relief granted or denied by him.' 324 U.S. at page 571, 65 S.Ct. at page 817. These words, if given the reading they seem most readily to bear, are certainly objectionable, for our power to review the antitrust relief determinations of trial judges is not in doubt. If this language is to be read to authorize de novo consideration here of all the details of a lower court's decree, then it marks a real aberration in this branch of the law. Whatever respect such a view might once have deserved, it deserves none now, for our recent decisions have uniformly adopted the principle of appellate deference to trial court discretion. See cases cited in notes 7 and 16, supra.
18
Compare the Government's proposed Article IX with Section V of the final judgment.
19
Compare the Government's proposed Article X with Section IV of the final judgment.
20
Compare the Government's proposed Article XIII with Sections IX and XII of the final judgment.
21
See Associated Press v. United States, 326 U.S. 1, 22—23, 65 S.Ct. 1416, 1425—1426, 89 L.Ed. 2013; Timken Roller Bearing Co. v. United States, 341 U.S. 593, 604, 71 S.Ct. 971, 977, 95 L.Ed. 1199 (opinion of Mr. Justice Reed); Lorain Journal Co. v. United States, 342 U.S. 143, 157, 72 S.Ct. 181, 188, 96 L.Ed. 162; Maryland & Virginia Milk Producers Ass'n v. United States, 362 U.S. 458, 473, 80 S.Ct. 847, 857, 4 L.Ed.2d 880.
| 78
|
366 U.S. 582
81 S.Ct. 1135
6 L.Ed.2d 551
TWO GUYS FROM HARRISON-ALLENTOWN, INC., Appellant,v.Paul A. McGINLEY, District Attorney, County of Lehigh, Pennsylvania, et al.
No. 36.
Argued Dec. 8, 1960.
Decided May 29, 1961.
Mr. Harold E. Kohn, Philadelphia, Pa., for appellant.
Mr. Harry J. Rubin, York, Pa., for appellees.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The primary questions presented in this case are whether a Pennsylvania statute enacted in 19591 which makes unlawful the Sunday retail sale of certain commodities, imposing a fine of up to one hundred dollars for the first offense, is violative of the constitutional guarantees of equal protection of the laws and religious freedom.
2
This case is essentially the same as McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393. The major differences between the Pennsylvania and Maryland Sunday Closing Laws concern the specific provisions for exemptions from the general proscription of Sunday sales and activities. The religiously oriented backgrounds of both the Maryland and Pennsylvania statutes are strikingly similar although the Pennsylvania colony never had an established church while one did exist for a time in Maryland. While the pronouncements of the Supreme Court of Pennsylvania indicate that it disclaimed a religious purpose for Sunday closing at an earlier date than did the Maryland Court of Appeals, 220 Md. 117, 151 A.2d 156 later Pennsylvania decisions returned to religious purpose language while the Maryland opinions consistently rested on secular bases. On the other hand, the legislative history of the most recent Pennsylvania Sunday provisions is more striking that that of the Maryland laws in providing support for the position that temporal considerations preoccupied the State Legislature.
3
Appellant is a corporation which operates a large discount department store located on a highway in Lehigh County, Pennsylvania. For some time prior to the instant litigation, McGinley, the County District Attorney, prosecuted a number of appellant's employees for violating 18 Purdon's Pa.Stat.Ann. § 4699.4, a section of the Pennsylvania Penal Code of 1939.2 This statute, with certain exceptions, generally forbids all worldly employment, business and sports on Sunday. Works of charity and necessity are excepted, as is the delivery of milk and necessaries before 9 a.m. and after 5 p.m. Two recent amendments also except wholesome recreation (defined as golf, tennis, boating, swimming, bowling, basketball, picnicking, shooting at inanimate targets and similar healthful or recreational exercises and activities) and work in connection with the rendering of service by a public utility. Violations of this section carry a penalty of four dollars. Appellant then sought an injunction in the court below to restrain the District Attorney from enforcing this statute against it, alleging that the statute was unconstitutional for the reasons stated above and because the District Attorney was discriminating against appellant in enforcing the law. Accordingly, a three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284. Before trial, the Pennsylvania Legislature enacted the 1959 provision and appellant amended its complaint to include it, alleging that the District Attorney was threatening to enforce it against appellant.
4
Although appellant challenged only the statutory sections mentioned above, in order to properly consider appellant's contentions, the whole body of Pennsylvania Sunday Laws must be examined.3 Among the other activities prohibited on Sunday by these Pennsylvania statutes are selling of motor vehicles and trailers, operation of pool rooms or billiard rooms, conduct of boxing or wrestling matches, harness racing, pawnbrokering, contests for retrieving dogs, catching of fish in the Delaware River by use of a net, and extension education in public school buildings. The Sunday exhibition of motion pictures is permitted only after 2 p.m., and then only if the voters in each municipality approve; however, religious motion pictures may be shown by churches at any time providing they are shown within church property and no admission price is charged. Baseball, football and polo receive similar treatment except the permitted hours are between 1 p.m. and 7 p.m. Public concerts, of music of high order though not necessarily sacred, may only be performed after noon.
5
The off-the-premises sale of alcoholic beverages on Sunday is disallowed; but private clubs may sell alcoholic beverages to their members on Sunday, as may hotel restaurants between 1 p.m. and 10 p.m. in first- and second-class Pennsylvania cities if the voters in those cities so choose. Municipalities and third-class Pennsylvania cities have statutory authority to restrain desecrations of the Sabbath day; one statutory section simply empowers various judicial officers to punish persons who profane the Lord's day. Barbering and beauty culture work on Sunday subjects the actor to license revocation. Male prisoners may not perform manual labor on Sunday, and bakery employees are not permitted to commence working on Sunday before 6 p.m.
6
The statutes generally proscribe hunting and shooting on Sunday but make an exception for the removal of furbearing animals from traps. Sunday fishing from public lands or in public waters is permitted, but not on private property without the consent of the owner. Also banned is the training of dogs except with the permission of the owner upon whose land the activity is undertaken.
7
The court below, although finding that McGinley threatened to enforce the 1959 Act against appellant's employees, denied appellant the injunctive relief sought, dismissing appellant's constitutional objections that the 1959 statute was a law respecting an establishment of religion, that the statute preferred one religion over others and that the classifications drawn by the statute were violative of equal protection of the law. The three judge court declined to pass on the constitutionality of the 1939 statute because it found that, since the 1959 statute was now in effect, there was no imminent threat to appellant of being prosecuted under the 1939 enactment. The court also felt it its duty to refrain from passing upon the 1939 statute because it believed that there was a substantial unsettled question of Pennsylvania law as to whether the 1939 Act was superseded by the 1959 Act so far as the specific commodities covered by the latter statute. Regarding appellant's contention that McGinley was enforcing the 1939 statute discriminatorily, the court held that since McGinley had recently made substantial efforts to compel observance of the statute by numerous retail stores, since the relief appellant sought was wholly prospective and since McGinley's term of office as District Attorney was expiring within a month of the decision, there was no basis for finding that there would be future discriminatory enforcement of the 1959 statute, D.C., 179 F.Supp. 944. On appeal brought under 28 U.S.C. § 1253 28 U.S.C.A. § 1253, we noted probable jurisdiction. 362 U.S. 960, 80 S.Ct. 876, 4 L.Ed.2d 875.
I.
8
Before reaching the primary questions presented, several ancillary matters must be considered. First, appellant contends that McGinley discriminated against it in enforcing the laws. Recognizing that a mootness problem exists because Lehigh County now has a new District Attorney,4 appellant contends that there are still pending prosecutions against its employees initiated as the result of the alleged discriminatory action. Since appellant's employees may defend against any such proceeding that is actually prosecuted on the ground of unconstitutional discrimination, we do not believe that the court below was incorrect in refusing to exercise its injunctive powers at that time.
9
Furthermore, we do not believe that the three-judge District Court abused its discretion in declining to pass on the constitutionality of the 1939 statute for the reasons stated. Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. The court below made clear that if appellant's employees were threatened with prosecution under the 1939 Act, and if the Pennsylvania courts decided that the 1939 Act still applies to appellant, that would be time enough to consider that statute's validity. Similarly, we do not believe that the court abused its equity power in refusing to continue the preliminary injunction barring enforcement of the 1939 statute against appellant, since there was no imminent threat of prosecution.
II.
10
Appellant urges that the 1959 enactment is contrary to the Fourteenth Amendment's mandate of equal protection of the laws because, without rational basis, the statute singles out only twenty specified commodities, the Sunday sale of which is penalized by a fine of up to one hundred dollars for the first offense and, for subsequent offenses committed within one year, a fine of up to two hundred dollars or, in default thereof, imprisonment not to exceed thirty days; and also because the statute's proscription extends only to retail sales. Appellant argues that to forbid the Sunday sale of only some items while permitting the sale of many others and to exclude only retailers from Sunday operation while exempting wholesalers, service dealers, factories, and those engaged in the other excepted activities defeats the State's alleged interest of providing a day of rest and tranquillity for all.5
11
The standards for evaluating these contentions have been set out in McGowan v. State of Maryland, 366 U.S. at pages 425—426, 81 S.Ct. at pages 1104—1105; we need not restate them here. First, appellant's argument overlooks the fact that the 1939 Pennsylvania statute prohibits all worldy employment or business, with narrowly drawn exceptions; the 1959 enactment now before us simply supplements the prior regulation. The existing system then imposes a greater penalty for the Sunday sale of some items at retail than it imposes for other Sunday retail sales and for the other Sunday activities that appellant seems to have assumed are not forbidden at all. Of course, as to works of charity, necessity or recreation, the State Legislature could find that the interests of its citizens are best served by permitting these Sunday activities; that their interference with the absolute tranquillity of the day is justified by their requirement and desirability. McGowan v. Maryland, supra, 366 U.S. at page 426, 81 S.Ct. at page 1105.
12
As to the rationality of imposing a heavier penalty for the Sunday sale of the selected commodities, the court below found:
13
'that the 1939 closing law was observed by most retail sellers in Lehigh County, though not all, who were subject to its provisions, until the very recent opening of substantial suburban retail businesses like that of the plaintiff initiated and triggered new and rather large scale violations, and threats of others * * * (and) that the small four dollar penalty of the earlier law was inadequate to deter the Sunday opening of large retail establishments which could easily absorb such small fines as an incidental cost of doing a profitable business. Moreover, it appeared that the types of commodities covered by this new enactment are principal categories of merchandise sold in these establishments which have made the problem of Sunday retail selling newly acute.' 179 F.Supp. at page 952.6
14
It was within the power of the legislature to have concluded that these businesses were particularly disrupting the intended atmosphere of the day because of the great volume of motor traffic attracted,7 the danger of their competitors also opening on Sunday8 and their large number of employees. '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 legislature may select one phase of one field and apply a remedy there, neglecting the others.' Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563.9
III.
15
Appellant contends that the Pennsylvania Sunday Closing Law is one respecting an establishment of religion because it commemorates the Resurrection, obliges everone to honor this basic doctrine of the major Christian denominations by abstaining from work and encourages Christian religious worship. Appellant also alleges that the statute discriminates against certain religions. For the same reasons stated in McGowan v. State of Maryland, supra, 366 U.S. at pages 429—431, 81 S.Ct. at pages 1107—1108, we hold that appellant has standing to raise only the first contention.10
16
To prove its argument, appellant relies on the language of the present laws in question, on the prior history of this legislation and on various statements of the Pennsylvania courts in interpreting the statutes. We agree that an inquiry into these matters is relevant. McGowan v. State of Maryland, supra, 366 U.S. at page 431, 81 S.Ct. at page 1108.
17
The court below found that the connection between religion and the original Pennsylvania Sunday closing statutes was obvious and indisputable. This is clearly demonstrated by the first Pennsylvania Sunday law, enacted in 1682.11 There were re-enactments several years later, and again in 1700, which once more stated the purposes of preventing 'Looseness, Irreligion, and Atheism,' and of better permitting on Sunday the reading of the scriptures at home or the frequenting of meetings of religious worship. Id., at 192. 2 Statutes at Large of Pennsylvania 3—4. In 1705, some changes appeared. The preamble of the statute remained religious12 and the stated purposes of Bible reading and religious worship continued. However, some of the exceptions still present in the 1939 statute first appeared, but a specific ban on the drinking of alcoholic beverages in public houses was enacted. Id., at 175—177. The most apparent forerunner of the 1939 statute was passed in 1779. The preamble stated only that the purpose was 'for the due observation of the Lord's day.' 9 Statutes at Large of Pennsylvania 333. No mention was made of Bible reading or religious worship and the specific Sunday prohibition concerning alcoholic beverages was omitted. By 1786, the preamble completely disappeared, 12 Statutes at Large of Pennsylvania 314. See 15 Statutes at Large of Pennsylvania 110 for the final colonial enactment in 1794.
18
The present statutory sections still contain some traces of the early religious influence. The 1939 statute refers to Sunday as 'the Lord's day'; but it is included in the general section entitled, 'Offenses Against Public Policy, Economy and Health.' Title 18 Purdon's Pa.Stat.Ann. § 4651 uses the term 'Sabbath Day' and refers to the other days of the week as 'secular days.' But almost every other statutory section simply uses the word 'Sunday' and contains no language with religious connotation. It would seem that those traces that have remained are simply the result of legislative oversight in failing to remove them. Section 4651 was re-enacted in 1959 and happened to retain the religious language; many other statutory sections, passed both before and after this date, omit it. Certain political subdivisions are authorized to restrain 'desecrations of the Sabbath day,' and there is a jurisdictional section authorizing the punishment of persons who 'profane the Lord's day.' But many of the activities historically considered to be profane—e.g., the consumption of alcoholic beverages—are now no longer totally prohibited. There is a general immunity for religious motion pictures and some of the recently exempted activities are permitted only during Sunday afternoons.
19
On the other hand, we find that the 1939 statute was recently amended to permit all healthful and recreational exercises and activities on Sunday. This is not consistent with aiding church attendance; in fact, it might be deemed inconsistent. And the statutory section, § 4699.10, the constitutionality of which is immediately before us, was promoted principally by the representatives of labor and business interests.13 Those Pennsylvania legislators who favored the bill specifically disavowed any religious purpose for its enactment but stated instead that economics required its passage.14
20
As early as 1848, the Pennsylvania Supreme Court vociferously disclaimed that the purpose of Sunday closing was religious:
21
'All agree that to the well-being of society, periods of rest are absolutely necessary. To be productive of the required advantage, these periods must recur at stated intervals, so that the mass of which the community is composed, may enjoy a respite from labour at the same time. They may be established by common consent, or, as is conceded, the legislative power of the state may, without impropriety, interfere to fix the time of their stated return and enforce obedience to the direction. When this happens, some one day must be selected, and it has been said the round of the week presents none which, being preferred, might not be regarded as favouring some one of the numerous religious sects into which mankind are divided. In a Christian community, where a very large majority of the people celebrate the first day of the week as their chosen period of rest from labour, it is not surprising that that day should have received the legislative sanction: and as it is also devoted to religious observances, we are prepared to estimate the reason why the statute should speak of it as the Lord's day, and denominate the infraction of its legalized rest, a profanation. Yet this does not change the character of the enactment. It is still, essentially, but a civil regulation made for the government of man as a member of society, and obedience to it may properly be enforced by penal sanctions.' Specht v. Commonwealth, 8 Pa. 312, 323. (Emphasis added.)15
22
Concededly, there were a number of cases16 decided after Specht which used language strongly supporting appellant's position. But these cases, the last of which was decided more than thirty years ago, did not squarely decide a constitutional contention. More persuasively, in the only recent appellate case dealing with the constitutionality of the 1939 statute, the Pennsylvania Superior Court affirmed an opinion which specifically relied on the language and reasoning of Specht. Commonwealth v. Bauder, 188 Pa.Super. 424, 145 A.2d 915, affirming 14 Pa.D. & C.R.2d 571.
23
Having carefully examined the entirety of the present legislation, the relevant judicial characterizations and, particularly, the legislative history leading to the passage of the 1959 Act immediately before us, we hold that neither the statute's purpose nor its effect is religious. See McGowan v. State of Maryland, supra, 366 U.S. at page 449, 81 S.Ct. at page 1117. Moreover, for the same reasons stated in McGowan v. State of Maryland, supra, 366 U.S. at pages 449—452, 81 S.Ct. at pages 1117 1119, we reject appellant's contention that the State has other means at its disposal to accomplish its secular purpose that would not even remotely or incidentally give state aid to religion.
24
Accordingly, the decision is affirmed.
25
Affirmed.
26
(For opinion of Mr. Justice FRANKFURTER, joined by Mr. Justice HARLAN, see 366 U.S. 459, 81 S.Ct. 1153.)
27
(For dissenting opinion of Mr. Justice DOUGLAS, see 366 U.S. 561, 81 S.Ct. 1218.)
1
18 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) § 4699.10 provides:
'Selling certain personal property on Sunday
'Whoever engages on Sunday in the business of selling, or sells or offers for sale, on such day, at retail, clothing and wearing apparel, clothing accessories, furniture, housewares, home, business or office furnishings, household, business or office appliances, hardware, tools, paints, building and lumber supply materials, jewelry, silverware, watches, clocks, luggage, musical instruments and recordings, or toys, excluding novelties and souvenirs, shall, upon conviction thereof in a summary proceeding for the first offense, be sentenced to pay a fine of not exceeding one hundred dollars ($100), and for the second or any subsequent offense committed within one year after conviction for the first offense, be sentenced to pay a fine of not exceeding two hundred dollars ($200) or undergo imprisonment not exceeding thirty days in default thereof.
'Each separate sale or offer to sell shall constitute a separate offense.
'Information charging violations of this section shall be brought within seventy-two hours after the commission of the alleged offense and not thereafter.'
2
§ 4699.4. 'Worldly employment or business on Sunday
'Whoever does or performs any worldly employment or business whatsoever on the Lord's day, commonly called Sunday (works of necessity and charity only excepted), or uses or practices any game, hunting, shooting, sport or diversion whatsoever on the same day not authorized by law, shall, upon conviction thereof in a summary proceeding, be sentenced to pay a fine of four dollars ($4), for the use of the Commonwealth, or, in default of the payment thereof, shall suffer six (6) days' imprisonment.
'Nothing herein contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, lodging-houses, inns and other houses of entertainment for the use of sojourners, travellers or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travellers, or persons removing with their families on the Lord's day, commonly called Sunday, nor to the delivery of milk or the necessaries of life, before nine of the clock in the forenoon, nor after five of the clock in the afternoon of the same day.'
3
These laws, in their entirety, may be found in 4 Purdon's Pa.Stat.Ann. §§ 1, 30.202, 59—66, 81—91, 121—127, 151—157, 181 185, 307(c); 18 Purdon's Pa.Stat.Ann. §§ 632, 633, 4651, 4699.4, 4699.9, 4699.10; 24 Purdon's Pa.Stat.Ann. § 19—1903; 30 Purdon's Pa.Stat.Ann. §§ 118, 138, 153, 265, 273; 34 Purdon's Pa.Stat.Ann. §§ 1311.702, 1311.719, 1311.721, 1311.731, 1311.1205; 43 Purdon's Pa.Stat.Ann. § 361; 47 Purdon's Pa.Stat.Ann. §§ 3—304, 4—406, 4 492; 51 Purdon's Pa.Stat.Ann. § 623; 53 Purdon's Pa.Stat.Ann. §§ 23130, 37403(24); 61 Purdon's Pa.Stat.Ann. §§ 184, 195; 63 Purdon's Pa.Stat.Ann. §§ 281—28, 519, 559.
4
The new District Attorney was 'substituted as an additional defendant' in the court below on appellant's motion, which stated that appellant 'has no reason to believe and, therefore, does not aver that (the new District Attorney) will discriminatorily enforce (the) laws as did his predecessor * * *.'
5
Concomitantly, appellant states the statute violates due process for these same reasons.
6
Commenting on prior English Sunday legislation, a Member of Parliament stated:
'The penalty is a fine of 5s., and nobody will suggest that that is effective in any way. It simply means the payment of 5s., with a little expense added to that, in order to keep open on Sundays, and it seems to me that the Statute of 1677, applied to modern conditions, is nothing short of ridiculous.' 308 Parliamentary Debates, Commons, 2167.
7
A Pennsylvania legislator stated:
'It was several months ago, over a year ago, that a business from New Jersey moved into the aforementioned Whitehall Township of Lehigh County. It was known as the 'Two Guys from Harrison.' They started operating on Sunday. It was a novelty. The people came from Northampton, Bucks, Monroe, Pike, Schuylkill and all the surrounding counties, so much so that they jammed traffic on the highways of the Seventh Street Pike in Allentown and Whitehall Township. However, the people came and they did business. There were other enterprises along the same route which were open on Sunday and doing business.' 36 Pennsylvania Legislative Journal 1143.
8
This problem was recognized when the English legislation was being considered. A Member of Parliament stated:
'So far, happily, the great combine and chain stores have not entered on Sunday trading, but they are business enterprises and it is not impossible that they may find themselves compelled by economic considerations and pressure of local circumstances to open on Sunday, because Parliament takes no action to control and regulate Sunday business in retail shops. If that development should take place, we shall find our shopping centres on a Sunday no different in any way from the bustle, noise and glamour of the week-day trade.' 308 Parliamentary Debates, Commons, 2166.
9
The basic English Sunday statute, 29 Charles II, c. 7 (1677), imposed differing fines for different proscribed activities.
10
Mr. Justice Black is of the opinion that appellant also has standing to raise the second contention and that the claim is without merit. See McGowan v. State of Maryland, 366 U.S. at page 429, 81 S.Ct. at page 1107, note 6.
11
'Whereas, the glory of Almighty God and the good of Mankind, is the reason & end of government, and therefore, government in
itself is a venerable Ordinance of God. And forasmuch as it is principally desired and intended by the Proprietary and Governor and the freemen of the Province of Pennsylvania and territories thereunto belonging, to make and establish such Laws as shall best preserve true Christian and Civil Liberty, in opposition to all Unchristian, Licentious, and unjust practices, (Whereby God may have his due, Caesar his due, and the people their due,) from tyranny and oppression on the one side, and insolence, and Licentiousness on the other, so that the best and firmest foundation may be layd for the present and future happiness of both the Governor and people, of the Province and territories aforesaid, and their posterity.
'Be it therefore Enacted by William Penn, Proprietary and Governour, by, and with the Advice and Consent of the Deputies of the freemen of this Province and Counties aforesaid, in Assembly met, and by the Authority of the same, That these following Chapters and Paragraphs shall be the Laws of Pennsylvania and the territories thereof.
'Chap. I. Almighty God, being Only Lord of Conscience father of Lights and Spirits, and the author as well as object of all Divine knowledge, faith, and Worship, who only can enlighten the mind, and persuade and convince the understandings of people. In due reverence to his Sovereignty over the Souls of Mankind * * *.
'But to the end That Looseness, irreligion, and Atheism may not Creep in under pretense of Conscience in this Province, Be It Further Enacted by the Authority aforesaid, That according to the example of the primitive Christians, and for the ease of the Creation, Every first day of the week, called the Lord's day, People shall abstain from their usual and common toil and labour, That whether Masters, Parents, Children, or Servants, they may the better dispose themselves to read the Scriptures of truth at home, or frequent such meetings of religious worship abroad, as may best sute their respective persuasions.' Charter and Laws of the Province of Pennsylvania 1682—1700, 107—108.
12
It stated:
'To the end that all people within this province may with the greater freedom devote themselves to religious and pious exercises.' Id., at p. 175.
13
36 Pennsylvania Legislative Journal 1139, 2553, 2682 2683.
14
For example:
'As I read this bill, I find nothing in it which is of a religious nature. The bill is prompted by the thousands of letters that we have all received in the Senate of Pennsylvania, asking us to do something for the men and women who work in the department stores. These people are not asking to go to church; they are asking for a day of rest.
'I do not find anyone complaining about the Act passed at the last Session concerning the automobile business.
'This is a bill which has been crystalized by, I think, a very great organized labor section in our Commonwealth, the American Federation of Labor. They are in favor of it. They are heading up a group of people who have no particular voice to speak for them. I believe it is the obligation of the Senate of Pennsylvania to vote for this bill in order to give some recognition to the men and women who work and who are compelled to work on Sundays, whether they like it or whether they do not like it.
'This is not a bill. It is rather an indictment of our civilization which makes this kind of legislation possible and necessary. It is too bad that business will not permit its employees to have a day of rest. It is too bad that we must legislate morals, as we may be doing in this bill.' Id., at 1139. See also id., at 1137—1140, 2564—2565, 2682—2685.
15
The Pennsylvania court also stated:
'The error of the plaintiff's position is that it confounds the reason of the prohibition with its actual effect, and thus mistakes the mere restraint of physical exertion for the fetters that clog the freedom of mind and conscience. But were this otherwise, the plaintiff's argument is inapplicable to the act of 1794. The conclusions drawn from some of its language are as inexpressive of its practical operation, as of the principal intent of its makers. The phraseology used may indicate a conviction of the holy character of the first day of the week, but as this simple expression of an abstract opinion, which all other men are at liberty to adopt or reject, carries with it no obligation beyond the influence attendant upon the expression itself, it cannot be said a primary object of the act was, authoritatively, to assert the supremacy of Sunday as of Divine appointment. Had such been the intent, irrespective of its statutory character as a day of rest from secular employment, its framers would not have stopped short with a bare interdiction of labour and worldly amusements. Following the example offered by older states and communities, they would have commanded the performance of religious rites, or at least, some express recognition of the day as the true Sabbath. Such a requisition, we agree with the plaintiff in error, would be a palpable interference with the rights of conscience. But nothing like this is exacted. On the contrary, every one is left at full liberty to shape his own convictions, and practically to assert them to the extent of a free exercise of his religious views. In this, as in other respects, the conscience of each is left uncontrolled by legal coercion, to pursue its own inquiries and to adopt its own conclusions. In this aspect of the statute there is, therefore, nothing in derogation of the constitutional inhibition.' Id., at page 324.
16
See Johnston v. Commonwealth, 1853, 22 Pa. 102, 111; Commonwealth v. Nesbit, 1859, 34 Pa. 398, 405—409; Society for Visitation of Sick v. Commonwealth ex rel. Meyer, 1866, 52 Pa. 125, 135; Sparhawk v. Union Passenger R. Co., 1867, 54 Pa. 401, 408—409, 423; Commonwealth v. American Baseball Club, 1927, 290 Pa. 136, 141, 143, 138 A. 497, 499, 53 A.L.R. 1027.
| 23
|
366 U.S. 617
81 S.Ct. 1122
6 L.Ed.2d 536
GALLAGHER, Chief of Police of the City of Springfield, Massachusetts, et al., Appellants,v.CROWN KOSHER SUPER MARKET OF MASSACHUSETTS, INC., et al.
No. 11.
Argued Dec. 7, 8, 1960.
Decided May 29, 1961.
Mr. Joseph H. Elcock, Jr., Boston, Mass., for appellants.
Mr. Herbert B. Ehrmann, Boston, Mass., for appellees.
Mr. Chief Justice WARREN announced the judgment of the Court and an opinion in which Mr. Justice BLACK, Mr. Justice CLARK, and Mr. Justice WHITTAKER concur.
1
The principal issues presented in this case are whether the Massachusetts Sunday Closing Laws1 violate equal protection, are statutes respecting the establishment of religion or prohibit the free exercise thereof.
2
Appellees are Crown Kosher Super Market, a corporation whose four stockholders, officers and directors are members of the Orthodox Jewish faith, which operates in Springfield, Massachusetts, and sells kosher meat and other food products that are almost exclusively kosher and which has many orthodox Jewish customers; three of Crown's customers of the Orthodox Jewish faith, whose religion forbids them to shop on the Sabbath and requires them to eat kosher food, as representatives of that class of patrons; and the chief orthodox rabbi of Springfield, as representative of a class of orthodox rabbis whose duties include the inspecting of kosher food markets to insure compliance with Orthodox Jewish dietary laws.
3
Crown had previously been open for business on Sunday, on which day it had conducted about one-third of its weekly business. No other supermarket in the Springfield area had kept open on Sunday. Since the Orthodox Jewish religion requires its members to refrain from any commercial activity on the Sabbath—from sundown on Friday until sundown on Saturday—Crown was not open during those hours. Although there is a statutory provision which permits Sabbatarians to keep their shops open until 10 a.m. on Sunday for the sale of kosher meat, Crown did not do so because it was economically impractical; for the same reason, Crown did not open after sundown on Saturday.
4
Those provisions of the law immediately under attack are in a chapter entitled 'Observance of the Lord's Day.' They forbid, under penalty of a fine of up to fifty dollars, the keeping open of shops and the doing of any labor, business or work on Sunday. Works of necessity and charity are excepted as is the operation of certain public utilities. There are also exemptions for the retail sale of drugs, the retail sale of tobacco by certain vendors, the retail sale and making of bread at given hours by certain dealers, and the retail sale of frozen desserts, confectioneries and fruits by various listed sellers. The statutes under attack further permit the Sunday sale of live bait for noncommercial fishing; the sale of meals to be consumed off the premises; the operation and letting of motor vehicles and the sale of items and emergency services necessary thereto; the letting of horses, carriages, boats and bicycles; unpaid work on pleasure boats and about private gardens and grounds if it does not cause unreasonable noise; the running of trains and boats; the printing, sale and delivery of newspapers; the operation of bootblacks before 11 a.m., unless locally prohibited; the wholesale and retail sale of milk, ice and fuel; the wholesale handling and delivery of fish and perishable foodstuffs; the sale at wholesale of dressed poultry; the making of butter and cheese; general interstate truck transportation before 8 a.m. and after 8 p.m. and at all times in cases of emergency; intrastate truck transportation of petroleum products before 6 a.m. and after 10 p.m.; the transportation of livestock and farm items for participation in fairs and sporting events; the sale of fruits and vegetables on the grower's premises; the keeping open of public bathhouses; the digging of claims; the icing and dressing of fish; the sale of works of art at exhibitions; the conducting of private trade expositions between 1 p.m. and 10 p.m.
5
These statutes do not prohibit Sunday business and labor by Sabbatarian observers so long as it disturbs no other person. However, this has been construed to forbid the keeping open of shops for the sale of merchandise. Commonwealth v. Has, 122 Mass. 40. Permission is granted by local option for the Sunday operation after 1 p.m. of amusement parks and beach resorts, including participation in bowling and games of amusement for which prizes are awarded. Special licenses for emergency Sunday work may be obtained from local officials.
6
Other provisions of the Massachusetts Sunday legislation make generally unlawful Sunday attendance or participation in any public entertainments except for those which are duly licensed locally, conducted after 1 p.m., and are in keeping with the character of the day servance.
7
Although there is a general bar of games and sports on Sunday, professional sports may be played between 1:30 p.m. and 6:30 p.m., and indoor hockey and basketball any time after 1:30 p.m.; amateur sports may be played between 2 p.m. and 6 p.m.; this is all subject to local option and no game may be conducted within one thousand feet of any regular place of worship except in a public playground or park. There are specific bans on auto racing, horse racing, boxing and hunting with firearms. And there are a number of additional exemptions from the general proscription. Golf, tennis, dancing at weddings, concerts of sacred music and the celebration of religious customs or rituals are all allowed on Sunday as are the operation of miniature golf courses and golf driving ranges after 1 p.m. Motion pictures may be exhibited after this hour if a local license is obtained. Parades with music for certain commemorative purposes may be held on Sunday by veterans', civic, fraternal, policemen's and firemen's organizations providing that they are suspended while passing within two hundred feet of public worship services.
8
Persons who keep places of public entertainment or refreshment lose their licenses if they entertain, on Sunday, people other than travelers, strangers or lodgers. With limited exceptions, discharging firearms for sport except on one's own land, fishing for commercial purposes, and fishing with nets or spears are prohibited on Sunday. The use of gaming devices is not allowed. Outdoor exercise without the element of contest is generally permitted as is the taking of mammals by means of traps. Heavier penalties are imposed for the willful cutting and destruction of timber, shrubs, fruits or vegetables on Sunday than on other days of the week.
9
Still other statutory sections make it a crime for most employers to require their employees to engage in ordinary occupation on Sunday unless the employee is allowed twenty-four consecutive hours off during the following six days. The sale of alcoholic beverages by certain licensees is permitted on Sunday after 1 p.m. by local option. However, patrons consuming the beverages on the premises must be seated at tables.
10
Appellees sought permanently to enjoin the enforcement of the statute against them, alleging that appellant, Springfield's chief of police, had previously arrested and prosecuted Crown's manager for keeping open on Sunday; that, unless restrained, appellant would continue to enforce the statute against Crown; that the statute was unconstitutional for the reasons stated above. The three-judge Federal District Court, one judge dissenting, agreed with appellees, 176 F.Supp. 466. On appeal brought under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, we noted probable jurisdiction, 362 U.S. 960, 80 S.Ct. 876, 4 L.Ed.2d 875.
I.
11
The equal protection arguments advanced by appellees are much the same as those made by appellants in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393. They contend that the exceptions to the statute are so numerous and arbitrary as to be found to have no rational basis;2 that the law permits the sale of certain food items sold by Crown but limits this permission to selected types of stores; that the employees in the exempted activities are just as much in need of a day of rest as are Crown's employees. The three-judge District Court described the present statutory system as an 'unbelievable hodgepodge' and sustained appellees' allegations.
12
The answers to these arguments are likewise similar to those given in McGowan when the contentions are examined under the standards set forth in that opinion. Many of the exceptions in the Massachusetts Sunday Laws are reasonably explainable on their face. Such items as tobaccos, confectioneries, fruits and frozen desserts could have been found by the legislature to be useful in adding to Sunday's enjoyment; such items as newspapers, milk and bread could have been found to be required to be sold fresh daily.3 It is conceivable that the legislature believed that the sale of fish and perishable foodstuffs at wholesale would not detract from the atmosphere of the day, while the retail sale of these items would inject the distinctly commercial element that exists during the other six days of the week. It is fair to believe that the allowance of professional and amateur sports on Dunday would add to the day's special character rather than detract from it. And the legislature could find that the circumstances attendant to the conduct of professional sports are sufficiently different from those of amateur sports to justify different treatment as to the hours during which they may be played. Furthermore, the legislature could determine that, although many retailers, including Crown, sell frozen desserts, to permit only a limited number of innholders, druggists and common victuallers to sell them on Sunday would serve the public purpose of providing these items on Sunday and, at the same time, limit the commercial activities ordinarily attendant to their sale. And, if such determination requires this limited number of stores to be open to serve the public interest, the employees of most of the stores are still protected by the statutory provision giving the employees another day of rest. To permit all stores which sell the exempted products to remain open on Sunday but to limit them to the sale of the exempted items might well be believed to impose near insuperable enforcement problems.
13
The fact is that the irrationality of these and the many other apparently reasonable distinctions has not been shown. The presumption of validity upon which the other classifications stand has not been dispelled. 'A classification having some reasonable basis does not offend against (the equal protection) clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369. Thus, we hold that the Massachusetts Sunday Laws do not violate equal protection of the laws.
II.
14
Appellees make several contentions that the statutes violate the constitutional guarantees of religious freedom. First, they allege that the statutes are laws respecting an establishment of religion in that both their original and current purposes are to enforce the observance of Sunday as the Sabbath.
15
We agree with the court below that, like the Sunday laws of other States, the Massachusetts statutes have an unmistakably religious origin. The first enactment of the Plymouth Colony in 1650 stated simply that 'whosoever shall prophane the Lords day by doeing any servill worke or any such like abusses' shall either be fined or whipped. The Compact, Charter and Laws of the Colony of New Plymouth, 92. Eight years later, a ban on Sunday traveling was enacted with the following preamble:
16
'Whereas complaint is made of great abuses in sundry places of this Government of prophaning the Lords day by travellers both horse and foot by bearing of burdens carrying of packes &c. upon the Lords day to the great offence of the Godly welafected among us.' Id., at 113.
17
And, in 1671, the religious purpose was made clear beyond doubt:
18
'9. This Court taking notice of great abuse, and many misdemeanours, committed by divers persons in these many wayes, Profaneing the Sabbath or Lord's-day, to the great dishonour of God, Reproach of Religion, and Grief of the Spirits of God's People
19
'Do therefore Order, That whosoever shall Prophane the Lord's-day, by doing unnecessary servile Work, by unnecessary travailing, or by sports and recreations, he or they that so transgress, shall forfeit for every such default forty shillings, or be publickly whipt: But if it clearly appear that the sin was proudly, Presumptuously and with a high hand committed, against the known Command and Authority of the blessed God, such a person therein Despising and Reproaching the Lord, shall be put to death or grievously punished at the Judgment of the Court.
20
'10. And whosoever shall frequently neglect the public Worship of God on the Lords day, that is approved by this Government, shall forfeit for every such default convicted of, ten shillings, especially where it appears to arise from negligence, Idleness or Prophaness of Spirit.' Id., at 247.
21
The Sunday regulations of the Massachusetts Colony were no different. The 1653 version spoke of the abuses of the Dishonor of God and the Reproach of Religion which were Grieving the Souls of God's Servants. Among other things, the statute forbade Drinking and Sporting on Sunday. The Colonial Laws of Massachusetts 132 133. In 1665, Neglect of God's Public Worship was made a crime. Id., at 133. Every person was required to apply himself to Duties of Religion and Piety on Sunday according to the 1692 statute which continued the ban on Sunday sports. Charter of the Province of the Massachusetts-Bay in New-England 13—14. The preamble to the new statute in 1761 retained the Religion and Piety language and added that Profanation of the Lord's Day is highly offensive to Almighty God. This statute retained and strengthened the former prohibitions. Id., at 392—394.
22
A change came about in 1782. The preamble added the following:
23
'Whereas the Observance of the Lord's Day is highly promotive of the Welfare of a Community, by affording necessary Seasons for Relaxation from Labor and the Cares of Business; for moral Reflections and Conversation on the Duties of Life, and the frequent Errors of human Conduct; * * *' Acts and Laws of the Commonwealth of Massachusetts 63.
24
Thus, the statute's announced purpose was no longer solely religious. But this statute proscribed the Sunday attendance at any Concert of Music and Dancing in addition to the previously mentioned activities. Ibid. This law was re-enacted in 1792. 2 Laws of Massachusetts 536 et seq.
25
However, when we examine the statutes now before the Court, we find that, for the most part, they have been divorced from the religious orientation of their predecessors. The preambles' statements, in certain terms, of religious purpose exist no longer. Sports of almost all kinds are now generally allowed on Sunday. The absolute prohibition against alcoholic beverages has disappeared. Concerts and dancing are permitted. Church attendance is no longer required.
26
Admittedly, the statutes still contain references to the Lord's Day and some provisions speak of weekdays as being secular days. Although § 2 of c. 136 excepts concerts of sacred music, the next clause of the section permits free openair concerts. It would seem that the objectionable language is merely a relic. The fact that certain Sunday activities are permitted only if they are 'in keeping with the character of the day and not inconsistent with its due observance,' does not necessarily mean that the day is intended to be religious; the 'character' of the day would appear more likely to be intended to be one of repose and recreation. We are told that those provisions forbidding certain activities to be conducted within a set distance from a place of public worship are especially devoted to maintaining Sunday as the Sabbath. But because the State wishes to protect those who do worship on Sunday does not mean that the State means to impose religious worship on all. See Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711. Although many of the more recently allowed Sunday activities may not commence prior to 1 p.m., others may be undertaken at any time during the day. And the contention that evening church services are being protected cannot be maintained since most of those activities that begin after 1 p.m. may continue throughout the day.
27
Furthermore, the long list of exemptions that have been recently granted evidences that the present scheme is one to provide an atmosphere of recreation rather than religion. The court below pointed out that, since 1858, the statutes have been amended more than seventy times. It would not seem that the Sunday sales of tobacco, soda water, fruit, et cetera, are in aid of religion. It would seem that the operation of amusement parks and beach resorts is in aid of recreation.
28
An examination of recent Massachusetts legislative history bolsters the State's position that these statutes are not religious. In 1960, a report of the Legislative Research Council stated:
29
'In general, Sunday laws protect the public by guaranteeing one day in seven to provide a period of rest and quiet. Health, peace and good order of society are thereby promoted. Such provision is essentially civil in character and the statutes are not regarded as religious ordinances.' Report of the Legislative Research Council relative to Legal Holidays and their Observance, Mass.Leg.Docs., Sen.Doc. No. 525 (1960), 24.4
30
The earliest pronouncements of the Supreme Judicial Court of Massachusetts are further indication of the religious origin of the Sunday Laws. In Pearce v. Atwood, 1816, 13 Mass. 324, 348, it was stated that the statute's sole object was 'ensuring reverence and respect for one day of the week, in order that religious exercises should be performed without interruption from common and secular employments.' In Bennett v. Brooks, 1864, 9 Allen 118, 119, 91 Mass. 118, 119, the day was characterized as one 'set apart for religious services and observances.'
31
In 1877, a case arose in which a charge of violation of religious freedom was made. The Supreme Judicial Court relied on the Pennsylvania case of Specht v. Commonwealth, 8 Pa. 312, and stated clearly:
32
'It is essentially a civil regulation, providing for a fixed period of rest in the business, the ordinary avocations and the amusements of the community. If there is to be such a cessation from labor and amusement, some one day must be selected for the purpose; and even if the day thus selected is chosen because a great majority of the people celebrate it as a day of peculiar sanctity, the legislative authority to provide for its observance is derived from its general authority to regulate the business of the community and to provide for its moral and physical welfare. The act imposes upon no one any religious ceremony or attendance upon any form of worship, and any one, who deems another day more suitable for rest or worship, may devote that day to the religious observance which he deems appropriate. That one who conscientiously observes the seventh day of the week may also be compelled to abstain from business of the kind expressly forbidden on the first day, is not occasioned by any subordination of his religion, but because as a member of the community he must submit to the rules which are made by lawful authority to regulate and govern the business of that community.' Commonwealth v. Has, 1877, 122 Mass. 40, 42.
33
The court below characterized this decision as an ad hoc improvisation by the Massachusetts court. Of course, the court below was correct in deciding that it was not bound by the Massachusetts characterization of the statutes. See Society for Savings in City of Cleveland, Ohio v. Bowers, 349 U.S. 148, 151, 75 S.Ct. 607, 611, 99 L.Ed. 950. But ten years later, in Commonwealth v. Starr, 1887, 144 Mass. 359, 361, 11 N.E. 533, 534, another religious charge against the statute was made; it was rejected on the authority of Has.
34
As the court below pointed out, there have been several cases,5 between 1877 and 1923, which gave a religious characterization to the statute. But in none of these cases was there a contention regarding religious freedom, and none of the cases stated the statute's purpose to be exclusively religious.6 Finally, in the only recent case passing on the Massachusetts Sunday Closing Laws, Commonwealth v. Chernock, 1957, 336 Mass. 384, 145 N.E.2d 920, the court summarily dismissed the complainant's religious contention, relying on Has.
35
The relevant factors having been most carefully considered, we do not find that the present statutes' purpose or effect is religious. Although the three-judge court found that Massachusetts had no legitimate secular interest in maintaining Sunday closing, we have held differently in McGowan v. Maryland, supra. And, for the reasons stated in that case, we reject appellees' request to hold these statutes invalid on the ground that the State may accomplish its secular purpose by alternative means that would not even remotely or incidentally aid religion.
36
Secondly, appellees contend that the application to them of the Sunday Closing Laws prohibits the free exercise of their religion. Crown alleges that if it is required by law to abstain from business on Sunday, then, because its owners' religion demands closing from sundown Friday to sundown Saturday, Crown will be open only four and one-half days a week, thereby suffering extreme economic disadvantage. Crown's Orthodox Jewish customers allege that because their religious beliefs forbid their shopping on the Jewish Sabbath, the statutes' effect is to deprive them, from Friday afternoon until Monday of each week, of the opportunity to purchase the kosher food sanctioned by their fath. The orthodox rabbis allege that the statutes' effect greatly complicates their task of supervising the condition of kosher meat because the meat delivered on Friday would have to be kept until Monday. Furthermore, appellees contend that, because of all this, the statutes discriminate against their religion.
37
These allegations are similar, although not as grave, as those made by appellants in Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563. Since the decision in that case rejects the contentions presented by these appellees on the merits, we need not decide whether appellees have standing to raise these questions.7
38
Mr. Justice FRANKFURTER and Mr. Justice HARLAN concur in a separate opinion.
39
Accordingly, the decision below is reversed.
40
Reversed.
41
(For opinion of Mr. Justice FRANKFURTHER, joined by Mr. Justice HARLAN, see 366 U.S. 459, 81 S.Ct. 1153.)
42
(For dissenting opinion of Mr. Justice DOUGLAS, see 366 U.S. 561, 81 S.Ct. 1218.)
43
(For dissenting opinion of Mr. Justice BRENNAN and Mr. Justice STEWART, see 366 U.S. 642, 81 S.Ct. 1134.)
Appendix to Opinion of The CHIEF JUSTICE
44
Massachusetts General Laws Annotated, c. 136.
45
s 1. Lord's day, definition. The Lord's day shall include the time from midnight to midnight.
46
s 2. Presence at games, sports, plays or public diversions on the Lord's day; exceptions. Whoever on the Lord's day is present at a game, sport, play or public diversion, except a concert of sacred music, a public entertainment duly licensed as provided in section four or a free open air concert given by a town, or by license of the mayor or the selectmen, upon a common or public park, street or square, or except a game of golf conducted on an open air golf course, or except a game of tennis or dancing at a wedding or celebration of a religious custom or ritual if no charge is made for being present or for dancing, or except after one o'clock post-meridian a game of outdoor lawn bowling or the playing of golf or driving on an outdoor golf driving range or playing on a miniature golf course, so called, shall be punished by a fine of not more than five dollars. Whoever on the Lord's day takes part in any game, sport, play or public diversion, except as aforesaid, shall be punished by a fine of not more than fifty dollars. This and the following section shall not apply to amusement enterprises lawfully conducted under section four A or four B or to sports or games conducted in accordance with sections twenty-one to twenty-five, inclusive, in any city or town which accepts said sections or in accordance with sections twenty-six to thirty-two, inclusive, in any city or town in which said sections twenty-six to thirty-two are then in force.
47
s 3. Establishing and maintaining public entertainment on the Lord's day. Whoever offers to view, sets up, establishes, maintains, or attempts to set up, establish or maintain, or promotes or assists in such attempt, or promotes, or aids, abets or participates in offering to view, setting up, establishing or maintaining any public entertainment on the Lord's day, except as provided in section two, unless such public entertainment shall be in keeping with the character of the day and not inconsistent with its due observance and duly licensed as provided in section four, or whoever on the Lord's day acts as proprietor, manager or person in charge of a game, sport, play or public diversion, except a public entertainment licensed under section four and except as provided in section two, shall be punished by a fine of not more than five hundred dollars.
48
s 4. License to hold public entertainment on the Lord's day; application; fee; suspension; revocation; hearing. Except as provided in section one hundred and five of chapter one hundred and forty-nine, the mayor of a city or the selectmen of a town may, upon written application describing the proposed entertainment, grant, upon such terms or conditions as they may prescribe, a license to hold on the Lord's day a public entertainment, including musical enterment provided by mechanical or electrical means, in keeping with the character of the day and not inconsistent with its due observance, whether or not admission is to be obtained upon payment of money or other valuable consideration, and, if the proposed entertainment described in the application is solely for the exhibition of motion pictures, for the benefit of patrons in a public dining room or for the use of television, the use of radio, or musical entertainment provided by mechanical or electrical means, the mayor or selectmen may grant an annual license therefor; provided, that no such license shall be granted to have effect before one o'clock in the afternoon, nor shall it have effect unless the proposed entertainment shall have been approved in writing by the commissioner of public safety as being in keeping with the character of the day and not inconsistent with its due observance. The application for the approval of the proposed entertainment by the commissioner shall be accompanied by a fee of two dollars, or, in the case of an application for the approval of an annual license, as herein provided, by a fee of fifty dollars. Any such license may, after notice and a hearing given by the mayor or selectmen issuing the same, or by said commissioner, be suspended, revoked or annulled by the officer or board giving the hearing. The foregoing provisions, insofar as they authorize any person to refuse to grant, or to suspend, revoke or annul a license upon the ground that the proposed entertainment is not in keeping with the character of the Lord's day or not consistent with its due observance, and insofar as they require written approval of the proposed entertainment by said commissioner, shall not apply to any person making an application for a license to exhibit motion pictures or for the use of radio or television on said day, nor to any license issued upon such application.
49
s 4A. Maintenance and operation of enterprises at amusement parks, beackes or resorts on the Lord's day; licenses; suspension; revocation. The mayor of a city or the selectmen of a town, upon written application therefor, and upon such terms and conditions as they may prescribe, may grant licenses for the maintenance and operation upon the Lord's day at amusement parks or beach resorts, so called, in such city or town, of any enterprise hereinafter described, for admission to which or for the use of which a payment of money or other valuable consideration may or may not be charged, namely:—Bowling alleys, shooting galleries restricted to the firing therein of rifles, revolvers or pistols using cartridges not larger than twenty-two calibre, photographic galleries or studios in which pictures are made and sold, games, and such amusement devices as may lawfully be operated therein on secular days; provided, that no such license shall be granted to have effect before one o'clock in the afternoon, nor shall it have effect unless the proposed enterprise shall, upon application accompanied by a fee of two dollars, have been approved in writing by the commissioner of public safety as provided in the case of public entertainments under section four. Any licensee hereunder may distribute premiums or prizes in connection with any game or device lawfully maintained and operated by him under authority hereof. Any such license may, after notice and a hearing given by the mayor or selectmen issuing the same, or by said commissioner, be suspended, revoked or annulled by the officer or board giving the hearing. So much of this section as relates to the maintenance and operation of bowling alleys shall not apply in any city or town which shall have accepted the provisions of section four B.
50
s 4B. Licenses for operation of bowling alleys on the Lord's day. In any city which accepts this section by vote of its city council and in any town which accepts this section by vote of its inhabitants, the city council, with the approval of the mayor, or the selectmen, as the case may be, may grant licenses for the operation of bowling alleys on the Lord's day between the hours of one and eleven post meridian; provided, that no such license may authorize the operation of bowling alleys on Easter, or on Christman day if such day falls on the Lord's day. Every license granted hereunder shall specify the location of the place of business in which the license is to be exercised, and the license shall not be valid in any other place. Bowling alleys operated under such licenses shall be operated subject to such regulations and restrictions as shall be prescribed from time to time by the city council, with the approval of the mayor, or by the selectmen. Said regulations and restrictions shall be stated in the license. Said licensing authorities may at any time and without previous notice revoke licenses issued under this section if they have reason to believe that any provision of this section, or of any regulation or restriction prescribed thereunder, is being or will be violated.
51
s 5. Keeping open shops or warehouses and conducting business or doing work on the Lord's day. Whoever on the Lord's day keeps open his shop, warehouse or workhouse, or does any manner of labor, business or work, except works of necessity and charity, shall be punished by a fine of not more than fifty dollars.
52
s 6. Limit of operation of section 5. The preceding section shall not prohibit the manufacture and distribution of steam, gas or electricity for illuminating purposes, heat or motive power; the distribution of water for fire or domestic purposes; the use of the telegraph or the telephone; the manufacture and distribution of oxygen, hydrogen, nitrogen, acetylene and carbon dioxide; the retail sale of drugs and medicines, or articles ordered by the prescription of a physician, or mechanical appliances used by physicians or surgeons.
53
Nor shall it prohibit the retail sale of tobacco in any of its forms by licensed innholders, common victuallers, druggists and newsdealers whose stores are open for the sale of newspapers every day in the week; the retail sale of bread, before ten o'clock in the forenoon and between the hours of four o'clock and half past six o'clock in the afternoon by licensed innholders and by licensed common victuallers authorized to keep open their places of business on the Lord's day and by persons licensed under the following section to keep open their places of business as aforesaid; the retail sale of frozen desserts and/or frozen dessert mix, soda water and confectionery by licensed innholders and druggists, and by such licensed common victuallers as are not also licensed to sell alcoholic beverages, as defined in section one of chapter one hundred and thirty-eight, and who are authorized to keep open their places of business on the Lord's day; the sale of frozen desserts and/or frozen dessert mix, soda water, confectionery or fruit by persons licensed under the following section or the keeping open of their places of business for the sale thereof; the sale of live bait for use by fishermen for non-commercial purposes.
54
Nor shall it prohibit work lawfully done by persons working under permits granted under section nine; the sale by licensed innholders and common victuallers of meals such as are usually served by them, consisting in no part of alcoholic beverages, as so defined, which meals are cooked on the premises but are not to be consumed thereon; the operation of motor vehicles; the sale of gasoline and oil for use, and the retail sale of accessories for immediate necessary use, in connection with the operation of motor vehicles, motor boats and aircraft; the making of such emergency repairs on disabled motor vehicles as may be necessary to permit such vehicles to be towed or to proceed under their own power, and the towing of disabled motor vehicles; the letting of horses and carriages or of boats, motor vehicles or bicycles; the letting on trains of equipment or accessories for personal use in connection with outdoor recreation and sports activities; unpaid work on pleasure boats; the running of steam ferry boats on established routes; the running of street railway cars; the running of steamboat lines and railroad trains or of steamboats.
55
Nor shall it prohibit the preparation, printing and publication of newspapers, or the sale and delivery thereof; the wholesale or retail sale and delivery of milk, or the transportation thereof, or the delivery of frozen desserts or frozen dessert mix, or both, or the wholesale or retail sale of ice or of fuel; the transportation of general commodities by motor truck or trailers, then engaged in interstate commerce before eight o'clock in the forenoon and after eight o'clock in the evening or in the event of an emergency between the aforesaid hours; the transportation of petroleum products by motor truck or trailers then engaged in intrastate commerce before six o'clock in the forenoon and after ten o'clock in the evening; the transportation of livestock, farm commodities and farm equipment for participation in fairs, exhibitions and sporting events and veterinary purposes; the handling, transportation and delivery of fish and perishable foodstuffs at wholesale; the sale at wholesale of dressed poultry, and the transportation of such poultry so sold, on the Lord's day next preceding Thanksgiving day, and on the Lord's day next preceding Christmas day except when Christmas day occurs on Saturday, the Lord's day or Monday; the making of butter and cheese; the keeping open of public bathhouses; the making or selling by bakers or their employees, before ten o'clock in the forenoon and between the hours of four o'clock and half past six o'clock in the afternoon, of bread or other food usually dealt in by them; whenever Rosh Hashonah, or the Day of Atonement, begins on the Lord's day, the retail sale and delivery of fish, fruit and vegetables before twelve o'clock noon of that day; the selling or delivering of kosher meat by any person who, according to his religious belief, observes Saturday as the Lord's day by closing his place of business during the day until six o'clock in the afternoon, or the keeping open of his shop on the Lord's day for the sale of kosher meat between the hours of six o'clock and ten o'clock in the forenoon.
56
Nor shall it prohibit the performing of secular business and labor on the Lord's day by any person who conscientiously believes that the seventh day of the week ought to be observed as the Sabbath and actually refrains from secular business and labor on that day, if he disturbs no other person thereby; the carrying on of the business of bootblack before eleven o'clock in the forenoon, unless prohibited in a city or town by ordinance or by-law; the digging of claims; the icing and dressing of fish; the cultivation of land, and the raising, harvesting, conserving and transporting of agricultural products during the existence of war between the United States and any other nation and until the first day of January following the termination thereof; such unpaid work in or about private gardens or private grounds, adjacent to a dwelling house, as shall not cause unreasonable noise, having regard to the locality where such work is performed.
57
Nor shall it prohibit the sale of catalogues of pictures and other works of art in exhibitions held by societies organized for the purpose of promoting education in the fine arts or the exposure of photographic plates and films for pleasure, if the pictures to be made therefrom are not intended to be sold and are not sold.
58
Nor shall it prohibit the conduct of any enterprise lawfully conducted under section four A or section four B.
59
Nor shall it prohibit the necessary preparation for and the conducting of private industrial trade expositions which are not open to the general public; provided, that said expositions shall be kept open only between the hours of one and ten o'clock post meridian.
60
Nor shall it prohibit the sale of fruit and vegetables by the person who raised the same, or by his agent thereunto duly authorized, on premises owned or leased by him.
61
s 7. Sale of frozen desserts, frozen dessert mix or confectionery on the Lord's day. In Boston, and in any other city or town which accepts this and section eight or has accepted corresponding provisions of earlier laws, in a city by its city council or in a town by the voters of the town at an annual town meeting, the licensing board or officer in such city or town, or if there is no such board or officer the aldermen of a city, or if there are no aldermen the city council, with the approval of the mayor, or the selectmen of a town, may grant, to any reputable person who on secular days is a retail dealer in frozen desserts and/or frozen dessert mix, confectionery, soda water or fruit and who does not hold a license for the sale of alcoholic beverages, as defined in section one of chapter one hundred and thirty-eight, a license to keep open his place of business on the Lord's day for the sale of frozen desserts and/or frozen dessert mix, confectionery, soda water or fruit. * * *
62
s 9. Permit for performance of necessary work or labor on the Lord's day. The police commissioner of Boston, or any member of the police department having a rank not lower than that of captain and designated by said commissioner, or the chief of police or other officer in charge of the police department of any other city or of any town, or the chairman of the board of selectmen of any town, upon such terms and conditions as he deems reasonable, may issue a permit for the performance on the Lord's day of necessary work or labor which in his judgment could not be performed on any other day without serious suffering, loss, damage or public inconvenience. Such permit shall cover not more than one day and shall not be issued more than six days prior to the day for which it is issued.
63
s 21. Athletic outdoor sports or games. In any city which accepts sections twenty-one to twenty-five, inclusive, by vote of its city council, or in any town which accepts said sections by vote of its inhabitants, it shall be lawful on the Lord's day to take part in or witness any athletic outdoor sport or game, as hereinafter provided, between the hours of one thirty and six thirty post meridian and, in the case of a baseball game commenced before the hour of six thirty post meridian, for such further time beyond said hour as may be necessary to complete said game; provided, that said game had been scheduled to commence at or before the hour of three post meridian, or is the second of two successive games to be played on the same day, the first of which had been scheduled to commence at or before the hour of two post meridian. In any such city or town it shall be lawful on the Lord's day to take part in or witness, as hereinafter provided, any indoor hockey or basketball game between the hours of one thirty post meridian and twelve midnight.
64
s 22. Licensed playgrounds or parks for athletic outdoor sports or games. Such sports or games shall take place on such playgrounds, parks or other places as may be designated for that purpose in a license or permit issued by the city council, with the approval of the mayor, or by the selectmen; provided, that if, under any statute or ordinance, a public playground or park is placed under the exclusive charge and authority of any other officials, such officials shall, for that playground or park, be the licensing authority; and provided, that no sport or game shall be permitted in a place, other than a public playground or park, within one thousand feet of any regular place of worship.
65
s26. Athletic outdoor sports or games not involving pecuniary reward, remuneration or consideration. In any city or town wherein the corresponding provisions of this and the six following sections were in effect on the sixth day of December, nineteen hundred and twenty-eight, and which has not voted against said sections on resubmission as provided in section thirty-one, and has not accepted the provisions of sections twenty-one to twenty-five, inclusive, as provided in section twenty-one, it shall be lawful to take part in or witness any athletic outdoor sport or game, in which the contestants do not receive and have not been promised any pecuniary reward, remuneration or consideration whatsoever directly or indirectly in connection therewith, on the Lord's day between the hours of two and six in the afternoon as hereinafter provided.
66
s 27. Licensed playgrounds or parks for athletic outdoor sports or games not involving pecuniary award, remuneration or consideration. Such sports or games shall take place on such playgrounds, parks or other places as may be designated for that purpose in a license or permit issued by the city council, with the approval of the mayor, or by the selectmen; provided, that if, under any statute or ordinance, a public playground or park is placed under the exclusive charge and authority of any other officials, such officials shall, for that playground or park, be the licensing authority; and provided, that no sport or game shall be permitted in a place, other than a public playground or park, within one thousand feet of any regular place of worship.
67
Mr. Justice BRENNAN and Mr. Justice STEWART dissent. They are of the opinion that the Massachusetts statute, as applied to the appellees in this case, prohibits the free exercise of religion. See their dissenting opinions in Braunfeld v. Brown, 366 U.S. 610, 616, 81 S.Ct. 1149, 1152.
1
The statutory sections immediately before the Court are Mass.Gen.Laws Ann. c. 136, §§ 5 and 6. The Massachusetts Sunday Closing Laws in their entirety may be found in Mass.Gen.Laws Ann. c. 136; c. 131, § 58; c. 138, §§ 12 and 33; c. 149, §§ 47 and 48; c. 266, §§ 113 and 117. Those sections considered particularly relevant are set forth in an Appendix to this opinion.
2
A similar argument made is that the exemptions from the statutes' proscription 'eat up the rule,' bear no rational relationship to the alleged interest of the State and therefore violate due process.
3
It may be noted that, contrary to the interpretation of the court below, since there is no restriction on the sale of milk, Crown may vend it at any time on Sunday.
4
A 1953 report concluded:
'The wave of materialism which is sweeping the country makes it most important that one day be set aside for worship, rest and to give all persons an opportunity to strengthen the bulwark of our American civilization—the home.' Report of the Unpaid Special Commission to Investigate and Study the Provisions of the Laws Relating to the Observance of the Lord's Day, Mass.Leg.Docs., H.Doc. No. 2413 (1954) 9.
5
Davis v. City of Somerville, 1880, 128 Mass. 594; Commonwealth v. Dextra, 1886, 143 Mass. 28, 8 N.E. 756; Commonwealth v. White, 1906, 190 Mass. 578, 77 N.E. 636, 5 L.R.A.,N.S., 320; Commonwealth v. McCarthy, 1923, 244 Mass. 484, 138 N.E. 835.
6
E.g., 'The Legislature intended by this statute to keep the ordinary places of traffic, business, and work closed on this day, so that those persons who desired to relax from labor and business, and attend to private and public worship, might not be disturbed by persons pursuing their worldly business and avocations in open shop.' Commonwealth v. Dextra, 143 Mass. at page 31, 8 N.E. at page 759.
7
Appellants have advanced several procedural arguments. Since these were briefed only as ancillary issues and were not orally argued, and since their determination is not necessary to the disposition of the major questions presented, we deem it inappropriate to pass upon them now.
| 23
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366 U.S. 667
81 S.Ct. 1285
6 L.Ed.2d 592
LOCAL 761, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, Petitioner,v.NATIONAL LABOR RELATIONS BOARD et al.
No. 321.
Argued April 17, 18, 1961.
Decided May 29, 1961.
Mr. Benjamin C. Sigal, Washington, D.C., for petitioner.
Mr. Norton J. Come, Washington, D.C., for respondent, National Labor Relations Board.
Mr. Gerard D. Reilly, Washington, D.C., for respondent, General Electric Co.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
Local 761 of the International Union of Electrical, Radio and Machine Workers, AFL-CIO, was charged with a violation of § 8(b)(4)(A) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 141, 29 U.S.C.A. § 158(b)(4)(A), upon the following facts.
2
General Electric Corporation operates a plant outside of Louisville, Kentucky, where it manufactures washers, dryers, and other electrical household appliances. The square-shaped, thousand-acre, unfenced plant is known as Appliance Park. A large drainage ditch makes ingress and egress impossible except over five roadways across culverts, designated as gates.
3
Since 1954, General Electric sought to confine the employees of independent contractors, described hereafter, who work on the premises of the Park, to the use of Gate 3—A and confine its use to them. The undisputed reason for doing so was to insulate General Electric employees from the frequent labor disputes in which the contractors were involved. Gate 3—A is 550 feet away from the nearest entrance available for General Electric employees, suppliers, and deliverymen. Although anyone can pass the gate without challenge,1 the roadway leads to a guardhouse where identification must be presented. Vehicle stickers of various shapes and colors enable a guard to check on sight whether a vehicle is authorized to use Gate 3—A. Since January 1958, a prominent sign has been posted at the gate which states: 'Gate 3—A For Employees Of Contractors Only G.E. Employees Use Other Gates.' On rare occasions, it appears, a General Electric employee was allowed to pass the guardhouse, but such occurrence was in violation of company instructions. There was no proof of any unauthorized attempts to pass the gate during the strike in question.
4
The independent contractors are utilized for a great variety of tasks on the Appliance Park premises. Some do construction work on new buildings; some install and repair ventilating and heating equipment; some engage in retooling and rearranging operations necessary to the manufacture of new models; others do 'general maintenance work.' These services are contracted to outside employers either because the company's employees lack the necessary skill or manpower, or because the work can be done more economically by independent contractors. The latter reason determined the contracting of maintenance work for which the Central Maintenance department of the company bid competitively with the contractors. While some of the work done by these contractors had on occasion been previously performed by Central Maintenance, the findings do not disclose the number of employees of independent contractors who were performing these routine maintenance services, as compared with those who were doing specialized work of a capital-improvemet nature.
5
The Union, petitioner here, is the certified bargaining representative for the production and maintenance workers who constitute approximately 7,600 of the 10, 500 employees of General Electric at Appliance Park. On July 27, 1958, the Union called a strike because of 24 unsettled grievances with the company. Picketing occurred at all the gates, including Gate 3—A, and continued until August 9 when an injunction was issued by a Federal District Court. The signs carried by the pickets at all gates read: 'Local 761 On Strike G.E. Unfair.' Because of the picketing, almost all of the employees of independent contractors refused to enter the company premises.
6
Neither the legality of the strike or of the picketing at any of the gates except 3—A nor the peaceful nature of the picketing is in dispute. The sole claim is that the picketing before the gate exclusively used by employees of independent contractors was conduct proscribed by § 8(b)(4)(A).
7
The Trial Examiner recommended that the Board dismiss the complaint. He concluded that the limitations on picketing which the Board had prescribed in so-called 'common situs' cases were not applicable to the situation before him, in that the picketing at Gate 3—A represented traditional primary action which necessarily had a secondary effect of inconveniencing those who did business with the struck employer. He reasoned that if a primary employer could limit the area of picketing around his own premises by constructing a separate gate for employees of independent contractors, such a device could also be used to isolate employees of his suppliers and customers, and that such action could not relevantly be distinguished from oral appeals made to secondary employees not to cross a picket line where only a single gate existed.
8
The Board rejected the Trial Examiner's conclusion, 123 N.L.R.B. 1547. It held that, since only the employees of the independent contractors were allowed to use Gate 3—A, the Union's object in picketing there was 'to enmesh these employees of the neutral employers in its dispute with the Company,' thereby constituting a violation of § 8(b)(4)(A) because the independent employees were encouraged to engage in a concerted refusal to work 'with an object of forcing the independent contractors to cease doing business with the Company.'2
9
The Court of Appeals for the District of Columbia granted enforcement of the Board's order, 107 U.S.App.D.C. 402, 278 F.2d 282. Although noting that a fine line was being drawn, it concluded that the Board was correct in finding that the objective of the Gate 3—A picketing was to encourage the independent-contractor employees to engage in a concerted refusal to perform services for their employers in order to bring pressure on General Electric. Since the incidence of the problem involved in this case is extensive and the treatment it had received calls for clarification, we brought the case here, 364 U.S. 869, 81 S.Ct. 114, 5 L.Ed.2d 92.
I.
10
Section 8(b)(4)(A) of the National Labor Relations Act provides that it shall be an unfair labor practice for a labor organization
11
'* * * to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring . . . any employer or other person * * * to cease doing business with anyo ther person * * *.'
12
This provision could not be literally construed; otherwise it would han most strikes historically considered to be lawful, so-called primary activity. 'While s 8(b)(4) does not expressly mention 'primary' or 'secondary' disputes, strikes or boycotts, that section often is referred to in the Act's legislative history as one of the Act's 'secondary boycott sections." National Labor Relations Board v. Denver Building & Const. Trades Council, 341 U.S. 675, 686, 71 S.Ct. 943, 950, 95 L.Ed. 1284. 'Congress did not seek by § 8(b)(4), to interfere with the ordinary strike * * *.' National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 672, 71 S.Ct. 961, 965, 95 L.Ed. 1277. The impact of the section was directed toward what is known as the secondary boycott whose 'sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it.' International Brotherhood of Electrical Workers, Local 501 v. National Labor Relations Board, 2 Cir., 181 F.2d 34, 37. Thus the section 'left a striking labor organization free to use persuasion, including picketing, not only on the primary employer and his employees but on numerous others. Among these were secondary employers who were customers or suppliers of the primary employer and persons dealing with them * * * and even employees of secondary employers so long as the labor organization did not * * * 'induce or encourage the employees of any employer to engage, in a strike or a concerted refusal in the course of their employment' * * *.' National Labor Relations Board v. Local 294, International Brotherhood of Teamsters, 2 Cir., 284 F.2d 887, 889.
13
But not all so-called secondary boycotts were outlawed in § 8(b)(4)(A). 'The section does not speak generally of secondary boycotts. It describes and condemns specific union conduct idrected to specific objectives. * * * Employees must be induced; they must be induced to engage in a strike or concerted refusal; an object must be to force or require their employer or another person to cease doing business with a third person. Thus, much that might argumentatively be found to fall within the broad and somewhat vague concept of secondary boycott is not in terms prohibited.' Local 1976, United Brotherhood of Carpenters and Joiners of America, A.F.L. v. National Labor Relations Board, 357 U.S. 93, 98, 78 S.Ct. 1011, 1015, 2 L.Ed.2d 1186. See also United Brotherhood of Carpenters (Wadsworth Building Co.), 81 N.L.R.B. 802, 805.
14
Important as is the distinction between legitimate 'primary activity' and banned 'secondary activity,' it does not present a glaringly bright line. The objectives of any picketing include a desire to influence others from withholding from the employer their services or trade. See Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547. '(I)ntended or not, sought for or not, aimed for or not, employees of neutral employers do take action sympathetic with strikers and do put pressure on their own employers.' Seafarers International Union, etc. v. National Labor Relations Board, 105 U.S.App.D.C. 211, 265 F.2d 585, 590. 'It is clear that, when a union pickets an employer with whom it has a dispute, it hopes, even if it does not intend, that all persons will honor the picket line. and that hope encompasses the employees of neutral employers who may in the course of their employment (deliverymen and the like) have to enter the premises.' Id., at page 591. 'Almost all picketing, even at the situs of the primary employer and surely at that of the secondary, hopes to achieve the forbidden objective, whatever other motives there may be and however small the chances of success.' Local 294, supra, 284 F.2d at page 890. But picketing which induces secondary employees to respect a picket line is not the equivalent of picketing which has an object of inducing those employees to engage in concerted conduct against their employer in order to force him to refuse to deal with the struck employer. National Labor Relations Board v. International Rice Milling Co., supra.
15
However difficult the drawing of lines more nice than obvious, the statute compels the task. Accordingly, the Board and the courts have attempted to devise reasonable criteria drawing heavily upon the means to which a union resorts in promoting its cause. Although '(n)o rigid rule which would make * * * (a) few factors conclusive is contained in or deducible from the statute,' Sales Drivers, etc. v. National Labor Relations Board, 97 U.S.App.D.C. 173, 229 F.2d 514, 517,3 '(I)n the absence of admissions by the union of an illegal intent, the nature of acts performed shows the intent.' Seafarers International Union, etc., supra, 265 F.2d at page 591.
16
The nature of the problem, as revealed by unfolding variant situations, inevitably involves an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer. And so, it is not surprising that the Board has more or less felt its way during the fourteen years in which it has had to apply § 8(b)(4)(A), and has modified and reformed its standards on the basis of accumulating experience. 'One of the purposes which lead to the creation of such boards is to have decisions based upon evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration.' Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 800, 65 S.Ct. 982, 986, 89 L.Ed. 1372.
II.
17
The early decisions of the Board following the Taft-Hartley amendments involved activity which took place around the secondary employer's premises. For example, in Wadsworth Building Co., supra, the union set up a picket line around the situs of a builder who had contracted to purchase prefabricated houses from the primary employer. The Board found this to be illegal secondary activity. See also Printing Specialties Union (Sealbright Pacific), 82 N.L.R.B. 271. In contrast, when picketing took place around the premises of the primary employer, the Board regarded this as valid primary activity. In Oil Workers International Union (Pure Oil Co.), 84 N.L.R.B. 315, Pure had used Standard's dock and employees for loading its oil onto ships. The companies had contracted that, in case of a strike against Standard, Pure employees would take over the loading of Pure oil. The union struck against Standard and picketed the dock, and Pure employees refused to cross the picket line. The Board held this to be a primary activity, although the union's action induced the Pure employees to engage in a concerted refusal to handle Pure products at the dock. The fact that the picketing was confined to the vicinity of the Standard premises influenced the Board not to find that an object of the activity was to force Pure to cease doing business with Standard, even if such was a secondary effect.
18
'A strike, by its very nature, inconveniences those who customarily do business with the struck employer. Moreover, any accompanying picketing of the employer's premises is necessarily designed to induce and encourage third persons to cease doing business with the picketed employer. It does not follow, however, that such picketing is therefore proscribed by Section 8(b)(4) (A) of the Act.' 84 N.L.R.B., at 318.
19
See also Newspaper & Mail Deliverers' Union (Interborough News Co.), 90 N.L.R.B. 2135; International Brotherhood of Teamsters (Di Giorgio Wine Co.), 87 N.L.R.B. 720; International Brotherhood of Teamsters (Rice Milling Co.), 84 N.L.R.B. 360.
20
In United Electrical Workers (Ryan Construction Corp.), 85 N.L.R.B. 417, Ryan had contracted to perform construction work on a building adjacent to the Bucyrus plant and inside its fence. A separate gate was u t through the fence for Ryan's employees which no employee of Bucyrus ever used. The Board concluded that the union—on strike against Bucyrus—could picket the Ryan gate, even though an object of the picketing was to enlist the aid of Ryan employees, since Congress did not intend to outlaw primary picketing.
21
'When picketing is wholly at the premises of the employer with whom the union is engaged in a labor dispute, it cannot be called 'secondary' even though, as is virtually always the case, an object of the picketing is to dissuade all persons from entering such premises for business reasons. It makes no difference whether 1 or 100 other employees wish to enter the premises. It follows in this case that the picketing of Bucyrus premises, which was primary because in support of a labor dispute with Bucyrus, did not lose its character and become 'secondary' at the so-called Ryan gate because Ryan employees were the only persons regularly entering Bucyrus premises at that gate.' 85 N.L.R.B., at 418. See also General Teamsters (Crump, Inc.), 112 N.L.R.B. 311.
22
Thus, the Board eliminated picketing which took place around the situs of the primary employer—regardless of the special circumstances involved—from being held invalid secondary activity under § 8(b)(4)(A).
23
However, the impact of the new situations made the Board conscious of the complexity of the problem by reason of the proten forms in which it appeared. This became clear in the 'common situs' cases—situations where two employers were performing separate tasks on common premises. The Moore Dry Dock case, supra, laid out the Board's new standards in this area. There, the union picketed outside an entrance to a dock where a ship, owned by the struck employer, was being trained and outfitted. Although the premises picketed were those of the secondary employer, they constituted the only place where picketing could take place; furthermore, the objectives of the picketing were no more aimed at the employees of the secondary employer—the dock owner—than they had been in the Pure Oil and Ryan cases. The Board concluded, however, that when the situs of the primary employer was 'ambulatory' there must be a balance between the union's right to picket and the interest of the secondary employer in being free from picketing. It set out four standards for picketing in such situations which would be presumptive of valid primary activity: (1) that the picketing be limited to times when the situs of dispute was located on the secondary premises, (2) that the primary employer be engaged in his normal business at the situs, (3) that the picketing take place reasonably close to the situs, and (4) that the picketing clearly disclose that the dispute was only with the primary employer. These tests were widely accepted by reviewing federal courts. See, e.g., National Labor Relations Board v. Service Trade Chauffeurs, 2 Cir., 191 F.2d 65; Piezonki v. National Labor Relations Board, 4 Cir., 219 F.2d 879; National Labor Relations Board v. Chauffeurs, Teamsters, etc., 7 Cir., 212 F.2d 216; National Labor Relations Board v. Local Union No. 55, 10 Cir., 218 F.2d 226. As is too often the way of law or, at least, of adjudications, soon the Dry Dock tests were mechanically applied so that a violation of one of the standards was taken to be presumptive of illegal activity. For example, failure of picket signs clearly to designate the employer against whom the strike was directed was held to be violative of § 8(b)(4)(A). See Superior Derrick Corp. v. National Labor Relations Board, 5 Cir., 273 F.2d 891; Truck Drivers and Helpers Local Union 728, etc. v. National Labor Relations Board, 101 U.S.App.D.C. 420, 249 F.2d 512; National Labor Relations Board v. Truck Drivers & Helpers Local Union No. 728, 5 Cir., 228 F.2d 791.4
24
In Local 55 (PBM), 108 N.L.R.B. 363, the Board for the first time applied the Dry Dock test, although the picketing occurred at premises owned by the primary employer. There, an insurance company owned a tract of land that it was developing, and also served as the general contractor. A neutral subcontractor was also doing work at the site. The union, engaged in a strike against the insurance company, picketed the entire premises, characterizing the entire job as unfair, and the employees of the subcontractor walked off. The Court of Appeals for the Tenth Circuit enforced the Board's order which found the picketing to be illegal on the ground that the picket signs did not measure up to the Dry Dock standard that they clearly disclose that the picketing was directed against the struck employer only. 218 F.2d 226.
25
The Board's application of the Dry Dock standards to picketing at the premises of the struck employer was made more explicit in Retail Fruit & Vegetable Clerks (Crystal Palace Market), 116 N.L.R.B. 856. The owner of a large common market operated some of the shops within, and leased out others to independent sellers. The union, although given permission to picket the owner's individual stands, chose to picket outside the entire market. The Board held that this action was violative of § 8(b)(4)(A) in that the union did not attempt to minimize the effect of its picketing, as required in a common-situs case, on the operations of the neutral employers utilizing the market. 'We believe * * * that the foregoing principles should apply to all common situs picketing, including cases where, as here, the picketed premises are owned by the primary employer.' 116 N.L.R.B., at 859. The Ryan case, supra, was overruled to the extent it implied the contrary. The Court of Appeals for the Ninth Circuit, in enforcing the Board's order, specifically approved its disavowance of an ownership test. 249 F.2d 591. The Board made clear that its decision did not affect situations where picketing which had effects on neutral third parties who dealt with the employer occurred at premises occupied solely by him. 'In such cases, we adhere to the rule established by the Board * * * that more latitude be given to picketing at such separate primary premises that at premises occupied in part (or entirely) by secondary employers.' 116 N.L.R.B., at 860, n. 10.
26
In rejecting the ownership test in situations where two employers were performing work upon a common site, the Board was naturally guided by this Court's opinion in Rice Milling, in which we indicated that the location of the picketing at the primary employer's premises was 'not necessarily conclusive' of its legality. 341 U.S., at page 671, 71 S.Ct. at page 964, 95 L.Ed. 1277. Where the work done by the secondary employees is unrelated to the normal operations of the primary employer, it is difficult to perceive how the pressure of picketing the entire situs is any less on the neutral employer merely because the picketing takes place at property owned by the struck employer. The application of the Dry Dock tests to limit the picketing effects to the employees of the employer against whom the dispute is directed carries out the 'dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.' National Labor Relations Board v. Denver Building & Const. Trades Council, supra, 341 U.S. at page 692, 71 S.Ct. at page 953, 95 L.Ed. 1284.
III.
27
From this necessary survey of the course of the Board's treatment of our problem, the precise nature of the issue before us emerges. With due regard to the relation between the Board's function and h e scope of judicial review of its rulings, the question is whether the Board may apply the Dry Dock criteria so as to make unlawful picketing at a gate utilized exclusively by employees of independent contractors who work on the struck employer's premises. The effect of such a holding would not bar the union from picketing at all gates used by the employees, suppliers, and customers of the struck employer. Of course an employer may not, by removing all his employees from the situs of the strike, bar the union from publicizing its cause, see Local 618, Automotive, Petroleum, etc. v. National Labor Relations Board, 8 Cir., 249 F.2d 332. The basis of the Board's decision in this case would not remotely have that effect, nor any such tendency for the future.
28
The Union claims that, if the Board's ruling is upheld, employers will be free to erect separate gates for deliveries, customers, and replacement workers which will be immunized from picketing. This fear is baseless. The key to the problem is found in the type of work that is being performed by those who use the separate gate. It is significant that the Board has since applied its rationale, first stated in the present case, only to situations where the independent workers were performing tasks unconnected to the normal operations of the struck employer usually construction work on his buildings.5 In such situations, the indicated limitations on picketing activity respect the balance of competing interests that Congress has required the Board to enforce. On the other hand, if a separate gate were devised for regular plant deliveries, the barring of picketing at that location would make a clear invasion on traditional primary activity of appealing to neutral employees whose tasks aid the employer's everyday operations. The 1959 Amendments to the National Labor Relations Act, which removed the word 'concerted' from the boycott provisions, included a proviso that 'nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.' 29 U.S.C. (Supp. I, 1959) § 158(b)(4) (B), 29 U.S.C.A. § 158(b)(4)(B). The proviso was directed against the fear that the removal of 'concerted' from the statute might be interpreted so that 'the picketing at the factory violates section 8(b)(4)(A) because the pickets induce the truck drivers employed by the trucker not to perform their usual services where an object is to compel the trucking firm not to do business with the * * * manufacturer during the strike.' Analysis of the bill prepared by Senator Kennedy and Representative Thompson, 105 Cong.Rec. 16589.
29
In a case similar to the one now before us, the Court of Appeals for the Second Circuit sustained the Board in its application of § 8(b)(4)(A) to a separategate situation. 'There must be a separate gate marked and set apart from other gates; the work done by the men who use the gate must be unrelated to the normal operations of the employer and the work must be of a kind that would not, if done when the plant were engaged in its regular operations, necessitate curtailing those operations.' United Steelworkers of America, AFL-CIO v. National Labor Relations Board, 2 Cir., 289 F.2d 591, 595. These seem to us controlling considerations.
IV.
30
The foregoing course of reasoning would require that the judgment below sustaining the Board's order be affirmed but for one consideration, even though this consideration may turn out not to affect the result. The legal path by which the Board and the Court of Appeals reached their decisions did not take into account that if Gate 3—A was in fact used by employees of independent contractors who performed conventional maintenance work necessary t the normal operations of General Electric, the use of the gate would have been a mingled one outside the bar of § 8(b)(4)(A). In short, such mixed use of this portion of the struck employer's premises would not bar picketing rights of the striking employees. While the record shows some such mingled use, it sheds no light on its extent. It may well turn out to be that the instances of these maintenance tasks were so insubstantial as to be treated by the Board as de minimis. We cannot here guess at the quantitative aspect of this problem. It calls for Board determination. For determination of the questions thus raised, the case must be remanded by the Court of Appeals to the Board.
31
Reversed.
32
THE CHIEF JUSTICE and Mr. Justice BLACK concur in the result.
33
Mr. Justice DOUGLAS.
34
I did not vote to grant certiorari in this case because it seemed to me that the problem presented was in the keeping of the Courts of Appeals within the meaning of Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456. Since the Court of Appeals followed the guidelines of that case (see 107 U.S.App.D.C. 402, 278 F.2d 282, 286), I would leave the decision with it. I cannot say it made any egregious error, though I might have decided the case differently had I sat on the Labor Board or on the Court of Appeals.
1
During the strike in question a guard was stationed at the gate.
2
Member Fanning concurred in the result. reasoning that the common-situs criteria set out by the Board in Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547, could be applied to situations where the primary employer owned the premises, and that the requirement that the picketing take place reasonably close to the situs of the labor dispute had therefore been violated by the picketing around Gate 3—A.
3
See also National Labor Relations Board v. General Drivers, Warehousemen and Helpers, Local 968, 5 Cir., 225 F.2d 205.
4
The Dry Dock criteria had perhaps their widest application in the trucking industry. There, unions on strike against truckers often staged picketing demonstrations at the places of pickup and delv ery. Compare International Brotherhood of Teamsters (Schultz Refrigerated Service, Inc.), 87 N.L.R.B. 502, with International Brotherhood of Teamsters (Sterling Beverages, Inc.), 90 N.L.R.B. 401.
5
United Steelworkers (Phelps Dodge Refining Corp.), 126 N.L.R.B. 1367; International Chemical Workers Union (Virginia-Carolina Chemical Corp.), 126 N.L.R.B. 905; see Union de Trabajadores (Gonzales Chemical Industries, Inc.), 128 N.L.R.B. No. 116.
| 67
|
366 U.S. 683
81 S.Ct. 1309
6 L.Ed.2d 604
SAM FOX PUBLISHING COMPANY, Inc., et al., Appellants,v.UNITED STATES et al.
No. 56.
Argued March 29 and 30, 1961.
Decided May 29, 1961.
Mr. Charles A. Horsky, Washington, D.C., for appellants.
Mr. Daniel M. Friedman, Washington, D.C., for appellee, The United States.
Mr. John F. Dooling, Jr., New York City, for appellee, American Society of Composers, Authors and Publishers.
Mr. Justice HARLAN, delivered the opinion of the Court.
1
The appellants, proceeding under the Expediting Act, 15 U.S.C. § 29, 15 U.S.C.A. § 29, appeal directly to this Court from an order of the District Court for the Southern District of New York denying their motions to intervene as of right in a proceeding to modify a consent decree previously entered in a government antitrust suit. The appellants were not named as parties either in the suit or modification proceeding.1 The motions were made pursuant to Rule 24, subdivision (a)(2) of the Federal Rules of Civil Procedure, 28 U.S.C.A.2
2
The matter arises in the following setting: In 1941 the United States brought suit under § 1 of the Sherman Act, 15 U.S.C. § 1, 15 U.S.C.A. § 1, against the American Society of Composers, Authors and Publishers (ASCAP), an unincorporated association of which appellants are members, and certain of its officers. The Society and the defendant officers besides being named as an entity and individuals, respectively, were also sued as representatives of all members of the Society. The Society, comprising some 6,400 writers and publishers of musical compositions, was organized to take nonexclusive licenses to the works of its members, to license such works out for public performance, and to distribute among the members the revenues resulting therefrom. The three appellants are among the Society's publisher members.
3
The Government's complaint in the action was aimed at two distinct types of antitrust violation: (1) alleged restraint of trade arising out of ASCAP's mode of dealing with outsiders desiring licenses of compositions in the Society's catalogue; and (2) alleged restraint of competition among the Society's members inter sese, resulting from the asserted domination of the Society's affairs by a few of its large publisher members who, it was claimed, were able to control the complexion of the Board of Directors and the apportionment of the Society's revenues. As to the latter type of restraint, the prayer for relief sought to insure (a) that Board elections be by no method 'other than by a membership vote in which all * * * members shall have the right to vote,' and (b) that the distribution of revenue to members should be on a 'fair and non-discriminatory' basis. It is apparent from the record that appellants' particular interests in the suit related entirely to the second aspect of the Government's charges, that is those involving the Society's internal affairs, and that their motions to intervene were so directed.
4
During the same year in which the suit was brought it was settled by a consent decree, approved by the District Court. In addition to provisions dealing with what may be called the Society's external affairs, the decree, in broad terms, contained requirements for Board elections by membership vote and for revenue distributions on an equitable basis. Subsequent to the decree, both the vote of the members and their share of license revenues were accorded on a weighted basis relative to the particular member's contribution to the revenue-producing value of all members' contribution to the Society's catalogue, all as determined by the Board of Directors. In 1950, pursuant to a reservation-of-jurisdiction clause in the 1941 decree, a modification of the original decree was effected at the instance of the Government. The modified decree ordered, among other things, that 'in order to insure a democratic administration of the affairs of defendant ASCAP * * * (the composition of the) Board of Directors shall, as far as practicable, give representation to writer members and publisher members with different participations in ASCAP's revenue distributions * * *.' In 1959, this same concern for 'democratic administration of the (internal) affairs' of ASCAP and for an equitable distribution of license revenues led the Government to press for further amendments to the decree. In 1960 this resulted in additional court-approved modifications which, it is apparent, represented a substantial improvement over the earlier provisions relating to Board elections and the apportionment of revenues. Contending that the proposed modifications did not go far enough towards ameliorating the position of the small publishers as against the few large publishers, appellants, prior to the adoption of the modified decree, brought the intervention motions now before us. The District Court denied leave to intervene without opinion, stating in its order:
5
'* * * representation of the public and the applicants by the Department of Justice was adequate ad in the public interest; * * * applicants are members of and are represented by the Society with their consent; * * * applicants have permitted this cause in which they are not named as parties to proceed to judgment; and * * * it would not promote the interests of the administration of justice to permit the requested intervention * * *.'
6
Thereafter the District Court entered a judgment approving the proposed modifications to the existing consent decree. Appellants do not appeal from that judgment, but only from the order denying their motions to intervene as of right. We postponed consideration of the question of jurisdiction to the hearing of the case on the merits. 362 U.S. 986, 80 S.Ct. 1075, 4 L.Ed.2d 1020.
7
As the Government and appellants correctly agree, the controlling question on the issue of jurisdiction, the answer to which also determines the merits of this appeal, is whether the appellants were entitled to intervene in these proceedings as 'of right.' Sutphen Estates, Inc. v. United States, 342 U.S. 19, 72 s,.Ct. 14, 96 L.Ed. 19, where the Court said: 'If appellant may intervene as of right, the order of the court denying intervention is appealable.' Id., 342 U.S. at page 20, 72 S.Ct. at page 16. That case requires rejection of ASCAP's separate contention that the order below was not appealable because not final,3 and also its further contention that appellate review of intervention has become moot, in that no appeal was taken from the judgment eventuating from the proceedings in which intervention was sought. The latter contention is based on the erroneous hypothesis that review of the intervention order was obtainable only in connection with an appeal from such judgment.
8
The determinative question—whether appellants were entitled to intervene as 'of right'—depended upon their showing both that 'the representation of' their 'interest by existing parties' to the consent judgment modification proceeding was or might 'be inadequate,' and that they would or might 'be bound by (the) judgment' in such proceeding. See note 2, supra.
I.
9
Appellants first contend that the representation of their interests by the Government has proven inadequate. Although the most recent decree reduced and limited the Board representation of the 10 largest publishers and provided for a method of revenue apportionment more favorable than that of the past to the smaller and less well-established Society members, appellants' contention is that this amelioration of their position is not adequate to break the control of the larger publishers, and therefore the Government's representation was or may have been inadequate.
10
Apart from anything else, sound policy would strongly lead us to decline appellants' invitation to assess the wisdom of the Government's judgment in negotiating and accepting the 1960 consent decree, at least in the absence of any claim of bad faith or malfeasance on the part of the Government in so acting. However, we need not reach the question of the adequacy of the Government's representation of the appellants' interests because, as hereafter shown, it is in any event clear that appellants are not bound by the consent judgment in these proceedings, if their position in this litigation is deemed as aligned with that of the Government. See United States v. Columbia Gas & Electric Corp., D.C., 27 F.Supp. 116, 119.
11
We regard it as fully settled that a person whose private interests coincide with the public interest in government antitrust litigation is nonetheless not bound by the evn tuality of such litigation, and hence may not, as of right, intervene in it. In United States v. Borden Co., 347 U.S. 514, 74 S.Ct. 703, 98 L.Ed. 903, it was ruled that it was an abuse of discretion for the District Court to refuse the Government an injunction against certain acts held violative of the antitrust laws, even though the same acts had already been enjoined in a private suit. It was there stated in clearest terms that 'private and public actions were designed to be cumulative, not mutually exclusive' (id., 347 U.S. at page 518, 74 S.Ct. at page 706), and, quoting from United States v. Bendix Home Appliances, D.C., 10 F.R.D. 73, 77, "* * * (T)he scheme of the statute is sharply to distinguish between Government suits, either criminal or civil, and private suits for injunctive relief or for treble damages. Different policy considerations govern each of these. They may proceed simultaneously or in disregard of each other." Id., 347 U.S. at pages 518—519, 74 S.Ct. at page 706.
12
This principle is certainly broad enough to make it clear that just as the Government is not bound by private antitrust litigation to which it is a stranger, so private parties, similarly situated, are not bound by government litigation. See United States v. General Electric Co., D.C., 95 F.Supp. 165; United States v. Columbia Gas & Electric Corp., supra; United States v. Radio Corporation, D.C., 3 F.Supp. 23; United States v. Bendix Home Appliances, supra; cf. United States v. Loew's Inc., D.C., 136 F.Supp. 13. Indeed § 5 of the Clayton Act, 15 U.S.C.A. § 16, making an adjudication of liability in a government antitrust suit prima facie evidence of liability in a § 4 private suit, would seem to be a definitive legislative pronouncement that a government suit cannot be preclusive of private litigation, even though relating to the same subject matter.
13
Regarding appellants' position in the case from this aspect, we conclude that they were not entitled to intervene as of right. See Allen Calculators, Inc., v. National Cash Register Co., 322 U.S. 137, 140—141, 64 S.Ct. 905, 907, 88 L.Ed. 1188.
II.
14
The contention of the appellants that they are entitled to intervene because as members of ASCAP they might be bound by ASCAP's representation of their interests presents a more difficult question. Their claim is that the Society, acting through its Board of Directors, could not adequately represent their interests as small publishers, whose very claim is that they are caught between the practical need to remain in the Society and the impossibility of obtaining adequate representation on the Board of Directors which determines both the weighting of votes in Board elections and the distribution of Society revenues. Since the Board, which negotiated the present consent judgment with the United States, represents, in the words of the Government's complaint, the core of the very 'unlawful combination and conspiracy' against which appellants seek antitrust relief, it is hardly doubtful, taking, as we think we should, the record before us at face value, that ASCAP, acting through its Board, cannot in law be deemed adequately to represent appellants' discrete interests asserted against the Board.
15
But before the inadequacy of ASCAP's representation of appellants' interests in the consent decree negotiations can give rise to a right of intervention, appellants must further demonstrate that they are or may be bound by the judgment on the litigation. On this score appellants argue that as 'class' defendants they are bound by the consent judgment against ASCAP, an unincorporated association, which was sued both as an entity (Fed.Rules Civ.Proc. rule 17(b)) and as representing all the Society's members (Fed.Rules Civ.Proc. rule 23(a)(1)). See Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 4 Cir., 148 F.2d 403.
16
In so arguing, appellants, however, face this dilemma: the judgment in a class action will bind only those members of the class whose interests have e en adequately represented by existing parties to the litigation, Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22; yet intervention as of right presupposes that an intervenor's interests are or may not be so represented. Thus appellants' argument as to a divergence of interests between themselves and ASCAP proves too much, for to the extent that it is valid appellants should not be considered as members of the same class as the present defendants, and therefore are not 'bound.' On the other hand, if appellants are bound by ASCAP's representation of the class, it can only be because that representation has been adequate, precluding any right to intervene. It would indeed be strange procedure to declare, on one hand, that ASCAP adequately represents the interests of the appellants and hence that this is properly a class suit, and then, on the other hand, to require intervention in order to insure of this representation in fact. The cases establishing the principle of class suits, Smith v. Swormstedt, 16 How. 288, 14 L.Ed. 942; Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673; and see Hansberry v. Lee, supra, present no such situation and require no such result.
17
Any doubt that may exist in this case is dispelled once it is recognized that the Government's original complaint alleged two different types of antitrust violations, two different illegal combinations. It is doubtless true that appellants, through their membership in ASCAP, are or 'may be' bound by the consent judgment insofar as it deals with the external affairs of the Society; nor is there any claim on this score that ASCAP's representation was not fully adequate.4 It does not follow from this, however, as to the other alleged antitrust violations, which are of an entirely different nature, involving the interests of the members inter sese, that the Society itself is a valid unitary representative for this purpose also, containing as it does the principal factions in the internecine dispute. Cf. Owen v. Paramount Productions, D.C., 41 F.Supp. 557. Or, put differently, as to any claims or defenses which appellants have against the Government the representation of ASCAP is entirely adequate, and as to any claims which they may have against ASCAP there is nothing to require appellants to bring them into this litigation, simply because they are 'bound' for other purposes. Cf. Fed.Rules Civ.Proc., rule 13(g).
18
Turning to the order of the District Court, its remarks that the appellants as 'members of the defendant Society * * * surrendered * * * (their) right to intervene as individuals,' (R. 295) and that they 'are members of and are represented by the Society with their consent,' are susceptible of two interpretations. If the Court was referring simply to the assertedly representative nature of the suit, its view was no different from the appellants' contention discussed above, and the answer to it is also the same. The purport of the order, however, appears to have been, as the District Court elsewhere intimated, that quite apart from the actual divergence of interest and position between ASCAP and appellants, the contractual and associational relation between the Society and its members, into which they were free to enter and from which they were free to withdraw, at least so far as the law is concerned, both bound appellants as privies to this judgment and precluded any claim of inadequate representation. With respect, we think this begs the question, for appellants' antitrust claim is precisely that, on the one hand, they have no practical choice but to remain in the Society and, on the other, that the dominance of the large publih ers within the Society restricts the competitive opportunities in the industry.
19
In sum, there is nothing in the relationship of appellants to ASCAP to require us to subvert here the unquestionably sound policy of not permitting private antitrust plaintiffs to press their claims against alleged violators in the same suit as the Government: there is no claim or defense which appellants have against the Government as to which they are not adequately represented by ASCAP, and no rule or policy requiring them to press their claim against ASCAP in this government litigation.
III.
20
There are two remaining arguments which may be disposed of more briefly. First, it is said that the District Court should at least have held a hearing in order to determine to what extent appellants' interests diverged from those asserted here by ASCAP. We perceive no occasion for such a procedure, for we think that the present record already shows that as respects the phase of this case which relates to the Society's internal affairs, the position which the appellants assert in favor of an expanded decree cannot be deemed in law to be adequately represented by ASCAP or any of the other defendants, and hence that the consent judgment in this respect can have no binding effect against appellants.
21
Second, appellants argue that even should they not be legally precluded from bringing a private action, nevertheless the very existence of the outstanding decree would as a matter of comity either preclude further relief or operate to limit the relief some future equity court might decree. Although there is no reason why such a court need consider the present decree as anything but a minimum towards insuring broader representation and more favorable income distribution should a claim for further relief be made out, there is considerable weight to the argument that the court will feel constrained as a matter of comity at least to build on the foundations of the present decree. Cf. United States v. Radio Corporation, D.C., 3 F.Supp. 23. However, it is abundantly clear that this effect is not at all the equivalent of being legally bound, which is what must be made out before a party may intervene as of right. See Credits Commutation Co. v. United States, 177 U.S. 311, 20 S.Ct. 636, 44 L.Ed. 782; Sutphen Estates, Inc., v. United States, supra; Cameron v. President and Fellows of Harvard College, 2 Cir., 157 F.2d 993; Jewell Ridge Coal Corp. v. Local No. 6167, D.C., 3 F.R.D. 251. Indeed, appellants' contention on this score is indistinguishable from that of any private litigant whose interests are involved in government antitrust litigation. As we have already said, no right of intervention as a party plaintiff exists in that instance.
22
Inasmuch as the appellants are not, nor may be, bound by the judgment below in the aspects of the case with respect to which they sought intervention, their application to intervene as of right was properly denied and the appeal is dismissed.
23
Dismissed.
24
Mr. Justice CLARK took no part in the consideration or decision of this case.
1
Besides San Fox Publishing Company there are two other appellants, Pleasant Music Publishing Company and Jefferson Music Company, who, like Sam Fox, are music publishers. Although Movietone Music Corporation also appealed, it did not appear in this Court.
2
'(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action * * *.'
The appellants also moved below for permissive, or discretionary, intervention under subdivision (b) of Rule 24, but no appeal has been taken from that part of the District Court's order.
3
Allen Calculators, Inc., v. National Cash Register Co., 322 U.S. 137, 64 S.Ct. 905, 88 L.Ed. 1188, need not be considered to the contrary, for it would seem that the significance of the appeal which was there taken from the judgment below related to this Court's jurisdiction to consider the District Court's denial of permissive intervention, and not to its jurisdiction to review the District Court's order denying intervention as of right.
4
The issue of inadequacy of representation could arise on this phase of the case only on some showing that ASCAP, which ostensibly has the same interests as appellants on this aspect of the litigation, was in fact conducting the litigation in bad faith, collusively, or negligently. No such contention has been made.
| 89
|
366 U.S. 712
81 S.Ct. 1229
6 L.Ed.2d 845
Benny LURK, Petitioner,v.UNITED STATES.
No. 669.
Supreme Court of the United States
Argued May 4 and 5, 1961.
May 29, 1961
Mr. Eugene Gressman, Washington, D.C., for petitioner.
Mr. Oscar H. Davis, Washington, D.C., for respondent.
PER CURIAM.
1
The judgment of the Court of Appeals is reversed and the case is remanded to that court. Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060.
2
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
3
In my view Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060, on the basis of which the case is sent back to the Court of Appeals, does not fit the facts and circumstances of this case.
4
In support of his contention that he was wrongfully denied the right to appeal in forma pauperis, petitioner presents for our consideration two grounds for reversal of his conviction of robbery in the United States District Court for the District of Columbia. The first contention, concerning the admission at his trial of allegedly prejudicial evidence, is so lacking in merit as to be plainly frivolous. It would not justify an appeal in forma pauperis. But petitioner also raises a jurisdictional question, viz., whether he could constitutionally be tried by a court presided over by a retired judge of the Court of Customs and Patent Appeals. This question, therefore, would have warranted review by the Court of Appeals.
5
Solution of this problem will call into consideration a number of subsidiary questions. What are the characteristics of an Article III court? Is the Court of Customs and Patent Appeals an Article III court? If so, when did it become such a court? Assuming arguendo that the Court of Customs and Patent Appeals has been an Article III court only since 1958 (when Congress enacted legislation conferring that status), what is the bearing of this fact on the status of a judge who retired from the court prior to that time?
6
These are not questions on which, with all due respect, a lower court can be of effective assistance to this Court. They do not involve the evaluation of evidence or the application of rules of local law or special familiarity and experience with the materials and the underlying considerations on which judgment must be based. On the contrary, the constitutional history and the cases upon which the decision ultimately must turn are the special concern of this Court. Indeed, the questions posed would be entirely suitable for certification to this Court by a lower appellate court. See 28 U.S.C. § 1254, 28 U.S.C.A. § 1254. Cf. United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129. Furthermore, the administration of justice in the federal courts demands a speedy disposition of this dispute. Until it is settled, assignment of retired judges to help clear dockets in federal courts under a litigious cloud will be hampered by uncertainty.
7
Nothing could be more obvious than that the Court of Appel s, no matter how it may decide the question now put in its keeping, will have it only temporarily. The inevitable final destination of the case is this Court. Decision here should not be delayed by wastefully time-consuming remand to the Court of Appeals of a question that is already be fore us.
| 01
|
366 U.S. 420
81 S.Ct. 1218
6 L.Ed.2d 393
Margaret McGOWAN et al., Appellants,v.STATE OF MARYLAND. GALLAGHER, Chief of Police of the City of Springfield, Massachusetts, et al., Appellants. v. CROWN KOSHER SUPER MARKET OF MASSACHUSETTS, INC., et al. TWO GUYS FROM HARRISON-ALLENTOWN, INC., Appellant, v. Paul A. McGINLEY, District Attorney, County of Lehigh, Pennsylvania et al. Abraham BRAUNFELD et al., Appellants, v. Albert N. BROWN, Commissioner of Police of the City of Philadelphia, Pennsylvania, et al.
Nos. 8, 11, 36, 67.
Supreme Court of the United States
May 29, 1961
[Syllabus from pages 420-421 intentionally omitted]
Mr. Harry Silbert, Baltimore, Md., for appellants.
Mr. John Martin Jones, Jr., Baltimore Md., for appellee.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
The issues in this case concern the constitutional validity of Maryland criminal statutes,1 commonly known as Sunday Closing Laws or Sunday Blue Laws. These statutes, with exceptions to be noted hereafter, generally proscribe all labor, business and other commercial activities on Sunday. The questions presented are whether the classifications within the statutes bring about a denial of equal protection of the law, whether the laws are so vague as to fail to give reasonable notice of the forbidden conduct and therefore violate due process, and whether the statutes are laws respecting an establishment of religion or prohibiting the free exercise thereof.
2
Appellants are seven employees of a large discount department store located on a highway in Anne Arundel County, Maryland. They were indicted for the Sunday sale of a three-ring loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine in violation of Md.Ann.Code, Art. 27, § 521. Generally, this section prohibited, throughout the State, the Sunday sale of all merchandise except the retail sale of tobacco products, confectioneries, milk, bread, fruits, gasoline, oils, greases, drugs and medicines, and newspapers and periodicals. Recently amended, this section also now excepts from the general prohibition the retail sale in Anne Arundel County of all foodstuffs, automobile and boating accessories, flowers, toilet goods, hospital supplies and souvenirs. It now further provides that any retail establishment in Anne Arundel County which does not employ more than one person other than the owner may operate on Sunday.
3
Although appellants were indicted only under § 521, in order properly to consider several of the broad constitutional contentions, we must examine the whole body of Maryland Sunday laws. Several sections of the Maryland statutes are particularly relevant to evaluation of the issues presented. Section 492 of Md.Ann.Code, Art. 27, forbids all persons from doing any work or bodily labor on Sunday and forbids permitting children or servants to work on that day or to engage in fishing, hunting and unlawful pastimes or recreations. The section excepts all works of necessity and charity. Section 522 of Md.Ann.Code, Art. 27, disallows the opening or use of any dancing saloon, opera house, bowling alley or barber shop on Sunday. However, in addition to the exceptions noted above, Md.Ann.Code, Art. 27, § 509, exempts, for Anne Arundel County, the Sunday operation of any bathing beach, bathhouse, dancing saloon and amusement park, and activities incident thereto and retail sales of merchandise customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses. Section 90 of Md.Ann.Code, Art. 2B, makes generally unlawful the sale of alcoholic beverages on Sunday. However, this section, and immediately succeeding ones, provide various immunities for the Sunday sale of different kinds of alcoholic beverages, at different hours during the day, by vendors holding different types of licenses, in different political divisions of the State—particularly in Anne Arundel County. See Md.Ann.Code, Art. 2B, § 28(a).
4
The remaining statutory sections concern a myriad of exceptions for various counties, districts of counties, cities and towns throughout the State. Among the activities allowed in certain areas on Sunday are such sports as football, baseball, golf, tennis, bowling, croquet, basketball, lacrosse, soccer, hockey, swimming, softball, boating, fishing, skating, horseback riding, stock car racing and pool or billiards. Other immunized activities permitted in some regions of the State include group singing or playing of musical instruments; the exhibition of motion pictures; dancing; the operation of recreation centers, picnic grounds, swimming pools, skating rinks and miniature golf courses. The taking of oysters and the hunting or killing of game is generally forbidden, but shooting conducted by organized rod and gun clubs is permitted in one county. In some of the subdivisions within the State, the exempted Sunday activities are sanctioned throughout the day; in others, they may not commence until early afternoon or evening; in many, the activities may only be conducted during the afternoon and late in the evening. Certain localities do not permit the allowed Sunday activity to be carried on within one hundred yards of any church where religious services are being held. Local ordinances and regulations concerning certain limited activities supplement the State's statutory scheme. In Anne Arundel County, for example, slot machines, pinball machines and bingo may be played on Sunday.
5
Among other things, appellants contended at the trial that the Maryland statutes under which they were charged were contrary to the Fourteenth Amendment for the reasons stated at the outset of this opinion. Appellants were convicted and each was fined five dollars and costs. The Maryland Court of Appeals affirmed, 220 Md. 117, 151 A.2d 156; on appeal brought under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), we noted probable jurisdiction. 362 U.S. 959, 80 S.Ct. 874, 4 L.Ed.2d 874.
I.
6
Appellants argue that the Maryland statutes violate the 'Equal Protection' Clause of the Fourteenth Amendment on several counts. First, they contend that the classifications contained in the statutes concerning which commodities may or may not be sold on Sunday are without rational and substantial relation to the object of the legislation.2 Specifically, appellants allege that the statutory exemptions for the Sunday sale of the merchandise mentioned above render arbitrary the statute under which they were convicted. Appellants further allege that § 521 is capricious because of the exemptions for the operation of the various amusements that have been listed and because slot machines, pin-ball machines, and bingo are legalized and are freely played on Sunday.
7
The standards under which this proposition is to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. See Kotch v. Board of River Port Pilot Com'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093; Metropolitan Casualty Ins. Co. of New York v. Brownell, 294 U.S. 580, 55 S.Ct. 538, 79 L.Ed. 1070; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369; Atchison, T. & S.F.R. Co. v. Matthews, 174 U.S. 96, 19 S.Ct. 609, 43 L.Ed. 909.3
8
It would seem that a legislature could reasonably find that the Sunday sale of the exempted commodities was necessary either for the health of the populace or for the enhancement of the recreational atmosphere of the day—that a family which takes a Sunday ride into the country will need gasoline for the automobile and may find pleasant a soft drink or fresh fruit; that those who go to the beach may wish ice cream or some other item normally sold there; that some people will prefer alcoholic beverages or games of chance to add to their relaxation; that newspapers and drug products should always be available to the public.
9
The record is barren of any indication that this apparently reasonable basis does not exist, that the statutory distinctions are invidious, that local tradition and custom might not rationally call for this legislative treatment. See Salsburg v. State of Maryland, 346 U.S. 545, 552—553, 74 S.Ct. 280, 284, 98 L.Ed. 281; Kotch v. Board of River Port Pilot Com'rs, supra. Likewise, the fact that these exemptions exist and deny some vendors and operators the day of rest and recreation contemplated by the legislature does not render the statutes violative of equal protection since there would appear to be many valid reasons for these exemptions, as stated above, and no evidence to dispel them.
10
Secondly, appellants contend that the statutory arrangement which permits only certain Anne Arundel County retailers to sell merchandise essential to, or cutomarily sold at, or incidental to, the operation of bathing beaches, amusement parks et cetera is contrary to the 'Equal Protection' Clause because it discriminates unreasonably against retailers in other Maryland counties. But we have held that the Equal Protection Clause relates to equality between persons as such, rather than between areas and that territorial uniformity is not a constitutional prerequisite. With particular reference to the State of Maryland, we have noted that the prescription of different substantive offenses in different counties is generally a matter for legislative discretion. We find no invidious discrimination here. See Salsburg v. State of Maryland, supra.
11
Thirdly, appellants contend that this same statutory provision, Art. 27, § 509, violates the 'Equal Protection' Clause because it permits only certain merchants within Anne Arundel County (operators of bathing beaches and amusement parks et cetera) to sell merchandise customarily sold at these places while forbidding its sale by other vendors of this merchandise, such as appellants' employer.4 Here again, it would seem that a legislature could reasonably find that these commodities, necessary for the health and recreation of its citizens, should only be sold on Sunday by those vendors at the locations where the commodities are most likely to be immediately put to use. Such a determination would seem to serve the consuming public and at the same time secure Sunday rest for those employees, like appellants, of all other retail establishments. In addition, the enforcement problems which would accrue if large retail establishments, like appellants' employer, were permitted to remain open on Sunday but were restricted to the sale of the merchandise in question would be far greater than the problems accruing if only beach and amusement park vendors were exempted. Here again, there has been no indication of the unreasonableness of this differentiation. On the record before us, we cannot say that these statutes do not provide equal protection of the laws.
II.
12
Another question presented by appellants is whether Art. 27, § 509, which exempts the Sunday retail sale of 'merchandise essential to, or customarily sold at, or incidental to, the operation of' bathing beaches, amusement parks et cetera in Anne Arundel County, is unconstitutionally vague. We believe that business people of ordinary intelligence in the position of appellants' employer would be able to know what exceptions are encompassed by the statute either as a matter of ordinary commercial knowledge or by simply making a reasonable investigation at a nearby bathing beach or amusement park within the county. See United States v. Harriss, 347 U.S. 612, 617—618, 74 S.Ct. 808, 811—812, 98 L.Ed. 989. Under these circumstances, there is no necessity to guess at the statute's meaning in order to determine what conduct it makes criminal. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. Questions concerning proof that the items appellants sold were customarily sold at, or incidental to the operation of, a bathing beach or amusement park were not raised in the Maryland Court of Appeals, nor are they raised here. Thus, we cannot consider the matter. Whitney v. People of State of California, 274 U.S. 357, 362—363, 47 S.Ct. 641, 643—644, 71 L.Ed. 1095.
III.
13
The final questions for decision are whether the Maryland Sunday Closing Laws conflict with the Federal Constitution's provisions for religious liberty. First, appellants contend here that the statutes applicable to Anne Arundel County violate the constitutional guarantee of freedom of religion in that the statutes' effect is to prohibit the free exercise of religion in contravention of the First Amendment, made applicable to the States by the Fourteenth Amendment.5 But appellants allege only economic injury to themselves; they do not allege any infringement of their own religious freedoms due to Sunday closing. In fact, the record is silent as to what appellants' religious beliefs are. Since the general rule is that 'a litigant may only assert his own constitutional rights or immunities,' United States v. Raines, 362 U.S. 17, 22,80 S.Ct. 519, 523, 4 L.Ed.2d 524, we hold that appellants have no standing to raise this contention.6 Tileston v. Ullman, 318 U.S. 44, 46, 63 S.Ct. 493, 494, 87 L.Ed. 603. Furthermore, since appellants do not specifically allege that the statutes infringe upon the religious beliefs of the department store's present or prospective patrons, we have no occasion here to consider the standing question of Pierce v. Society of Sisters, 268 U.S. 510, 535—536, 45 S.Ct. 571, 573 574, 69 L.Ed. 1070. Those persons whose religious rights are allegedly impaired by the statutes are not without effective ways to assert these rights. Cf. 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, 346 U.S. 249, 257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586. Appellants present no weighty countervailing policies here to cause an exception to our general principles. See United States v. Raines, supra.
14
Secondly, appellants contend that the statutes violate the guarantee of separation of church and state in that the statutes are laws respecting an establishment of religion contrary to the First Amendment, made applicable to the States by the Fourteenth Amendment. If the purpose of the 'establishment' clause was only to insure protection for the 'free exercise' of religion, then what we have said above concerning appellants' standing to raise the 'free exercise' contention would appear to be true here. However, the writings of Madison, who was the First Amendment's architect, demonstrate that the establishment of a religion was equally feared because of its tendencies to political tyranny and subversion of civil authority.7 Thus, in Everson v. Board of Education, supra, the Court permitted a district taxpayer to challenge, on 'establishment' grounds, a state statute which authorized district boards of education to reimburse parents for fares paid for the transportation of their children to both public and Catholic schools. Appellants here concededly have suffered direct economic injury, allegedly due to the imposition on them of the tenets of the Christian religion.8 We find that, in these circumstances, these appellants have standing to complain that the statutes are laws respecting an establishment of religion.
15
The essence of appellants' 'establishment' argument is that Sunday is the Sabbath day of the predominant Christian sects; that the purpose of the enforced stoppage of labor on that day is to facilitate and encourage church attendance; that the purpose of setting Sunday as a day of universal rest is to induce people with no religion or people with marginal religious beliefs to join the predominant Christian sects; that the purpose of the atmosphere of tranquility created by Sunday closing is to aid the conduct of church services and religious observance of the sacred day. In substantiating their 'establishment' argument, appellants rely on the wording of the present Maryland statutes, on earlier versions of the current Sunday laws and on prior judicial characterizations of these laws by the Maryland Court of Appeals. Although only the constitutionality of § 521, the section under which appellants have been convicted, is immediately before us in this litigation, inquiry into the history of Sunday Closing Laws in our country, in addition to an examination of the Maryland Sunday closing statutes in their entirety and of their history, is relevant to the decision of whether the Maryland Sunday law in question is one respecting an establishment of religion. There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces. But what we must decide is whether present Sunday legislation, having undergone extensive chances from the earliest forms, still retains its religious character.
16
Sunday Closing Laws go far back into American history, having been brought to the colonies with a background of English legislation dating to the thirteenth century. In 1237, Henry III forbade the frequenting of markets on Sunday; the Sunday showing of wools at the staple was banned by Edward III in 1354; in 1409, Henry IV prohibited the playing of unlawful games on Sunday; Henry VI proscribed Sunday fairs in churchyards in 1444 and, four years later, made unlawful all fairs and markets and all showings of any goods or merchandise; Edward VI disallowed Sunday bodily labor by several injunctions in the mid-sixteenth century; various Sunday sports and amusements were restricted in 1625 by Charles I. Lewis, A Critical History of Sunday Legislation, 82—108; Johnson and Yost, Separation of Church and State, 221. The law of the colonies to the time of the Revolution and the basis of the Sunday laws in the States was 29 Charles II, c. 7 (1677). It provided, in part:
17
'For the better observation and keeping holy the Lord's day, commonly called Sunday: be it enacted * * * that all the laws enacted and in force concerning the observation of the day, and repairing to the church thereon, be carefully put in execution; and that all and every person and persons whatsoever shall upon every Lord's day apply themselves to the observation of the same, by exercising themselves thereon in the duties of piety and true religion, publicly and privately; and that no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor or business or work of their ordinary callings upon the Lord's day, or any part thereof (works of necessity and charity only excepted); * * * and that no person or persons whatsoever shall publicly cry, show forth, or expose for sale any wares, merchandise, fruit, herbs, goods, or chattels, whatsoever, upon the Lord's day, or any part thereof. * * *' (Emphasis added.)9
18
Observation of the above language, and of that of the prior mandates, reveals clearly that the English Sunday legislation was in aid of the established church.
19
The American colonial Sunday restrictions arose soon after settlement. Starting in 1650, the Plymouth Colony proscribed servile work, unnecessary travelling, sports, and the sale of alcoholic beverages on the Lord's day and enacted laws concerning church attendance. The Massachusetts Bay Colony and the Connecticut and New Haven Colonies enacted similar prohibitions, some even earlier in the seventeenth century. The religious orientation of the colonial statutes was equally apparent. For example, a 1629 Massachusetts Bay instruction began, 'And to the end the Sabbath may be celebrated in a religious manner. * * *' A 1653 enactment spoke of Sunday activities 'which things tend much to the dishonor of God, the reproach of religion, and the profanation of his holy Sabbath, the sanctification whereof is sometimes put for all duties immediately respecting the service of God. * * *' Lewis, op. cit., supra, at pp. 160—195, particularly at 167, 169.10 These laws persevered after the Revolution and, at about the time of the First Amendment's adoption, each of the colonies had laws of some sort restricting Sunday labor. See note, 73 Harv.L.Rev. 729—730, 739—740; Johnson and Yost, op. cit., supra, at pp. 222—223.
20
But, despite the strongly religious origin of these laws, beginning before the eighteenth century, nonreligious arguments for Sunday closing began to be heard more distinctly and the statutes began to lose some of their totally religious flavor. In the middle 1700's, Blackstone wrote, '(T)he keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes; which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness.' 4 Bl.Comm. 63. A 1788 English statute dealing with chimney sweeps, 28 Geo. III, c. 48, in addition to providing for their Sunday religious affairs, also regulated their hours of work. The preamble to a 1679 Rhode Island enactment stated that the reason for the ban on Sunday employment was that 'persons being evill minded, have presumed to employ in servile labor, more than necessity requireth, their servants. * * *' 3 Records of the Colony of Rhode Island and Providence Plantations 31. The New York law of 1788 omitted the term 'Lord's day' and substituted 'the first day of the week commonly called Sunday.' 2 Laws of N.Y. 1785 1788, 680. Similar changes marked the Maryland statutes, discussed below. With the advent of the First Amendment, the colonial provisions requiring church attendance were soon repealed. Note, 73 Harv.L.Rev., supra, at pp. 729—730.
21
More recently, further secular justifications have been advanced for making Sunday a day of rest, a day when people may recover from the labors of the week just passed and may physically and mentally prepare for the week's work to come. In England, during the First World War, a committee investigating the health conditions of munitions workers reported that 'if the maximum output is to be secured and maintained for any length of time, a weekly period of rest must be allowed. * * * On economic and social grounds alike this weekly period of rest is best provided on Sunday.'11
22
The proponents of Sunday closing legislation are no longer exclusively representatives of religious interests. Recent New Jersey Sunday legislation was supported by labor groups and trade associations, Note, 73 Harv.L.Rev. 730—731; modern English Sunday legislation was promoted by the National Federation of Grocers and supported by the National Chamber of Trade, the Drapers' Chamber of Trade, and the National Union of Shop Assistants. 308 Parliamentary Debates, Commons 2158—2159.
23
Throughout the years, state legislatures have modified, deleted from and added to their Sunday statutes. As evidenced by the New Jersey laws mentioned above, current changes are commonplace. Almost every State in our country presently has some type of Sunday regulation and over forty possess a relatively comprehensive system. Note, 73 Harv.L.Rev. 732—733; Note, 12 Rutgers L.Rev. 506. Some of our States now enforce their Sunday legislation through Departments of Labor, e.g., 6 S.C.Code.Ann. (1952), § 64—5. Thus have Sunday laws evolved from the wholly religious sanctions that originally were enacted.
24
Moreover, litigation over Sunday closing laws is not novel. Scores of cases may be found in the state appellate courts relating to sundry phases of Sunday enactments.12 Religious objections have been raised there on numerous occasions but sustained only once, in Ex parte Newman, 1858, 9 Cal. 502, and that decision was overruled three years later, in Ex parte Andrews, 18 Cal. 678. A substantial number of cases in varying postures bearing on state Sunday legislation have reached this Court.13 Although none raising the issues now presented have gained plenary hearing, language used in some of these cases further evidences the evolution of Sunday laws as temporal statutes. Mr. Justice Field wrote in Soon Hing v. Crowley, supra, 113 U.S. 703, at page 710, 5 S.Ct. 730, at page 734:
25
'Laws setting aside Sunday as a day of rest are upheld, not from any right of the government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the states.'
26
While a member of the California Supreme Court, Mr. Justice Field dissented in Ex parte Newman, supra, 9 Cal. at pages 519 520, 528, saying:
27
'Its requirement is a cessation from labor. In its enactment, the Legislature has given the sanction of law to a rule of conduct, which the entire civilized world recognizes as essential to the physical and moral well-being of society. Upon no subject is there such a concurrence of opinion, among philosophers, moralists and statesmen of all nations, as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience, and sustained by science. * * * The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted.'
28
This was quoted with approval by Mr. Justice Harlan in Hennington v. State of Georgia, supra, who also stated:
29
'It is none the less a civil regulation because the day on which the running of freight trains is prohibited is kept by many under a sense of religious duty. The legislature having, as will not be disputed, power to enact laws to promote the order and to secure the comfort, happiness and health of the people, it was within its discretion to fix the day when all labor, within the limits of the State, works of necessity and charity excepted, should cease.' Id., 163 U.S. at page 304, 16 S.Ct. at page 1088.
30
And Mr. Chief Justice Fuller cited both of these passages in Petit v. State of Minnesota, supra.
31
Before turning to the Maryland legislation now here under attack, an investigation of what historical position Sunday Closing Laws have occupied with reference to the First Amendment should be undertaken, Everson v. Board of Education, supra, 330 U.S. at page 14, 67 S.Ct. at page 510, 91 L.Ed. 711.
32
This Court has considered the happenings surrounding the Virginia General Assembly's enactment of 'An act for establishing religious freedom,' 12 Hening's Statutes of Virginia 84, written by Thomas Jefferson and sponsored by James Madison, as best reflecting the long and intensive struggle for religious freedom in America, as particularly relevant in the search for the First Amendment's meaning. See the opinions in Everson v. Board of Education, supra. In 1776, nine years before the bill's passage, Madison co-authored Virginia's Declaration of Rights which provided, inter alia, that 'all men are equally entitled to the free exercise of religion, according to the dictates of conscience * * *.' 9 Henning's Statutes of Virginia 109, 111—112. Virginia had had Sunday legislation since early in the seventeenth century; in 1776, the laws penalizing 'maintaining any opinions in matters of religion, forbearing to repair to church, or the exercising any mode of worship whatsoever' (emphasis added), were repealed, and all dissenters were freed from the taxes levied for the support of the established church. Id., at 164. The Sunday labor prohibitions remained; apparently, they were not believed to be inconsistent with the newly enacted Declaration of Rights. Madison had sought also to have the Declaration expressly condemn the existing Virginia establishment.14 This hope was finally realized when 'A Bill for Establishing Religious Freedom' was passed in 1785. In this same year, Madison presented to Virginia legislators 'A Bill for Punishing * * * Sabbath Breakers' which provided, in part:
33
'If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings for every such offence, deeming every apprentice, servant, or slave so employed, and every day he shall be so employed as constituting a distinct offence.'15
34
This became law the following year and remained during the time that Madison fought for the First Amendment in the Congress. It was the law of Virginia, and similar laws were in force in other States, when Madison stated at the Virginia ratification convention:
35
'Happily for the states, they enjoy the utmost freedom of religion. * * * Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment. I believe it to be so in the other states. * * * I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom.'16
36
In 1799, Virginia pronounced 'An act for establishing religious freedom' as 'a true exposition of the principles of the bill of rights and constitution,' and repealed all subsequently enacted legislation deemed inconsistent with it. 2 Shepherd, Statutes at Large of Virginia, 149. Virginia's statute banning Sunday labor stood.17
37
In Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244, the Court relied heavily on the history of the Virginia bill. That case concerned a Mormon's attack on a statute making bigamy a crime. The Court said:
38
'In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, 'it hath been doubted whether bigamy or polygamy be punishable by the laws of this Commonwealth.' 12 Hening's Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all of this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.' Id., 98 U.S. at page 165.
39
In the case at bar, we find the place of Sunday Closing Laws in the First Amendment's history both enlightening and persuasive.
40
But in order to dispose of the case before us, we must consider the standards by which the Maryland statutes are to be measured. Here, a brief review of the First Amendment's background proves helpful. The First Amendment states that 'Congress shall make no law respecting an establishment of religion * * *.' U.S.Const., Amend. I. The Amendment was proposed by James Madison on June 8, 1789, in the House of Representatives. It then read, in part:
41
'The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.' (Emphasis added.) I Annals of Congress 434.
42
We are told that Madison added the word 'national' to meet the scruples of States which then had an established church. 1 Stokes, Church and State in the United States, 541. After being referred to committee, it was considered by the House, on August 15, 1789, acting as a Committee of the Whole. Some assistance in determining the scope of the Amendment's proscription of establishment may be found in that debate.
43
In its report to the House, the committee, to which the subject of amendments to the Constitution had been submitted, recommended the insertion of the language, 'no religion shall be established by law.' I Annals of Congress 729. Mr. Gerry 'said it would read better if it was, that no religious doctrine shall be established by law.' Id., at 730. Mr. Madison 'said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. * * * He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform.' Id., at 730—731.
44
The Amendment, as it passed the House of Representatives nine days later, read, in part:
45
'Congress shall make no law establishing religion. * * *' Records of the United States Senate, 1A—C2 (U.S.Nat.Archives).
46
It passed the Senate on September 9, 1789, reading, in part:
47
'Congress shall make no law establishing articles of faith, or a mode of worship. * * *' Ibid.
48
An early commentator opined that the 'real object of the amendment was * * * to prevent any national ecclesiastical establishment, which shold give to an hierarchy the exclusive patronage of the national government.' 3 Story, Commentaries on the Constitution of the United States, 728. But, the First Amendment, in its final form, did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a 'broad interpretation * * * in the light of its history and the evils it was designed forever to suppress * * *.' Everson v. Board of Education, supra, 330 U.S. at pages 14—15, 67 S.Ct. at page 511. It has found that the First and Fourteenth Amendments afford protection against religious establishment for more extensive than merely to forbid a national or state church. Thus, in People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, the Court held that the action of a board of education, permitting religious instruction during school hours in public school buildings and requiring those children who chose not to attend to remain in their classrooms, to be contrary to the 'Establishment' Clause.
49
However, it is equally true that the 'Establishment' Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Reynolds v. United States, supra. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue.
50
Thus, these broad principles have been set forth by this Court. Those cases dealing with the specific problems arising under the 'Establishment' Clause which have reached this Court are few in number. The most extensive discussion of the 'Establishment' Clause's latitude is to be found in Everson v. Board of Education, supra, 330 U.S. at pages 15—16, 67 S.Ct. at pages 511—512:
51
'The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State."
52
Under challenge was a statute authorizing repayment to parents of their children's transportation expenses to public and Catholic schools. The Court, speaking through Mr. Justice Black, recognized that 'it is undoubtedly true that children are helped to get to church schools,' and '(t)here is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State.' Id., 330 U.S. at page 17, 67 S.Ct. at page 512. But the Court found that the purpose and effect of the statute in question was general 'public welfare legislation,' id., 330 U.S. at page 16, 67 S.Ct. at page 512; that it was to protect all school children from the 'very real hazards of traffic,' id., 330 U.S. at page 17, 67 S.Ct. at page 512; that the expenditure of public funds for school transportation, to religious schools or to any others, was like the expenditure of public funds to provide policemen to safeguard these same children or to provide 'such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks,' id., 330 U.S. at pages 17—18, 67 S.Ct. at page 512.18
53
In light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States.
54
Throughout this century and longer, both the federal and state governments have oriented their activities very largely toward improvement of the health, safety, recreation and general well-being of our citizens. Numerous laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, week-end diversion at parks and beaches, and cultural activities of various kinds, now point the way toward the good life for all. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State.
55
We now reach the Maryland statutes under reivew. The title of the major series of sections of the Maryland Code dealing with Sunday closing—Art. 27, §§ 492—534C—is 'Sabbath Breaking'; § 492 proscribes work or bodily labor on the 'Lord's day,' and forbids persons to 'profane the Lord's day' by gaming, fishing et cetera; § 522 refers to Sunday as the 'Sabbath day.' As has been mentioned above, many of the exempted Sunday activities in the various localities of the State may only be conducted during the afternoon and late evening; most Christian church services, of course, are held on Sunday morning and early Sunday evening. Finally, as previously noted, certain localities do not permit the allowed Sunday activities to be carried on within one hundred yards of any church where religious services are being held. This is the totality of the evidence of religious purpose which may be gleaned from the face of the present statute and from its operative effect.
56
The predecessors of the existing Maryland Sunday laws are undeniably religious in origin. The first Maryland statute dealing with Sunday activities, enacted in 1649, was entitled 'An Act concerning Religion.' 1 Archieves of Maryland 244—247. It made it criminal to 'profane the Sabbath or Lords day called Sunday by frequent swearing, drunkennes or by any uncivill or disorderly recreation, or by working on that day when absolute necessity doth not require it.' Id., at 245. A 1692 statute entitled 'An Act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province,' 13 Archives of Maryland 425—430, after first stating the importance of keeping the Lord's Day holy and sanctified and expressing concern with the breach of its observance throughout the State, then enacted a Sunday labor prohibition which was the obvious precursor of the present § 492.19 There was a re-enactment in 1696 entitled 'An Act for Sanctifying & keeping holy the Lord's Day Commonly called Sunday.' 19 Archives of Maryland 418—420. By 1723, the Sabbath-breaking section of the statute assumed the present form of § 492, omitting the specific prohibition against Sunday swearing and the patently religiously motivated title. Bacon, Laws of Maryland (1723), c. XVI.
57
There are judicial statements in early Maryland decisions which tend to support appellants' position. In an 1834 case involving a contract calling for delivery on Sunday, the Maryland Court of Appeals remarked that 'Ours is a christian community, and a day set apart as the day of rest, is the day consecrated by the resurrection of our Saviour, and embraces the twenty-four hours nect ensuing the midnight of Saturday.' Kilgour v. Miles, 6 Gill & J. 268, 274. This language was cited with approval in Judegind v. State, 1894, 78 Md. 510, 514, 28 A. 405, 406, 22 L.R.A. 721. It was also stated there:
58
'It is undoubtedly true that rest from secular employment on Sunday does have a tendency to foster and encourage the Christian religions, of all sects and denominations, that observe that day, as rest from work and ordinary occupations enables many to engage in public worship who probably would not otherwise do so. But it would scarcely be asked of a court in what professes to be a Christian land, to declare a law unconstitutional because it requires rest from bodily labor on Sunday, except works of necessity and charity, and thereby promotes the cause of Christianity. If the Christian religion is, incidentally or otherwise, benefited or fostered by having this day of rest, (as it undoubtedly is,) there is all the more reason for the enforcement of laws that help to preserve it. While courts have generally sustained Sunday laws as 'civil regulation,' their decisions will have no less weight if they are shown to be in accordance with divine law as well as human.' Id., 78 Md. at pages 515—516, 28 A. at page 407.
59
But it should be noted that, throughout the Judefind decision, the Maryland court specifically rejected the contention that the laws interfered with religious liberty and stated that the laws' purpose was to provide the 'advantages of having a weekly day of rest, 'from a mere physical and political standpoint." Id., 78 Md. at page 513, 28 A. at page 406.
60
Considering the language and oeprative effect of the current statutes, we no longer find the blanket prohibition against Sunday work or bodily labor. To the contrary, we find that § 521 of Art. 27, the section which appellants violated, permits the Sunday sale of tobaccos and sweets and a long list of sundry articles which we have enumerated above; we find that § 509 of Art. 27 permits the Sunday operation of bathing beaches, amusement parks and similar facilities; we find that Art. 2B, § 28, permits the Sunday sale of alcoholic beverages, products strictly forbidden by predecessor statutes; we are told that Anne Arundel County allows Sunday bingo and the Sunday playing of pinball machines and slot machines, activities generally condemned by prior Maryland Sunday legislation.20 Certainly, these are not works of charity or necessity. Section 521's current stipulation that shops with only one employee may remain open on Sunday does not coincide with a religious purpose. These provisions, along with those which permit various sports and entertainments on Sunday, seem clearly to be fashioned for the purpose of providing a Sunday atmosphere of recreation, cheerfulness, repose and enjoyment. Coupled with the general proscription against other types of work, we believe that the air of the day is one of relaxation rather than one of religion.
61
The existing Maryland Sunday laws are not simply verbatim re-enactments of their religiously oriented antecedents. Only § 492 retains the appellation of 'Lord's day' and even that section no longer makes recitation of religious purpose. It does talk in terms of 'profan(ing) the Lord's day,' but other sections permit the activities previously thought to be profane. Prior denunciation of Sunday drunkenness is now gone. Contemporary concern with these statutes is evidenced by the dozen changes made in 1959 and by the recent enactment of a majority of the exceptions.
62
Finally, the relevant pronouncements of the Maryland Court of Appeals dispel any argument that the statutes' announced purpose is religious. In Hiller v. State of Maryland, 1914, 124 Md. 385, 92 A. 842, the court had before it a Baltimore ordinance prohibiting Sunday baseball. The court said:
63
'What the eminent Chief Judge said with respect to police enactments which deal with the protection of the public health, morals, and safety apply with equal force to those which are concerned with the peace, order, and quiet of the community on Sunday, for these social conditions are well recognized heads of the police power. Can the court say that this ordinance has no real and substantial relation to the peace and order and quiet of Sunday as a day of rest in the city of Baltimore?' Id., 124 Md. at page 393, 92 A. at page 844. See also Levering v. Williams, 1919, 134 Md. 48, 54—59, 106 A. 176, 178—179, 4 A.L.R. 374.
64
And the Maryland court declared in its decision in the instant case: 'The legislative plan is plain. It is to compel a day of rest from work, permitting only activities which are necessary or recreational.' McGowan v. State, supra, 220 Md. at page 123, 151 A.2d at page 159. After engaging in the close scrutiny demanded of us when First Amendment liberties are at issue, we accept the State Supreme Court's determination that the statutes' present purpose and effect is not to aid religion but to set aside a day of rest and recreation.
65
But this does not answer all of appellants' contentions. We are told that the State has other means at its disposal to accomplish its secular purpose, other courses that would not even remotely or incidentally give state aid to religion. On this basis, we are asked to hold these statutes invalid on the ground that the State's power to regulate conduct in the public interest may only be executed in a way that does not unduly or unnecessarily infringe upon the religious provisions of the First Amendment. See Cantwell v. State of Connecticut, supra, 310 U.S. at pages 304—305, 60 S.Ct. at pages 903—904, 84 L.Ed. 1213. However relevant this argument may be, we believe that the factual basis on which it rests is not supportable. It is true that if the State's interest were simply to provide for its citizens a periodic respite from work, a regulation demanding that everyone rest one day in seven, leaving the choice of the day to the individual, would suffice.
66
However, the State's purpose is not merely to provide a one-day-in-seven work stoppage. In addition to this, the State seeks to set one day apart from all others as a day of rest, repose, recreation and tranquility—a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the everyday intensity of commercial activities, a day on which people may visit friends and relatives who are not available during working days.21
67
Obviously, a State is empowered to determine that a rest-one-day-in-seven statute would not accomplish this purpose; that it would not provide for a general cessation of activity, a special atmosphere of tranquility, a day which all members of the family or friends and relatives might spend together. Furthermore, it seems plain that the problems involved in enforcing such a provision would be exceedingly more difficult than those in enforcing a common-day-of-rest provision.
68
Moreover, it is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for late sleeping, for passive and active entertainments, for dining out, and the like. 'Vast masses of our people, in fact, literally millions, go out into the countryside on fine Sunday afternoons in the Summer. * * *' 308 Parliamentary Debates, Commons 2159. Sunday is a day apart from all others.22 The cause is irrelevant; the fact exists. It would seem unrealistic for enforcement purposes and perhaps detrimental to the general welfare to require a State to choose a common day of rest other than that which most persons would select of their own accord. For these reasons, we hold that the Maryland statutes are not laws respecting an establishment of religion.
69
The distinctions between the statutes in the case before us and the state action in People of State of Illinois ex rel. McCollum v. Board of Education, supra, the only case in this Court finding a violation of the 'Establishment' Clause, lend further substantiation to our conclusion. In McCillum, state action permitted religious instruction in public scheool buildings during school hours and required students not attending the religious instruction to remain in their classrooms during that time. The Court found that this system had the effect of coercing the children to attend religious classes; no such coercion to attend church services is present in the situation at bar. In McCollum, the only alternative available to the nonattending students was to remain in their classrooms; the alternatives open to nonlaboring persons in the instant case are far more diverse. In McCollum, there was direct cooperation between state officials and religious ministers; no such direct participation exists under the Maryland laws. In McCollum, tax-supported buildings were used to aid religion; in the instant case, no tax monies are being used in aid of religion.
70
Finally, we should make clear that this case deals only with the constitutionality of § 521 of the Maryland statute before us. We do not hold that Sunday legislation may not be a violation of the 'Establishment' Clause if it can be demonstrated that its purpose—evidenced either on the face of the legislation, in conjunction with its legislative history, or in its operative effect—is to use the State's coercive power to aid religion.
71
Accordingly, the decision is affirmed.
72
Affirmed.
73
(For opinion of Mr. Justice FRANKFURTER, joined by Mr. Justice HARLAN, see 366 U.S. 459, 81 S.Ct. 1153.)
74
(For dissenting opinion of Mr. Justice DOUGLAS, see 366 U.S. 561, 81 S.Ct. 1218.)
Appendix to Opinion of the Court.
75
Md. Ann. Code, Art. 27.
76
'Sabbath Breaking.
77
's 492. Working on Sunday; Permitting children or servants to game, fish, hunt, etc.—No person whatsoever shall work or do any bodily labor on the Lord's day, commonly called Sunday; and no person having children or servants shall command, or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord's day (works of necessity and charity always excepted), nor shall suffer or permit any children or servants to profane the Lord's day by gaming, fishing, fowling, hunting or unlawful pastime or recreation; and every person transgressing this section and being hereof convicted before a justice of the peace shall forfeit five dollars, to be applied the use of the county.' 's 509. Beaches, amusement parks, picnic groves, etc., in Anne Arundel County.—It shall be lawful to operate, work at, or be employed in the occupations of operating any bathing beach, bathhouse, amusement park, dancing saloon, the sale or selling of any novelties, souvenirs, accessories, or other merchandise essential to, or customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses, at retail, picnic groves, amusements, games, amusement rides, amusement devices, entertainments, shows and the hiring or renting of boats, tables, chairs, beach umbrellas, on the first day of the week, commonly called Sunday, within Anne Arundel County, and §§ 492, 521 and 522 of this article are repealed, in so far and to the extent that they prohibit the operating of and/or the working of or employment of persons in the operation of any bathing beach, bathhouse, amusement park, dancing saloon, the sale or selling at retail of any merchandise, essential to or customarily sold or incidental to the operation of the aforesaid occupations or businesses, picnic groves, amusements, games, amusement rides, amusement devices, entertainments, shows, and the hiring and renting of boats, tables, chairs, beach umbrellas, on the first day of the week, commonly called Sunday, in Anne Arundel County.'
78
's 521. Sale, etc., of merchandise on Sunday; exceptions.
79
'(a) Sunday sales of merchandise prohibited; excepted articles—No person in this State shall sell, dispose of, barter, or deal in, or give away any articles of merchandise on Sunday, except retailers, who may sell and deliver on said day tobacco, cigars, cigarettes, candy, sodas and soft drinks, ice, ice cream, ices and other confectionery, milk, bread, fruits, gasoline, oils and greases.
80
'(b) Additional excepted articles in Anne Arundel County; certain establishments excepted.—In Anne Arundel County, in addition to the articles of merchandise hereinbefore mentioned, retailers may sell, barter, deal in, and deliver on Sunday the following articles of merchandise: butter, eggs, cream, soap and other detergents, disinfectants, vegetables, meats, and all other food or food stuffs prepared or intended for human consumption, automobile accessories and parts, boating and fishing accessories, artificial and natural flowers and shrubs, toilet goods, hospital supplies, thermometers, camera films, souvenirs, surgical instruments, rubber goods, paper goods, drugs, medicines, patent medicines, and all other articles used for the relief of pain or prescribed by a physician; provided, however, that nothing in this subtitle shall be construed to prevent the operation of any retail establishment on Sunday, the operation of which does not entail the employment of more than one person, not including the owner or proprietor.
81
'(c) Penalty for violation; second and subsequent offenses; revocation of license.—Any person violating any one of the provisions of this section shall be liable to indictment in any court in this State having criminal jurisdiction, and upon conviction thereof shall be fined a sum of not less than twenty nor more than fifty dollars, in the discretion of the court, for the first offense, and if convicted a second time for a violation of this section, the person or persons so offending shall be fined a sum not less than $50 nor more than $500, and be imprisoned for not less than 10 nor more than 30 days, in the discretion of the court, and his, her or their license, if any was issued, shall be declared null and void by the judge of said court; and it shall not be lawful for such person or persons to obtain another license for the period of twelve months from the time of such conviction, nor shall a license be obtained by any other person or persons to carry on said business on the premises or elsewhere, if the person, so as aforesaid convicted, has any interest whatever therein, or shall derive any profit whatever therefrom; and in case of being convicted more than twice for a violation of this section, such person or persons on each occasion shall be imprisoned for not less than thirty nor more than sixty days, and fined a sum not less than double that imposed on such person or persons on the last preceding conviction; and his, her or their license, if any was issued, shall be declared null and void by the court, and no new license shall be issued to such person or persons for a period of two years fron the time of such conviction, nor to anyone else to carry on said business wherein he or she is in anywise interested, as before provided for the second violation of the provisions of this section; all the fines to be imposed under this section shall be paid to the State.
82
'(d) Apothecaries; sale of newspapers and periodicals.—This section is not to apply to apothecaries and such apothecaries may sell on Sunday drugs, medicines, and patent medicines as on week days; and this section shall not apply to the sale of newspapers and periodicals.
83
's 522.—Keeping open or using dancing saloon, opera house, tenpin alley, barber saloon or ball alley on Sunday.—It shall not be lawful to keep open or use any dancing saloon, opera house, tenpin alley, barber saloon or ball alley within this State on the Sabbath day, commonly called Sunday; and any person or person, or body politic or corporate, who shall violate any provision of this section, or cause or knowingly permit the same to be violated by a person or persons in his, her or its employ shall be liable to indictment in any court of this State having criminal jurisdiction, and upon conviction thereof shall be fined a sum not less than fifty dollars nor more than one hundred dollars, in the discretion of the court, for the first offense; and if convicted a second time for a violation of this section, the person or persons, or body politic or corporate shall be fined a sum not less than one hundred nor more than five hundred dollars; and if a natural person shall be imprisoned, not less than ten nor more than thirty days in the discretion of the court; and in the case of any conviction or convictions under this section subsequent to the second, such person or persons, body politic or corporate shall be fined on each occasion a sum at least double that imposed upon him, her, them or it on the last preceding conviction; and if a natural person, shall be imprisoned not less than thirty nor more than sixty days in the discretion of the court; all fines to be imposed under this section shall be paid to the State.'
84
Md. Ann. Code, Art. 2B.
85
§ 28.—Anne Arundel County.
86
'(a) Special Sunday licenses.—(1) Notwithstanding any other provision of this article, no license for sale of alcoholic beverages issued by the board of license commissioners for Anne Arundel County (except 'special licenses' provided for in § 22 of this article) shall be deemed to nor shall it permit or authorize the holder thereof to sell any alcoholic beverages in Anne Arundel County after 2 A.M. on Sundays, except as hereinafter provided.
87
'(2) Any person holding a license for the sale of alcoholic beverages in Anne Arundel County (except persons holding any Class BP, WP, LP, or LT license, 'Package Goods—off sale license,' 'six day tavern license,' or 'special licenses') issued by the board of license commissioners for Anne Arundel County, shall, upon application made as for new licenses and approval thereof by the board of license commissioners for Anne Arundel County, as provided for by §§ 60 and 67(c) of this article, be issued a license to be known as a 'special Sunday license,' upon payment of the fee therefor as provided herein.
88
'(3) Such 'special Sunday license' shall authorize the holder thereof to sell alcoholic beverages of the same kind, and subject to the same limitations as to hours, alcoholic content of the beverages to be sold thereunder, restrictions and provisions, as govern such other license for the sale of alcoholic beverages, issued to and held by the holder of such 'special Sunday license,' on each Sunday. No 'special Sunday license' shall be issued to any person who does not hold an alcoholic beverage license of some other class issued by the board of license commissioners for Anne Arundel County.'
89
'§ 90—Sundays.—(a) Bar and counter sales.—(1) No retail dealer holding a Class B or C license shall be permitted to sell any alcoholic beverage at a bar or counter on Sunday.
90
'(2) Provided, that in Anne Arundel County it shall be lawful to sell, vend, serve, deliver and/or consume any alcoholic beverages permitted by law to be sold in the first, second, third, fourth, fifth, seventh and eighth districts of Anne Arundel County at any bar or counter on any day on which the sale of alcoholic beverages is permitted by law.
91
'(b) General restrictions.—(1) In the jurisdictions in which this subsection is applicable, it shall be unlawful for anyone to sell or for any licensed dealer to deliver, give away or otherwise dispose of any alcoholic beverages on Sunday. Any person selling or any licensed dealer delivering, giving away or otherwise disposing of such beverages in such jurisdictions on Sundays shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not exceeding fifty dollars ($50.00) for the first offense and for each succeeding offense shall be fined not exceeding one hundred dollars ($100.00), or imprisoned in the county jail for not more than thirty (30) days, or be both fined and imprisoned, in the discretion of the court.
92
'(2) This subsection shall be applicable and have effect in Caroline, Carroll, Cecil, Dorchester, Garrett, Harford, Kent, Queen Anne's, Somerset, Talbot, Washington, Wicomico and Worcester conties, provided that it shall not apply to or affect special Class C licenses issued under the provisions of this article, nor shall it apply to special Class C licenses issued in Washington County for temporary use.'
93
Separate opinion of Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins.
94
So deeply do the issues raied by these cases cut that it is not surprising that no one opinion can wholly express the views even of all the members of the Court who join in its result. Individual opinions in constitutional controversies have been the practice throughout the Court's history.* Such expression of differences in view or even in emphasis converging toward the same result makes for the clarity of candor and thereby enhances the authority of the judicial process.
95
For me considerations are determinative here which call for separate statement. The long history of Sunday legislation, so decisive if we are to view the statutes now
96
(Note: This opinion applies also to No. 36, Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; No. 67, Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563; and No. 11, Gallagher v. Crown Kosher Super Market, Inc., 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536.) attacked in a perspective wider than that which is furnished by our own necessarily limited outlook, cannot be conveyed by a partial recital of isolated instances or events. The importance of that history derives from its continuity and fullness—from the massive testimony which it bears to the evolution of statutes controlling Sunday labor and to the forces which have, during three hundred years of Anglo-American history at the least, changed those laws, transmuted them, made them the vehicle of mixed and complicated aspirations. Since I find in the history of these statutes insights controllingly relevant to the constitutional issues before us, I am constrained to set that history forth in detail. And I also deem it incumbent to state how I arrive at concurrence with THE CHIEF JUSTICE'S principal conclusions without drawing on Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711.
I.
97
Because the long colonial struggle for disestablishment—the struggle to free all men, whatever their theological views, from state-compelled obligation to acknowledge and support state-favored faiths—made indisputably fundamental to our American culture the principle that the enforcement of religious belief as such is no legitimate concern of civil government, this Court has held that the Fourteenth Amendment embodies and applies against the States freedoms that are loosely indicated by the not rigidly precise but revealing phrase 'separation of Church and State.' Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 466, 92 L.Ed. 648. The general principles of church-state separation were found to be included in the Amendment's Due Process Clause in view of the meaning which the presuppositions of our society infuse into the concept of 'liberty' protected by the clause. This is the source of the limitations imposed upon the States. To the extent that those limitations are akin to the restrictions which the First Amendment places upon the action of the central government, it is because—as with the freedom of thought and speech of which Mr. Justice Cardozo spoke in Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288—it is accurate to say concerning the principle that a government must neither establish nor suppress religious belief, that 'With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal.' Id., at page 327, 58 S.Ct. at page 152.
98
But the several opinions in Everson and McCollum, and in Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, make sufficiently clear that 'separation' is not a self-defining concept. '(A)greement, in the abstract, that the First Amendment was designed to erect a 'wall of separation between Church and State,' does not preclude a clash of views as to what the wall separates.' Illinois ex rel. McCollum v. Board of Education, supra, 333 U.S. at page 213, 68 S.Ct. at page 466 (concurring opinion). By its nature, religion—in the comprehensive sense in which the Constitution uses that word—is an aspect of human thought and action which profoundly relates the life of man to the world in which he lives. Religious beliefs pervade, and religious institutions have traditionally regulated, virtually all human activity. It is a postulate of American life, reflected specifically in the First Amendment to the Constitution but not there alone, that those beliefs and institutions shall continue, as the needs and longings of the people shall inspire them, to exist, to function, to grow, to wither, and to exert with whatever innate strength they may contain their many influences upon men's conduct, free of the dictates and directions of the state. However, this freedom does not and cannot furnish the adherents of religious creeds entire insulation from every civic obligation. As the state's interest in the individual becomes more comprehensive, its concerns and the concerns of religion perforce overlap. State codes and the dictates of faith touch the same activities. Both aim at human good, and in their respective views of what is good for man they may concur or they may conflict. No constitutional command which leaves religion free can avoid this quality of interplay.
99
Innumerable civil regulations enforce conduct which harmonizes with religious canons. State prohibitions of murder, theft and adultery reinforce commands of the decalogue. Nor do such regulations, in their coincidence with tenets of faith, always support equally the beliefs of all religious sects: witness the civil laws forbidding usury and enforcing monogamy. Because these laws serve ends which are within the appropriate scope of secular state interest, they may be enforced against those whose religious beliefs do not proscribe, and even sanction, the activity which the law condemns. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637; Cleveland v. United States, 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12.
100
This is not to say that governmental regulations which find support in their appropriateness to the achievement of secular, civil ends are invariably valid under the First or Fourteenth Amendment, whatever their effects in the sphere of religion. If the value to society of achieving the object of a particular regulation is demonstrably outweighed by the impediment to which the regulation subjects those whose religious practices are curtailed by it, or if the object sought by the regulation could with equal effect be achieved by alternative means which do not substantially impede those religious practices, the regulation cannot be sustained. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. This was the ground upon which the Court struck down municipal license taxes as applied to religious colporteurs in Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938; Murdock v. State of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, and Jones v. City of Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290. In each of those cases it was believed that the State's need for revenue, which could be satisfied by taxing any of a variety of sources, did not justify a levy imposed upon an activity which in the light of history could reasonably be viewed as sacramental. But see Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, in which the Court, balancing the public benefits secured by a regulatory measure against the degree of impairment of individual conduct expressive of religious faith which it entailed, sustained the prohibition of an activity similarly regarded by its practicants as sacramental. And see Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645.
101
Within the discriminating phraseology of the First Amendment, distinction has been drawn between cases raising 'establishment' and 'free exercise' questions. Any attempt to formulate a bright-line distinction is bound to founder. In view of the competition among religious creeds, whatever 'establishes' one sect disadvantages another, and vice versa. But it is possible historically, and therefore helpful analytically—no less for problems arising under the Fourteenth Amendment, illuminated as that Amendment is by our national experience, than for problems arising under the First—to isolate in general terms the two largely overlapping areas of concern reflected in the two constitutional phrases, 'establishment' and 'free exercise,'1 and which emerge more or less clearly from the background of events and impulses which gave those phrases birth.
102
In assuring the free exercise of religion, the Framers of the First Amendment were sensitive to the then recent history of those persecutions and impositions of civil disability with which sectarian majorities in virtually all of the Colonies had visited deviation in the matter of conscience.2 This protection of unpopular creeds, however, was not to be the full extent of the Amendment's guarantee of freedom from governmental intrusion in matters of faith. The battle in Virginia, hardly for years won, where James Madison had led the forces of disestablishment in successful opposition to Patrick Henry's proposed Assessment Bill levying a general tax for the support of Christian teachers,3 was a vital and compelling memory in 1789. The lesson of that battle, in the words of Jefferson's Act for Establishing Religious Freedom, whose passage was its verbal embodiment,4 was 'that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporal rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind * * *.'5 What Virginia had long practiced, and what Madison, Jefferson and others fought to end, was the extension of civil government's support to religion in a manner which made the two in some degree interdependent, and thus threatened the freedom of each. The purpose of the Establishment Clause was to assure that the national legislature would not exert its power in the service of any purely religious end; that it would not, as Virginia and virtually all of the Colonies had done, make of religion, as religion, an object of legislation.
103
Of course, the immediate object of the First Amendment's prohibition was the established church as it had been known in England and in most of the Colonies. But with foresight those who drafted and adopted the words, 'Congress shall make no law respecting an establishment of religion,' did not limit the constitutional proscription to any particular, dated form of state-supported theological venture. The Establishment Clause withdrew from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief. Congress may not make these matters, as such, the subject of legislation, nor, now, may any legislature in this country. Neither the National Government nor, under the Due Process Clause of the Fourteenth Amendment, a State may, by any device, support belief or the expression of belief for its own sake, whether from conviction of the truth of that belief, or from conviction that by the propagation of that belief the civil welfare of the State is served, or because a majority of its citizens, holding that belief, are offended when all do not hold it.
104
With regulations which have other objectives the Establishment Clause, and the fundamental separationist concept which it expresses, are not concerned. These regulations may fall afoul of the constitutional guarantee against infringement of the free exercise or observance of religion. Where they do they must be set aside at the instance of those whose faith they prejudice. But once it is determined that a challenged statute is supportable as implementing other substantial interests than the promotion of belief, the guarantee prohibiting religious 'establishment' is satisfied.
105
To ask what interest, what objective, legislation serves, of course, is not to psychoanalyze its legislators, but to examine the necessary effects of what they have enacted. If the primary end achieved by a form of regulation is the affirmation or promotion of religious doctrine—primary, in the sense that all secular ends which it purportedly serves are derivative from, not wholly independent of, the advancement of religion—the regulation is beyond the power of the state. This was the case in McCollum. Or if a statute furthers both secular and religious ends by means unnecessary to the effectuation of the secular ends alone where the same secular ends could equally be attained by means which do not have consequences for promotion of religion—the statute cannot stand. A State may not endow a church although that church might inculcate in its parishioners moral concepts deemed to make them better citizens, because the very raison d'e tre of a church, as opposed to any other school of civilly serviceable morals, is the predication of religious doctrine. However, inasmuch as individuals are free, if they will, to build their own churches and worship in them, the State may guard its people's safety by extending fire and police protection to the churches so built. It was on the reasoning that parents are also at liberty to send their children to parochial schools which meet the reasonable educational standards of the State, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, that this Court held in the Everson case that expenditure of public funds to assure that children attending every kind of school enjoy the relative security of buses, rather than being left to walk or hitchhike, is not an unconstitutional 'establishment,' even though such an expenditure may cause some children to go to parochial schools who would not otherwise have gone. The close division of the Court in Everson serves to show what nice questions are involved in applying to particular governmental action the proposition, undeniable in the abstract, that not every regulation some of whose practical effects may facilitate the observance of a religion by its adherents affronts the requirement of church-state separation.
106
In an important sense, the constitutional prohibition of religious establishment is a provision of more comprehensive availability than the guarantee of free exercise, insofar as both give content to the prohibited fusion of church and state. The former may be invoked by the corporate operator of a seven-day department store whose state-compelled Sunday closing injures it financially—or by the department store's employees, whatever their faith, who are convicted for violation of a Sunday statute—as well as by the Orthodox Jewish retailer or consumer who claims that the statute prejudices him in his ability to keep his faith. But it must not be forgotten that the question which the department store operator and employees may raise in their own behalf is narrower than that posed by the case of the Orthodox Jew.6 Their 'establishment' contention can prevail only if the absence of any substantial legislative purpose other than a religious one is made to appear. See Selective Draft Law Cases (Arver v. U.S.), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349.
107
In the present cases the Sunday retail sellers and their employees and customers, in attacking statutes banning various activities on a day which most Christian creeds consecrate, do assert that these statutes have no other purpose. They urge, first, that the legislators' motives were religious. But the private and unformulated influences which may work upon legislation are not open to judicial probing. 'The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.' McCray v. United States, 195 U.S. 27, 56, 24 S.Ct. 769, 776, 49 L.Ed. 78. 'Inquiry into the hidden motives which may move (a legislature) to exercise a power constitutionally conferred upon it is beyond the competency of courts.' Sonzinsky v. United States, 300 U.S. 506, 513—514, 57 S.Ct. 554, 556, 81 L.Ed. 772. Veazie Bank v. Fenno, 8 Wall. 533, 19 L.Ed. 482; Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487. These litigants also argue, however, that when the state statutory provisions are regarded in their legislative context religion is apparent on their face: they point to the use of the terms 'Lord's day' and 'Sabbath' and 'desecration,' to exceptions whose hours permit activities only at times on Sunday when religious services are customarily not held, to explicit prohibition of otherwise permitted activity in the vicinity of churches, to regulations which condition the allowance of conduct on its consistency with the 'due observance' of the day. Of course, since these various provisions regarding exemption from the Sunday ban of certain recreational activities have no possible application to the litigants in the present cases, they are not themselves before the Court, and their constitutionality is not now in issue. But they are put forward as evidence of the purpose of the statutes which are attacked here, and as such we may properly look to them, and also to the history of the body of state Sunday regulations, which, it is urged, further demonstrates sectarian creedal purpose. As a basis for appraising these arguments that the statutes are religious legislation, and preliminary to determining the claims of infringement of conscience raised in the Gallagher and Braunfeld cases, it is necessary to survey the long historical development and present-day position of civil Sunday regulation.
II.
108
For these purposes the span of centuries which saw the enunciation of the Fourth Commandment,7 Constantine's edict proscribing labor on the venerable day of the Sun,8 and the Sunday prohibitions of Carlovingian, Merovingian and Saxon rulers, and later of the English kings of the thirteenth and fourteenth centuries, may be passed over.9 What is of concern here is the Sunday institution as it evolved in modern England, the American Colonies, and the States of the Union under the Constitution. The first significant English Sunday regulation, for this purpose, was the statute of Henry VI in 1448 which, after reciting, 'the abominable injuries and offences done to Almighty God, and to his Saints, * * * because of fairs and markets upon their high and principal feasts, * * * in which principal and festival days, for great earthly covetise, the people is more willingly vexed, and in bodily labour soiled, than in other * * * days, * * * as though they did nothing remember the horrible defiling of their souls in buying and selling, with many deceitful lies and false perjury, with drunkenness and strifes, and so specially withdrawing themselves and their servants from divine service * * *,' ordained that all fairs and markets should cease to show forth goods or merchandise on Sundays, Good Friday, and the principal feast days.10 A short-lived ordinance of Edward VI a century later, limiting the ban on bodily labor to Sundays and enumerated holy days, demonstrated in its preamble a similar sectarian purpose,11 and in 1625 Charles I, announcing that 'there is nothing more acceptable to God than the true and sincere service and worship of him * * * and that the holy keeping of the Lord's day is a principal part of the true service of God,' prohibited all meetings of the people out of their parishes for sports and pastimes on Sunday, and all bear-baiting, bull-baiting, interludes, common plays, and other unlawful exercises and pastimes on that day.12 Several years later the same king declared it reproachful of God and religion, and hence made it unlawful, for butchers to slaughter or carriers, drovers, waggoners, etc., to travel on the Lord's day;13 then, in 1677,14 'For the better Observation and keeping Holy the Lord's Day,' the statute, 29 Charles II, c. 7, which is still the basic Sunday law of Britain, was enacted: 'that all and every Person and Persons whatsoever, shall on every Lord's Day apply themselves to the Observation of the same, by exercising themselves thereon in the Duties of Piety and true Religion, publickly and privately; * * * and that no Tradesman, Artificer, Workman, Labourer or other Person whatsoever, shall do or exercise any wordly Labour, Business or Work of their ordinary Callings, upon the Lord's Day, or any part thereof (Works of Necessity and Charity only excepted;) * * * and that no Person or Persons whatsoever, shall publickly cry, shew forth, or expose to Sale, any Wares, Merchandizes, Fruit, Herbs, Goods or Chattels whatsoever, upon the Lord's Day * * *.'15 In 1781, a statute, 21 Geo. III, c. 49, reciting that various public entertainments and explications of scriptural texts by incompetent persons tended 'to the great encouragement of irreligion and profaneness,' closed all rooms and houses in which public entertainment, amusement or debates, for an admission charge, were held.16
109
These Sunday laws were indisputably works of the English Establishment. Their prefatory language spoke their religious inspiration,17 exceptions made from time to time were expressly limited to preserve inviolable the hours of the divine service,18 and in their administration a spirit of inquisitorial piety was evident.19 But even in this period of religious predominance, notes of a secondary civil purpose could be heard. Apart from the counsel of those who had from the time of the Reformation insisted that the Fourth Commandment itself embodied a precept of social rather than sacramental significance,20 claims were asserted in the eighteenth century on behalf of Sunday rest, in part, in the sevice of health and welfare.21 Blackstone wrote that '* * * besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of the people that sense of their duty to God so necessary to make them good citizens, but which yet would be worn out and defaced by an unremitted continuance of labor, without any stated times of recalling them to the worship of their Maker.'22 In 1788 the schedule to the act, 28 Geo. III, c. 48, obligated master chimney sweeps to have their apprentices washed at least once a week, providing that on Sunday the master should send the apprentice to worship, should allow him to have religious instruction, and should not allow him to wear his sweeping dress; the act also regulated the sweeps' hours of work. In 1832 a Commons Select Committee on the Observance of the Sabbath heard the testimony of a medical doctor as to the physically injurious effects of seven-day unremitted labor,23 and although the report of the Committee reveals a primarily religious cast of mind, it discloses also a sensitivity to the plight of the journeyman bakers, seven thousand of whom had petitioned the House for one day's repose weekly, and to the wishes of shopkeepers and tradesmen forced by competition to work on Sunday, although 'most desirous of a day of rest.'24 The Committee recommended the enactment of severer sanctions for Lord's day violations: 'The objects to be attained by Legislation may be considered to be, first, a solemn and decent outward Observance of the Lord's-day, as that portion of the week which is set apart by Divine Command for Public Worship; and next, the securing to every member of the Community without any exception, and however low his station, the uninterrupted enjoyment of that Day of Rest which has been in Mercy provided for him, and the privilege of employing it, as well in the sacred Exercises for which it was ordained, as in the bodily relaxation which is necessary for his well-being, and which, though a secondary end, is nevertheless also of high importance.'25
110
But, whatever the nature of the propulsions underlying state-enforced Sunday labor stoppage during these centuries before the twentieth, it is clear that its effect was the creation of an institution of Sunday as a day apart. The origins of the institution were religious, certainly, but through long-established usage it had become a part of the life of the English people.26 It was a day of rest not merely in a physical, hygienic sense, but in the sense of a recurrent time in the cycle of human activity when the rhythms of existence changed, a day of particular associations which came to have their own autonomous value for life.27 When that value was threatened by the pressures of the Industrial Revolution, agitation began for new legislative action to preserve the traditional English Sunday.28
111
At the turn of the century, the Factory and Workshop Act, 1901, prohibited the Sunday employment of women and children in industrial establishments.29 The Shops Act, 1912, in its institution of a five-and-a-half-day week for shop assistants, built upon the base of existing Sunday closing law.30 When during the war the pressures of national defense compelled continuous factory operation, a Committee of the Ministry of Munitions appointed to investigate industrial fatigue as this affected the health and efficiency of munitions workers, recommended to Parliament reinauguration of Sunday work stoppage:
112
'* * * The problem of Sunday labour, although materially affected by various industrial questions and the established custom of Sunday rest, is—as regards Munitions Works primarily a question of the extent to which workers actually require weekly or periodic rests if they are to maintain their health and energy over long periods. Intervals of rest are needed to overcome mental as well as physical fatigue. In this connection account has to be taken not only of the hours of labour (overtime, 12-hour shifts, 8-hour shifts), the environment of the work and the physical strain involved, but also the mental fatigue or boredom resulting from continuous attention to work. As one Manager put it, it is the monotony of the work which kills—the men get sick of it.
113
'* * * (I)f the maximum output is to be secured and maintained for any length of time, a weekly period of rest must be allowed. * * * On economic and social grounds alike this weekly period of rest is best provided on Sunday * * *.'31
114
In 1936 the conflict between the economic pressures for seven-day commercial activity and the resistance to those pressures culminated in the Shops (Sunday Trading Restriction) Act of that year, which, with a complex pattern of exceptions, prohibited Sunday trading upon pain of penalties more severe, and hence better calculated to assure obedience, than the nominal fines which had obtained under the seventeenth century Lord's day ban.32 The Parliamentary Debates on the 1936 Act are instructive. With extremely rare exceptions,33 no intimation of religious purpose is to be discovered in them.34 The opening speech by Mr. Loftus who introduced the bill is representative:
115
'* * * (I)t is a Bill which is necessary to secure the family life and liberty of hundreds of thousands of our people. * * * '* * * I will explain to the House that there are thousands of shopkeepers who hate opening on Sunday—they dislike the whole idea—but are forced to open because their neighbours open. They are forced to open not for the sake of the Sunday trading, but because if they let their customers get into the habit on Sunday of going to other shops they may lose their week-day custom. * * * They have the right to a holiday on Sunday, to be able to rest from work on that day and to go out into the parks or into the country on a summer day. That is the liberty for which they are asking, and that is the liberty which this Bill would give to them. As regards the support behind the Bill, it is promoted by the Early Closing Association, with 300 affiliated associations, and the National Federation of Grocers, representing 400,000 individual shops, and is supported by the National Chamber of Trade, the Drapers' Chamber of Trade, the National Federation of the Boot Trade, and as regards the employe s—and this is important—it is supported by the National Union of Shop Assistants and by the National Union of Distributive Workers.'35
116
Speakers asserted the necessity for maintaining 'the traditional quality of the Sunday in this country.'36 One particularly staunch Labour supporter of the measure argued:
117
'* * * Frankly, I am afraid of a seven-day week. I see it coming gradually, and a seven-day week means six days' pay for seven days' work. I have worked seven days a week in my time and I say that, if I can help it, nobody else shall work seven days for six days' pay. It is clear that if one shopkeeper opens in a street, the whole street is bound to open and, if one street opens, the whole town must open automatically. * * * I am not speaking as a Sabbatarian. I stand for the six-day working week with one day's rest in seven but I do not want that day's rest arranged on the lines suggested by the hon. Member * * * who, apparently, wants to turn my Sunday into a Tuesday or a Wednesday. The argument is that all we need do is to say there shall be a six-day working week with one day's rest in seven, and that it does not matter whether the Sunday comes on a Friday or a Tuesday. As a family man let me say that my family life would be unduly disturbed if any member had his Sunday on a Tuesday. The value of a Sunday is that everybody in the family is at home on the same day. What is the use of talking about a six-day working week in which six members of a family would each have his day of rest on a different day of the week?'37
118
The bill was strongly supported by labor and trade groups38 and passed by an overwhelming margin.39
119
Thus the English experience demonstrates the intimate relationship between civil Sunday regulation and the interest of a state in preserving to its people a recurrent time of mental and physical recurperation from the strains and pressures of their ordinary labors. It demonstrates also, of course, the intimate historical connection between the choice of Sunday as this time of rest and the doctrines of the Christian church. Long before the emergence of modern notions of government, religion had set Sunday apart. Through generations, the people were accustomed to it as a day when ordinary uses ceased. If it might once—or elsewhere—have been equally practicable to fulfill the same need of the workers and traders for periodic relaxation by the selection of some other cycle, it was no longer practicable in England. Some hypothetical man might do better with one-day-in-eight, or one-day-in-four, but the Englishman was used to one-day-in-seven. And that day was Sunday. Through associations fostered by tradition, that day had a character of its own which became in itself a cultural asset of importance: a release from the daily grind, a preserve of mental peace, an opportunity for self-disposition. Certainly, legislative fiat could have attempted to switch the day to Tuesday. But Parliament, naturally enough, concluded that such an attempt might prove as futile as the ephemeral decade of the French Republic of 1792.40
III.
120
In England's American settlements, too, civil Sunday regulation early became an institution of importance in shaping the colonial pattern of life. Every Colony had a law prohibiting Sunday labor. These had been enacted in many instances prior to the last quarter of the seventeenth century, and they were continued in force throughout the period that preceded the adoption of the Federal Constitution and the Bill of Rights.41 This is not in itself, of course, indicative of the purpose of those laws, or of their consistency with the guarantee of religious freedom which the First Amendment, restraining the power of the central Government, secured. Most of the States were only partly disestablished in 1789.42 Only in Virginia43 and in Rhode Island, which had never had an establishment,44 had the ideal of complete church-state separation been realized. Other States were fast approaching that ideal, however, and everywhere the spirit of liberty in religion was in the ascendant. Ratifying Conventions in New York, New Hampshire and North Carolina, as well as in Virginia and Rhode Island, proposed an anti-establishment amendment to the Constitution or signified that in their understanding the Constitution embodied such a safeguard.45 All of these five States had Sunday laws at the time that their Conventions spoke. Indeed, in four of the five, their legislatures had reaffirmed the Sunday labor ban within five years or less immediately prior to that date.46
121
The earlier among the colonial Sunday statutes were unquestionably religious in purpose. Their preambles recite that profanation of the Lord's day 'to the great Reproach of the Christian Religion,'47 or 'to the great offence of the Godly welafected among us,'48 must be suppressed; that 'the keeping holy the Lord's day, is a principal part of the true service of God';49 that neglecting the Sabbath 'pulls downe the judgments of God upon that place or people that suffer the same * * *.'50 The first Pennsylvania Sunday law announces a purpose 'That Looseness, irreligion, and Atheism may not Creep in under the pretense of Conscience * * *.'51 Sometimes reproach of God is made an operative element of the offense.52 Prohibitions of Sunday labor are frequently coupled with admonitions that all persons shall 'carefully apply themselves to Duties of Religion and Piety, publickly and privately * * *,'53 and are found in comprehensive ecclesiastical codes which also prohibit blasphemy,54 lay taxes for the support of the church,55 or compel attendance at divine services.56
122
But even the seventeenth century legislation does not show an exclusively religious preoccupation. The same Pennsylvania law which speaks of the suppression of atheism also ordains Sunday rest 'for the ease of the Creation,' and shows solicitude that servants, as well as their masters, may be free on that day to attend such spiritual pursuits as they may wish.57 The Rhode Island Assembly in 1679 enacted:
123
'Voted, Whereas there hath complaint been made that sundry persons being evill minded, have presumed to employ in servile labor, more than necessity requireth, their servants, and alsoe hire other mens' servants and sell them to labor on the first day of the week: * * * bee it enacted * * *. That if any person or persons shall employ his servants or hire and employ any other man's servant or servants, and set them to labor as aforesaid (he shall be penalized).'58
124
In the latter half of the eighteenth century, the Sunday laws, while still giving evidence of concern for the 'immorality' of the practices they prohibit, tend no longer to be prefixed by preambles in the form of theological treatises.59 Now it appears to be the community, rather than the Deity, which is offended by Sunday labor. New York's statute of 1788 no longer refers to the Lord's day, but to 'the first day of the week commonly called Sunday.'60 Where preambles do appear, they display a duplicity of purpose. The Massachusetts Act of 1792 begins:
125
'Whereas the observance of the Lord's Day is highly promotive of the welfare of a community, by affording necessary seasons for relaxation from labour and the cares of business; for moral reflections and conversation on the duties of life * * *; for public and private worship of the Maker, Governor and Judge of the world; and for those acts of charity which support and adorn a Christian society: And whereas some thoughtless and irreligious persons, inattentive to the duties and benefits of the Lord's Day, profane the same, by unnecessarily pursuing their worldly business and recreations on that day, to their own great damage, as members of a Christian society; to the great disturbance of well-disposed persons, and to the great damage of the community, by producing dissipation of manners and immoralities of life. * * *.'
126
An enactment of Vermont in 1797 is similar.61
127
More significant is the history of Sunday legislation in Virginia. Even before the English statute of 29 Charles II, that Colony had had laws compelling Sunday attendance at worship62 and forbidding Sunday labor.63 In 1766, the General Convention at Williamsburg adopted a Declaration of Rights, providing, inter alia, that '* * * all men are equally entitled to the free exercise of religion, according to the dictates of conscience * * *,'64 and in the same year the acts of Parliament compelling church attendance and punishing deviation in belief were declared void, dissenters were exempted from the tax for support of the established church, and the levy of that tax was suspended.65 Eight years later came the battle over the Assessment Bill. Under Madison's leadership the forces supporting entire freedom of religion wrote the definitive quietus to the Virginia establishment, and Jefferson's Bill for Establishing Religious Freedom was enacted in 1786:
128
'I. Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to * * * propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; * * * that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, * * * that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, * * *.
129
'II. Be it enacted * * * That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or effect their civil capacities.'66
130
In this bill breathed the full amplitude of the spirit which inspired the First Amendment, and this Court has looked to the bill, and to the Virginia history which surrounded its enactment, as a gloss on the signification of the Amendment. See the opinions in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711. The bill was drafted for the Virginia Legislature as No. 82 of the Revised Statutes returned to the Assembly by Jefferson and Wythe on June 18, 1779.67 Bill No. 84 of the Revision provided:
131
'If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings * * *.'68
132
This bill was presented to the Assembly by Madison in 1785,69 and was enacted in 1786.70 Apparently neither Thomas Jefferson nor James Madison regarded it as repugnant to religious freedom. Nor did the Virginia legislators who thirteen years later reaffirmed the Bill for Establishing Religious Freedom as 'a true exposition of the principles of the bill of rights and constitution,' by repealing all laws which they deemed inconsistent with it.71 The Sunday law of 1786 was not among those repealed.
IV.
133
Legislation currently in force in forty-nine of the Fifty States illegalizes on Sunday some form of conduct lawful if performed on weekdays.72 In several States only one or a few activities are banned—the sale of alcoholic beverages,73 hunting,74 barbering,75 pawnbroking,76 trading in automobiles77—but thirty-four jurisdictions broadly ban Sunday labor, or the employment of labor, or selling or keeping open for sale, or some two or more of these comprehensive categories of affairs. In many of these States, and in others having no state-wide prohibition of industrial or commercial activity, municipal Sunday ordinances are ubiquitous.78 Most of these regulations are the product of many re-enactments and amendments. Although some are still built upon the armatures of earlier statutes, they are all, like the laws of Maryland, Massachusetts and Pennsylvania which are before us in these cases,79 recently reconsidered legislation. As expressions of state policy, they must be deemed as contemporary as their latest-enacted exceptions in favor of moving pictures80 or severer bans of Sunday motor vehicle trading.81 In all, they reflect a widely felt present-day need, for whose satisfaction old laws are shaped and new laws enacted.
134
To be sure, the Massachusetts statute now before the Court, and statutes in Pennsylvania and Maryland, still call Sunday the 'Lord's day' or the 'Sabbath.' So do the Sunday laws in many other States.82 But the continuation of seventeenth century language does not of itself prove the continuation of the purposes for which the colonial governments enacted these laws, or that these are the purposes for which their successors of the twentieth have retained them and modified them. We know, for example, that Committees of the New York Legislature, considering that State's Sabbath Laws on two occasions more than a century apart, twice recommended no repeal of those laws, both times on the ground that the laws did not involve 'any partisan religious issue, but rather economic and health regulation of the activities of the people on a universal day of rest,'83 and that a Massachusetts legislative committee rested on the same views.84 Sunday legislation has been supported not only by such clerical organizations as the Lord's Day Alliance, but also by labor and trade groups.85 The interlocking sections of the Massachusetts Labor Code construct their six-day-week provisions upon the basic premise of Sunday rest.86 Other States have similar laws.87 When in Pennsylvania motion pictures were excepted from the lord's day statute, a day-of-rest-in-seven clause for motion picture personnel was written into the exempting statute to fill the gap.88 Puerto Rico's closing law, which limits the weekday hours of commercial establishments as well as proscribing their Sunday operation, does not express a religious purpose.89 Rhode Island and South Carolina now enforce portions of their Sunday employment bans through their respective Departments of Labor.90 It cannot be fairly denied that the institution of Sunday as a time whose occupations and atmosphere differ from those of other days of the week has now been a portion of the American cultural scene since well before the Constitution; that for many millions of people life has a hebdomadal rhythm in which this day, with all its particular associations, is the recurrent note of repose.91 Cultural history establishes not a few practices and prohibitions religious in origin which are retained as secular institutions and ways long after their religious sanctions and justifications are gone.92 In light of these considerations, can it reasonably be said that no substantial nonecclesiastical purpose relevant to a well-ordered social life exists for Sunday restrictions?
135
It is urged, however, that if a day of rest were the legislative purpose, statutes to secure it would take some other form than the prohibition of activity on Sunday.93 Such statutes, it is argued, would provide for one day's labor stoppage in seven, leaving the choice of the day to the individual; or, alternatively, would fix a common day of rest on some other day—Monday or Tuesday. But, in all fairness, certainly, it would be impossible to call unreasonable a legislative finding that these suggested alternatives were unsatisfactory. A provision for one day's closing per week, at the option of every particular enterpriser, might be disruptive of families whose members are employed by different enterprises.94 Enforcement might be more difficult, both because violation would be less easily discovered and because such a law would not be seconded, as is Sunday legislation, by the community's moral temper. More important, one-day-a-week laws do not accomplish all that is accomplished by Sunday laws. They provide only a periodic physical rest, not that atmosphere of entire community repose which Sunday has traditionally brought and which, a legislature might reasonably believe, is necessary to the welfare of those who for many generations have been accustomed to its recuperative effects.
136
The same considerations might also be deemed to justify the choice of Sunday as the single common day when labor ceases. For to many who do not regard it sacramentally, Sunday is nevertheless a day of special, long-established associations, whose particular temper makes it a haven that no other day could provide. The will of a majority of the community, reflected in the legislative process during scores of years, presumably prefers to take its leisure on Sunday.95 The spirit of any people expresses in goodly measure the heritage which links it to its past. Disruption of this heritage by a regulations which, like the unnatural labors of Claudius' shipwrights, does not divide the Sunday from the week, might prove a measure ill-designed to secure the desirable community repose for which Sunday legislation is designed. At all events, Maryland, Massachusetts and Pennsylvania, like thirty-one other States with similar regulations, could reasonably so find. Certainly, from failure to make a substitution for Sunday in securing a socially desirable day of surcease from subjection to labor and routine a purpose cannot be derived to establish or promote religion.
137
The question before the Court in these cases is not a new one. During a hundred and fifty years Sunday laws have been attacked in state and federal courts as disregarding constitutionally demanded Church-State separation, or infringing protected religious freedoms, or on the ground that they subserved no end within the legitimate compass of legislative power. One California court in 1858 held California's Sunday statute unconstitutional.96 That decision was overruled three years later.97 Every other appellate court that has considered the question has found the statutes supportable as civil regulations98 and not repugnant to religious freedom.99 These decisions are assailed as latter-day justifications upon specious civil grounds of legislation whose religious purposes were either overlooked or concealed by the judges who passed upon it. Of course, it is for this Court ultimately to determine whether federal constitutional guarantees are observed or undercut. But this does not mean that we are to be indifferent to the unanimous opinion of generations of judges who, in the conscientious discharge of obligations as solemn as our own, have sustained the Sunday laws as not inspired by religious purpose. The Court did not ignore that opinion in Friedman v. People of State of New York, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; McGee v. State of North Carolina, 346 U.S. 802, 74 S.Ct. 50, 98 L.Ed. 334; Kidd v. State of Ohio, 358 U.S. 132, 79 S.Ct. 235, 3 L.Ed.2d 225; and Ullner v. State of Ohio, 358 U.S. 131, 79 S.Ct. 230, 3 L.Ed.2d 225, dismissing for want of a substantial federal question appeals from state decisions sustaining Sunday laws which were obnoxious to the same objections urged in the present cases.100 I cannot ignore that consensus of view now. The statutes of Maryland, Massachusetts and Pennsylvania which we here examine are not constitutionally forbidden fusions of church and state.101
V.
138
Appellees in the Gallagher case and appellants in the Braunfeld case contend that, as applied to them, Orthodox Jewish retailers and their Orthodox Jewish customers, the Massachusetts Lord's day statute and the Pennsylvania Sunday retail sales act violate the Due Process Clause of the Fourteenth Amendment because, in effect, the statutes deter the exercise and observance of their religion. The argument runs that by compelling the Sunday closing of retail stores and thus making unavailable for business and shopping uses one-seventh part of the week, these statutes force them either to give up the Sabbath observance—an essential part of their faith—or to forego advantages enjoyed by the non-Sabbatarian majority of the community. They point out, moreover, that because of the prevailing five-day working week of a large proportion of the population, Sunday is a day peculiarly profitable to retail sellers and peculiarly convenient to retail shoppers. The records in these cases support them in this.
139
The claim which these litigants urge assumes a number of aspects. First, they argue that any one-commonday-of-closing regulation which selected a day other than their Sabbath would be ipso facto unconstitutional in its application to them because of its effect in preferring persons who observe no Sabbath, therefore creating economic pressures which urge Sabbatarians to give up their usage. The creation of this pressure by the Sunday statutes, it is said, is not so necessary a means to the achievement of the ends of day-of-rest legislation as to justify its employment when weighed against the injury to Sabbatarian religion which it entails. Six-day-week regulation, with the closing day left to individual choice, is urged as a more reasonable alternative.
140
Second, they argue that even if legitmate state interests justify the enforcement against persons generally of a single common day of rest, the choice of Sunday as that day violates the rights of religious freedom of the Sabbatarian minority. By choosing a day upon which Sunday-observing Christians worship and abstain from labor, the statutes are said to discriminate between religions. The Sunday observer may practice his faith and yet work six days a week, while the observer of the Jewish Sabbath, his competitor, may work only during five days, to the latter's obvious disadvantage. Orthodox Jewish shoppers whose jobs occupy a five-day week have no week-end shopping day, while Sunday-observing Christians do. Leisure to attend Sunday services, and relative quiet throughout their duration, is assured by law, but no equivalent treatment is accorded to Friday evening and Saturday services. Sabbatarians feel that the power of the State is employed to coerce their observance of Sunday as a holy day; that the State accords a recognition to Sunday Christian doctrine which is withheld from Sabbatarian creeds. All of these prejudices could be avoided, it is argued, without impairing the effectiveness of common-day-of-rest regulation, either by fixing as the rest time some day which is held sacred by no sect, or by providing for a Sunday work ban from which Sabbatarians are excepted, on condition of their abstaining from labor on Saturday. Failure to adopt these alternatives in lieu of Sunday statutes applicable to Sabbatarians is said to constitute an unconstitutional choice of means.
141
Finally, it is urged that if, as means, these statutes are necessary to the goals which they seek to attain, nevertheless the goals themselves are not of sufficient value to society to justify the disadvantage which their attainment imposes upon the religious exercise of Sabbatarians.
142
The first of these contentions has already been discussed. The history of Sunday legislation convincingly demonstrates that Sunday statutes may serve other purposes than the provision merely of one day of physical stoppage in seven. These purposes fully justify commonday-of-rest statutes which choose Sunday as the day.
143
In urging that an exception in favor of those who observe some other day as sacred would not defeat the ends of Sunday legislation, and therefore that failure to provide such an exception is an unnecessary—hence an unconstitutional—burden on Sabbatarians, the Gallagher appellees and Braunfeld appellants point to such exceptions in twenty-one of the thirty-four jurisdictions which have statutes banning labor or employment or the selling of goods on Sunday.102 Actually, in less than half of these twenty-one States does the exemption extend to sales activity as well as to labor.103 There are tenable reasons why a legislature might choose not to make such an exception. To whatever extent persons who come within the exception are present in a community, their activity would disturb the atmosphere of general repose and reintroduce into Sunday the business tempos of the week. Administration would be more difficult, with violations less evident and, in effect, two or more days to police instead of one. If it is assumed that the retail demand for consumer items is approximately equivalent on Saturday and on Sunday, the Sabbatarian, in proportion as he is less numerous, and hence the competition less severe, might incur through the exception a competitive advantage over the non-Sabbatarian, who would then be in a position, presumably, to complain of discrimination against his religion.104 Employers who wished to avail themselves of the exception would have to employ only their co-religionists,105 and there might be introduced into private employment practices an element of religious differentiation which a legislature could regard as undesirable.106
144
Finally, a relevant consideration which might cause a State's lawmakers to reject exception for observers of another day than Sunday is that administration of such a provision may require judicial inquiry into religious belief. A legislature could conclude that if all that is made requisite to qualify for the exemption is an abstinence from labor on some other day, there would be nothing to prevent an enterpriser from closing on his slowest business day, to take advantage of the whole of the profitable week-end trade, thereby converting the Sunday labor ban, in effect, into a day-of-rest-in-seven statute, with choice of the day left to the individual. All of the state exempting statutes seem to reflect this consideration. Ten of them require that a person claiming exception 'conscientiously' believe in the sanctity of another day or 'conscientiously' observe another day as the Sabbath.107 Five demand that he keep another day as 'holy time.'108 Three allow the exemption only to members of a 'religious' society observing another day,109 and a fourth provides for proof of membership in such a society by the certificate of a preacher or of any three adherents.110 In Illinois the claimant must observe some day as a 'Sabbath,' and in New Jersey he must prove that he devotes that day to religious exercises.111 Connecticut, one of the jurisdictions demanding conscientious belief, requires in addition that he who seeks the benefit of the exception file a notice of such belief with the prosecuting attorney.112
145
Indicative of the practical administrative difficulties which may arise in attempts to effect, consistently with the purposes of Sunday closing legislation, an exception for persons conscientiously observing another day as Sabbath, are the provisions of § 53 of the British Shops Act, 1950,113 continuing in substance § 7 of the Shops (Sunday Trading Restriction) Act, 1936.114 These were the product of experience with earlier forms of exemptions which had proved unsatisfactory,115 and the new 1936 provisions were enacted only after the consideration and rejection of a number of proposed alternatives.116 They allow shops which are registered under the section and which remain closed on Saturday to open for trade until 2 p.m. on Sunday. Applications for registration must contain a declaration that the shop occupier 'conscientiously objects on religious grounds to carrying on trade or business on the Jewish Sabbath,'117 and any person who, to procure registration, 'knowingly or recklessly makes an untrue statement or untrue representation,' is subject to fine and imprisonment. Whenever upon representations made to them the local authorities find reason to believe that a registered occupier is not a person of the Jewish religion or 'that a conscientious objection on religious grounds * * * is not genuinely held,' the authorities may furnish particulars of the case to a tribunal established after consultation with the London Committee of Deputies of the British Jews,118 which tribunal, if in their opinion the occupier is not a person of the Jewish religion or does not genuinely hold a conscientious objection to trade on the Jewish Sabbath, shall so report to the local authorities; and upon this report the occupier's registration is to be revoked.119 Surely, in light of the delicate enforcement problems to which these provisions bear witness, the legislative choice of a blanket Sunday ban applicable to observers of all faiths cannot be held unreasonable. A legislature might in reason find that the alternative of exempting Sabbatarians would impede the effective operation of the Sunday statutes, produce harmful collateral effects, and entail, itself, a not inconsiderable intrusion into matters of religious faith. However preferable, personally, one might deem such an exception, I cannot find that the Constitution compels it.
146
It cannot, therefore, be said that Massachusetts and Pennsylvania have imposed gratuitous restrictions upon the Sunday activities of persons observing the Orthodox Jewish Sabbath in achieving the legitimate secular ends at which their Sunday statutes may aim. The remaining question is whether the importance to the public of those ends is sufficient to outweigh the restraint upon the religious exercise of Orthodox Jewish practicants which the restriction entails. See Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049. The nature of the legislative purpose is the preservation of a traditional institution which assures to the community a time during which the mind and body are released from the demands and distractions of an increasingly machanized and competition-driven society. The right to this release has been claimed by workers and by small enterprisers, especially by retail merchandisers, over centuries, and finds contemporary expression in legislation in three-quarters of the States. The nature of the injury which must be balanced against it is the economic disadvantage to the enterpriser, and the inconvenience to the consumer, which Sunday regulations impose upon those who choose to adhere to the Sabbatarian tenets of their faith.
147
These statutes do not make criminal, do not place under the onus of civil or criminal disability, any act which is itself prescribed by the duties of the Jewish or other religions. They do create an undeniable financial burden upon the observers of one of the fundamental tenets of certain religious creeds, a burden which does not fall equally upon other forms of observance. This was true of the tax which this Court held an unconstitutional infringement of the free exercise of religion in Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938. But unlike the tax in Follett, the burden which the Sunday statutes impose is an incident of the only feasible means to achievement of their particular goal. And again unlike Follett, the measure of the burden is not determined by fixed legislative decree, beyond the power of the individual to alter. Upon persons who earn their livelihood by activities not prohibited on Sunday, and upon those whose jobs require only a five-day week, the burden is not considerable. Like the customers of Crown Kosher Super Market in the Gallagher case, they are inconvenienced in their shopping. This is hardly to be assessed as an injury of preponderant constitutional weight. The burden on retail sellers competing with Sunday-observing and non-observing retailers is considerably greater, But, without minimizing the fact of this disadvantage, the legislature may have concluded that its severity might be offset by the industry and commercial initiative of the individual merchant. More is demanded of him, admittedly, whether in the form of additional labor or of material sacrifices, than is demanded of those who do not choose to keep his Sabbath. More would be demanded of him, of course, in a State in which there were no Sunday laws and in which his competitors chose—like 'Two Guys from Harrison-Allentown'—to do business seven days a week. In view of the importance of the community interests which must be weighed in the balance, is the disadvantage wrought by the nonexempting Sunday statutes an impermissible imposition upon the Sabbatarian's religious freedom? Every court which has considered the question during a century and a half has concluded that it is not.120 This Court so concluded in Friedman v. People of State of New York, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345. On the basis of the criteria for determining constitutionality, as opposed to what one might desire as a matter of legislative policy, a contrary conclusion cannot be reached.
VI.
148
Two further grounds of unconstitutionality are urged in all these cases, based upon the selection in the challenged statutes of the activities included in, or excluded from, the Sunday ban. First it is argued that, if the aim of the statutes is to secure a day of peace and repose, the laws of Massachusetts and Maryland, by their exceptions, and the retail sales act of Pennsylvania, by its enumeration of the articles whose sale is forbidden, operate so imperfectly in the service of this aim—show so little rational relation to it—that they must be accounted as arbitrary and therefore violative of due process. The extensive range of recreational and commercial Sunday activity permitted in these States is said to deprive the statutes of any reasonable basis. The distinctions drawn by the laws between what may be sold or done and what may not, it is claimed, are unsupported by reason. Second, these claimants argue that the same discriminations between items which may and may not be sold, and in some cases between the persons who may and those who may not sell identical items, deprive them of the equal protection of the laws.
149
Although these contentions require the Court to examine separately and with particularity the provisions of each of the three States' statutes which are attacked, the general considerations which govern these cases are the same. It is clear that in fashioning legislative remedies by fine distinctions to fit specific needs, 'The range of the State's discretion is large.' Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 229, 75 L.Ed. 482. This is especially so where, by the nature of its subject, regulation must take account of traditional and prevailing local customs. See Kotch v. Board of River Port Pilot Com'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093. 'The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.' Tigner v. State of Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124. 'Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. * * * 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 legislature may select one phase of one field and apply a remedy there, neglecting the others.' Williamson v. Lee Optical, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563.
150
Neither the Due Process nor the Equal Protection Clause demands logical tidiness. Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 33 S.Ct. 441, 57 L.Ed. 730. No finicky or exact conformity to abstract correlation is required of legislation. The Constitution is satisfied if a legislature responds to the practical living facts with which it deals. Through what precise points in a field of many competing pressures a legislature might most suitably have drawn its lines is not a question for judicial re-examination. It is enough to satisfy the Constitution that in drawing them the principle of reason has not been disregarded. See Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163. And what degree of uniformity reason demands of a statute is, of course, a function of the complexity of the needs which the statute seeks to accommodate.
151
In the case of Sunday legislation, an extreme complexity of needs is evident. This is so, first because one of the prime objectives of the legislation is the preservation of an atmosphere a subtle desideratum, itself the product of a peculiar and changing set of local circumstances and local traditions. But in addition, in the achievement of that end, however formulated, numerous compromises must be made. Not all activity can halt on Sunday. Some of the very operations whose doings most contribute to the rush and clamor of the week must go on throughout that day as well, whether because life depends upon them, or because the cost of stopping and restarting them is simply too great, or because to be without their services would be more disruptive of peace than to have them continue. Many activities have a double aspect: providing entertainment or recreation for some persons, they entail labor and workday tedium for others.121 Cogent expression of the intricate problems which these various countervalent pressures pose was given by Mr. Lloyd in the course of the debate in Commons on the English Sunday closing act of 1936:
152
'* * * We should all like to see shopkeepers and their staffs as far as possible in a position to observe Sunday in a normal way like most other people. On the other hand, we know that there are certain reasonable needs of the public which require to be met even on a Sunday, and I think we should also all agree that the fewest possible number of people should have to give up their Sunday in order to cater for those public needs. I think we should probably reach a large measure of general agreement on the principle that only those shops should remain open which are essential to meet the requirements of the public and only to the extent that they are essential * * *. Therefore, the problem is to strike a just balance between the reasonable needs of the public and the equally reasonable desire of the great bulk of those engaged in the distributive trades to enjoy their share of Sunday rest and recreation.
153
'If that is accepted, it follows at once that the crux of any Bill of this kind lies in the scope and the nature of the exemptions to the general principle of closing on Sunday. * * *'122
154
Moreover, the variation from activity to activity in the degree of disturbance which Sunday operation entails, and the similar variation in degrees of temptation to flout the law, and in degrees of ability to absorb and ignore various legal penalties, make exceedingly difficult the devising of effective, yet comprehensively fair, schemes of sanctions.
155
Early in the history of the Sunday laws there developed mechanisms which served to adapt their wide general prohibitions both to practical exigencies and to the evolving concerns and desires of the public. Where it was found that persons in certain activities tended with particular frequency to engage in violations, those activities were singled out for harsher punishment.123 On the other hand, practices found necessary or convenient to popular habits were specifically excepted from the ban.124 Under the basic English Sunday statute, 29 Charles II, c. 7, a wide general exception obtained for 'Works of Necessity and Charity';125 this provision found its way into the American colonial laws,126 and has descended into all of their successors currently in force.127 The effect of the phrase has been to give the courts a wide range of discretion in determining exceptions. But reasonable men can and do differ as to what is 'necessity.'128 In every jurisdiction legislatures, presumably deeming themselves fitter tribunals for decisions of this sort than were courts, acted to resolve the question against, or in favor of, various particular activities. Some pursuits were expressly declared not works of necessity, or were specially banned.129 Others were expressly permitted: series of exceptions, giving the laws resiliency in the course of cultural change, proliferated.130 Today, as Appendix II to this opinion, 366 U.S. 551, 81 S.Ct. 1201, shows, the general pattern in over half of the States and in England131 is similar. Broad general prohibitions are qualified by numerous precise exemptions, often with provision for local variation within a State, and are frequently bolstered by special provisions more heavily penalizing named activities. The regulations of Maryland, Massachusetts and Pennsylvania are not atypical in this regard, although they are undoubtedly among the more complex of the statutory patterns.
156
The degree of explicitness of these provisions in so many jurisdictions demonstrates the intricacy of the adjustments which they are designed to make. How delicate those adjustments can be is strikingly illustrated, once again, by a remark of the sponsor of the British closing bill of 1936, the most extensively documented modern Sunday statute. Supporting an amendment which permitted local authority to authorize the opening, during a portion of the year, of shops in areas frequented as seaside resorts, Mr. Loftus said:
157
'* * * In a Bill such as this one must have elasticity. * * * We had a unanimous demand from the Association of Fish Fryers, representing the trade all over England, asking that fish-frying shops should be closed on Sundays, and we agreed and took them out of the First Schedule (which exempts shops selling meals or refreshments). But then we heard from Blackpool, which is visited every year by, I suppose, millions of poor people, cotton operatives and others, who like to get cheap meals of fried fish on Sunday afternoons and Sunday evenings, and we feel there must be some provision in the Bill to allow the grant of exemptions in such a case. The difficulty is to avoid putting in a Clause which is open to abuse and I submit that there are two provisions which provide a safeguard. The first is that the local authority must approve the granting of exemptions, and the second is that the local authority cannot approve unless two-thirds of those particular shops in its locality are in favour of exemption. Having no desire that hardships should be inflicted on poor class people I would ask the House to accept the Clause.'132
158
Certainly, when relevant considerations of policy demand decisions and distinctions so find, courts must accord to the legislature a wide range of power to classify and to delineate. It is true that, unlike their virtually unanimous attitude on the issue of religious freedom, state courts have not always sustained Sunday legislation against the charge of unconstitutional discrimination. Statutes and ordinances have been struck down as arbitrary133 or as violative of state constitutional prohibitions of special legislation.134 A far greater number of courts, in similar classes of cases, have sustained the legislation.135 But the very diversity of judicial opinion as to what is reasonable classification—like the conflicting views on what is such 'necessity' as will justify Sunday operations—testifies that the question of inclusion with regard to Sunday bans is one where judgments rationally differ, and hence where a State's determinations must be given every fair presumption of a reasonable support in fact. The restricted scope of this Court's review of state regulatory legislation under the Equal Protection Clause, U.S.Const.Amend. 14. is of long standing. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 79, 31 S.Ct. 337, 340—341, 55 L.Ed. 369. The applicable principles are that a state statute may not be struck down as offensive of equal protection in its schemes of classification unless it is obviously arbitrary, and that, except in the case of a statute whose discriminations are so patently without reason that no conceivable situation of fact could be found to justify them, the claimant who challenges the statute bears the burden of affirmative demonstration that in the actual state of facts which surround its operation, its classifications lack rationality.
159
When these standards are applied, first, to the Maryland statute challenged in the McGowan case, appellants' claims under the Due Process and Equal Protection Clauses show themselves clearly untenable. Counsel contend that the Sunday sales prohibition, Md.Code Ann., 1957, Art. 27, § 521, is rendered arbitrary by its exception of retail sales of tobacco items and soft drinks, ice and ice cream, confectionery, milk, bread, fruit, gasoline products, newspapers and periodicals, and of drugs and medical supplies by apothecaries—by the further exemption in Anne Arundel County, under § 509, of certain recreational activities and sales incidental to them—and by the permissibility under other state and local regulations of various amusements and public entertainments on Sunday, Sunday beer and liquor sales, and Sunday pinball machines and bingo. The short answer is that these kinds of commodity exceptions, and most of these exceptions for amusements and entertainments, can be found in the comprehensive Sunday statutes of England, Puerto Rico, a dozen American States, and many other countries having uniform-day-of-rest legislation.136 Surely unreason cannot be so widespread. The notion that, with these matters excepted, the Maryland statute lacks all rational foundation is baseless. The exceptions relate to products and services which a legislature could reasonably find necessary to the physical and mental health of the people or to their recreation and relaxation on a day of repose. Other sales activity and, under Art. 27, § 492, all other labor, are forbidden. That more or fewer activities than fall within the exceptions could with equal rationality have been excluded from the general ban does not make irrational the selection which has actually been made. There is presented in this record not a trace of evidence as to the habits and customs of the population of Maryland or of Anne Arundel County, nothing that suggests that the pattern of legislation which their representatives have devised is not reasonably related to local circumstances determining their ways of life. Appellants have wholly failed to meet their burden of proof.
160
Counsel for McGowan urge that the allowance, limited to Anne Arundel County, of retail sales of merchandise customarily sold at bathing beaches, bathhouses, amusement parks and dancing saloons, violates the equal protection of the laws both by discriminating between Anne Arundel retailers and those in other counties, and by discriminating among classes of persons within Anne Arundel County who compete in sales of the same articles.137 Clearly appellants, who were convicted for selling within the county, would not ordinarily have standing to raise the issue of possible discrimination against out-of-county merchants; in any event, on this record, it is dubious that the contention was adequately raised below. Suffice to say, for purposes of the due process issue which appellants did raise, that the provision of different Sunday regulations for different regions of a State is not ipso facto arbitrary. See Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281; State of Missouri v. Lewis, 101 U.S. 22, 31, 25 L.Ed. 989.138
161
As for the asserted discrimination in favor of those who sell at the beach or the park articles not permitted to be sold elsewhere, the answer must be that between such beach-side enterprisers and the general suburban merchandising store at which appellants are employed there is a reasonable line of demarcation. The reason of the exemption dictates the human logic of its scope. The legislature has found it desirable that persons seeking certain forms of recreation on Sunday have the convenience of purchasing on that day items which add enjoyment to the recreation and which, perhaps, could not or would not be provided for by a vacationer prior to the day of his Sunday outing. On the other hand, the policy of securing to the maximum possible number of distributive employees their Sunday off might reasonably preclude allowing every retail establishment in the county to open to serve this convenience. A tenable resolution, surely, is to permit these particular sales only on the premises where the items will be needed and used. The enforcement problem which could arise from permitting general merchandising outlets to open for the sale of these items alone, but not for the sale of thousands of other items at adjacent counters and shelves, might in itself justify the limitation of the exception to the group of on-the-premises merchants who are less likely to stock articles extraneous to the use of the enumerated amusement facilities.
162
The Massachusetts statute attacked in the Gallagher case contains a wider range of exceptions but, again, none that this record shows to be patently baseless and therefore constitutionally impermissible. The court below believed that reason was offended by such provisions as those which allow, apparently, digging for claims but not dredging for oysters, or which permit certain professional sports during the hours from 1:30 to 6:30 p.m. while restricting their amateur counterparts to 2 to 6, or which make lawful (as the court below read the statute) Sunday pushcart vending by conscientious Sabbatarians, but not Sunday vending within a building. But the record below, on the basis of which a federal court has been asked to enjoin the enforcement of a state statute, contains no evidence concerning clam-digging or oyster-dredging, nothing to indicate that these two activities have anything more in common—requiring similar treatment—than that in each there is involved the pursuit of mollusca. There is nothing in the record concerning professional or amateur athletic events, and certainly nothing to support the conclusion that the problem of Sunday regulation of pushcarts is so similar to the problem of Sunday regulation of indoor markets as to require uniform treatment for both.139 These various differently treated situations may be different in fact, or they may not. A statute is not to be struck down on supposition.
163
It is true, as appellees there claim, that Crown Kosher Super Market may not sell on Sunday products which other retail establishments may sell on that day: bread (which may be sold during certain hours by innkeepers, common victuallers, confectioners and fruiterers, and, along with other bakery products, by bakers), confectionery, frozen desserts and dessert mix, and soda water (which may be sold by innkeepers, common victuallers, confectioners and fruiterers, and druggists), tobacco (which may be sold by innkeepers, common victuallers, druggists, and regular newsdealers), etc. (The sale of drugs and newspapers on Sunday is permitted generally.) But although Crown Kosher undoubtedly suffers an element of competitive disadvantage from these provisions, the provisions themselves are not irrational. Their purpose, apparently, is to permit dealers specializing in certain products whose distribution on Sunday is regarded as necessary, to sell those products and also such other among the same group of necessaries as are generally found sold together with the products in which they specialize, thus fostering the maximum dissemination of the permitted products with the minimum number of retail employees required to work to disseminate them. Shops such as newsdealers, druggists, and confectioners may in Massachusetts tend, for all we know, to be smaller, less noisy, more widely distributed so that access to them from residential areas entails less traveling, than is the case with other stores. They may tend to hire fewer employees. They may present, because they specialize in products whose sale is permitted, less of a policing problem than would general markets selling these and many other products.140 Again there is nothing in the record to support the conclusion that Massachusetts has failed to afford to the Crown Kosher Super Market treatment which is equivalent to that enjoyed by all other retailers of a class not rationally distinguishable from Crown. 'The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. We cannot say that that point has been reached here.' Williamson v. Lee Optical, Inc. of Okl., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563.
164
Nor, on the record of the McGinley case, can any other conclusion be reached as to the 1959 Pennsylvania Sunday retail sales act. Appellants in this case argue that to punish by a fine of up to one hundred dollars per sale—or two hundred dollars per sale within one year after the first offense—the retail selling of some twenty enumerated broad categories of commodities, while punishing all other sales and laboring activity by the four-dollars-per-Sunday fine fixed by the earlier Lord's day statute,141 is arbitrary and violative of equal protection. But the court below found, and in this it is supported by the legislative history of the 1959 act,142 that the enactment providing severer penalties for these classes of sales was responsive to the appearance in the Commonwealth, only shortly before the act's passage, of a new kind of large-scale mercantile enterprise which, absorbing without difficulty a four-dollar-a-week fine, made a profitable business of persistent violation of the earlier statute. These new enterprises may have attracted a disturbing volume of Sunday traffic; they may have employed more retail salesmen, and under different conditions, than other kinds of businesses in the State; some of the legislators, apparently, so believed.143 The danger may have been apprehended that not only would these violations of long-standing State legislation continue, but that competition would force open other enterprises which had for years closed on Sunday. Under this threat the 1959 statute was designed. It applies not only to the new merchandisers—if that were so, quite obviously, different constitutional problems would arise. Rather it singles out the area where a danger has been made most evident, and within that area treats all business enterprises equally. That in so doing it may have drawn the line between the sale of a sofa cover, punished by a hundred-dollar fine, and the sale of an automobile seat cover, punished by a four dollar fine, is not sufficient to void the legislation. '(A) state may classify with reference to the evil to be prevented, and * * * if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named.' Mr. Justice Holmes, in Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 282, 58 L.Ed. 539.
165
Even less should a legislature be required to hew the line of logical exactness where the statutory distinction challenged is merely one which sets apart offenses subject to penalties of differing degrees of severity, not one which divides the lawful from the unlawful. 'Judgment on the deterrent effect of the various weapons in the armory of the law can lay little claim to scientific basis. Such judgment as yet is largely a prophecy based on meager and uninterpreted experience. * * *
166
'* * * Moreover, the whole problem of deterrence is related to still wider considerations affecting the temper of the community in which law operates. The traditions of a society, the habits of obedience to law, the effectiveness of the lawenforcing agencies, are all peculiarly matters of time and place. They are thus matters within legislative competence.' Tigner v. State of Texas, 310 U.S. 141, 148, 149, 60 S.Ct. 879, 882, 84 L.Ed. 1124. Appellants in McGinley, like appellants in the McGowan and appellees in the Gallagher cases, have had full opportunity to demonstrate the arbitrariness of the statute which they challenge. On this record they have entirely failed to satisfy the burden which they carry. Friedman v. People of State of New York, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; McGee v. State of North Carolina, 346 U.S. 802, 74 S.Ct. 50, 98 L.Ed. 334; Towery v. State of North Carolina, 347 U.S. 925, 74 S.Ct. 532, 98 L.Ed. 1079. Cf. Missouri, K. & T.R. Co. of Texas v. Cade, 233 U.S. 642, 34 S.Ct. 678, 58 L.Ed. 1135.
167
The Braunfeld case, however, comes here in a different posture. Appellants, plaintiffs below, allege in their amended complaint that the 1959 Pennsylvania Sunday retail sales act is irrational and arbitrary. The three-judge court dismissed the amended complaint for failure to state a claim. Speaking for myself alone and not for Mr. Justice Harlan on this point, I think that this was too summary a disposition. However difficult it may be for appellants to prove what they allege, they must be given an opportunity to do so if they choose to avail themselves of it, in view of the Court's decisions in this series of cases. I would remand No. 67 to the District Court.
168
APPENDIX I TO OPINION OF MR. JUSTICE FRANKFURTER.
169
Principal Colonial Sunday Statutes and Their Continuation Until the End of the Eighteenth Century.
Connecticut:
New Haven Colony:
170
1656: Prophanation of the Lord's Day, New Haven's Settling in New England. And Some Laws for Government (1656), reprinted in Hinman, The Blue Laws (1838), 132, 206.
171
See also Prince, An Examination of Peters' 'Blue Laws,' H.R.Doc.No.295, 55th Cong., 3d Sess. 95, 109, 113—114, 123—125.
Connecticut Colony:
172
1668: 2 Public Records of the Colony of Connecticut, 1665 1678 (1852), 88 (traveling, playing).
173
1672: Prophanation of the Sabbath, Laws of Connecticut, 1673 (Brinley reprint 1865), 58.
174
1676: 2 Public Records of the Colony of Connecticut, 1665 1678 (1852), 280.
175
See An Act for the due Observation, and keeping the Sabbath, or Lord's Day; and for Preventing, and Punishing Disorders, and Prophaneness on the same, Acts and Laws of His Majesty's English Colony of Connecticut in New-England (1750), 139; An Act for the due Observation of the Sabbath or Lord's-Day, Acts and Laws of the State of Connecticut (1784), 213; An Act for the due Observation of the Sabbath or Lord's-Day, Acts and Laws of the State of Connecticut (1796), 368.
Delaware:
176
1740: An Act to prevent the Breach of the Lord's Day commonly called Sunday, Laws of the Government of New-Castle, Kent and Sussex Upon Delaware (1741), 121.
177
1795: An act more effectually to prevent the profanation of the Lord's day, commonly called Sunday, 2 Laws of Delaware, 1700 1797 (1797), 1209.
Georgia:
178
1762: An Act For preventing and punishing Vice, Profaneness, and Immorality, and for keeping holy the Lord's Day, commonly called Sunday, Acts Passed by the General Assembly of Georgia, 1761—1762 (ca. 1763), 10.
179
See Marbury and Crawford, Digest of the Laws of Georgia, 1755 1800 (1802), 410.
Maryland:
180
1649: An Act concerning Religion, 1 Archives of Maryland (Proceedings and Acts of the General Assembly), 1637/8—1664 (1883), 244.
181
1654: Concerning the Sabboth Day, id., at 343.
182
1674: An Act against the Prophaning of the Sabbath day, 2 Archives of Maryland (Proceedings and Acts of the General Assembly), 1666—1676 (1884), 414 (innkeepers).
183
1692: An act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province, 13 Archives of Maryland (Proceedings and Acts of the General Assembly), 1684—1692 (1894), 425.
184
1696: An Act for Sanctifying & keeping holy the Lord's Day Comonly called Sunday, 19 Archives of Maryland (Proceedings and Acts of the General Assembly), 1693—1697 (1899), 418.
185
1723: An Act to punish Blasphemers, Swearers, Drunkards, and Sabbath-Breakers . . ., Bacon, Laws of Maryland (1765), Sf2.
186
See 1 Dorsey, General Public Statutory Law of Maryland, 1692 1839 (1840), 65.
Massachusetts:
Plymouth Colony:
187
1650: Prophanacon the Lord's Day, Compact with the Charter and Laws of the Colony of New Plymouth (1836), 92.
188
1658: Id., at 113 (traveling).
189
1671: General Laws of New Plimouth, c. III, §§ 9, 10 (1672), in id., at 247.
Massachusetts Bay Colony:
190
1653: Sabbath, Colonial Laws of Massachusetts (reprinted from the edition of 1672 with the supplements through 1686) (1887), 132 (traveling, sporting, drinking).
191
1668: For the better Prevention of the Breach of the Sabbath, id., at 134.
192
1692: An Act for the better Observation and Keeping the Lord's Day, Acts and Laws of His Majesty's Province of the Massachusetts-Bay in New-England, in Charter of the Province of the Massachusetts-Bay in New-England (1759 (sic)), 13.
193
1761: An Act for Repealing the several Laws now in Force which relate to the Observation of the Lord's-Day, and for making more effectual Provision for the due Observation thereof, id., at 392.
194
1782: An Act for Making More Effectual Provision for the Due Observation of the Lord's Day . . ., Acts and Laws of Massachusetts, 1782 (reprinted 1890), 63.
195
1792: An Act providing for the due Observation of the Lord's Day, 2 Laws of Massachusetts, 1780—1800 (1801), 536.
196
See also the act of 1629 set forth in Blakely, American State Papers on Freedom in Religion (4th rev. ed. 1949), at 29—30.
New Hampshire:
197
1700: An Act for the better Observation and Keeping the Lords Day, Acts and Laws Passed by the General Court of His Majesties Province of New-Hampshire in New-England, 1726 (reprinted 1886), 7.
198
1715: An Act for the Inspecting, and Supressing of Disorders in Licensed Houses, id., at 57 (innkeepers).
199
1785: An Act for the Better Observation and Keeping the Lords Day, 5 Laws of New Hampshire (First Constitutional Period), 1784 1792 (1916), 75.
200
1789: An Act for the better Observation of the Lord's day . . ., id., at 372.
201
1799: An Act for the better observation of the Lords day . . ., 6 Laws of New Hampshire (Second Constitutional Period), 1792 1801 (1917), 592. New Jersey:
202
1675: Leaming and Spicer, Grants, Concessions and Original Constitutions of the Province of New-Jersey with the Acts Passed during the proprietary Governments (ca. 1752), 98.
203
1683: Against prophaning the Lord's Day, id., at 245.
204
1693: An Act for preventing Profanation of the Lords Day, id., at 519.
205
1704: An Act for Suppressing of Immorality, 1 Nevill, Acts of the General Assembly of the Province of New-Jersey, 1703—1752 (1752), 3.
206
1790: An Act to promote the Interest of Religion and Morality, and for suppressing of Vice . . ., Acts of the Fourteenth General Assembly of the State of New Jersey, c. 311 (1790), 619.
207
1798: An Act for suppressing vice and immorality, Laws of New Jersey, Revised and Published under the Authority of the Legislature (1800), 329.
New York:
208
1685: A Bill against Sabbath breaking, 1 Colonial Laws of New York, 1664—1775 (1894), 173.
209
1695: An Act against profanation of the Lords Day, called Sunday, id., at 356.
210
1788: An Act for suppressing immorality, Laws of New York, 1785—1788 (1886), 679.
North Carolina:
211
1741: An Act for the better observation and keeping of the Lord's day, commonly called Sunday; and for the more effectual suppression of vice and immorality, 1 Laws of North Carolina (1821), 142. Pennsylvania:
212
1682: The Great Law or The Body of Laws, in Charter and Laws of the Province of Pennsylvania, 1682—1700 (with the Duke of Yorke's Book of Laws, 1676—1682) (1879), 107.
213
1690: The Law Concerning Liberty of Conscience (A Petition of Right, First Law), id., at 192.
214
1700: The Law Concerning Liberty of Conscience, 2 Statutes at Large of Pennsylvania (1896), 3.
215
1705: An Act to Restrain People from Labor on the First Day of the Week, id., at 175.
216
1779: An Act for the Suppression of Vice and Immorality, 9 Statutes at Large of Pennsylvania (1903), 333.
217
1786: An Act for the Prevention of Vice and Immorality . . ., 12 Statutes at Large of Pennsylvania (1906), 313.
218
1794: An Act for the Prevention of Vice and Immorality . . ., 15 Statutes at Large of Pennsylvania (1911), 110.
Rhode Island:
219
1673: 2 Records of the Colony of Rhode Island and Providence Plantations, 1664—1677 (1857), 503 (alcoholic beverages).
220
1679: 3 Records of the Colony of Rhode Island and Providence Plantations, 1678—1706 (1858), 30 (employing servants).
221
1679: An Act Prohibiting Sports and Labours on the First Day of the Week, Acts and Laws, of His Majesty's Colony of Rhode-Island and Providence-Plantations (1730), 27.
222
1784: Rhode Island Acts and Resolves, Aug. 1784 (1784), 9 (excepting members of Sabbatarian societies; but exception does not extend to opening shops, to mechanical work in compact places, etc.).
223
1798: An Act prohibiting Sports and Labour on the first Day of the Week, Public Laws of Rhode-Island and Providence Plantations (1798), 577.
South Carolina:
224
1692: An Act for the better Observance of the Lord's Day, commonly called Sunday, 2 Statutes at Large of South Carolina (1837), 74.
225
1712: An Act for the better observation of the Lord's Day, commonly called Sunday, id., at 396.
226
See Grimke, Public Laws, of South-Carolina (1790), 19.
Virginia:
227
1610: For the Colony in Virginea Britannia, Lawes Divine, Morall and Martiall (1612), in 3 Force, Tracts Relating to the Colonies in North America (1844), II, 10 (gaming).
228
1629: 1 Hening, Statutes of Virginia (1823), 144.
229
1642—1643: Id., at 261 (traveling, shooting).
230
1657: The Sabboth to bee kept holy, id., at 434 (traveling, shooting, lading).
231
1661—1662: Sundays not to bee profaned, 2 Hening, Statutes of Virginia (1823), 48.
232
1691: An act for the more effectual suppressing the severall sins and offences of swaring, cursing, profaineing Gods holy name, Sabbath abuseing, drunkenness, ffornication, and adultery, 3 Hening, Statutes of Virginia (1823), 71.
233
1705: An act for the effectual suppression of vice, and restraint and punishment of blasphemous, wicked, and dissolute persons, id., at 358.
234
1786: An act for punishing disturbers of Religious Worship and Sabbath breakers, 12 Hening, Statutes of Virginia (1823), 336.
235
In some of the Colonies the English Sunday laws were also in effect. See, e.g., Martin, Collection of the Statutes of England in Force in North-Carolina (1792), 379.
236
APPENDIX II TO OPINION OF MR. JUSTICE FRANKFURTER.
237
Analysis of Important State Sunday Statutes Currently in Force.
238
This Appendix sets forth the important state legislative provisions currently in force prohibiting or regulating private activity on Sunday. In reducing these often complex laws to tabular form, a certain simplification has been required. Provisions in different States which are found in a single category, e.g., 'Trade in Alcoholic Beverages,' or 'Racing,' may differ considerably in detail. This Appendix does not include references to: (1) provisions declaring Sunday a holiday or non-business day; (2) provisions closing the courts on Sunday or prohibiting the service of judicial process on that day; (3) provisions giving various government employees Sunday off or excepting Sunday from the days of labor for state prisoners; (4) penalty sections where Sunday laws are parts of general regulatory codes, e.g., fish and game laws; (5) jurisdictional provisions or provisions authorizing arrest and detention on Sunday of offenders against the various Sunday laws, unless these are of special interest; and (6) definition provisions, statutes of limitation of prosecution, and similar ancillary provisions.
239
[The graphics for this case are contained in seprerate files]
240
Mr. Justice DOUGLAS, dissenting.*
241
The question is not whether one day out of seven can be imposed by a State as a day of rest. The question is not whether Sunday can by force of custom and habit be retained as a day of rest. The question is whether a State can impose criminal sanctions on those who, unlike the Christian majority that makes up our society, worship on a different day or do not share the religious scruples of the majority.
242
If the 'free exercise' of religion were subject to reasonable regulations, as it is under some constitutions, or if all laws 'respecting the establishment of religion' were not proscribed, I could understand how rational men, representing a predominantly Christian civilization, might think these Sunday laws did not unreasonably interfere with anyone's free exercise of religion and took no step toward a burdensome establishment of any religion.
243
But that is not the premise from which we start, as there is agreement that the fact that a State, and not the Federal Government, has promulgated these Sunday laws does not change the scope of the power asserted. For the classic view is that the First Amendment should be applied to the States with the same firmness as it is enforced against the Federal Government. See Lovell v. City of Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949; Minersville School District v. Gobitis, 310 U.S. 586, 593, 60 S.Ct. 1010, 1012, 84 L.Ed. 1375; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302; Talley v. State of California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559. The most explicit statement perhaps was in West Virginia State Board of Education v. Barnette, supra, 319 U.S. 639, 63 S.Ct. 1186.
244
'In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case.'
245
With that as my starting point I do not see how a State can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors.
246
The institutions of our society are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the state is powerless to alter; that the individual possesses rights, conferred by the Creator, which government must respect.
247
The Declaration of Independence stated the now familiar theme:
248
'We hold these Truths to be selfevident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happn ess.'
249
And the body of the Constitution as well as the Bill of Rights enshrined those principles.
250
The Puritan influence helped shape our constitutional law and our common law as Dean Pound has said: The Puritan 'put individual conscience and individual judgment in the first place.' The Spirit of the Common Law (1921), p. 42. For these reasons we stated in Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954, 'We are a religious people whose institutions presuppose a Supreme Being.'
251
But those who fashioned the First Amendment decided that if and when God is to be served, His service will not be motivated by coercive measures of government. 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof'—such is the command of the First Amendment made applicable to the State by reason of the Due Process Clause of the Fourteenth. This means, as I understand it, that if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government. This necessarily means, first, that the dogma, creed, scruples, or practices of no religious group or sect are to be preferred over those of any others; second, that no one shall be interfered with by government for practicing the religion of his choice; third, that the State may not require anyone to practice a religion or even any religion; and fourth, that the State cannot compel one so to conduct himself as not to offend the religious scruples of another. The idea, as I understand it, was to limit the power of government to act in religious matters (West Virginia State Board of Education v. Barnette, supra; People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649), not to limit the freedom of religious men to act religiously nor to restrict the freedom of atheists or agnostics.
252
The First Amendment commands government to have no interest in theology or ritual; it admonishes government to be interested in allowing religious freedom to flourish—whether the result is to produce Catholics, Jews, or Protestants, or to turn the people toward the path of Buddha, or to end in a predominantly Moslem nation, or to produce in the long run atheists or agnostics. On matters of this kind government must be neutral. This freedom plainly includes freedom from religion with the right to believe, speak, write, publish and advocate antireligious programs. West Virginia State Board of Education v. Barnette, supra, 319 U.S. 641, 63 S.Ct. 1186. Certainly the 'free exercise' clause does not require that everyone embrace the theology of some church or of some faith, or observe the religious practices of any majority or minority sect. The First Amendment by its 'establishment' clause prevents, of course, the selection by government of an 'official' church. Yet the ban plainly extends farther than that We said in Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711, that it would be an 'establishment' of a religion if the Government financed one church or several churches. For what better way to 'establish' an institution than to find the fund that will support it? The 'establishment' clause protects citizens also against any law which selects any religious custom, practice, or ritual, puts the force of government behind it, and fines, imprisons, or otherwise penalizes a person for not observing it. The Government plainly could not join forces with one religious group and decree a universal and symobolic circumcision. Nor could it require all children to be baptized or give tax exemptions only to those whose children were baptized.
253
Could it require a fast from sunrise to sunset throughout the Moslem month of Ramadan? I should think not. Yet why then can it make criminal the doing of other acts, as innocent as eating, during the day that Christians revere?
254
Sunday is a word heavily overlaid with connotations and traditions dei ving from the Christian roots of our civilization that color all judgments concerning it. This is what the philosophers call 'word magic.'
255
'For most judges, for most lawyers, for most human beings, we are as unconscious of our value patterns as we are of the oxygen that we breathe.' Cohen, Legal Conscience (1960), p. 169.
256
The issue of those cases would therefore be in better focus if we imagined that a state legislature, controlled by orthodox Jews and Seventh-Day Adventists, passed a law making it a crime to keep a shop open on Saturdays. Would a Baptist, Catholic, Methodist, or Presbyterian be compelled to obey that law or go to jail or pay a fine? Or suppose Moslems grew in political strength here and got a law through a state legislature making it a crime to keep a shop open on Fridays. Would the rest of us have to submit under the fear of criminal sanctions?
257
Dr. John Cogley recently summed up1 the dominance of the three-religion influence in our affairs:
258
'For the foreseeable future, it seems, the United States is going to be a three-religion nation. At the present time all three are characteristically 'American,' some think flavorlessly so. For religion in America is almost uniformly 'respectable,' bourgeois, and prosperous. In the Protestant world the 'church' mentality has triumphed over the more venturesome spirit of the 'sect.' In the Catholic world, the mystical is muted in favor of booming organization and efficiently administered good works. And in the Jewish world the prophet is too frequently without honor, while the synagogue emphasis is focused on suburban togetherness. There are exceptions to these rules, of course; each of the religious communities continues to cast up its prophets, its rebels and radicals. But a Jeremiah, one fears, would be positively embarrassing to the present position of the Jews; a Francis of Assisi upsetting the complacency of American Catholics would be rudely dismissed as a fanatic; and a Kierkegaard, speaking with an American accent, would be considerably less welcome than Norman Vincent Peale in most Protestant pulpits.'
259
This religious influence has extended far, far back of the First and Fourteenth Amendments. Every Sunday School student knows the Fourth Commandment:
260
'Remember the sabbath day, to keep it holy.
261
'Six days shalt thou labour, and do all thy work:
262
'But the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates:
263
'For in six days the Lord made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the Lord blessed the sabbath day, and halo wed it.' Exodus 20:8—11.
264
This religious mandate for observance of the Seventh Day became, under Emperor Constantine, a mandate for observance of the First Day 'in conformity with the practice of the Christian Church.' See Richardson v. Goddard, 23 How. 28, 41, 16 L.Ed. 412. This religious mandate has had a checkered history, but in general its command, enforced now by the ecclesiastical authorities, now by the civil authorities, and now by both, has held good down through the centuries.2 The general pattern of these laws in the United States was set in the eighteenth century and derives, most directly, from a seventeenth century English statute. 29 Charles II, c. 7. Judicial comment on the Sunday laws has always been a mixed bag. Some judges have asserted that the statutes have a 'purely' civil aim, i.e., limitation of work time and provision for a common and universal leisure. But other judges have recognized the religious significance of Sunday and that the laws existed to enforce the maintenance of that significance. In general, both threads of argument have continued to interweave in the case law on the subject. Prior to the time when the First Amendment was held applicable to the States by reason of the Due Process Clause of the Fourteenth, the Court at least by obiter dictum approved State Sunday laws on three occasions: Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145, in 1885; Hennington v. State of Georgia, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166, in 1896; Petit v. State of Minnesota, 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716, in 1900. And in Friedman v. People of State of New York, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345, the Court, by a divided vote, dismissed3 'for the want of a substantial federal question' an appeal from a New York decision upholding the validity of a Sunday law against an attack based on the First Amendment.
265
The Soon Hing, Hennington, and Petit cases all rested on the police power of the State—the right to safeguard the health of the people by requiring the cessation of normal activities one day out of seven. The Court in the Soon Hing case rejected the idea that Sunday laws rested on the power of government 'to legislate for the promotion of religious observances.' 113 U.S. at page 710, 5 S.Ct. at page 734.T he New York Court of Appeals in the Friedman case followed the reasoning of the earlier cases,4 302 N.Y. 75, 80, 96 N.E.2d 184, 186.
266
'Our Puritan ancestors intended that the day should be not merely a day of rest from labor, but also a day devoted to public and private worship and to religious meditation and repose, undisturbed by secular cares or ammusements. They saw fit to enforce the observance of the day by penal legislation, and the statute regulations which they devised for that purpose have continued in force, without any substantial modification, to the present time.'
267
And see Commonwealth v. Dextra, 143 Mass. 28, 8 N.E. 756. In Commonwealth v. White, 190 Mass. 578, 581, 77 N.E. 636, 637, 5 L.R.A.,N.S., 320, the court refused to liberalize its construction of an exception in its Sunday law for works of 'necessity.' That word, it said, 'was originally inserted to secure the observance of the Lord's day in accordance with the views of our ancestors, and it ever since has stood and still stands for the same purpose.' In Commonwealth v. McCarthy, 244 Mass. 484, 486, 138 N.E. 835, 836, the court reiterated that the aim of the law was 'to secure respect and reverence for the Lord's day.'
268
The Pennsylvania Sunday laws before us in Nos. 36 and 67 have received the same construction. 'Rest and quiet, on the Sabbath day, with the right and privilege of public and private worship, undisturbed by any mere worldly employment, are exactly what the statute was passed to protect.' Sparhawk v. Union Passenger R. Co., 54 Pa. 401, 423. And see Commonwealth v. Nesbit, 34 Pa. 398, 405, 406—408. A recent pronouncement by the Pennsylvania Supreme Court is found in Commonwealth ex rel. v. American Baseball Club, 290 Pa. 136, 143, 138 A. 497, 499, 53 A.L.R. 1027: 'Christianity is part of the common law of Pennsylvania * * * and its people are Christian people. Sunday is the holy day among Christians.'
269
The Maryland court, in sustaining the challenged law in No. 8, relied on Judefind v. State, 78 Md. 510, 28 A. 405, 22 L.R.A. 721, and Levering v. Board of Park Commissioner,5 134 Md. 48, 106 A. 176, 4 A.L.R. 374. In the former the court said:
270
'It is undoubtedly true that rest from secular employment on Sunday does have a tendency to foster and encourage the Christian religion, of all sects and denominations that observe that day, as rest from work and ordinary occupation enables many to engage in public worship who probably would not otherwise do so. But it would scarcely be asked of a court, in wha professes to be a Christian land, to declare a law unconstitutional because it requires rest from bodily labor on Sunday, except works of necessity and charity, and thereby promotes the cause of Christianity. If the Christian religion is, incidentally or otherwise, benefited or fostered by having this day of rest, (as it undoubtedly is,) there is all the more reason for the enforcement of laws that help to preserve it.' 78 Md., at pages 515—516, 28 A. at page 407.
271
In the Levering case the court relied on the except from the Judefind decision just quoted. 134 Md. at pages 54—55, 106 A. at page 178.
272
We have then in each of the four cases Sunday laws that find their source in Exodus, that were brought here by the Virginians and by the Puritans, and that are today maintained, construed, and justified because they respect the views of our dominant religious groups and provide a needed day of rest.
273
The history was accurately summarized a century ago by Chief Justice Terry of the Supreme Court of California in Ex parte Newman, 9 Cal. 502, 509:
274
'The truth is, however much it may be disguised, that this one day of rest is a purely religious idea. Derived from the Sabbatical institutions of the ancient Hebrew, it has been adopted into all the creeds of succeeding religious sects throughout the civilized world; and whether it be the Friday of the Mohammedan, the Saturday of the Israelite, or the Sunday of the Christian, it is alike fixed in the affections of its followers, beyond the power of eradication, and in most of the States of our Confederacy, the aid of the law to enforce its observance has been given under the pretense of a civil, municipal, or police regulation.'
275
That case involved the validity of a Sunday law under a provision of the California Constitution guaranteeing the 'free exercise' of religion. Calif.Const., 1849, Art. I, § 4. Justice Burnett stated why he concluded that the Sunday law, there sought to be enforced against a man selling clothing on Sunday, infringed California's constitution:
276
'Had the act made Monday, instead of Sunday, a day of compulsory rest, the constitutional question would have been the same. The fact that the Christian voluntarily keeps holy the first day of the week, does not authorize the Legislature to make that observance compulsory. The Legislature can not compel the citizen to do that which the Constitution leaves him free to do or omit, at his election. The act violates as much the religious freedom of the Christian as of the Jew. Because the conscientious views of the Christian compel him to keep Sunday as a Sabbath, he has the right to object, when the Legislature invades his freedom of religious worship, and assumes the power to compel him to do that which he has the right to omit if he pleases. The principle is the same, whether the act of the Legislature compels us to do that which we wish to do, or not to do. * * *
277
'Under the Constitution of this State, the Legislature can not pass any act, the legitimate effect of which is forcibly to establish any merely religious truth, or enforce any merely religious observances. The Legislature has no power over such a subject. When, therefore, the citizen is sought to be compelled by the Legislature to do any affirmative religious act, or to refrain from doing anything, because it violates simply a religious principle or observance, the act is unconstitutional.' Id., at pages 513—515.
278
The Court picks and chooses language from various decisions to bolster its conclusion that these Sunday laws in the modern setting are 'civil regulations.' No matter how much is written, no matter what is said, the parentage of these laws is the Fourth Commandment; and they serve and satisfy the religious predispositions of our Christian communities.6 After all, the labels a State places on its laws are not binding on us when we are confronted with a constitutional decision. We reach our own conclusion as to the character, effect, and pa ctical operation of the regulation in determining its constitutionality. Carpenter v. Shaw, 280 U.S. 363, 367—368, 50 S.Ct. 121, 122—123, 74 L.Ed. 478; State ex rel. Dyer v. Sims, 341 U.S. 22, 29, 71 S.Ct. 557, 561, 95 L.Ed. 713; Memphis Steam Laundry Cleaner v. Stone, 342 U.S. 389, 392, 72 S.Ct. 424, 426, 96 L.Ed. 436; Society for Savings in City of Cleveland, Ohio v. Bowers, 349 U.S. 143, 151, 75 S.Ct. 607, 99 L.Ed. 950; Gomillion v. Lightfoot, 364 U.S. 339, 341—342, 81 S.Ct. 125, 127, 5 L.Ed.2d 110.
279
It seems to me plain that by these laws the States compel one, under sanction of law, to refrain from work or recreation on Sunday because of the majority's religious views about that day. The State by law makes Sunday a symbol of respect or adherence. Refraining from work or recreation in deference to the majority's religious feelings about Sunday is within every person's choice. By what authority can government compel it?
280
Cases are put where acts that are immoral by our standards but not by the standards of other religious groups are made criminal. That category of cases, until today, has been a very restricted one confined to polygamy (Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244) and other extreme situations. The latest example is Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, which upheld a statute making it criminal for a child under twelve to sell papers, periodicals, or merchandise on a street or in any public place. It was sustained in spite of the finding that the child thought it was her religious duty to perform the act. But that was a narrow holding which turned on the effect which street solicitation might have on the child-solicitor:
281
'The state's authority over children's activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers within a broad range of selection. Among evils most appropriate for such action are the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state's police power, whether against the parent's claim to control of the child or one that religious scruples dictate contrary action.' Id., 321 U.S. 168—169, 64 S.Ct. 443.
282
None of the acts involved here implicates minors. None of the actions made constitutionally criminal today involves the doing of any act that any society has deemed to be immoral.
283
The conduct held constitutionally crimina today embraces the selling of pure, not impure, food; wholesome, not noxious, articles. Adults, not minors, are involved. The innocent acts, now constitutionally classified as criminal, emphasize the drastic break we make with tradition.
284
These laws are sustained because, it is said, the First Amendment is concerned with religious convictions or opinion, not with conduct. But it is a strange Bill of Rights that makes it possible for the dominant religious group to bring the minority to heel because the minority, in the doing of acts which intrinsically are wholesome and not antisocial, does not defer to the majority's religious beliefs. Some have religious scruples against eating pork. Those scruples, no matter how bizarre they might seem to some, are within the ambit of the First Amendment. See United States v. Ballard, 322 U.S. 78, 87, 64 S.Ct. 882, 886, 88 L.Ed. 1148. Is it possible that a majority of a state legislature having those religious scruples could make it criminal for the nonbeliever to sell pork? Some have religious scruples against slaughtering cattle. Could a state legislature, dominated by that group, make it criminal to run an abattoir?
285
The Court balances the need of the people for rest, recreation, late sleeping, family visiting and the like against the command of the First Amendment that no one need bow to the religious beliefs of another. There is in this realm no room for balancing. I see no place for it in the constitutional scheme. A legislature of Christians can no more make minorities conform to their weekly regime than a legislature of Moslems, or a legislature of Hindus. The religious regime of every group must be respected—unless it crosses the line of criminal conduct. But no one can be forced to come to a halt before it, or refrain from doing things that would offend it. That is my reading of the Establishment Clause and the Free Exercise Clause. Any other reading imports, I fear, an element common in other societies but foreign to us. Thus Nigeria in Article 23 of her Constitution, after guaranteeing religious freedom, adds, 'Nothing in this section shall invalidate any law that is reasonably justified in a democratic society in the interest of defence, public safety, public order, public morality, or public health.' And see Article 25 of the Indian Constitution. That may be a desirable provision. But when the Court adds it to our First Amendment, as it does today, we make a sharp break with the American ideal of religious liberty as enshrined in the First Amendment.
286
The State can, of course, require one day of rest a week: one day when every shop or factory is closed. Quite a few States make that requirement.7 Then the 'day of rest' becomes purely and simply a health measure. But the Sunday laws operate differently. They force minorities to obey the majority's religious feelings of what is due and proper for a Christian community; they provide a coercive spur to the 'weaker brethren,' to those who are indifferent to the claims of a Sabbath through apathy or scruple. Can there be any doubt that Christians, now aligned vigorously in favor of these laws, would be as strongly opposed if they were prosecuted under a Moslem law that forbade them from engaging in secular activities on days that violated Moslem scruples?
287
There is an 'establishment' of religion in th constitutional sense if any practice of any religious group has the sanction of law behind it. There is an interference with the 'free exercise' of religion if what in conscience one can do or omit doing is required because of the religious scruples of the community. Hence I would declare each of those laws unconstitutional as applied to the complaining parties, whether or not they are members of a sect which observes as its Sabbath a day other than Sunday.
288
When these laws are applied to Orthodox Jews, as they are in No. 11 and No. 67, or to Sabbatarians their vice is accentuated. If the Sunday laws are constitutional, kosher markets are on a five-day week. Thus those laws put an economic penalty on those who observe Saturday rather than Sunday as the Sabbath. For the economic pressures on these minorities, created by the fact that our communities are predominantly Sunday-minded, there is no recourse. When, however, the State uses its coercive powers—here the criminal law—to compel minorities to observe a second Sabbath, not their own, the State undertakes to aid and 'prefer one religion over another'—contrary to the command of the Constitution. See Everson v. Board of Education, supra, 330 U.S. 15, 67 S.Ct. 511.
289
In large measure the history of the religious clause of the First Amendment was a struggle to be free of economic sanctions for adherence to one's religion. Everson v. Board of Education, supra, 330 U.S. 11—14, 67 S.Ct. 509—510. A small tax was imposed in Virginia for religious education. Jefferson and Madison led the fight against the tax, Madison writing his famous Memorial and Remonstrance against that law. Id., 330 U.S. 12, 67 S.Ct. 509. As a result, the tax measure was defeated and instead Virginia's famous 'Bill for Religious Liberty,' written by Jefferson, was enacted. Id., 330 U.S 12, 67 S.Ct. 510. That Act provided:8
290
'That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions of belief * * *.'
291
The reverse side of an 'establishment' is a burden on the 'free exercise' of religion. Receipt of funds from the State benefits the established church directly; laying an extra tax on nonmembers benefits the established church indirectly. Certainly the present Sunday laws place Orthodox Jews and Sabbatarians under extra burdens because of their religious opinions or beliefs. Requiring them to abstain from their trade or business on Sunday reduces their work-week to five days, unless they violate their religious scruples. This places them at a competitive disadvantage and penalizes them for adhering to their religious beliefs.
292
'The sanction imposed by the state for observing a day other than Sunday as holy time is certainly more serious economically than the imposition of a license tax for preaching,'9 which we struck down in Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, and in Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938. The special protection which Sunday laws give the dominant religious groups and the penalty they place on minorities whose holy day is Saturday constitute, in my view, state interference with the 'free exercise' of religion.10
293
I dissent from applying criminal sanctions against any of these complainants since to do so implicates the States in religious matters contrary to the constitutional mandate.11 Reverend Allan C. Parker, Jr., Pastor of the South Park Presbyterian Church, Seattle, Washington, has stated my views:
294
'We forget that, though Sundayworshiping Christians are in the majority in this country among religious people, we do not have the right to force our practice upon the minority. Only a Church which deems itself without error and intolerant of error can justify its intolerance of the minority.
295
'A Jewish friend of mine runs a small business establishment. Because my friend is a Jew his business is closed each Saturday. He respects my right to worship on Sunday and I respect his right to worship on Saturday. But there is a difference. As a Jew he closes his store voluntarily so that he will be able to worship his God in his fashion. Fine! But, as a Jew living under Christian inspired Sunday closing laws, he is required to close his store on Sunday so that I will be able to worship my God in my fashion.
296
'Around the corner from my church there is a small Seventh Day Baptist church. I disagree with the Seventh Day Baptists on many points of doctrine. Among the tenets of their faith with which I disagree is the 'seventh day worship.' But they are good neighbors and fellow Christians, and while we disagree we respect one another. The o od people of my congregation set aside their jobs on the first of the week and gather in God's house for worship. Of course, it is easy for them to set aside their jobs since Sunday closing laws inspired by the Church—keep them from their work. At the Seventh Day Baptist church the people set aside their jobs on Saturday to worship God. This takes real sacrifice because Saturday is a good day for business. But that is not all—they are required by law to set aside their jobs on Sunday while more orthodox Christians worship.
297
'* * * I do not believe that because I have set aside Sunday as a holy day I have the right to force all men to set aside that day also. Why should my faith be favored by the State over any other man's faith?'12
298
With all deference, none of the opinions filed today in support of the Sunday laws has answered that question.
1
These statutes, in their entirety, are found in Md.Ann.Code, 1957, Art. 27, §§ 492—534C; Art. 2B, §§ 28(a), 90 106; Art. 66C, §§ 132(d), 698(d). Those sections specifically referred to hereafter may be found in an Appendix to this opinion, 366 U.S. at page 453, 81 S.Ct. at page 1119.
2
Companion arguments made by appellants are that the exceptions to the Sunday sale's prohibition so undermine the alleged purpose of Sunday as a day of rest as to bear no rational relationship to it and thereby render the statutes violative of due process; that the distinctions drawn by the statutes are so unreasonable as to violate due process.
3
More recently we declared:
'The 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 so the legislature may think. Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124. 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. Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086. The legislature may select one phase of one field and apply a remedy there, neglecting the others. A.F. of L. v. American Sash Co., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. 222. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.' Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. (Emphasis added.)
4
Whether § 509 is to be read this way or is to be read to permit the sale of such merchandise by all vendors in Anne Arundel County is unclear. The Maryland Court of Appeals found it unnecessary to reach this question of state law. For purposes of this argument, we accept the construction of § 509 set forth by appellants.
5
Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Everson v. Board of Education, 330 U.S. 1, 5, 67 S.Ct. 504, 506, 91 L.Ed. 911; People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 210, 68 S.Ct. 461, 464, 92 L.Ed. 649.
6
Mr. Justice BLACK is of the opinion that appellants do have standing to raise this contention. He believes that their claim is without merit for the reasons expressed in Braunfeld v. Brown, 366 U.S. 599, at pages 602—610, 81 S.Ct. 1144, at pages 1145—1149, 6 L.Ed.2d 563, and Gallagher v. Crown Kosher Super Market, 366 U.S. 617, at pages 630—631, 81 S.Ct. 1122, at page 1129, 6 L.Ed.2d 536.
7
Madison's Memorial and Remonstrance Against Religious Assessments, Par. 8, reprinted in the Appendix to Mr. Justice Rutledge's dissenting opinion in Everson v. Board of Education, supra, 330 U.S. at page 68, 67 S.Ct. at page 537.
8
Cf. Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475, where complainants failed to show direct and particular economic detriment.
9
English statutes subsequent to this are cited and discussed in Lewis, op. cit., supra, pp. 111—142.
10
A 1695 New York Sunday law provided:
'Whereas, the true and sincere worship of God according to his holy will and commandments, is often profaned and neglected by many of the inhabitants and sojourners in this province, who do not keep holy the Lord's day, but in a disorderly manner accustom themselves to travel, laboring, working, shooting, fishing, sporting, playing, horse-racing, frequenting of tippling houses and the using many other unlawful exercises and pastimes, upon the Lord's day, to the great scandal of the holy Christian faith, be it enacted, etc.' Id., at 200—201.
11
Ministry of Munitions, Health of Munition Workers Committee, Report on Sunday Labour, Memorandum No. 1 (1915), 5.
12
See cases collected at 50 Am.Jur. 802 et sep.; 24 A.L.R.2d 813 et seq.; 57 A.L.R.2d 975 et seq.
13
See Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145; Hennington v. State of Georgia, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166; Petit v. State of Minnesota, 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716; Friedman v. People of State of New York, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; McGee v. State of North Carolina, 346 U.S. 802, 74 S.Ct. 50, 98 L.Ed. 334; Gundaker Central Motors, Inc., v. Gassert, 354 U.S. 933, 77 S.Ct. 1397, 1 L.Ed.2d 1533; Grochowiak v. Commonwealth of Pennsylvania, 358 U.S. 47, 79 S.Ct. 40, 3 L.Ed.2d 44; Ullner v. State of Ohio, 358 U.S. 131, 79 S.Ct. 230, 3 L.Ed.2d 225; Kidd v. State of Ohio, 358 U.S. 132, 79 S.Ct. 235, 3 L.Ed.2d 225.
14
Brant, James Madison, The Virginia Revolutionist, 245 246.
15
2 The Papers of Thomas Jefferson 555.
16
3 Elliot's Debates (2d ed. 1836) 330.
17
In Judefind v. State, 1894, 78 Md. 510, 515, 28 A. 405, 407, 22 L.R.A. 721, the Maryland Court of Appeals stated, 'Article 36 of our declaration of rights guarantees religious liberty; but the members of the distinguished body that adopted that constitution never supposed they were giving a death blow to Sunday laws by inserting that article.'
18
Mr. Justice Rutledge, joined by Mr. Justice Frankfurter, Mr. Justice Jackson and Mr. Justice Burton, filed a lengthy dissenting opinion in which the First Amendment's history was studied in detail. He defined the 'establishment' problem as follows:
'Compulsory attendance upon religious exercise went out early in the process of separating church and state, together with forced observance of religious forms and ceremonies. Test oaths and religious qualification for office followed later. These things none devoted to our great tradition of religious liberty would think of bringing back. Hence today, apart from efforts to inject religious training or exercises and sectarian issues into the public schools, the only serious surviving threat to maintaining that complete and permanent separation of religion and civil power which the First Amendment commands is through use of the taxing power to support religion, religious establishments, or establishments having a religious foundation whatever their form or special religious function.' Id., 330 U.S. at page 44, 67 S.Ct. at page 525. (Emphasis added.)
19
'(N)o Person or Persons within this Province shall work or do any bodily Labour or Occupation upon any Lords Day commonly called Sunday, nor shall command or wilfully suffer or permitt any of his or their children Servants or Slaves to work or labour as aforesaid (the absolute works of necessity and mercy allways Excepted) Nor shall suffer or permitt any of his her or their Children Servants or Slaves or any other under their Authority to abuse or Prophane the Lords Day by drunkenness, Swearing Gaming, fowling fishing, hunting or any other Sports Pastimes or Recreations whatsoever.' Id., at 426.
20
A 1674 Maryland statute provided, in part:
'(T)hat noe ordinary Keeper shall from and after the publication hereof directly nor indirectly upon the Sabbath or Lords Day draw or sell any strong Liquors nor permit or suffer in or about their house or houses any tipling or gaming att Cards, Dice, ninepinn playing or other such unlawfull exercises whatsoever. * * *' 2 Archives of Maryland 414.
21
This purpose has been articulated in various ways at different times. The parliamentary debates on the British Shops (Sunday Trading Restriction) Bill in 1936 are particularly instructive. The sponsor of the Bill stated:
'I realise also that the State to-day is interfering more and more with family life and more and more controlling the family liberty, and were this a Bill to restrict liberty, and above all to restrict the liberty of the family, I would not be responsible for introducing it. But I hope to show to the House that it is a Bill which is necessary to secure the family life and liberty of hundreds of thousands of our people. * * * They have the right to a holiday on Sunday, to be able to rest from work on that day and to go out into the parks or into the country on a summer day. That is the liberty for which
they are asking, and that is the liberty which this Bill would give to them.' 308 Parliamentary Debates, Commons 2157—2158.
Another member stated:
'As a family man let me say that my family life would be unduly disturbed if any member had his Sunday on a Tuesday. The value of a Sunday is that everybody in the family is at home on the same day. What is the use of talking about a six-day working week in which six members of a family would each have his day of rest on a different day of the week?' Id., at 2198.
Reports of the International Labour Conferences are also revealing:
'Social custom requires that the same rest-day should as far as possible be accorded to the members of the same working family and to the working class community as a whole. It is a fact that originally religious motives determined the rest-day and that the tradition thus established has subsequently been maintained by law. It appears to be a universal rule that workers in the same area or in the same country have the same rest-day, and that the rest-day coincides with the day established by tradition or custom; and the International Labour Office proposes that this rule should be maintained.' Rep. VII, International Labour Conference, 3d Sess. 1921, 127—128.
'A study of national standards shows that the most usual practice is to grant the weekly rest collectively on specified days of the week. This tendency to ensure that the weekly rest is taken at the same time by all workers on the day established by tradition or custom has an obvious social purpose, namely to enable the workers to take part in the life of the community and in the special forms of recreation which are available on certain days.' Rep. VII(1), International Labour Conference, 39th Sess. 1956, 24.
22
The Constitution itself provides for a Sunday exception in the calculation of the ten days for presidential veto. U.S.Const., Art. I, § 7.
*
'In pursuance of my practice in giving an opinion on all constitutional questions, I must present my views on this.' Mr. Justice Johnson, concurring in Cherokee Nation v. Georgia, 5 Pet. 1, 20, 8 L.Ed. 25. See Mr. Justice Story, dissenting, in Briscoe v. Bank of the Commonwealth of Kentucky, 11 Pet. 257, 329, 9 L.Ed. 709, 928; Mr. Chief Justice Taney, dissenting State of Rhode Island v. Commonwealth of Massachusetts, 12 Pet. 657, 752, 9 L.Ed. 1233. And see Mr. Justice Bradley, concurring, in the Legal Tender Cases, 12 Wall. 457, 554, 20 L.Ed. 287: 'I * * * should feel that it was out of place to add anything further on the subject were it not for its great importance. On a constitutional question involving the powers of the government it is proper that every aspect of it, and every consideration bearing upon it, should be presented, and that no member of the court should hesitate to express his views.'
1
'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *.' Madison had proposed an amendment that 'The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.' I Annals of Cong. 434. Commenting on a subsequent form of what was to become the First Amendment, he said that 'he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.' Id., at 730.
2
See Cobb, The Rise of Religious Liberty in America (1902), passim; Sweet, The Story of Religion in America (rev. ed. 1939), 54, 76—77, 98—112, 129, 139—142; Sweet, Religion in Colonial America (1942), passim; I Channing, History of the United States (1933), 356—381, 470—474. And see Jefferson's Notes on Virginia, in II Writings of Thomas Jefferson (Memorial ed. 1903) 217—219. The Virginia Convention which ratified the Federal Constitution proposed as a needed amendment to it: 'That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others.' III Elliot's Debates (2d ed. 1836) 659. See also the amendment proposed by the North Carolina Convention which declined to ratify, IV id., at 244, and the understanding of the Constitution expressed by Rhode Island, I id., at 334, and New York, I id., at 328. Cf. the amendment proposed by New Hampshire, I id., at 326.
3
See James, The Struggle for Religious Liberty in Virginia (1900); Eckenrode, Separation of Church and State in Virginia (1910); I Randall, Life of Thomas Jefferson (1858), 219—223; Cobb, The Rise of Religious Liberty in America (1902), 490—499; Sweet, The Story of Religion in America (rev. ed. 1939), 276—279.
4
The history of the Virginia episode is treated extensively in the opinions in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711.
5
12 Hening, Statutes of Virginia (1823), 84, 85.
6
As appellant retailers and retail employees in the McGowan, McGowan v. Maryland, 365 U.S. —-, 81 S.Ct. 1101 and McGinley, Two Guys from Harrison-Allentown Inc. v. McGinley, 365 U.S. —-, 81 S.Ct. 1135 cases have urged neither here nor below any question of infringement of their own rights of conscience, I agree with THE CHIEF JUSTICE that they have no standing to raise the 'free exercise' issue. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. The Court need not determine at this time what averments or what proofs, in a proper case, would be required in order to raise such issues in their behalf. Unlike appellants in Braunfeld, Braunfeld v. Brown, 365 U.S. —-, 81 S.Ct. 1144, and appellees in Gallagher, Gallagher v. Crown Kosher Super Market of Mass. Inc., 365 U.S. —-, 81 S.Ct. 1122, they have not urged that their remaining shut on any day of the week for any reason causes Sunday closing to disadvantage them peculiarly. They assert a right to operate seven days a week—a right in which they claim an economic, not a conscientious interest. Nor, on this record, is it necessary to decide whether these Sunday retail sellers might have standing to complain of the disadvantage of their enforced Sunday closing to conscientious Sabbatarian customers or potential customers. Cf. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. Nowhere below have they presented evidence that any such actual or hypothetical customer is thus disadvantaged.
7
See Exodus 20:8—11, 23:12, 31:12—17; Deuteronomy 5:12—15.
8
Codex Justin, liber III, Tit. XII, 3. See II Schaff, History of the Christian Church (1867), 380, n. 1. Later edicts of the emperors were more unequivocally Christian in temper, e.g., that of 386 A.D., Codex Theo., liber VIII, Tit. VIII, 3. See Pharr, The Theodosian Code (1952), 209.
9
See Lewis, A Critical History of Sunday Legislation (1888), 1—90; Neale, Feasts and Fasts (1845), 86—137; Johnson and Yost, Separation of Church and State (1948), 219—221; XII Encyclopedia of Religion and Ethics (Hastings ed. 1921), 103—106; Savage, Sunday in Church History, in How Shall We Keep Sunday (1898), 27.
10
27 Henry VI, c. 5.
11
5 & 6 Edw. VI, c. 3. 'Forasmuch as at all times men be not so mindful to land and praise God, so ready to resort and hear God's holy word, and to come to the holy communion and other laudable rites, which are to be observed in every christian congregation, as their bounden duty doth require: * * * therefore to call men to remembrance of their duty, and to help their infirmity, it hath been wholsomly provided, that there should be some certain times and days appointed, wherein the christian should cease from all other kind of labours, and should apply themselves only and wholly unto the aforsaid holy works, properly pertaining unto true religion * * *.' Violations were to be punished by the censures of the church, administered by the bishops, archbishops and other persons having ecclesiastical jurisdiction. The purpose of this ordinance was apparently to restrict to a fixed and relatively limited number the days upon which labor should cease, the multiplication of saints' days having risen until they came to consume an alarming proportion of the year. It was repealed under Queen Mary.
12
1 Charles I, c. 1. This regulation, while prescribing civil penalties, preserved the concurrent jurisdiction of the ecclesiastical courts to punish Sabbath breaking.
13
3 Charles I, c. 2.
14
For a survey of the extensive Sunday regulations promulgated under the Commonwealth, see Lewis, op. cit., supra, note 9, at 115—142.
15
Work was punished by penalty of five shillings, selling by forfeiture of the goods. The ban against butchers and herders traveling on Sunday was repeated, under fine of twenty shillings. Dressing of meat in families and dressing or selling of meat in inns and victualling houses 'for such as otherwise cannot be provided' was permitted, as was the crying or selling of milk before 9 a.m. and after 4 p.m. Later statutes made numerous other exceptions to the English Sunday ban: see, e.g., 9 Anne, c. 23, § 20, exempting hackney coaches; the Sunday Entertainments Act, 1932, 22 & 23 Geo. V, c. 51, exempting motion pictures at the option of local authority and under stipulated conditions, and also making lawful certain musical entertainments, lectures and debates, and the operation of museums, galleries, zoological and botanical gardens, etc.; and the evolving regulation of Sunday baking, 34 Geo. III, c. 61; 1 & 2 Geo. IV, c. 50, § 11; 3 Geo. IV, L. & P., c. 106, § 16; 6 & 7 Wm. IV, c. 37, § 14; Baking Industry (Hours of Work) Act, 1954, 2 & 3 Eliz. II, c. 57, § 12. The Sunday Observation Prosecution Act, 1871, 34 & 35 Vict., c. 87, provided that no prosecutions under the statute, 29 Charles II, c. 7, might be brought without the consent of a chief police officer, a stipendiary magistrate, or two justices of the peace.
16
Common informer practice under this statute has since been abolished. Common Informers Act, 1951, 14 & 15 Geo. VI, c. 39.
17
See Fennell v. Ridler, 5 B. & C. 406, 407—408 (1826): 'The spirit of the act (of 29 Charles II) is to advance the interests of religion, to turn a man's thoughts from his worldly concerns, and to direct them to the duties of piety and religion; and the act cannot be construed according to its spirit unless it is so construed as to check the career of worldly traffic. * * * Labour may be private and not meet the public eye, and so not offend against public decency, but it is equally labour, and equally interferes with a man's religious duties.'
18
The Book of Sports published by James I in 1618 and republished by Charles I in 1633 provided: 'as for our good people's lawful recreation, our pleasure * * * is, that after the end of divine service our good people be not disturbed * * * from any lawful recreation, such as dancing, * * * leaping, vaulting, or any other such harmless recreation * * *.
'And likewise we bar from the benefit and liberty all such known recusants, either men or women, as will abstain from coming to church or divine service, being therefore unworthy of any lawful recreation after said service, that will not first come to church and serve God. Prohibiting in like sort the said recreations to any that, though conform in religion, are not present in the church at the service of God, before their going to the said recreations.
'Our pleasure, likewise is, that they to whom it belongeth in office, shall present and punish sharply all such, as in abuse of this our liberty will use their exercises before the end of all divine services for that day.' Lewis, op. cit., supra, note 9, at 106—107. See Govett, The King's Book of Sports (1890). See also the excepting proviso to the statute, 10 & 11 Wm. III, c. 24, § 14, respecting Billingsgate Market. Certain importation and selling of fish 'before or after Divine Service on Sundays' is not to be deemed prohibited.
19
Such a spirit may be seen in various royal proclamations enjoining strict enforcement of the Sunday laws, see Whitaker, The Eighteenth-Century English Sunday (1940), 56, 172—173, and in the language of charges to the grand juries encouraging their performance of their duties under the laws, see id., at 53, 57—58. Private societies formed as self-appointed agents of administration of the Sunday laws were religious in orientation. See id., at 62, 69, 121—123, 195—197.
20
The injunction to observe the Sabbath day in Deuteronomy 5:14 is that on that day '* * * thou shalt not do any work, thou, nor thy son, nor thy daughter, nor thy manservant, nor thy maidservant, nor thine ox, nor thine ass, nor any of thy cattle, nor thy stranger that is within the gates; that thy manservant and thy maidservant may rest as well as thou.' Among Christian explicators of the Old Testament a social inspiration was early ascribed to this language. See Milton, A Treatise on Christian Doctrine, book 2, c. 7, in V Prose Works of John Milton (Sumner trans. 1877) 67. Luther, in the Large Catechism, part I, Third Commandment, wrote: '* * * we keep holydays not for the sake of intelligent and learned Christians; for they have no need of it. We keep them, first, for the sake of bodily necessity. Nature teaches and demands that the mass of the people—servants and mechanics, who the whole week attend to their work and trades retire for a day of rest and recreation.' I Lenker, Luther's Catechetical Writings (1907), 60. See also Luther's Treatise on Good Works (1520), Third Commandment, XVII, in I Works of Martin Luther (1915), 241. Compare Calvin's Institutes: among the three reasons for Sabbath observance, the Lord 'resolved to give a day of rest to servants and those who are under the authority of others, in order that they should have some respite from toil.' Calvin, Institutes of the Christian Religion (Battles trans. 1960), book II, c. 8, § 28, at p. 395. And see Early Writings of John Hooper, D.D. (Carr ed. 1843) 337: 'Then likewise God by this commandment provideth for the temporal and civil life of man, and likewise for all things that be necessary and expedient for man in this life. If man, and beast that is man's servant, should without repose and rest always labour, they might never endure the travail of the earth. God therefore, as he that intendeth the conservation and wealth of man and the thing created to man's use, commandeth this rest and repose from labour, that his creatures may endure and serve as well their own necessary affairs and business, as preserve the youth and offspring of man and beast * * *.'
21
In 1778 there appeared an essay by Vicesimus Knox, M.A., supporting state-enforced Sunday observance on grounds of health and custom as well as of religion. See Whitaker, The Eighteenth-Century English Sunday (1940), 148. It is reported that in 1728 the members of the Gloucester Company or Fraternity of Barbers had undertaken to enforce by fine a self-imposed prohibition of Sunday labor, apparently to assure that those who wanted a six-day work week would not be compelled by competition to labor on the whole seven. See id., at 59—60.
22
IV Blackstone Commentaries (Lewis ed. 1897) *63. Compare the Report of the Committee on the Judiciary on the petition praying 'the repeal of all laws * * * enforcing the observation of a day of the week as the Sabbath * * *,' Mass.Leg.Docs., H.Doc. No. 125 (1851), 9—10.
23
Report from Select Committee on the Observance of the Sabbath Day, in 7 H.C., Sessional Papers (1831—1832), at pp. 116 117.
24
Id., at p. 6. See id., at pp. 5—8.
25
Id., at pp. 9—10.
26
See Trevelyan's comment quoted in the foreword to Skottowe, The Law Relating to Sunday (1936); Whitaker, Sunday in Tudor and Stuart Times (1933); Whitaker, The Eighteenth-Century English Sunday (1940), especially at 192, 199—201.
27
Addison, writing in No. 112 of the Specitator, July 9, 1711: 'I am always very well pleased with a country Sunday, and think, if keeping holy the seventh day were only a human institution, it would be the best method that could have been thought of for polishing and civilizing of mankind. It is certain, the country people would soon degenerate into a kind of savages and barbarians, were there not such frequent returns of a stated time, in which the whole village meet together with their best faces, and in their cleanest habits, to converse with one another upon different subjects, hear their duties explained to them, and join together in adoration of the supreme Being. Sunday clears away the rust of the whole week, not only as it refreshes in their minds the notions of religion, but as it puts both the sexes upon appearing in their most agreeable forms, and exerting all such qualities as are apt to give them a figure in the eye of the village.' The Spectator (Am. ed. 1859), at 160. See the attempt to capture the peculiar atmosphere of Sunday in the opening lines to the second book of Crabbe's The Village (1783).
28
In 1895 the late president of a grocers' association testifying on a proposed bill regulating the closing hours of shops urged that the Commons Committee recommend Sunday closing to the House; the many English grocers who wanted their Sunday off were alarmed at the threat of increased trade by competitors which would force their own opening on Sunday. Report from the Select Committee on Shops (Early Closing) Bill (Commons 1895) 158—159. The Report from the Select Committee of the House of Lords on the Sunday Closing (Shops) Bill (H.L.) (1905) did recommend Sunday closing legislation, which it found supported by all but one of the more than three hundred shopkeepers associations whose views were ascertained. The Committee's Report, at VI—VII, quotes the testimony of a witness (a clergyman, it may be noted), that '* * * the great need that impresses all of us busy workers in my part of London is the fact that because of the noise and rush we do want to safeguard the lives of our people by their having one day in seven. It is necessary for brain and for body, quite apart from the religious aspect of the question, for the moment, and by the stress at which we are all living down there Sunday has become practically like any other day. * * * The British population say that they would lose their custom in a great measure if they, in self-defence, did not open on Sunday. The feeling is very dominant that the result is that many of them have to work, whether they like it or not, seven days a week.' (See also testimony to the same effect, id., at 3—4, 17, 20, 30, 36, 40.)
29
1 Edw. VII, c. 22, § 34. Continued, as amended, in the Factories Act, 1937, 1 Edw. VIII & 1 Geo. VI, c. 67, § 77.
30
2 Geo. V, c. 3, §§ 1, 4, provides for a half-day closing and a half-day off for employees 'On at least one week day in each week.' (§ 1.) Other twentieth century legislation indicates recognition of the interweaving effect of the Sunday laws and other hours-of-labor legislation. The statute of 2 & 3 Eliz. II, c. 57, § 12, repealed the Sunday laws affecting the baking industry as part of a new program of hours regulation for that industry. The Sunday Entertainments Act, 1932, 22 & 23 Geo. V, c. 51, permitting Sunday cinema at local option, subjects the allowance of Sunday operation to the condition that no person may be employed therein who has worked on each of the six days next preceding, except in emergencies, in which case the employee must get his day's rest subsequently.
31
Ministry of Munitions, Health of Munition Workers Committee, Report on Sunday Labour, Memorandum No. 1 (Cmd. 8132) (1915), 3, 5. The Committee had not been directed specifically to investigate the Sunday labor question, but in its inquiries generally into hours of labor, it discovered that 'employers and workers were specially concerned at the present time with the problem of Sunday labour,' and the Committee was 'so impressed with the urgency and importance of this question,' that it determined to submit a preliminary report on this subject alone. Id., at 3.
32
26 Geo. V & 1 Edw. VIII, c. 53. See also the Retail Meat Dealers' Shops (Sunday Closing) Act, 1936, 26 Geo. V & 1 Edw. VIII, c. 30. These acts are continued in the Shops Act, 1950, 14 Geo. VI, c. 28, part IV.
33
See 308 H.C.Deb. 2216 and 2223 (5th ser. 1935—1936) (suggesting that persons ought not be made to work on a day when they would want to attend religious services); id., at 2211. The strongest Christian religious sentiment was demonstrated by an opponent of the bill, see 311, id., at 497. Other opposing speakers waved the shibboleth of religious motive in an attempt to discredit the measure. See 308, id., at 2190—2191; 311, id., at 2097; but see 308, id., at 2179—2182; 101 H.L.Deb. 262 (5th ser. 1935—1936) (two opponents admit absence of religious purpose or effect).
34
This is especially significant in England where, of course, no constitutional compulsion exists to encourage Parliament to 'make a record' concealing a clandestine sectarian aim.
35
308 H.C.Deb. 2157—2159 (5th ser. 1935—1936). See also id., at 2165—2167, 2174, 2183, 21868 2207, 2211, 2213, 2223—2224; 101 H.L.Deb. 254—255, 266 (5th ser. 1935—1936).
36
308 H.C.Deb. 2209 (5th ser. 1935—1936). See also 311, id., at 453—454, 490. Throughout the debates it is emphasized that the bill was 'a Sunday Trading Restriction Bill and not * * * a Bill to have one day's rest in seven.' 311, id., at 456; see id., at 2106. Yet it was not the sacred quality of the day that was meant.
37
308, id., at 2197—2198.
38
See 308, id., at 2186, 2194—2195, 2206; 311, id., at 2095.
39
Although a private member's bill, the measure passed on the second reading in Commons by a 191-to-8 vote. 308, id., at 2230.
40
Even on the Continent the forces which in the latter half of the nineteenth century pressed for the amelioration of the working conditions of the laborer expressed themselves in part in Sunday legislation. Germany, Austria, the Swiss Federal Government, Denmark, Norway and Russia in the 1870's, 80's and 90's promulgated regulations prohibiting Sunday employment—in some cases only for women and children; in others, for all workers in enumerated industies—or closing factories or commercial establishments during part or all of the day. See Congre § International du Repos Hebdomadaire, Paris, 1889, Compte-Rendu (1890), 339—344; Congre § International du Repos du Dimanche, Bruxelles, 1897, Rapports et Compte Rendu (1898), 9—24, 139—159, 229—234; Congre § International du Repos du Dimanche, Paris, 1900, Rapports et Compte Rendu (1900), Rapports No. I, II, VII; Mackenzie, ed., The World's Rest-Day, An Account of the Thirteenth International Congress on the Lord's Day, Edinburgh, 1908 (1909), 168—187; Report of the Joint Special Committee to Revise, Consolidate and Arrange the General Laws * * * Relating to the Observance of the Lord's Day, Mass.Leg.Docs., H.Doc. No. 1160
(1907), Appendix, at 57—66. In the late 1880's a German plebiscite conducted by Bismarck showed strong popular support among both employers and employees for Sunday closing. See Congre § International du Repos Hebdomadaire, Paris, 1889, Compte-Rendu (1890), 360—364. The development of the European Sunday-closing movement is reflected in the proceedings of the various conventions of an institution which convened sometimes as the International Congress on Sunday rest, sometimes as the International Congress for weekly rest. See the reports cited, supra; see also, e.g., Jackson, ed., Sunday Rest in the Twentieth Century, An Account of the International Sunday Rest Congress at St. Louis, 1904 (1905); Congresso Internazionale Pro Riposo Settimanale, Resoconto, Milano, 1906 (undated); Sunday, The World's Rest Day, Fourteenth International Lord's Day Congress, Oakland, California, 1915 (1916). At the first meeting of this group, in Geneva in 1876, the delegates displayed a primarily religious outlook, although much was also said of the physical and moral betterment of the worker through periodic rest. Congre § sur I'observation du Dimanche, Geneve, 1876, Actes (1876), 120, 187 191, 353—367. A major objective of the Conference was to secure Sunday off for the railroad employees. When, after several intervening conventions, the International Congress met in Paris in 1889, it was under the presidency of Leon Say, and its temper was rather secular than clerical. It took the name of the Congre § International du Repos Hebdomadaire, and though it contained members both of conservative-religious and of socialist tendencies, the latter were more vocal and especially took the lead in formulating the Congress' program of state-enforced, rather than merely voluntary, industrial closing. See Congre § International du Repos Hebdomadaire, Paris 1889, Compte-Rendu (1890), 83—93, 103—108, 344—380. Yet the group resolved to demand not merely some one indiscriminate day of rest weekly, but Sunday: '1. Sunday rest is possible to varying degrees in every industry. 2. This is the day of rest which is most suitable both to the employer and to the worker, as well from the point of view of the individual as from that of the family, and because it is good that
the day of rest should be, as much as possible, the same for all.' Id., at 160 (translated from the French); see also id., at 126, 167, 197. (Compare the Convention Concerning Weekly Rest in Commerce and Offices, 1957, Convention 106 of the General Conference of the International Labour Organization, Geneva, 1957, H.R.Doc. No. 432, 85th Cong., 2d Sess., 7—12, providing for a weekly day of rest which shall, where possible, 'coincide with the day of the week established as a day of rest by the traditions or customs of the country or district.' Art. 6, § 3. So far as possible, the traditions and customs of religious minorities are to be respected. Art. 6, § 4. Similarly, The Internation Labour Conference's Draft Convention Concerning the Application of the Weekly Rest in Industrial Undertakings, adopted at the Third Session of the General Conference in Geneva in 1921, establishes 24 consecutive hours of rest per seven days for industrial workers, to be fixed, where-ever possible 'so as to coincide with the days already established by the traditions or customs of the county or district.' Art. 2. International Labour Conference, 3d Sess., Draft Conventions & Recommendations (1921), 30.)
At Chicago, four years later, both clerical and laborite perspectives were again represented; George E. McNeill, one of the pioneers of the American labor movement, spoke, and the representative of the Brotherhood of Railway Trainmen and other railroad workers' organizations, L. S. Coffin, supported Sunday rest. The Sunday Problem, Its Present Day Aspects, Papers Presented at the International Congress on Sunday Rest, Chicago, 1893 (1894), 43, 95. In 1897, at Brussels, the spirit was again predominantly secular; the Congress debated extensively the question whether governmental action to compel a day of rest was advisable, or whether the matter could best be handled by persuasion of individual employers; and the sense of the meeting strongly favored governmental intervention. Congre § International du Repos du Dimanche, Bruxelles 1897, Rapports et Compte Rendu (1898), 35—47, 161—171, 377—385, 387—393, 538—559. See also Congre § International du Repos du Dimanche, Paris, 1900, Rapports et Compte Rendu (1900). Later meetings of the Congress tended to be religion-oriented, although secular interests continued to find voice. See Jackson, ed., op. cit., supra, at 59—77, 85—96; Mackenzie, ed., op. cit., supra, at 187.
41
See Appendix I to this opinion, 366 U.S. 543, 81 S.Ct. 1198. Hereafter the colonial Sunday statutes will be cited by date and Colony.
42
Cobb, The Rise of Religious Liberty in America (1902), 482—517; Sweet, The Story of Religion in America (rev. ed. 1939), 274—280.
43
See James Madison's essay, 'Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments.' in Fleet, Madison's 'Detatched Memoranda,' 3 Wm. & Mary Q. 534, 551, 554—556 (1946). See authorities cited in note 3, supra.
44
See Proceedings of the First General Assembly of 'The Incorporation of Providence Plantations,' and the Code of Laws, 1647 (1847), 50: '* * * and, otherwise than thus what is herein forbidden, all men may walk as their consciences persuade them, every one in the name of his GOD * * *.' See Cobb, The Rise of Religious Liberty in America (1902), 423—440.
45
See note 2, supra.
46
New Hampshire enacted Sunday laws in 1785 and 1789, New York in 1788, Virginia in 1786. Rhode Island in 1784 exempted from
her Sunday labor ban members of Sabbatarian societies, but specified that the exemption did not extend to allow such persons to keep shops open or to do mechanical labor in compact places; in 1798 Rhode Island again enacted a comprehensive Sunday law with the same exceptions.
47
Delaware, 1740.
48
Massachusetts (Plymouth), 1658.
49
Georgia, 1762. See also Maryland, 1696; New York, 1685; South Carolina, 1712. See the statute of 1 Charles I, quoted in text at note 12, supra. The law of the Massachusetts Bay Colony in 1653 recited that playing, walking, drinking, sporting, and traveling on the Lord's day tend 'much to the Dishonour of God, the Reproach of Religion, Grieving the Souls of Gods Servants, and the Prophanation of his Holy Sabbath, the Sanctification whereof is sometimes put for all Duties, immediately respecting the service of God contained in the first Table * * *.'
50
Connecticut, 1668.
51
Pennsylvania, 1682; see also the statutes of 1690, 1700. The 'Body of Laws' of 1682 declared religious tolerance for all persons believing in a Supreme Being: 'But to the end That Looseness, irreligion, and Atheism may not creep in under pretense of Conscience in this Province, Be It further Enacted * * * That, according to the example of the primitive Christians, and for the ease of the Creation, Every first day of the week, called the Lord's day, People shall abstain from their usual and common toil and labour, That whether Masters, Parents, Children, or Servants, they may the better dispose themselves to read the Scriptures of truth at home, or fre-
quent such meetings of religious worship abroad, as may best sute their respective persuasions.'
52
The New Haven Code of 1656 provides: 'Whosoever shal prophane the Lord's Day, or any part of it, either by sinful servile work, or by unlawful sport, recreation or otherwise, whether wilfully, or in a careless neglect, shal be duly punished by fine, imprisonment, or corporally, according to the nature and measure of the sinn, and offence. But if the court upon examination, by clear and satisfying evidence, find that the sin was proudly, presumptuously, and with a high hand committed against the known command and authority of the blessed God, such a person, therein despising and reproaching the Lord, shal be put to death, that all others may fear and shun such provoaking Rebellious courses. Numb. 15: from 30 to 36 verse.' The Plymouth Colony law of 1671 is similar. And see the act published in the Bay Colony in 1647, by which to 'deny the moralitie of the fourth commandement' is branded more than necessity requireth, their by banishment. Laws and Liberties of Massachusetts, 1648 (reprinted 1929), 24.
53
Massachusetts, 1692. See also New Hampshire, 1700; North Carolina, 1741. These statutes are patterned on 29 Charles II, c. 7, quoted in text at note 15, supra.
54
Maryland, 1649; cf. Virginia, 1705 (atheism).
55
Maryland, 1692, 'An Act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province.'
56
See the Connecticut statute set forth in the Acts and Laws, 1750; Georgia, 1762; Massachusetts, 1761. Compulsory church-attendance laws in the New England Colonies dated from before the middle of the seventeenth century. See the Code of 1650 of the General Court of Connecticut (1822) 46; and the Bay Colony's act published in 1647, Laws and Liberties of Massachusetts, 1648 (reprinted 1929), 20.
57
See note 51, supra. This latter object, not the compulsion of conscience but the liberation of all individuals from Sunday labor and Sunday disturbance so that they might worship God as their own consciences dictated, was, at one period, not infrequently put forward as the justifying purpose of the Sunday laws. State v. Ambs, 1854, 20 Mo. 214, 218; George v. George, 1866, 47 N.H. 27, 34; Lindenmuller v. People, Sup.1861, 33 Barb., N.Y., 548, 564; Johnston v. Commonwealth, 1853, 22 Pa. 102, 115. As the habits and preoccupations of the people themselves changed, it was but a short step from this reasoning to the recognition that Sunday laws serve the purpose of providing leisure and peace favorable to the pursuit of whatever aspirations, religious, or secular, various individuals may choose. See text at note 35, supra. Sensitive to emerging new popular needs and desires, legislatures were later to reshape the Sunday laws by complex patterns of exceptions permitting numerous recreational activities which, far from according with the original puritanical inspiration of the Lord's day acts, were precisely those games and sports which colonial legislation most severely condemned. See, e.g., Virginia, 1610; Connecticut, 1668. The development of these evolving exceptions is discussed briefly in text at notes 124—131, infra; its product may be seen in Appendix II to this opinion, 366 U.S. 551, 81 S.Ct. 1201. What it is significant to note at this point is that the continuity which marks the history of the Sunday laws is a continuity both of enduring and changing social demands. The enduring feature has been man's need for a day set apart, a day of community repose: this he has persistently, continuingly demanded. The changing feature has been the way in way in which he chooses to spend his day. The need which the 'Body of Laws' recognized in Pennsylvania in 1682 was both the same and different than that expressed by Luther, see note 20, supra, and that which twentieth century Sunday legislation accommodates. It is the need for a recurrent time when the common concerns of the working week cease to make their demands, and there is a peace that is general to the community—whether the individual finds it at church, at home, at the beach, in the country, or at the baseball game.
58
3 Records of the Colony of Rhode Island and Providence Plantations, 1678—1706 (1858), 30—31. The first Rhode Island Sunday law was an enactment of 1673 prohibiting the dispensing of alcoholic beverages on Sunday. Its preamble is this:
'Voted, this Assembly consideringe that the King hath granted us that not any in this Collony are to be molested in the liberty of their consciences, who are not disturbers of the civil peace, and wee are perswaded that a most flourishing civil government with loyalty may be best propagated where liberty of conscience by any corporall power is not obstructed that is not to any unchastness of body, and not by a body doeinge any hurt to a body, neither indeavoringe soe to doe; and although wee know by man not any can be forced to worship God or for to keep holy or not to keep holy any day; but forasmuch as the first dayes of weeks, it is usuall for parents and masters not to imploy their children or servants as upon other dayes, and some others alsoe that are not under such government, accountinge it as a spare time, and soe spend it in debaistnes or tipplinge and unlawfull games and wantonness, and most abhominably there practiced by those that live with the English at such times to resort to townes. Therefore, this Assembly, not to oppose or propagate any worship, but as by preventinge debaistnes, although wee know masters or parents cannot and are not by violence, to indeavor to force any under their government, to any worshipper from any worshipp, that is not debaistnes or disturbant to the civil peace, but they are to require them, and if that will not prevaile, if they can they should compell them not to doe what is debaistnes, or uncivill or inhuman, not to frequent any imodest company or practices.'
59
See New Jersey, 1798: Delaware, 1795 (this statute does recite that its purpose is to deter those who 'profane' the Lord's day); New Hampshire, 1785 and 1789 (these acts were, however, recommended to be read by ministers to their congregations). It is true that the Pennsylvania statute of 1794 is an act for the prevention of immorality and that the New Jersey statute of 1790 is 'An Act to promote the Interest of Religion and Morality, and for suppressing of Vice * * *,' but even these enactments show a very different tenor than that of earlier legislation in the same Colonies. See, e.g., Pennsylvania, 1682; New Jersey, 1693.
60
Compare New York's legislation of 1685, 1695.
61
An Act to enforce the due observation of the Sabbath, 1 Laws of Vermont (1808) 275.
62
The earliest law was that of 1610. For the Colony in Virginea Britannia, Lawes Divine, Morall and Martiall (1612), in 3 Force, Tracts Relating to the Colonies in North America (1844), II, 10—11. This was followed by an Act of 1623—1624. 1 Hening, Statutes of Virginia (1823), 123. And see id., at 144.
63
See Appendix I to this opinion, 366 U.S. at page 549, 81 S.Ct. at page 1201. The most important statutes are those of 1629 and 1705, 1 Hening, Statutes of Virginia (1823), 144; 3 Hening, Statutes of Virginia (1823), 358.
64
9 Hening, Statutes of Virginia (1821), 109, 111—112.
65
Id., at 164.
66
12 Hening, Statutes of Virginia (1823), 84—86.
67
2 Papers of Thomas Jefferson (Boyd ed. 1950) 305—324, 545 553. For the story of the Revision, see Jefferson's Autobiography, in I Writings of Thomas Jefferson (Memorial ed. 1903) 62—67; I Randall, Life of Thomas Jefferson (1858), 202—203, 208, 216 et seq.
68
2 Papers of Thomas Jefferson (Boyd ed. 1950) 555. The bill was entitled: 'A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers.' It also forbade the arrest for any civil cause of any minister of the gospel while engaged in public preaching or performing religious worship in any church, and punished any person who should maliciously disturb any worshipping congregation or misuse any minister therein. There is evidence to attribute the original draft of the provision to Jefferson, id., at 314—321; in any event, we know that, with the other revisers, he studied and reworked every bill in the revision until it satisfied him. Autobiography, in I Writings of Thomas Jefferson (Memorial ed. 1903) 66.
69
Journal of the House of Delegates, Commonwealth of Virginia, Oct. 17, 1785 (1828), 12—14.
70
12 Hening, Statutes of Virginia (1823), 336. The wording of the statute as passed differs slightly from that of the bill reported by the revisers.
71
2 Shepherd, Statutes of Virginia (1835), 149.
72
Appendix II to this opinion, 366 U.S. 551, 81 S.Ct. 1201. Only Alaska has no such legislation.
73
See Delaware, Iowa, Wyoming. Many States which have broader Sunday statutes also provide special regulations for the sale of intoxicants on Sunday. Significantly, even those who have assailed the ban on Sunday labor as an unconstitutional religious establishment assert the constitutionality of Sunday alcohol control. See, e.g., Lewis, A Critical History of Sunday Legislation (1888), ix. They point to the contemporary justification for the prohibition of liquor sales on that day: the greater danger of abusive use of alcohol during a time when virtually all persons are at leisure. Admitting that there are also cogent contemporary reasons for a Sunday labor ban, they assert that the history of Sunday labor legislation reveals that these legitimate reasons are not those which in fact underlie it. But the roots of Sunday alcohol control are as deeply bedded in early Sabbath anti-tippling statutes as are those of Sunday labor laws in Lord's day acts. See the Connecticut statute set forth in the Acts and Laws, 1750; Delaware, 1740; Maryland, 1674; Massachusetts Bay, 1653; Massachusetts, 1761; New Hampshire, 1715; New York, 1685. See State v. Eskridge, 1852, 31 Tenn. 413. Indeed, the most severe efforts to enforce Sunday prohibitions in England were for centuries directed against tippling. See Whitaker, The Eighteenth-Century English Sunday (1940), passim; Whitaker, Sunday in Tudor and Stuart Times (1933), passim.
74
See North Carolina. Many States with more comprehensive bans also specifically proscribe hunting. See, e.g., Connecticut, Kentucky, Mississippi, Tennessee, Virginia.
75
See, e.g., Arizona, Colorado, Montana.
76
Oregon. Cf. Michigan, New Jersey, Pennsylvania, Rhode Island.
77
Colorado, Wisconsin. Cf., e.g., Connecticut, Maine, Michigan, Pennsylvania.
78
Some States have specific legislation enabling municipalities to regulate Sunday business (e.g., Nebraska, North Dakota), or to suppress desecration of the Sabbath (e.g., Michigan, Mississippi, Rhode Island). Often such authority is written into a city's charter. See, e.g., State v. McGee, 1953, 237 N.C. 633, 75 S.E.2d 783, appeal dismissed for want of a substantial federal question, 346 U.S. 802, 74 S.Ct. 50, 98 L.Ed. 334. In some cases charter authority to regulate a given business or activity has been held to support Sunday regulation of that business or activity. See, e.g., Hicks v. City of Dublin, 1937, 56 Ga.App. 63, 191 S.E. 659. Where no other enabling provision is found, it is virtually unanimously held that power to enact Sunday ordinances exists under the general grant of police power to a municipality. E.g., In re Sumida, 1918, 177 Cal. 388, 170 P. 823; Theisen v. McDavid, 1894, 34 Fla. 440, 16 So. 321, 26 L.R.A. 234; Karwisch v. Mayor of Atlanta, 1871, 44 Ga. 204; Humphrey Chevrolet, Inc. v. City of Evanston, 1955, 7 Ill.2d 402, 131 N.E.2d 70, 57 A.L.R.2d 969; Komen v. City of St. Louis, 1926, 316 Mo. 9, 289 S.W. 838 (subsequently overruled on another point); City of Elizabeth v. Windsor-Fifth Avenue, Inc., 1954, 31 N.J.Super. 187, 106 A.2d 9; Ex parte Johnson, 1921, 20 Okl.Cr. 66, 201 P. 533; Mayor of Nashville v. Linck, 1852, 80 Tenn. 499; City of Seattle v. Gervasi, 1927, 144 Wash. 429, 258 P. 328; State ex rel. Smith v. Wertz, 1922, 91 W.Va. 622, 114 S.E. 242, 29 A.L.R. 391.
79
There have been more than seventy amendments to the Massachusetts Sunday regulation over the past century. See the opinion below, 176 F.Supp. 466, 472, note 2. The latest amendments prior to the bringing of suit in the Gallagher case were in 1957. Mass.Acts 1957, cc. 300, 356, §§ 16, 17, 18. By Mass.Acts 1960, c. 812, § 3, the provisions of chapter 136, Massachusetts' general Sunday regulations, were made applicable to all or part of certain legal holidays, e.g., January first, July fourth, Thanksgiving Day. The Pennsylvania statute which is considered here was enacted in 1959. Pa.Laws 1959, No. 212. And in the same year that State's Lord's Day statute was three times amended. Pa.Laws 1959, Nos. 278, 540, 684. Maryland amended the provisions which are now its Code, Art. 27, §§ 492 to 534A, seven times in 1959. Maryland Laws 1959, cc. 232, 236, 248, 503, 510, 715, 811.
80
E.g., N.D.Laws 1959, c. 131; Tenn.Acts 1957, c. 219.
81
E.g., Fla.Laws 1959, c. 59—295; Me.Laws 1959, c. 302; Okla.Laws 1959, p. 210.
82
Maine, Minnesota, Mississippi, North Dakota, Oklahoma, West Virginia. Cf. Indiana, Missouri. But see Alabama, Illinois, New Mexico, Ohio.
Language can also be found in judicial opinions interpreting Sunday statutes which attributes religious purpose to them. See O'Donnell v. Sweeney, 1843, 5 Ala. 467, 469; Weldon v. Colquitt, 1879, 62 Ga. 449, 451—452; State v. Beaudette, 1922, 122 Me. 44, 45, 118 A. 719, 720; Pearce v. Atwood, 1816, 13 Mass. 324, 346 348; Bennett v. Brooks, 1864, 9 Allen 118, 119—121, 91 Mass. 118, 119—121; Davis v. City of Somerville, 1880,
128 Mass. 594, 596; Commonwealth v. White, 1906, 190 Mass. 578, 580—582, 77 N.E. 636, 637, 5 L.R.A.,N.S., 320; Commonwealth v. McCarthy, 1923, 244 Mass. 484, 486, 138 N.E. 835, 836—837; Allen v. Duffie, 1880, 43 Mich. 1, 7—9, 4 N.W. 427, 431—433; Brimhall v. Van Campen, 1862, 8 Minn. 13, 22, Gil. 1, 6; Kountz v. Price, 1866, 40 Miss. 341, 348; People v. Ruggles, Sup.Ct.1811, 8 Johns., N.Y., 290, 296—297; Sellers v. Dugan, 1849, 18 Ohio 489, 490, 492; Commonwealth ex rel. Woodruff v. American Baseball Club, 1927, 290 Pa. 136, 143, 138 A. 497, 499, 53 A.L.R. 1027; Commonwealth v. Coleman, 1915, 60 Pa.Super. 380, 385—386; Parker v. State, 1886, 84 Tenn. 476, 477—479, 1 S.W. 202—203; Graham v. State, 1915, 134 Tenn. 285, 292, 183 S.W. 983, 985. And see Smith v. Boston & Maine R. Co., 1876, 120 Mass. 490, 493; Society for Visitation of Sick, etc. v. Commonwealth, 1866, 52 Pa. 125, 135. Even some decisions sustaining the constitutionality of the statutes have found their justification, in part, in the preservation of Christian traditions. Shover v. State, 1850, 10 Ark. 259; State v. Ambs, 1854, 20 Mo. 214; State ex rel. Temple v. Barnes, 1911, 22 N.D. 18, 132 N.W. 215, 37 L.R.A.,N.S., 114; City Council of Charleston v. Benjamin, 1848, 2 Strob., S.C., 508. Cf. Varney v. French, 1848, 19 N.H. 233; Adams v. Gay, 1847, 19 Vt. 358, 366. But most of these latter decisions date from an era when day-of-rest conceptions were not yet fully developed: the then prevailing notions of the police power did not accord to state legislatures authority to protect a man from the harm to himself a uninterrupted labor. Compare Thomasson v. State, 1860, 15 Ind. 449, 454 (speaking of the 'patriarchal theory of government') with, e.g., People v. C. Klinck Packing Co., 1915, 214 N.Y. 121, 108 N.E. 278 (sustaining New York's six-day-week statute by analogy to the Sunday law cases). The large majority of decisions applying the Sunday laws in cases where their constitutionality as possible infringements of religious liberty was not in issue have regarded the laws as having either an exclusively secular function or a function accommodating both the civil and religious needs of the community. As to the former, see, e.g., State v. Shuster, 1958, 145 Conn. 554, 145 A.2d 196; Rogers v. State, 1939, 60 Ga.App. 722, 4 S.E.2d 918; Carr v. State, 1911, 175 Ind. 241, 93 N.E. 1071, 32 L.R.A.,N.S., 1190;
Tinder v. Clarke Auto Co., 1958, 238 Ind. 302, 149 N.E.2d 808; City of Harlan v. Scott, 1942, 290 Ky. 585, 162 S.W.2d 8; Levering v. Board of Park Commissioners, 1919, 134 Md. 48, 106 A. 176, 4 A.L.R. 374; State ex rel. Hoffman v. Justus, 1904, 91 Minn. 447, 98 N.W. 325, 64 L.R.A. 510; City of St. Louis v. DeLassus, 1907, 205 Mo. 578, 104 S.W. 12 (subsequently overruled on another point); State v. Chicago, Burlington & Quincy R. Co., 1912, 239 Mo. 196, 143 S.W. 785; State v. Malone, 1946, 238 Mo.App. 939, 192 S.W.2d 68; More v. Clymer, 1882, 12 Mo.App. 11; Auto-Rite Supply Co. v. Mayor and Tp. Committeemen of Woodbridge Tp., 1957, 25 N.J. 188, 135 A.2d 515; Rodman v. Robinson, 1904, 134 N.C. 503, 47 S.E. 19, 65 L.R.A. 682; State v. Ricketts, 1876, 74 N.C. 187; Bloom v. Richards, 1853, 2 Ohio St. 387; McGatrick v. Wason, 1855, 4 Ohio St. 566; Krieger v. State, 1916, 12 Okl.Cr. 566, 160 P. 36; State v. Smith, 1921, 19 Okl.Cr. 184, 198 P. 879; State v. James, 1908, 81 S.Ct. 197, 62 S.E. 214, 18 L.R.A.,N.S., 617; Francisco v. Commonwealth, 1942, 180 Va. 371, 23 S.E.2d 234; State v. Baltimore & Ohio R. Co., 1879, 15 W.Va. 362; State ex rel. Smith v. Wertz, 1922, 91 W.Va. 622, 114 S.E. 242, 29 A.L.R. 391; and see Stark v. Backus, 1909, 140 Wis. 557, 123 N.W. 98. As to the latter, see Rosenbaum v. State, 1917, 131 Ark. 251, 199 S.W. 388, L.R.A.1918B, 1109; State v. Hurliman, 1956, 143 Conn. 502, 123 A.2d 767; Richmond v. Moore, 1883, 107 Ill. 429; State v. Mead, 1941, 230 Iowa 1217, 300 N.W. 523; Cleveland v. City of Bangor, 1895, 87 Me. 259, 32 A. 892; Matter of Rupp, 1898, 33 App.Div. 468, 53 N.Y.S. 927; People v. Moses, 1893, 140 N.Y. 214, 35 N.E. 499; Moore v. Owen, N.Y.Sup.Ct.1908, 58 Misc. 332, 109 N.Y.S. 585; Melvin v. Easley, 1860, 52 N.C. 356; Johnston v. Commonwealth, 1853, 22 Pa. 102. Cf. the cases finding foundation for the laws in long-established usage. Commonwealth v. Louisville & Nashville R. Co., 1882, 80 Ky. 291; Mohney v. Cook, 1855, 26 Pa. 342; Commonwealth v. Nesbit, 1859, 34 Pa. 398; Commonwealth v. Jeandelle, Pa.Q.S.1859, 3 Phila. 509. And see People v. Law, Spec.Sess.1955, 16 Misc.2d 696, 142 N.Y.S.2d 440; People v. Binstock, Spec.Sess.1957, 7 Misc.2d 1039, 170 N.Y.S.2d 133.
83
State of New York, Second Report of the Joint Legislative Committee on Sabbath Law, N.Y.Leg.Doc. No. 48 (1953), 9. See Report of the Committee on the Judiciary, on the petition praying the repeal of the laws for the observance of the sabbath, &c., 5 State of New York, Assembly Docs., Doc. No. 262 (1838). This latter report, denying any intention to enforce the duties of religious conscience, id., at 7, regarded retention of the Sunday law as advisable, 'Viewing the sabbath merely as a civil institution, venerable from its age consecrated as a day of rest by the usage of our fathers, and cherished by the common consent of mankind throughout the nations of christendom * * *.' Id., at 5. 'The experience of mankind has shewn that occasional rest is necessary for the health of the laborer and for his continued ability to toil; that 'the interval of relaxation which Sunday affords to the laborious part of mankind, contributes greatly to the comfort and satisfaction of their lives, both as it refreshes them for the time, and as it relieves their six days' labor by the prospect of a day of rest always approaching * * *." Id., at 7. The Committee did regard as a third consideration of importance the necessity of taking account of the moral temper of the Christian majority of the community, and of affording the laborer an opportunity to attend church if he so wished. Id., at 6—8.
84
'The committee are of one mind as to the need of a weekly day of rest for the preservation of the health and strength of the community, and would therefor recommend legislation to secure to all citizens the right of one clear day's rest in seven. In so far as possible, Sunday should be maintained as the weekly day of rest; and whenever the needs of the community, public convenience or demand compel labor on Sunday, persons thus employed should be given a legal right to rest on some other day of the week.' Report of the Joint Special Committee to Revise, Consolidate and Arrange the General Laws * * * Relating to the Observance of the Lord's Day, Mass.Leg.Docs., H.Doc. No. 1160 (1907), 9. For a similar, more recent expression, see Report Submitted by the Legislative Research Council Relative to Legal Holidays and Their Observance, Mass.Leg.Docs., S.Doc. No. 525 (1960), 24—25.
In the legislative debates on the bill which became the 1959 Pennsylvania Sunday retail sales act, the charge of religious purpose was persistently made by the bill's opponents, but such a purpose was disavowed by every speaker who favored the bill. 36 Pennsylvania Legislative Journal, 143d General Assembly (1959), 1137—1140, 2564—2565, 2682—2685. See, e.g., the remarks of Mr. Walker, id., at 1139: 'As I read this bill, I find nothing in it which is of a religious nature. The bill is prompted by the thousands of letters that we have all received in the Senate of Pennsylvania, asking us to do something for the men and women who work in the department stores. These people are not asking to go to church; they are asking for a day of rest.' It is apparent even from the objections raised by the opponents that various economic interests, among them those of organized retailers' and labor groups, were influential in supporting the measure. See especially id., at 2682—2683.
85
Jacoby, Remember the Sabbath Day?—The Nature and Causes of the Changes in Sunday Observance Since 1800 (Dissertation in Sociology, Microfilm, University of Pennsylvania Library (1942)), pp. 137—140, 147—148, 154—155, 200—202, c. 9; Kirstein, Stores and Unions (1950), 19—21; State of New York, Second Report of the Joint Legislative Committee on Sabbath Law, N.Y.Leg.Doc. No. 48 (1953), 16 et seq.; Report of the Unpaid Special Commission to Investigate * * * the Laws Relating to the Observance of the Lord's Day, Mass.Leg.Docs., H.Doc. No. 2413 (1954), 6; 36 Pennsylvania Legislative Journal, 143d General Assembly (1959), 1139, 2553. See the Sunday Business resolution of the 1959 and 1960 Conventions of the National Retail Merchants Association, 41 Stores 6—7 (Feb. 1959); 42 Stores 13 (Feb. 1960); and see note 40 supra. Frequently legislation closing establishments of a given trade is the product of lobbying efforts by associations of traders seeking to quash the competitive pressures which force unwanted Sunday labor. See Gundaker Central Motors, Inc., v. Gassert, 1956, 23 N.J. 71, 127 A.2d 566 appeal dismissed for want of a substantial federal question, 354 U.S. 933, 77 S.Ct. 1397, 1 L.Ed.2d 1533; Breyer v. State, 1899, 102 Tenn. 103, 50 S.W. 769. But see Sunday Observance, Hearings before the Subcommittee on Judiciary of the Committee on the District of Columbia, House of Representatives, on H.R. 7189 and H.R. 10311, 69th Cong., 1st Sess. (1926) (labor and trade groups oppose Sunday legislation supported primarily by clerical faction). Increasingly, the religious proponents of Sunday legislation have themselves come to couch their arguments in terms of hygienic and social, rather than transcendental, values. See Gilfillan, The Sabbath Viewed in the Light of Reason, Revelation, and History (Am. ed. 1862), 209—227; Floody, Scientific Basis of Sabbath and Sunday (2d ed. 1906), 311 315; McMillan, Influence of the Weekly Rest-Day on Human Welfare (1927).
86
Mass.Gen.Laws Ann.1958, c. 149, §§ 47 to 51. Section 47 provides:
'Whoever, except at the request of the employee, requires an employee engaged in any commercial occupation or in the work of any industrial process not subject to the following section or in the work of transportation or communication to do on Sunday the usual work of his occupation, unless he is allowed during the six days next ensuing twenty-four consecutive hours without labor, shall be punished by a fine of not more than fifty dollars; but this and the following section shall not be construed as allowing any work on Sunday not otherwise authorized by law.'
Section 48 provides:
'Every employer of labor enaged in carrying on any manufacturing, mechanical or mercantile establishment or workshop * * * shall allow every person * * * (with exceptions: see §§ 49, 50) employed in such manufacturing, mechanical or mercantile establishment or workshop at least twenty-four consecutive hours of rest, which shall include an unbroken period comprising the hours between eight o'clock in the morning and five o'clock in the evening, in every seven consecutive days. No employer shall operate any such manufacturing, mechanical or mercantile establishment or workshop on Sunday unless he has complied with section fifty-one * * *'
Section 51 is:
'Before operating on Sunday, every employer subject to section forty-eight * * * shall post in a conspicuous place on the premises a schedule containing a list of his employees who are required or allowed to work on Sunday, and designating the day of rest for each. No employee shall be required or allowed to work on the day of rest designated for him.'
Note the evolution of these sections through Mass.Acts 1907, c. 577, codified in the Labor Code of 1909, Mass.Acts 1909, c. 514, § 52; Mass.Acts 1913, c. 619.
87
See Ill.Rev.Stat.1959, c. 48, §§ 8a to 8g; N.H.Rev.Stat.Ann.1955, §§ 275.32, 275.33; N.Y.Labor Law, McKinney's Consol.Laws, c. 31, § 161; Ore.Wage and Hour Comm'n Orders Nos. 8 (1959), 9 (1952), 12 (1953), CCH Lab.Law Rep., State Laws (1960), pp. 57,561, 57,562, 57,564. Cf. West's Wis.Stat.Ann.1957, § 103.85. And see Purdon's Pa.Stat.Ann. 1952, Tit. 43, § 361.
88
Purdon's Pa.Stat.Ann., 1960 Supp., Tit. 4, § 60. See also Me.Rev.Stat.1954, c. 134, § 41; Sunday Entertainments Act, 1932, 22 & 23 Geo.V, c. 51, § 1(1)(a). Cf. P.R.Laws Ann.1955, Tit. 29, § 295.
89
P.R.Laws Ann.1955, Tit. 33, § 2201. Cf. Colo.Rev.Stat.Ann.1953, § 27—1—4; R.I.Gen.Laws 1956, § 5—16—5.
90
R.I.Gen.Laws 1956, §§ 25—1—6, 25—1—8; S.C.Code 1952, Tit. 64, § 5. See also Mullis v. Celanese Corp., 1959, 234 S.C. 380, 108 S.E.2d 547.
91
See Mead, The Pattern of Leisure in Contemporary American Culture, 313 Annals of The American Academy of Political and Social Science 11—12 (Sept. 1957).
92
Among the many examples that might be found in Frazer's Golden Bough, see his discussions of incest and murder, The Golden Bough (3d ed., Am.Reprint 1951), II The Magic Art 107—117; Taboo and the Perils of the Soul 218—219. For other classic instances in various fields, see Weston, From Ritual to Romance (Anchor ed. 1957), passim, especially 81—100; Gilbert Murray, 'Excursus on the Ritual Forms Preserved in Greek Tragedy,' in Harrison, Themis (1912), 341 et seq.; Kluckhohn and Leighton, The Navaho (1946), 162—163; Tawney, Religion and The Rise of Capitalism (3d Mentor ed. 1950), passim.
See Weekly Rest in Commerce and Offices, Report A, International Labour Conference, 26th Sess., Geneva, 1940 (1939), 2: 'Sunday rest laws, from the Fourth Commandment downwards, have always been social as well as religious in intention, seeking to provide a periodic rest from daily toil as well as an opportunity for religious observance.' Among the weekly-rest legislation of the many nations surveyed by the International Labor Organization's pertinent reports, the system most common is to provide for a uniform rest day, usually on Sunday. See, id., passim, especially at 71—74; Weekly Rest in Commerce and Offices, Report VII(1), International Labour Conference, 39th Sess., Geneva, 1956 (1955), passim, especially at 18, 24—26. 'This tendency to ensure that the weekly rest is taken at the same time by all workers on the day established by tradition or custom has an obvious social purpose, namely to enable the workers to take part in the life of the community and in the special forms of recreation which are available on certain days.' Id., at 24. Commenting on the world-wide practice of weekly rest, the ILO reporters observe: 'Quite often the practice originated as a religious observance and developed into a tradition which has persisted despite the disappearance of the original reasons or the decline in the part played by religious institutions in the social structure. At a very early stage this religious observance was backed by civil law and even today traces of this can often be found in constitutions and civil codes, in municipal by-laws and in the regulations of many countries concerning opening and closing hours of commercial and other establishments. Labour legislation has endeavoured to maintain and extend this practice in the light of the economic needs of modern society * * *.' Id., at 3.
93
The District Court in the Gallagher case believed that the Massachusetts Lord's day statute could not reasonably be regarded as a day-of-rest provision, first, because its extensive exceptions allowed many persons to labor seven days a week and, second, because Massachusetts has other statutes providing for twenty-four consecutive hours of rest every seven days. Mass.Gen.Laws Ann. 1958, c. 149, §§ 47 to 51. These latter provisions, however, by their express terms, supplement, do not supplant, the Sunday prohibitions. The two objections to some extent answer each other: the existence of the six-day law is justified by, and in part provides for, the deficiencies of the Lord's day statute as day-of-rest legislation. But, in any event, the Lord's day statute is not merely day-of-rest legislation. It is common-day-of-rest legislation. To certain persons who, for reasons deemed compelling by the Massachusetts Legislature, cannot share in this common day—simply because not all activity can cease, even on Sunday—the Labor Code at least assures a day of physical rest. Compare the conclusions found in Weekly Rest in Commerce and Offices, Report VII(1), International Labour Conference, 39th Sess., Geneva, 1956 (1955), 52. It may be noted that a large majority of the thirty-four States having comprehensive Sunday restrictions also have some six-day-week provisions in their labor or child-labor codes or regulations. See Appendix II to this opinion, 366 U.S. 551, 81 S.Ct. 1201.
The District Court, in concluding that the Massachusetts Lord's day statute is religious legislation, took account of its origins in colonial laws, of its language and the language of the Massachusetts courts in cases applying it, of the statutory exceptions permitting certain recreational activity only in the afternoon hours and, in some cases, at a designated distance from places of worship, and of statements in an amicus brief indicating that amici had an interest in preventing the secularization of Sunday. The implications of history and of the statutory language have already been discussed herein. The opinions in the Massachusetts cases adverted to by the court below, the latest decided in 1923, are insufficient to establish that the Massachusetts legislation as applied in 1960 to prohibit the Sunday operation of supermarkets lacks substantial secular purposes and effects. See note 101, infra. The validity of applications of the statute possibly affected by the afternoon-hour exceptions is not now presented; suffice to say that these exceptions do not render the legislation unconstitutional in its entirety or in the circumstances of this litigation. And the purposes, views and intentions of amici, of course, cannot be attributed to the legislature of the State of Massachusetts.
94
See text at note 37, supra. Cf. Report of the Unpaid Special Commission to Investigate * * * the Laws Relating to the Observance of the Lord's Day, Mass.Leg.Docs., H.Doc. No. 2413 (1954), 9: 'The wave of materialism which is sweeping the country makes it most important that one day be set aside for worship, rest and to give all persons an opportunity to strengthen the bulwark of our American civilization—the home.' Compare Report on the Weekly Rest-Day in Industrial and Commercial Employment, Report VII, International Labour Conference, 3d Sess., Geneva, 1921 (1921), 127: 'Social custom requires that the same rest-day should as far as possible be accorded to the members of the same working family and to the working class community as a whole.'
95
See note 92, supra. See also the resolution of the International Congress for weekly rest, 1889, quoted in note 40, supra.
96
Ex parte Newman, 9 Cal. 502. Justice Field's dissent in this case has become a leading pronouncement on the constitutionality of Sunday laws.
97
Ex parte Andrews, 18 Cal. 678. The controlling California constitutional guarantee of religious freedom comports only an analogue to the First Amendment's 'free exercise,' not an analogue to the 'establishment' clause.
98
E.g., Petit v. State of Minnesota, 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716. Cf. Hennington v. Georgia, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166; Soon Hing v. Crowley, 113 U.S. 703, 710, 5 S.Ct. 730, 734, 28 L.Ed. 1145; In re Sumida, 1918, 177 Cal. 388, 170 P. 823; McClelland v. City of Denver, 1906, 36 Colo. 486, 86 P. 126 (barbering prohibited); Rosenbaum v. City & County of Denver, 1938, 102 Colo. 530, 81 P.2d 760 (automobile sales prohibited); Mosko v. Dunbar, 1957, 135 Colo. 172, 309 P.2d 581 (automobile sales prohibited; Walsh v. State, 1927, 3 W.W.Harr. 514, 33 Del. 514, 139 A. 257, semble; Gillooley v. Vaughan, 1926, 92 Fla. 943, 956, 110 So. 653, 657 (cabarets and cinema prohibited); State v. Dolan, 1907, 13 Idaho 693, 92 P. 995, 14 L.R.A., N.S., 1259; State v. Cranston, 1938, 59 Idaho 561, 85 P.2d 682; McPherson v. Village of Chebanse, 1885, 114 Ill. 46, 28 N.E. 454 (ordinance held authorized by police power); Voglesong v. State, 1857, 9 Ind. 112; Foltz v. State, 1870, 33 Ind. 215; State v. Linsig, 1916, 178 Iowa 484, 159 N.W. 995; People v. DeRose, 1925, 230 Mich. 180, 203 N.W. 95 (ordinance closing markets held authorized by police power); In re Berman, 1956, 344 Mich. 598, 75 N.W.2d 8 (ordinance prohibiting sale of furniture held authorized by police power); State v. Dean, 1921, 149 Minn. 410, 184 N.W. 275; Power v. Nordstrom, 1921, 150 Minn. 228, 184 N.W. 967, 18 A.L.R. 733 (ordinance closing cinema, shows, theater, held authorized by police power); Paramount-Richards Theatres, Inc., v. City of Hattiesburg, 1950, 210 Miss. 271, 49 So.2d 574; State v. Loomis, 1925, 75 Mont. 88, 242 P. 344 (closing dance halls); Gundaker Central Motors, Inc., v. Gassert, 1956, 23 N.J. 71, 127 A.2d 566, appeal dismissed for want of a substantial federal question, 354 U.S. 933, 77 S.Ct. 1397, 1 L.Ed.2d 1533 (automobile trading prohibited); People v. Havnor, 1896, 149 N.Y. 195, 43 N.E. 541, 31 L.R.A. 689, writ of error dismissed 170 U.S. 408, 18 S.Ct. 631, 42 L.Ed. 1087 (barbering prohibited); State v. Weddington, 1924, 188 N.C. 643, 125 S.E. 257, 37 A.L.R. 573 (ordinance held authorized by police power); State v. Haase, 1953, 97 Ohio App. 377, 116 N.E.2d 224; Ex parte Johnson, 1921, 20 Okl.Cr. 66, 201 P. 533 (ordinance closing cinema and theaters held authorized by police power); Ex parte Johnson, 1943, 77 Okl.Cr. 360, 141 P.2d 599 (barbering prohibited); Ex parte Northrup, 1902, 41 Or. 489, 69
P. 445 (barbering prohibited); State v. Nicholls, 1915, 77 Or. 415, 151 P. 473; Breyer v. State, 1899, 102 Tenn. 103, 50 S.W. 769 (barbering prohibited); State v. Sopher, 1903, 25 Utah 318, 71 P. 482, 60 L.R.A. 468; Norfolk & Western R. Co. v. Commonwealth, 1896, 93 Va. 749, 24 S.E. 837, 34 L.R.A. 105 (statute prohibiting operation of railroads held sustainable as exercise of police power); State v. Nichols, 1902, 28 Wash. 628, 69 P. 372; City of Seattle v. Gervasi, 1927, 144 Wash. 429, 258 P. 328 (comprehensive ordinance found authorized by police power). See also Kreider v. State, 1912, 103 Ark. 438, 440, 147 S.W. 449, 450; State v. Miller, 1896, 68 Conn. 373, 377—378, 36 A. 795, 796; State v. Diamond, 1925, 56 N.D. 854, 857—858, 219 N.W. 831, 832—833; Rich v. Commonwealth, 1956, 198 Va. 445, 449, 453, 94 S.E.2d 549, 552, 555. Compare Pacesetter Homes, Inc., v. Village of South Holland, 1960, 18 Ill.2d 247, 163 N.E.2d 464, admitting legislative power to prohibit Sunday activity disturbing to the community, but striking down a blanket closing ordinance with virtually none of the usual exceptions as too extreme to be justified under this rationale.
99
E.g., Frolickstein v. Mayor of Mobile, 1867, 40 Ala. 725; Lane v. McFadyen, 1953, 259 Ala. 205, 66 So.2d 83 (issue not raised by litigants; court nevertheless considers it); Elliott v. State, 1926, 29 Ariz. 389, 242 P. 340, 46 A.L.R. 284 (dictum); Shover v. State, 1850, 10 Ark. 259; Scales v. State, 1886, 47 Ark. 476, 1 S.W. 769; Ex parte Koser, 1882, 60 Cal. 177; Karwisch v. Mayor of Atlanta, 1871, 44 Ga. 204, settling the issue left open in Sanders v. Johnson, 1859, 29 Ga. 526; Humphrey Chevrolet, Inc., v. City of Evanston, 1955, 7 Ill.2d 402, 131 N.E.2d 70, 57 A.L.R.2d 969 (at least as applied to corporate and non-Sabbatarian parties); State v. Blair, 1930, 130 Kan. 863, 288 P. 729; State v. Haining, 1930, 131 Kan. 853, 293 P. 952; Strand Amusement Co. v. Commonwealth, 1931, 241 Ky. 48, 43 S.W.2d 321, semble; State v. Bott, 1879, 31 La.Ann. 663 (forbidding liquor sales); State ex rel. Walker v. Judge, 1887, 39 La.Ann. 132, 1 So. 437; Judefind v. State, 1894, 78 Md. 510, 28 A. 405, 22 L.R.A. 721 (considered dictum); Hiller v. State, 1914, 124 Md. 385, 92 A. 842 (prohibiting sports); Commonwealth v. Has, 1877, 122 Mass. 40; Commonwealth v. Chernock, 1957, 336 Mass. 384, 145 N.E.2d 920; Scougale v. Sweet, 1900, 124 Mich. 311, 82 N.W. 1061 (considered dictum);
State v. Petit, 1898, 74 Minn. 376, 77 N.W. 225, affirmed 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716; State v. Weiss, 1906, 97 Minn. 125, 105 N.W. 1127; State v. Ambs, 1854, 20 Mo. 214; Komen v. City of St. Louis, 1926, 316 Mo. 9, 289 S.W. 838 (closing bakeries) (subsequently overruled on another point); In re Caldwell, 1908, 82 Neb. 544, 118 N.W. 133, semble; Stewart Motor Co. v. City of Omaha, 1931, 120 Neb. 776, 235 N.W. 332 (prohibiting automobile sales), semble; Two Guys from Harrison, Inc., v. Furman, 1960, 32 N.J. 199, 160 A.2d 265; Lindenmuller v. People, 1861, 33 Barb., N.Y., 548 (closing theaters); Neuendorff v. Duryea, 1877, 69 N.Y. 557 (same); People v. Friedman, 1950, 302 N.Y. 75, 96 N.E.2d 184, appeal dismissed for want of a substantial federal question, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; State v. McGee, 1953, 237 N.C. 633, 75 S.E.2d 783, appeal dismissed for want of a substantial federal question, 346 U.S. 802, 74 S.Ct. 50, 98 L.Ed. 334; State ex rel. Temple v. Barnes, 1911, 22 N.D. 18, 132 N.W. 215 (closing theaters); State v. Powell, 1898, 58 Ohio St. 324, 50 N.E. 900, 41 L.R.A. 854 (prohibiting sports); State v. Kidd, 1958, 167 Ohio St. 521, 150 N.E.2d 413, appeal dismissed for want of a substantial federal question, 358 U.S. 132, 79 S.Ct. 235, 3 L.Ed.2d 225; Commonwealth v. Wolf, 1817, 3 Serg. & R., Pa., 48; Specht v. Commonwealth, 1848, 8 Pa. 312; Commonwealth v. Bauder, 1958, 188 Pa.Super. 424, 145 A.2d 915; City Council of Charleston v. Benjamin, 1848, 2 Strob.L., S.C., 508; Xepapas v. Richardson, 1929, 149 S.C. 52, 146 S.E. 686; Ex parte Sundstrom, 1888, 25 Tex.App. 133, 8 S.W. 207; Sayeg v. State, 1930, 114 Tex.Cr.R. 153, 25 S.W.2d 865, semble; Clark v. State, 1959, 167 Tex.Cr.R. 204, 319 S.W.2d 726, semble; Pirkey Bros. v. Commonwealth, 1922, 134 Va. 713, 114 S.E. 764, 29 A.L.R. 1290 (issue not raised by litigants; court nevertheless considers it); Crook v. Commonwealth, 1927, 147 Va. 593, 136 S.E. 565, 50 A.L.R. 1043 (same); State v. Bergfeldt, 1905, 41 Wash. 234, 83 P. 177, writ of error dismissed 210 U.S. 438, 28 S.Ct. 764, 52 L.Ed. 1138 (prohibiting barbering); State v. Grabinski, 1949, 33 Wash.2d 603, 206 P.2d 1022. Following the decision in the Gallagher case below, and relying on it, a Pennsylvania Court of Quarter Sessions recently held the 1959 Pennsylvania Sunday retail sales act unconstitutional on the grounds that its incidence is discriminatory and arbitrary and that it operates to prefer Sunday-observing religions. Common-
wealth v. Cavalerro, 142 Legal Intelligencer 519 (Phila., Ap. 22, 1960) (Pa.Q.S. 1960). Another Pennsylvania court of first impression shortly thereafter reached the same conclusions. Bargain City U.S.A., Inc., v. Dilworth, 142 Legal Intelligencer 813 (Phila., June 22, 1960) (Pa.C.P.1960). These appear to be the only two standing state-court decisions striking down Sunday laws, as, in part, violative of religious freedom, in a century and a half of litigation.
In District of Columbia v. Robinson, 1908, 30 App.D.C. 283, the Court of Appeals, while recognizing the validity as civil regulations of modern Sunday closing statutes, held the 1723 Maryland Sunday law obsolete and inapplicable in the District of Columbia, largely on the ground that its purpose was religious. Compare O'Hanlon v. Myers, 1856, 10 Rich.L., S.C., 128. In Brunswick-Balke-Collander Co. v. Evans, D.C.D.Or.1916, 228 F. 991, appeal dismissed 248 U.S. 587, 39 S.Ct. 5, 63 L.Ed. 434, a Federal District Court sustained Oregon's general closing law against contentions that it violated religious freedom. Cf. Swann v. Swann, C.C.E.D.Ark.1884, 21 F. 299; In re King, C.C.W.D.Tenn.1891, 46 F. 905.
100
Appeals in cases challenging Sunday laws as violative of the Due Process Clause were also dismissed for want of a substantial federal question in Gundaker Central Motors, Inc., v. Gassert, 354 U.S. 933, 77 S.Ct. 1397, 1 L.Ed.2d 1533, and Grochowiak v. Pennsylvania, 358 U.S. 47, 79 S.Ct. 40, 3 L.Ed.2d 44.
101
This does not, of course, imply an opinion of the legitimacy of all the Sunday provisions of all the States, or of every application of the statutes now before this Court. It is true that the Massachusetts courts have at times expressed an intention to apply the Massachusetts Lord's day statute in accordance with the temper in which its historical antecedents were enacted. Compare the language of Davis v. City of Somerville, 1880, 128 Mass. 594; Commonwealth v. Dextra, 1886, 143 Mass. 28, 8 N.E. 756; Commonwealth v. White, 1906, 190 Mass. 578, 77 N.E. 636, 5 L.R.A., N.S., 320; Commonwealth v. McCarthy, 1923, 244 Mass. 484, 138 N.E. 835, with the Virginia cases, Francisco v. Commonwealth, 1942, 180 Va. 371, 23 S.E.2d 234, and Rich v. Commonwealth, 1956, 198 Va. 445, 94 S.E.2d 549. See Commonwealth v. Sampson, 1867, 97 Mass. 407. But see Stone v. Graves, 1887, 145 Mass. 353, 13 N.E. 906. It will be time enough to pass upon the constitutionality of such applications as do not reasonably come within the rationale of the present decision, and of Commonwealth v. Has, 1877, 122 Mass. 40, 42, if and when those cases arise. See Brattle Films, Inc., v. Commissioner of Public Safety, 1955, 333 Mass. 58, 127 N.E.2d 891.
102
Wisconsin, which does not have a general ban on Sunday labor, but does have a statute prohibiting automobile trading on that day, also makes an exception in favor of those who conscientiously observe the Jewish Sabbath. West's Wis.Stat.Ann., 1961 Supp., § 218.01(3)(a), par. 21. Other jurisdictions having statutes which cover only one or a few enumerated activities provide no Sabbatarian exception. Fla.Laws 1959, Special Acts, c. 59—1650, a local-option shop-closing statute applicable to Orange County, does contain such an exception, and in Michigan there are similar excepting clauses attached to barbering and auto-trading bans as well as to the general Sunday laws. Mich.Stat.Ann., 1957 Rev.Vol., §§ 18.122, 9.2702, Comp.Laws 1948, § 338.682; Comp.Laws Supp.1956, § 435.252.
103
In Kansas, Massachusetts, Missouri, New Jersey, New York, North Dakota, Rhode Island, South Dakota, Texas, Washington, and probably in Connecticut and Maine, the exception does not cover the sale of goods. Kan.Gen.Stat.Ann., 1949, § 21—953, State v. Haining, 1930, 131 Kan. 853, 293 P. 952; Mass.Gen.Laws Ann., 1958, c. 136, § 6, Commonwealth v. Has, 1877, 122 Mass. 40; Commonwealth v. Starr, 1887, 144 Mass. 359, 11 N.E. 533; Commonwealth v. Kirshen, 1907, 194 Mass. 151, 80 N.E. 2; Vernon's Mo.Stat.Ann., 1953, § 563.700; N.J.Stat.Ann., 1953, § 2A:171—4; McKinney's N.Y.Laws, Pen.Law, § 2144, People v. Friedman, 1950, 302 N.Y. 75, 96 N.E.2d 184, appeal dismissed for want of a substantial federal question, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; cf. People v. Adler, 1916, 174 App.Div. 301, 160 N.Y.S. 539 (manufacturing activities); N.D. Century Code, 1960, § 12—21—17; R.I.Gen.Laws, 1956, § 11—40—4 (shops, mechanical work in compact places, etc.); S.D.Code, 1939, § 13.1710; Vernon's Tex.Stat., 1952, Pen.Code, Art. 284; Wash.Rev.Code, 1959, § 9.76.020, State v. Grabinski, 1949, 33 Wash.2d 603, 206 P.2d 1022; Conn.Gen.Stat.Rev., 1958, § 53—303; Me.Rev.Stat., 1954, c. 134, § 44. Cf. State v. Weiss, 1906, 97 Minn. 125, 105 N.W. 1127. The exemption in Indiana, Kentucky, Michigan, Nebraska, Ohio, Oklahoma, Virginia and West Virginia does extend to selling, but in the last two named States an exempted person may not employ other persons not of his belief on Sunday. Burns' Ind.Stat.Ann., 1956 Replacement Vol., § 10—4301; Ky.Rev.Stat., 1960, § 436.160, Cohen v. Webb, 1917, 175 Ky. 1, 192 S.W. 828; Mich.Stat.Ann., 1957 Rev. Vol., §§ 18.855, 18.856(1), Comp.Laws 1948, §§ 338.775, 435.8, Builders Ass'n v. City of Detroit, 1940, 295 Mich. 272, 294 N.W. 677, semble; Neb.Rev.Stat., 1956 Reissued Vol., § 28—940; Page's Ohio Rev.Code Ann., 1954, § 3773.24; Okla.Stat.Ann., 1958, Tit. 21, § 909, Krieger v. State, 1916, 12 Okl.Cr. 566, 160 P. 36; Va.Code, 1960 Replacement Vol., § 18.1—359; W.Va.Code Ann., 1955, c. 61, Art. 8, § 18 (6073). The meaning of the provision in Illinois, Ill.Rev.Stat.1959, c. 38, § 549, is not clear.
104
See 101 H.L.Deb. 430 (5th ser. 1935—1936); 311 H.C.Deb. 492 (5th ser. 1935—1936). On this ground some state courts have even held Sabbatarian exceptions invalid as discriminatory. City of Shreveport v. Levy, 1874, 26 La.Ann. 671; Kislingbury v. Treasurer of City of Plainfield, C.P.1932, 160 A. 654, 10 N.J.Misc. 798. See State v. Grabinski, 1949, 33 Wash.2d 603, 206 P.2d 1022, reserving the question. However, in Johns v. State, 1881, 78 Ind. 332, the exemption was sustained.
105
See Va.Code, 1960 Replacement Vol., § 18.1—359; W.Va.Code Ann., 1955, c. 61, Art. 8, § 18 (6073); Factories Act, 1937, 1 Edw. VIII & 1 Geo. VI, c. 67, § 91.
106
Both Pennsylvania and Massachusetts have fair employment practices acts prohibiting religious discrimination in hiring. Purdon's Pa.Stat.Ann., 1960 Supp., Tit. 43, §§ 951 to 963; Mass.Gen.Laws Ann., 1958, c. 151B, §§ 1 to 10.
107
Connecticut, Indiana, Maine, Massachusetts, Michigan, Nebraska, Ohio, Texas, Virginia, West Virginia. Wisconsin's statute is similar.
108
New York, North Dakota, Oklahoma, South Dakota, Washington.
109
Kansas, Kentucky, Missouri.
110
Rhode Island.
111
This New Jersey excepting statute appears to be currently inoperative. The State's general labor ban has recently been held impliedly repealed by the enactment of a Sunday retail sales prohibition, Two Guys from Harrison, Inc., v. Furman, 1960, 32 N.J. 199, 160 A.2d 265, and the excepting provision, by its terms, does not extend to Sunday selling by Sabbatarians.
112
And see In re Berman, 1956, 344 Mich. 598, 75 N.W.2d 8, determining the posture under a conscientious-Sabbatarian exception of a Sabbatarian owner of three stores who operated one himself, closing on Saturdays and opening on Sundays, and the other two through agents, opening Saturdays and closing Sundays.
113
14 Geo. VI, c. 28.
114
26 Geo. V & 1 Edw. VIII, c. 53.
115
Principally the Jewish exemption in the Hairdressers' and Barbers' Shops (Sunday Closing) Act, 1930, 20 & 21 Geo. V, c. 35, § 3. See 101 H.L.Deb. 439, 442 (5th ser. 1935—1936); 311 H.C.Deb. 502 (5th ser. 1935—1936). The 1930 act was repealed by the Shops Act, 1950, 14 Geo. VI, c. 28, Eighth Schedule, although § 67 of the latter act continues similar provisions for Scotland. The problem of special Sunday regulation for the Jewish population had involved Parliament at least since the turn of the century. Sections 47, 48 of the Factory and Workshop Act, 1901, 1 Edw. VII, c. 22, permitted Jewish employers certain exemptions from that act's prohibition of Sunday employment of women and children. The terms of the exemption are altered by the Factories Act, 1937, 1 Edw. VIII & 1 Geo. VI, c. 67, § 91. See also Report from the Select Committee of the House of Lords on the Sunday Closing (Shops) Bill (H.L.) (1905), 71—83, 142—147, 153—157.
116
Among these was a provision permitting any shopkeeper in London to elect to close on Saturdays instead of Sundays. See 311 H.C.Deb. 447—461 (5th ser. 1935—1936). The Jewish exemption provisions of § 7 were the most strenuously debated provisions of the Shops (Sunday Trading Restriction) Act. See 308 H.C.Deb. 2188 2192, 2202—2203, 2217 (5th ser. 1935—1936); 101 H.L.Deb. 263, 270, 427—434 (5th ser. 1935—1936); 311 H.C.Deb. 447—461, 478—507 (5th ser. 1935—1936). The recognized inadequacy of the exemption was in part responsible for the act's special provisions (§ 8) for the London area, where the bulk of the English Jewish trading population does business. Id., at 2087, 2090—2091, 2103—2104.
117
See the statutory form prescribed by the Shops Regulations, 1937, S.R. & O., 1937, No. 271, Schedules IV(a) and IV(b).
118
The constitution of the tribunals for Jews and for Seventh Day Adventists (see note 119, infra) and the procedures of the tribunals are prescribed by the Shops Regulations, 1937, S.R. & O., 1937, No. 271, Reg. 4, and the Shops (Procedure for Jewish Tribunals) Regulations, 1937, S.R. & O., 1937, No. 1038.
119
Other provisions indicate the intricate problems of administration which the exemption raises. Section 53(3) provides that in the case of shops occupied by a partnership or company the application of the exemption is determined by the religion of the majority of the partners or directors. Section (5) prohibits the occupier of a shop registered for the exemption from keeping open any other shop on Saturday, and prohibits any person who has made a statutory declaration of conscientious objection for purposes of registration from working in, or employing any other person in, or being concerned in the control of a firm which employs any other person in, a shop open on Saturday. Compare In re Berman, note 112, supra. Subsection (9) permits cancellation of the registration of any shop at the application of the occupier, but provides that registration shall not be cancelled within twelve months of the date upon which application for registration was made; and subsection (10) precludes the same occupier's again registering the shop for exemption. Section 53(12) makes the exception provisions applicable as well to members of any religious body regularly observing the Jewish Sabbath as to Jews, and provides that for such persons the function served in the case of Jews by the London Committee of Deputies of the British Jews shall be served by 'such body as appears to the Secretary of State to represent such persons.'
120
Frolickstein v. Mayor of Mobile, 1867, 40 Ala. 725; Scales v. State, 1886, 47 Ark. 476, 1 S.W. 769; State v. Haining, 1930, 131 Kan. 853, 293 P. 952; Commonwealth v. Has, 1877, 122 Mass. 40; Commonwealth v. Chernock, 1957, 336 Mass. 384, 145 N.E.2d 920; State v. Weiss, 1906, 97 Minn. 125, 105 N.W. 1127; Komen v. City of St. Louis, 1926, 316 Mo. 9, 289 S.W. 838 (subsequently overruled on another point); State v. Fass, County Ct.1960, 62 N.J.Super. 265, 162 A.2d 608; People v. Friedman, 1950, 302 N.Y. 75, 96 N.E.2d 184, appeal dismissed for want of a substantial federal question, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345; Silverberg Bros. v. Douglass, 1909, 62 Misc. 340, 114 N.Y.S. 824; Commonwealth v. Wolf, 1817, 3 Serg. & R., Pa., 48; Specht v. Commonwealth, 1848, 8 Pa. 312; City Council of Charleston v. Benjamin, S.C.1848, 2 Strob.L. 508; Xepapas v. Richardson, 1929, 149 S.C. 52, 146 S.E. 686 semble; State v. Bergfeldt, 1905, 41 Wash. 234, 83 P. 177, writ of error dismissed 210 U.S. 438, 28 S.Ct. 764, 52 L.Ed. 1138 (prohibiting barbering). And see State ex rel. Walker v. Judge, 1887, 39 La.Ann. 132, 141, 1 So. 437, 444; cf. Ex parte Sundstrom, 1888, 25 Tex.App. 133, 8 S.W. 207.
121
Consider Mr. Loftus' comments on the proposed Shops (Sunday Trading Restriction) Bill before the House of Commons in 1936: 'During the last 20 years there has been a very great change in the habits of our people—a change for the better. Vast masses of our people, in fact, literally millions, go out into the countryside on fine Sunday afternoons in the Summer, and that is good for their health; it is good for the mind as well as the body that they should do so. Going into the country * * * they have been accustomed to certain facilities in the way of obtaining refreshment, fresh fruit, flowers and vegetables to bring home, and it would be regretted, particularly by the working classes, if there was any interference by legislation that would stop those facilities or check the tendency of our people to go into the country and to take advantage of the amenities of the countryside. * * *
'* * * The first principle is to frame such exemptions as will not unduly interfere with the ordinary health and habits of our people. * * *' 308 H.C.Deb. 2159 (5th ser. 1935—1936).
122
Id., at 2200—2201.
123
The statute 29 Charles II, c. 7, punished worldly labor of one's ordinary calling by a forfeiture of five shillings, punished traveling by drovers or butchers by a forfeiture of twenty shillings, and punished the exhibition of merchandise for sale by forfeiture of the goods. Early American colonial legislation similarly provided greater fines for engaging in some than in other Sunday activity. See, e.g., Delaware, 1740; Massachusetts, 1692; New Hampshire, 1700; New Jersey, 1798.
124
The statute 29 Charles II, c. 7, itself contained several exceptions, and subsequent statutes added others. See notes 15, 18, supra. The original Sunday edict of Constantine in 321 A.D. had exempted farm labor.
125
The statute 27 Henry VI, c. 5, had excepted 'necessary victual' from its prohibition of sales at fairs and markets; 5 & 6 Edw. VI, c. 3, had contained a broad exception for labor at harvest or at any other time in the year when necessity required.
126
See, e.g., Jefferson's bill quoted in text at note 68, supra. Other laws made specific exceptions as well: the Pennsylvania statute of 1705, for example, exempted not only works of necessity and charity but the dressing of victuals in cookshops, watermen landing passengers, butchers slaughtering and selling meat or fishermen selling fish in the morning in summer, and the sale of milk before 9 a.m. and after 5 p.m.
127
Where statutes ban the keeping open of places of business as well as laboring, the exception is frequently worded to apply only to the latter. See Commonwealth v. Dextra, 1886, 143 Mass. 28, 8 N.E. 756.
128
See Williams v. State, 1928, 167 Ga. 160, 144 S.E. 745, 60 A.L.R. 747 (sale of gasoline is necessity); Jacobs v. Clark, 1942, 112 Vt. 484, 28 A.2d 369 (same is not necessity); Commonwealth v. Louisville & Nashville R. Co., 1882, 80 Ky. 291 (operating railroad is necessity); cf. Philadelphia, W. & B.R. Co. v. Lehman, 1881, 56 Md. 209; Sparhawk v. Union Passenger R. Co., 1867, 54 Pa. 401 (same is not necessity); State v. Needham, 1931, 134 Kan. 155, 4 P.2d 464, 82 A.L.R. 493 (distribution of newspapers is necessity); Commonwealth v. Matthews, 1893, 152 Pa. 166, 25 A. 548, 18 L.R.A. 761 (same is not necessity); Augusta & S.R. Co. v. Renz, 1875, 55 Ga. 126 (operating streetcar is necessity); Johnston v. Commonwealth, 1853, 22 Pa. 102 (operating bus is not necessity); Turner v. State, 1879, 67 Ind. 595 (cutting ripe wheat is necessity); State v. Goff, 1859, 20 Ark. 289 (same is not necessity); Wilkinson v. State, 1877, 59 Ind. 416 (hauling ripe watermelons is necessity); Commonwealth v. White, 1906, 190 Mass. 578, 77 N.E. 636, 5 L.R.A.,N.S., 320 (picking ripe cranberries is not necessity); Rich v. Commonwealth, 1956, 198 Va. 445, 94 S.E.2d 549 (where evidence of widespread retail sale of groceries is not rebutted, jury cannot find that sale of groceries is not necessity); State v. James, 1908, 81 S.C. 197, 62 S.E. 214, 18 L.R.A.,N.S., 617 (sale of ice and meat is not necessity); State v. Corologos, 1928, 101 Vt. 300, 143 A. 284, 59 A.L.R. 1541 (sale of confectionary is not necessity as matter of law, although jury could so find); cf. State ex rel. Smith v. Wertz, 1922, 91 W.Va. 622, 114 S.E. 242, 29 A.L.R. 391; Thompson v. City of Atlanta, 1934, 178 Ga. 281, 172 S.E. 915, and Rosenbaum v. State, 1917, 131 Ark. 251, 199 S.W. 388, L.R.A.1918B, 1109 (operation of motion picture theater is not necessity); Williams v. Commonwealth, 1942, 179 Va. 741, 750, 20 S.E.2d 493, 496 (concurring opinion) (operation of motion picture theater is necessity); McGatrick v. Wason, 1855, 4 Ohio St. 566 (loading ship with navigation-closing weather impending is necessity); Commonwealth v. Sampson, 1867, 97 Mass. 407 (gathering seaweed which tide threatens to float away is not necessity); Hennersdorf v. State, 1888, 25 Tex.App. 597, 8 S.W. 926 (manufacturing ice is necessity); State v. McBee, 1902, 52 W.Va. 257, 43 S.E. 121, 60 L.R.A. 638 (pumping oil is not necessity as matter of law, although jury could so find); State v. Ohmer, 1889, 34 Mo.App. 115 (retail sale of tobacco is not necessity); Francisco v. Commonwealth, 1942, 180 Va. 371, 23 S.E.2d 234 (jury may find retail sale of beer necessity).
129
In Petit v. State of Minnesota, 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716, this Court sustained against a claim of arbitrary classification a statute which in express terms provided that its exception for works of necessity should not include barbering. In other jurisdictions the same result was reached by judicial interpretation of the 'necessity' clause. State v. Linsig, 1916, 178 Iowa 484, 159 N.W. 995; Ex parte Kennedy, 1900, 42 Tex.Cr.R. 148, 58 S.W. 129, 51 L.R.A. 270; State v. Sopher, 1903, 25 Utah 318, 71 P. 482, 60 L.R.A. 468. Cf. Commonwealth v. Dextra, 1886, 143 Mass. 28, 8 N.E. 756; Stark v. Backus, 1909, 140 Wis. 557, 123 N.W. 98. Statutes prohibiting Sunday barbering were enacted in a number of States. These were voided as discriminatory in Ex parte Jentzsch, 1896, 112 Cal. 468, 44 P. 803, 32 L.R.A. 664; Eden v. People, 1896, 161 Ill. 296, 43 N.E. 1108, 32 L.R.A. 659; Armstrong v. State, 1908, 170 Ind. 188, 84 N.E. 3, 15 L.R.A., N.S., 646; State v. Granneman, 1896, 132 Mo. 326, 33 S.W. 784; cf. Ragio v. State, 1888, 86 Tenn. 272, 6 S.W. 401, but have been generally sustained. McClelland v. City of Denver, 1906, 36 Colo. 486, 86 P. 126; State v. Murray, 1919, 104 Neb. 51, 175 N.W. 666, 8 A.L.R. 563; People v. Bellet, 1894, 99 Mich. 151, 57 N.W. 1094, 22 L.R.A. 696; People v. Havnor, 1896, 149 N.Y. 195, 43 N.E. 541, 31 L.R.A. 689, writ of error dismissed 170 U.S. 408, 18 S.Ct. 631, 42 L.Ed. 1087; Ex parte Johnson, 1943, 77 Okl.Cr. 360, 141 P.2d 599; Ex parte Northrup, 1902, 41 Or. 489, 69 P. 445; Breyer v. State, 1899, 102 Tenn. 103, 50 S.W. 769; State v. Bergfeldt, 1905, 41 Wash. 234, 83 P. 177, overruling City of Tacoma v. Krech, 1896, 15 Wash. 296, 46 P. 255, 34 L.R.A. 68.
130
One may trace in these exceptions the evolving habits of life of the people. Compare State v. Hogriever, 1899, 152 Ind. 652, 53 N.E. 921, 45 L.R.A. 504, sustaining a statute specifically prohibiting Sunday baseball, with Carr v. State, 1911, 175 Ind. 241, 93 N.E. 1071, 32 L.R.A.,N.S., 1190, sustaining a statute excepting baseball from the general Sunday prohibition.
131
The Shops Act, 1950, 14 Geo. VI, c. 28, excepts from the general Sunday ban the keeping open of a shop to sell liquor, meals or refreshments (whether or not for consumption on the premises, but excluding fried fish and chips sold at a fish and chip shop), newly cooked provisions and cooked tripe, table waters, chocolates, sweets, sugar confectionery and ice cream, flowers, fruit and vegetables (other than tinned), milk and cream (other than tinned), medicines and medical and surgical appliances (by certain registered shops), aircraft, motor or cycle supplies or accessories, tobacco and smokers' requisites, newspapers, periodicals and magazines, books and stationary at rail and bus terminals and aerodromes, guide books, photographs, reproductions, photographic films and plates and souvenirs at public or specially approved galleries, museums, etc., passport photos, requisites for games or sports sold on the premises where the sport is played, fodder for horses, mules, etc. Post office and funeral business is permitted. (§ 47 & Fifth Schedule.) Local authority may permit the opening of shops before 10 a.m. for the sale of bread and flour, confectionery, fish, groceries and grocer's products. (§ 48 & Sixth Schedule.) Local authority may prohibit sales of meals and refreshments for consumption off the premises (exempted by the Fifth Schedule) in the case of classes of shops in which sales for on-the-premises consumption do not constitute a substantial part of the business carried on. (§ 49.) Where the area of a local authority is a district frequented as a holiday resort during certain seasons of the year, the local authority may provide by order that shops of such classes as it designates may open on specified Sundays (not to exceed eighteen per year) for the sale of bathing and fishing articles, photographic requisites, toys, souvenirs and fancy goods, books, stationery, photographs, reproductions and postcards, and food. (§ 51 & Seventh Schedule.) Special provisions applicable to the London area permit local councils to authorize the opening before 2 p.m. of shops where street markets or (in some regions) shops were customarily opened on Sunday prior to the date of the original act, 1936, where, in the latter case, the councils find that 'having regard to the character and habits of the population in the district,' Sunday closing would cause undue hardship; but if such an exempting order is made, it must fix some weekday closing day for these shops, which may differ for different classes of shops. (§ 54.) In the case of these local exempting orders, provision is made for a plebiscite among the shopkeepers affected. (§§ 52, 54(1), par. 2.) The act further excepts the sale and delivery of stores or necessaries to arriving or departing ships and aircraft and of goods to private clubs for club purposes, the cooking before 1:30 p.m. of food brought by customers to be cooked for consumption that day, and attendance as a barber upon invalids or upon residents of hotels or clubs therein. (§ 56.) This summary digest can scarcely suggest the complexity of the text.
132
311 H.C.Deb. 465 (5th ser. 1935—1936).
133
Elliott v. State, 1926, 29 Ariz. 389, 242 P. 340, 46 A.L.R. 284 (banning enumerated businesses; court distinguishes general closing statute with exceptions); Bocci & Sons Co. v. Town of Lawndale, 1930, 208 Cal. 720, 284 P. 654 (exceptions for classes of businesses); Justesen's Food Stores, Inc., v. City of Tulare, 1938, 12 Cal.2d 324, 84 P.2d 140 (closing food stores; exceptions for classes of businesses); Deese v. City of Lodi, 1937, 21 Cal.App.2d 631, 69 P.2d 1005 (exceptions for classes of businesses); Allen v. City of Colorado Springs, 1937, 101 Colo. 498, 75 P.2d 141 (exceptions for classes of businesses and commodities);
Henderson v. Antonacci, Fla.1952, 62 So.2d 5 (exceptions for classes of businesses and commodities); Kelly v. Blackburn, Fla.1957, 95 So.2d 260 (exceptions for newspapers and cinema); City of Mt. Vernon v. Julian, 1938, 369 Ill. 447, 17 N.E.2d 52, 119 A.L.R. 747 (exceptions for classes of businesses); Anto-Rite Supply Co. v. Mayor, etc., of Woodbridge, 1956, 41 N.J.Super. 303, 124 A.2d 612, affirmed on other grounds 1957, 25 N.J. 188, 135 A.2d 515 (banning sale of enumerated classes of commodities); Chan Sing v. City of Astoria, 1916, 79 Or. 411, 155 P. 378 (closing shops selling enumerated classes of commodities); Broadbent v. Gibson, 1943, 105 Utah 53, 140 P.2d 939 (exceptions for classes of businesses, some restricted to sale of specified commodities); Gronlund v. Salt Lake City, 1948, 113 Utah 284, 194 P.2d 464 (sales ban with exceptions for classes of commodities; court distinguishes statutory scheme banning all labor and sales with exceptions). Cf. State v. Trahan, 1948, 214 La. 100, 36 So.2d 652, and Arrigo v. City of Lincoln, 1951, 154 Neb. 537, 48 N.W.2d 643 (exceptions for classes of business), holding unconstitutional Sunday statutes in particular applications deemed discriminatory.
134
City of Denver v. Bach, 1899, 26 Colo. 530, 58 P. 1089, 46 L.R.A. 848 (closing classes of businesses); City of Spring-field v. Smith, 1929, 322 Mo. 1129, 19 S.W.2d 1 (banning enumerated entertainments); Ex parte Ferguson, 1937, 62 Okl.Cr. 145, 70 P.2d 1094 (banning sale of enumerated commodities) (alternative holding); Ex parte Hodges, 1938, 65 Okl.Cr. 69, 83 P.2d 201 (exceptions for classes of businesses) (alternative holding). Cf. McKaig v. Kansas City, 1953, 363 Mo. 1033, 256 S.W.2d 815 (automobile sales), disapproving City of St. Louis v. DeLassus, 1907, 205 Mo. 578, 104 S.W. 12, and Komen v. City of St. Louis, 1926, 316 Mo. 9, 289 S.W. 838.
135
Lane v. McFadyen, 1953, 259 Ala. 205, 66 So.2d 83 (banning merchandising with exceptions for classes of businesses); Taylor v.
City of Pine Bluff, 1956, 226 Ark. 309, 289 S.W.2d 679 (ordinance applied only to single class of business); Hickinbotham v. Williams, 1956, 227 Ark. 126, 296 S.W.2d 897 (banning enumerated businesses); Ex parte Koser, 1882, 60 Cal. 177 (exceptions for classes of businesses); In re Sumida, 1918, 177 Cal. 388, 170 P. 823 (exceptions for classes of businesses); State v. Hurliman, 1956, 143 Conn. 502, 123 A.2d 767 (exceptions for classes of services, activities and commodities, the latter to be sold by persons who sell them on weekdays); State v. Shuster, 1958, 145 Conn. 554, 145 A.2d 196 (same); Theisen v. McDavid, 1894, 34 Fla. 440, 16 So. 321, 26 L.R.A. 234 (excepting sales of classes of commodities); State v. Dolan, 1907, 13 Idaho 693, 92 P. 995, 14 L.R.A.,N.S., 1259 (exceptions for classes of services and commodities); State v. Cranston, 1938, 59 Idaho 561, 85 P.2d 682 (exceptions for classes of businesses, services and commodities); Humphrey Chevrolet, Inc., v. City of Evanston, 1955, 7 Ill.2d 402, 131 N.E.2d 70, 57 A.L.R.2d 969 (exceptions for classes of commodities); Ness v. Supervisors of Elections, 1932, 162 Md. 529, 160 A. 8 (unspecified); People v. DeRose, 1925, 230 Mich. 180, 203 N.W. 95 (banning classes of businesses and sales of classes of commodities); People v. Krotkiewicz, 1938, 286 Mich. 644, 282 N.W. 852 (banning sales of classes of commodities); People's Appliance & Furniture Inc. v. City of Flint, 1959, 358 Mich. 34, 99 N.W.2d 522 (banning businesses selling classes of commodities); State ex rel. Hoffman v. Justus, 1904, 91 Minn. 447, 98 N.W. 325, 64 L.R.A. 510 (exceptions for classes of commodities); Liberman v. State, 1889, 26 Neb. 464, 42 N.W. 419 (exceptions for classes of businesses and commodities); In re Caldwell, 1908, 82 Neb. 544, 118 N.W. 133 ('common' labor banned); State v. Somberg, 1925, 113 Neb. 761, 204 N.W. 788 (banning classes of businesses and sales of classes or commodities); City of Elizabeth v. Windsor-Fifth Avenue, Inc., 1954, 31 N.J.Super. 187, 106 A.2d 9 (banning businesses selling classes of commodities); Masters-Jersey, Inc., v. Mayor and General Council of Borough of Paramus, 1960, 32 N.J. 296, 160 A.2d 841 (exceptions for classes of commodities); Richman v. Board of Com'rs, 1939, 122 N.J.L. 180, 4 A.2d 501 (banning businesses selling a class of commodities, semble); People v. Friedman, 1950, 302 N.Y. 75, 96 N.E.2d 184, appeal dismissed for want of a substantial federal question, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345 (exceptions for classes of businesses, commodities, other activities); State v. Medlin, 1915, 170 N.C. 682, 86
S.E. 597 (exception for a class of business, restricted to sale of specified classes of commodities); State v. Trantham, 1949, 230 N.C. 641, 55 S.E.2d 198 (exceptions for classes of commodities to be sold by classes of businesses); State v. McGee, 1953, 237 N.C. 633, 75 S.E.2d 783, appeal dismissed for want of a substantial federal question, 346 U.S. 802, 74 S.Ct. 50, 98 L.Ed. 334 (exceptions for classes of businesses, commodities, other activities); State v. Towery, 1954, 239 N.C. 274, 79 S.E.2d 513, appeal dismissed for want of a substantial federal question, 347 U.S. 925, 74 S.Ct. 532, 98 L.Ed. 1079 (exceptions for classes of businesses, some restricted to sales of specified classes of commodities); State v. Diamond, 1928, 56 N.D. 854, 219 N.W. 831 (exceptions for classes of commodities); State v. Haase, 1953, 97 Ohio App. 377, 116 N.E.2d 224 (exceptions for classes of recreational activities); State v. Kidd, 1958, 167 Ohio St. 521, 150 N.E.2d 413, appeal dismissed for want of a substantial federal question, 358 U.S. 132, 79 S.Ct. 235, 3 L.Ed.2d 225 (exceptions for classes of recreational activities); Commonwealth v. Bauder, 1958, 188 Pa.Super. 424, 145 A.2d 915 (exceptions for classes of recreational activities); Bothwell v. City of New York City, 1927, 291 Pa. 363, 140 A. 130 (banning classes of recreational activities); Mayor of, etc., of City of Nashville v. Linck, 1883, 80 Tenn. 499 (exceptions for sales of classes of commodities by classes of businesses); Kirk v. Olgiati, 1957, 203 Tenn. 1, 308 S.W.2d 471 (banning classes of businesses); Ex parte Sundstrom, 1888, 25 Tex.App. 133, 8 S.W. 207 (exceptions for classes of commodities); Searcy v. State, 1899, 40 Tex.Cr.R. 460, 50 S.W. 699, 51 S.W. 111., 53 S.W. 344 (exceptions for classes of commodities); Sayeg v. State, 1930, 114 Tex.Cr.R. 153, 25 S.W.2d 865 (exceptions for classes of commodities); City of Seattle v. Gervasi, 1927, 144 Wash. 429, 258 P. 328 (exceptions for classes of commodities); State v. Grabinski, 1949, 33 Wash.2d 603, 206 P.2d 1022 (exceptions for classes of commodities). See also Rosenbaum v. City & County of Denver, 1938, 102 Colo. 530, 81 P.2d 760 (banning automobile trading); Mosko v. Dunbar, 1957, 135 Colo. 172, 309 P.2d 581 (banning automobile trading); Gillooley v. Vaughan, 1926, 92 Fla. 943, 110 So. 653 (banning classes of amusements); Stewart Motor Co. v. City of Omaha, 1931, 120 Neb. 776, 235 N.W. 332 (banning automobile trading); ABC Liquidators, Inc., v. Kansas City, Mo.1959, 322 S.W.2d 876 (banning auctions); State v. Loomis, 1925, 75 Mont. 88, 242 P. 344
(banning, e.g., classes of dance halls); Gundaker Central Motors, Inc., v. Gassert, 1956, 23 N.J. 71, 127 A.2d 566 appeal dismissed for want of a substantial federal question, 354 U.S. 933, 77 S.Ct. 1397, 1 L.Ed.2d 1533 (banning automobile trading); Ex parte Johnson, 1921, 20 Okl.Cr. 66, 201 P. 533 (banning cinema and theaters); Consolidated Enterprises, Inc., v. State, 1924, 150 Tenn. 148, 263 S.W. 74 (banning cinema and theaters). Statutory provisions whose effect was to punish some Sunday activities more severely than others have been sustained. State v. Hogreiver, 1899, 152 Ind. 652, 53 N.E. 921, 45 L.R.A. 504; Tinder v. Clarke Auto Co., 1958, 238 Ind. 302, 149 N.E.2d 808; State v. Murray, 1919, 104 Neb. 51, 175 N.W. 666, 8 A.L.R. 563; Commonwealth v. Grochowiak, 1957, 184 Pa.Super. 522, 136 A.2d 145, appeal dismissed for want of a substantial federal question, 358 U.S. 47, 79 S.Ct. 40, 3 L.Ed.2d 44; Breyer v. State, 1899, 102 Tenn. 103, 50 S.W. 769. Cf. Sherman v. Mayor of Paterson, 1912, 82 N.J.L. 345, 82 A. 889. For cases sustaining state statutes applicable in some, but not all, localities, see People v. Havnor, 1896, 149 N.Y. 195, 43 N.E. 541, 31 L.R.A. 689; Bohl v. State, 1878, 3 Tex.App. 683; and compare Sarner v. Township of Union, 1959, 55 N.J.Super. 523, 151 A.2d 208, with Two Guys from Harrison, Inc., v. Furman, 1960, 32 N.J. 199, 160 A.2d 265.
136
See note 131, supra; Appendix II to this opinion, 366 U.S. 551, 81 S.Ct. 1201; Weekly Rest in Commerce and Offices, Report VII(1), International Labour Conference, 39th Sess., Geneva, 1956 (1955), 27—52; Weekly Rest in Commerce and Offices, Report A, International Labour Conference, 26th Sess., Geneva, 1940 (1939), 82—127.
137
It is unclear whether the exception here assailed permits the sale of merchandise essential to, or customarily sold at, bathing beaches, bathhouses, etc., only at those enumerated places or by all retailers within the county. Since the Maryland Court of Appeals left this question of construction open below, I assume the interpretation most favorable to appellants' claim.
138
Many of the jurisdictions which have Sunday laws provide some form of local option procedure for the creation of exceptions. This is only to recognize the obvious fact that conditions of limited geographical range may be determinative in striking the balance of forbidden and permissible Sunday activity which best accords with popular habits and desires. In Maryland the State Legislature itself does the job of adapting the general state-wide law to local circumstances. This difference in method can scarcely entail different federal constitutional consequences.
139
See Eldorado Ice Cream Co. v. Clark, (1938) 1 K.B. 715, holding the sale of ice cream from a box tricycle without the prohibition of the Shops (Sunday Trading Restriction) Act.
140
Consider the alternative suggested by the ordinance sustained in In re Sumida, 1918, 177 Cal. 388, 170 P. 823, requiring that where an establishment housing both permitted and prohibited businesses remains open on Sunday for transaction of the former, a five-foot-high permanent partition or screen must be erected to separate the two business areas.
141
See Friedeborn v. Commonwealth, 1886, 113 Pa. 242, 6 A. 160.
142
See 36 Pennsylvania Legislative Journal, 143d General Assembly (1959), 1139.
143
See id., at 1142—1143, 2568.
*
(Note: This opinion applies also to No. 36, Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; No. 67, Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 6 3, and No. 11, Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536.)
1
The Problems of Pluralism, Danforth Lectures, Miami University, Oxford, Ohio (1960). Other writers suggest that America is still subject to a customary and nonlegal 'Protestant establishment' which comes to the surface only on certain political issues. Thus, a Rabbi Arthur Hartzberg was able to analyze the 'religious issue' of the recent presidential campaign in these terms:
'As we have seen, the First Amendment was the battleground, at the end of the 18th century, of a major transition in American society in which the old Protestant establishment was forced to yield to the newer ethos of Protestant non-conformity. Today in American society, we are witnessing a change perhaps as important the full entry of the post-bellum immigrant groups into the national life. Though the battle once again seems to be raging around the First Amendment, it would appear from the foregoing analysis that the true issue is not the separation of church and state, but the symbolic significance for American life and culture of having a non-Protestant—whether he be a Catholic, a Jew, or an avowed atheist—as President of the United States.' Hartzeberg, 'The Protestant 'Establishment,' Catholic Dogma, and the Presidency,' Commentary (October 1960), p. 285.
2
Blackstone's Commentaries, Bk. IV, c. 4, entitled 'Of Offenses Against God and Religion,' says in part:
'IX. Profanation of the Lord's day, vulgarly (but improperly) called Sabbathbreaking, is a ninth offence against God and religion, punished by the municipal law of England. For, besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day, in a country professing christianity, and the corruption of morals which usually follows it's profanation, the keeping one day in seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes by the help of conversation and society the manners of the lower classes; which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit: it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness: it imprints on the minds of the people that sense of their duty to God, so necessary to make them good citizens; but which yet would be worn out and defaced by an unremitted continuance of labour, without any stated times of recalling them to the worship of their Maker.'
3
See also Ullner v. State of Ohio, 358 U.S. 131, 79 S.Ct. 230, 3 L.Ed.2d 225; Kidd v. State of Ohio, 358 U.S. 132, 79 S.Ct. 235, 3 L.Ed.2d 225; McGee v. State of North Carolina, 346 U.S. 802, 74 S.Ct. 50, 98 L.Ed. 334; cf. Grochowiak v. Commonwealth of Pennsylvania, 358 U.S. 47, 79 S.Ct. 40, 3 L.Ed.2d 44; Gundaker Cent. Motors, Inc., v. Gassert, 354 U.S. 933, 77 S.Ct. 1397, 1 L.Ed.2d 1533; Towery v. State of North Carolina, 347 U.S. 925, 74 S.Ct. 532, 98 L.Ed. 1079.
4
As respects the First Amendment the court said:
'It does not set up a church, make attendance upon religious worship compulsory, impose restrictions upon expression of religious belief, work a restriction upon the exercise of religion according to the dictates of one's conscience, provide compulsory support, by taxation or otherwise, of religious institutions, nor in any way enforce or prohibit religion.' 302 N.Y. at page 79, 96 N.E.2d at page 186. The Massachusetts Sunday law involved in one of these appeals was once characterized by the Massachusetts court as merely a civil regulation providing for a 'fixed period of rest.'
Commonwealth v. Has, 122 Mass. 40, 42. That decision was, according to the District Court in the Gallagher case, 'an ad hoc improvisation' made 'because of the realization that the Sunday law would be more vulnerable to constitutional attack under the state Constitution if the religious motivation of the statute were more explicitly avowed.' 176 F.Supp. 466, 473. Certainly prior to the Has case, the Massachusetts courts had indicated that the aim of the Sunday law was religious. See Pearce v. Atwood, 13 Mass. 324, 345—346; Bennett v. Brooks, 91 Mass. 118, 121. After the Has case the Massachusetts court construed the Sunday law as a religious measure. In Davis v. City of Somerville, 128 Mass. 594, 596, 35 Am.Rep. 399, 400, it was said:
5
Cf. Bowman v. Secular Society, Ltd. (1971) A.C. 406, 464 (opinion of Lord Sumner).
6
Today we retreat from that jealous regard for religious freedom which struck down a statute because it was 'a handy implement for disguised religious persecution.' West Virginia State Board of Education v. Barnette, supra, 319 U.S. 644, 63 S.Ct. 1188 (concurring opinion). It does not do to say, as does the majority, 'Sunday is a day apart from all others. The cause is irrelevant; the fact exists.' The cause of Sunday's being a day apart is determinative; that cause should not be swept aside by a declaration of parochial experience.
The judgment the Court is called upon to make is a delicate one. But in the light of our society's religious history it cannot be avoided by arguing that a hypothetical lawgiver could find nonreligious reasons for fixing Sunday as a day of rest. The effect of that history is, indeed, still with us. Sabbath is no less Sabbath because it is now less severe in its strictures, or because it has come to be expedient for some nonreligious purposes. The Constitution must guard against 'sophisticated as well as simple-minded modes' of violation. Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281.
7
Or the State may merely fix a miximum hours' limitation in other terms, either for particular classes of employees, particular classes of employment, or straight across the board. See laws and decisions gathered in 1 & 2 CCH Labor Law Reporter, State Laws, par. 44,500 et seq. On argument, there was much made over the desirability of fixing a single day for rest, either on grounds of administrative convenience or on grounds of the need for leisure. In light of the history and meaning of the shared leisure of Sunday, this aim still has religious overtones. Cf. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505, 72 S.Ct. 777, 782, 96 L.Ed. 1098.
8
12 Hening, Stat.Va. (1823), p. 86.
9
Pfeffer, Church, State, and Freedom (1953), p. 235.
10
'* * * assuming that the idle Sunday is an 'institution' of Christianity, does a statute which for that reason requires men to be idle on Sunday give a preference to one particular religion? How can it be maintained that it does not, unless a similar institution of every other religion be honored with like recognition? As to the individual aspect of the case, if the law is to assist Christianity by making idleness compulsory on its sacred day, thereby presumably commending it to those who reject it, and strengthening it hold upon its devotees, is there not a 'preference' given to a religion, unless the Hebrew and all other faiths have a like recognition extended to their sacred days? And as to the social aspect, assuming that it is an advantage to have other people kept extraordinarily quiet while we pray, and to have an especial 'peace' established by law on the day we select for public worship, and that we have the right to prevent our neighbor from earning his living at a certain time because the practice of his avocation interferes with our religious exercises, must it not be called a 'preference' to do all this for the Christian's benefit, and not to do it for the benefit of the followers of Moses, or Mahomet, or Confucius or Buddha?' Ringgold, Legal Aspects of the First Day of the Week (1891), pp. 68—69.
11
It is argued that the wide acceptance of Sunday laws at the time of the adoption of the First Amendment makes it fair to assume that they were never thought to come within the 'establishment' Clause, and that the presence in the country at that time of large numbers of Orthodox Jews makes it clear that those laws were not thought to run afoul of the 'free exercise' Clause. Those reasons would be compelling if the First Amendment had, at the time of its adoption, been applicable to the States. But since it was then applicable only to the Federal Government, it had no possible bearing on the Sunday laws of the States. The Fourteenth Amendment, adopted years later, made the First Amendment applicable to the States for the first time. That Amendment has had unsettling effects on many customs and practices a process consistent with Jefferson's precept 'that laws and institutions must go hand in hand with the progress of the human mind.' 15 The Writings of Thomas Jefferson (Memorial ed. 1904), p. 41.
Moreover, there is solid evidence to suggest that the Jewish population of our Nation was then minuscule. ,'despite the roseate estimates of some Jewish writers on the subject, it is safe to say there were never more than one thousand Jews living among the three million and more inhabitants of the colonies. The Newport community in its heyday totaled at most one hundred and fifty to one hundred and seventy-five Jews. Perhaps New York had as many, or more. Philadelphia, Charleston and Savannah were certainly smaller communities. Even when combining their Jewish populations with the lonely groups in the back country, we still are far from an impressive total.' Goodman, American Overture: Jewish Rights in Colonial Times (1947), p. 3.
12
56 Liberty, January—February 1961, No. 1, pp. 21—22.
| 23
|
366 U.S. 643
81 S.Ct. 1278
6 L.Ed.2d 575
UNITED STATES, etc., et al., Petitionersv.OREGON.
No. 329.
Argued April 25, 1961.
Decided May 29, 1961.
Mr. Herbert E. Morris, Washington, D.C., for petitioners.
Miss Catherine Zorn, Salem, Or., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
Adam Warpouske, an Oregon resident, died in a United States Veterans' Administration Hospital in Oregon without a will or legal heirs, leaving a net estate composed of personal property worth about $13,000. Oregon law provides that such property shall escheat to the State.1 A United States statute, on the other hand, provides that when a veteran dies without a will or legal heirs in a veterans' hospital, his personal property 'shall immediately vest in and become the property of the United States as trustee for the sole use and benefit of the General Post Fund * * *.'2 In reliance upon these provisions of their respective statutes, both the State of Oregon and the Government of the United States filed claims for Warpouske's estate in the Oregon probate court having jurisdiction of the matter.
2
Recognizing that the federal statute, if applicable and valid, would make the claim of the United States paramount, the State attacked the Government's reliance upon that statute on two grounds: first, it urged that the federal statute did not apply to this case on the theory that its provisions depended upon the Government's having made a valid contract with the veteran prior to his death and that Warpouske had made no such contract because he had been mentally incompetent to do so when he entered the hospital and at all times thereafter up to his death; and, secondly, it urged that the federal statute, even if applicable, was invalid because it pertains to the devolution of property, a matter contended to have been wholly reserved to the States by the Tenth Amendment.
3
After hearings, the probate court found as a fact that Warpouske had been unable to enter into a valid contract with the Government because of his mental incompetence. That court then accepted the State's interpretation of the federal statute as requiring a valid contract as a prerequisite to its application and concluded that since such a contract could not, in this case, have been made, the State was entitled to Warpouske's property by virtue of its escheat law. On appeal, the State Supreme Court affirmed on the same grounds.3 Because of the importance of this question of federal statutory construction and an alleged conflict between this decision and decisions previously made by other state courts of final jurisdiction,4 we granted certiorari.5
4
Since we accept the findings of the two state courts that Warpouske could not and did not enter into a contract to leave his property to the United States, the crucial question is whether the Government can prevail in the absence of such a contract. We hold that it can on the grounds that the federal statute relied upon does not require a contract and that this statute does not violate the Tenth Amendment.
5
The controlling provision was passed in 1941 as an amendment to the Sundry Appropriations Act of 1910.6 The 1910 Act quite plainly and unequivocally provided that the admission of an applicant to a veterans' home should 'be and constitute a valid and binding contract between such applicant and the Board of Managers of said home that on the death of said applicant while a member of such home, leaving no heirs a law nor next of kin, all personal property owned by said applicant at the time of his death, including money or choses in action held by him and not disposed of by will * * * shall vest in and become the property of the said Board of Managers for the sole use and benefit of the post fund of said home * * *.' The contractual nature of these provisions of the 1910 Act was clear and, indeed, we expressly recognized that fact when the question of the validity of the Act was brought before this Court.7
6
The 1910 Act was greatly amplified, however, by the amendments adopted in 19418 and the central provision of the Act, quoted above, was significantly changed. Section 1 of the new Act restates this provision without reference to the word 'contract,' providing simply that when a veteran dies 'while a member or patient in any facility, or any hospital while being furnished care or treatment,' all his personal property 'not disposed of by will or otherwise, shall immediately vest in and become the property of the United States as trustee for the sole use and benefit of the General Post Fund * * *.'9 The Act then goes on to supplement this basic provision with other provisions that are drawn in the language of contract. But these provisions must be read in the context of § 2 of the Act which provides that the death of a veteran in a veterans' hospital 'shall give rise to a conclusive presumption of a valid contract.'10 Read in this context, the language of contract which appears in these other provisions of the Act is not at all inconsistent with the provision for automatic vesting without a contract in § 1. Quite the contrary, it seems plain to us that these 'contractual' provisions were included in the Act for the purpose of reinforcing rather than detracting from the provisions of § 1—the thought apparently being that there was some chance that the Act would be attacked as unconstitutional and that it would consequently be advisable to include alternative bases upon which it could be upheld.11
7
This natural construction we give to § 1 makes it fit well in the pattern of legislation dealing with this subject. The solicitude of Congress for veterans is of long standing.12 Veterans' pensions, homes, hospitals and other facilities have been supplied on an ever-increasing scale. Many veterans, as did the deceased veteran here, have had to depend upon these benefits for long periods of their lives. Warpouske, for example, appears to have spent more than ten years of his life, at various intervals from time to time, in veterans' homes and hospitals throughout the country. These were the only homes he had at those times. The congressional plan here is that whatever little personal property veterans without wills or kin happen to leave when they die in veterans' homes and hospitals should be paid into the General Post Fund, to be used for the recreation and pleasure of other ex-service men and women who have to spend their daysi n veterans' homes and hospitals. This idea was expressed by Representative Jennings during the discussion of the 1941 Act on the floor of the House: 'And would it not be much better to let that money go into a fund that would inure to the benefit of other veterans than to let * * * it go into a fund under the escheat laws of (a) State?'13
8
Having concluded that the provisions of § 1 are clear and unequivocal on their face, we find no need to resort to the legislative history of the Act.14 Since the State has placed such heavy reliance upon that history, however, we do deem it appropriate to point out that this history is at best inconclusive. It is true, as the State points out, that Representative Rankin, as Chairman of the Committee handling the bill on the floor of the House, expressed his view during the course of discussion of the bill on the floor that the 1941 Act would not apply to insane veterans incompetent to make valid contracts.15 But such statements, even when they stand alone, have never been regarded as sufficiently compelling to justify deviation from the plain language of a statute. They are even less so here for there is powerful countervailing evidence as to the intention of those who drafted the bill. The bill was drawn up and sent to the Speaker of the House, in the very form in which it was passed, by the Veterans' Bureau itself.16 And that Bureau, we are told, has consistently interpreted the 1941 Act as making the sanity or insanity of a veteran who dies in a veterans' hospital entirely irrelevant to the determination of the Government's rights under the Act.
9
We see no merit in the challenge to the constitutionality of § 1 as construed in this natural manner. Congress undoubtedly has the power—under its constitutional powers to raise armies and navies and to conduct wars—to pay pensions, and to build hospitals and homes for veterans. We think it plain that the same sources of power authorize Congress to require that the personal property left by its wards when they die in government facilities shall be devoted to the comfort and recreation of other ex-service people who must depend upon the Government for care. The fact that this law pertains to the devolution of property does not render it invalid.17 Although it is true that this is an area normally left to the States, it is not immune under the Tenth Amendment from laws passed by the Federal Government which are, as is the law here, necessary and proper to the exercise of a delegated power.18
10
The judgment of the Oregon Supreme Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
11
Reversed.
12
Mr. Justice DOUGLAS, with whom Mr. Justice WHITTAKER concurs, dissenting.
13
I do not see how this decedent's estate can constitutionally pass to the United States. The succession of real and personal property is traditionally a state matter under our federal y stem. Mager v. Grima, 8 How. 490, 493—494, 12 L.Ed. 1168. That tradition continues. United States v. Burnison, 339 U.S. 87, 91—92, 70 S.Ct. 503, 505—506, 94 L.Ed. 675; Clark v. Allen, 331 U.S. 503, 517, 67 S.Ct. 1431, 1439, 91 L.Ed. 1633; Irving Trust Co. v. Day, 314 U.S. 556, 562, 62 S.Ct. 398, 401, 86 L.Ed. 452; Lyeth v. Hoey, 305 U.S. 188, 193, 59 S.Ct. 155, 158, 83 L.Ed. 119. An individual can contract away his assets—making the United States the promisee—and the contract will be enforced, provided it is valid under state law. United States v. Stevens, 302 U.S. 623, 627, 58 S.Ct. 388, 390, 82 L.Ed. 484. It may be that an action in quantum meruit would lie against the estate of a person who, though utterly incompetent as Adam B. Warpouske concededly was, received treatment at a federal hospital.1 It may be that the United States could appropriate all unexpended funds from federal pensions or federal insurance policies in exchange for the services rendered an incompetent. See United States v. Hall, 98 U.S. 343, 25 L.Ed. 180; Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424; cf. Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373, 80 S.Ct. 792, 4 L.Ed.2d 804. The power of Congress to legislate concerning the claims of all veterans, whether competent or incompetent, is well settled. Hines v. Lowrey, 305 U.S. 85, 59 S.Ct. 31, 83 L.Ed. 56.
14
We deal here, however, with an inheritance that the incompetent veteran received from his brother—an estate worth about $13,000. How Congress can provide for that sum to pass to the United States is difficult to understand. Oregon has provided how the property of one who dies intestate and without heirs shall be distributed;2 and that is its constitutional right under the Tenth Amendment. Never before, I believe, has a federal law governing the property of one dying intestate been allowed to override a state law. Some state inheritance laws are affected by federal policy, as we recently held in Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218. Thus where a treaty made by the United States with another nation provides for reciprocal inheritance rights by the nationals of the two countries, a State cannot provide otherwise. If it could, one State would indeed be revising the foreign policy that the Federal Government makes. In the context of the Fourteenth Amendment, the rights of a State to provide rules governing inheritance may also be compelled to bow to federal policy. See R.S. § 1978, 42 U.S.C. § 1982, 42 U.S.C.A. § 1982.
15
Yet the Supremacy Clause is not without limits. For a federal law to have supremacy it must be made 'in pursuance' of the Constitution. The Court, of course, recognizes this; and it justifies this federal law governing devolution of property under the Necessary and Proper Clause of Art. I, § 8.
16
The power to build hospitals and homes for veterans and to pay them pensions is plainly necessary and proper to the powers to raise and support armies and navies and to conduct wars. The power to provide for the administration of the estates of veterans (which are not made up of federal funds owing the veterans) is to me a far cry from any such power. But the present Act is of that character.
17
This federal law governing estates of veterans is phrased in the language of contract. It is designed to draw into the federal treasury all estates of the kind mentioned, whether they be worth six cents or a million dollars. The federal claim is not for services rendered, as no effort is made to restrict the amount of the federal claim to benefits received. The Act plainly is a federal succession law.
18
The Act under which the United States purports to act is now found in 38 U.S.C. §§ 5220—5228, 38 U.S.C.A. §§ 5220—5228. In its present form, it came into the law in 1941. Act of Dec. 26, 1941, 55 Stat. 868. Section 1 regulates the disposition of the property of any veteran who dies while in a Veterans' Hospital and who leaves personal property not disposed of by will and to which no surviving spouse, next of kin or heirs are entitled under the laws of his domicile. Such property, the Act says, 'shall immediately vest in and become the property of the United States.' § 1. The acceptance of care or treatment at a Veterans' Hospital is by the terms of the Act acceptance of the provisions of the Act, and has 'the effect of an assignment' of the property effective at death. § 1. The fact of death in a Veterans' Hospital of a veteran 'leaving no spouse, next of kin, or heirs' gives rise 'to a conclusive presumption' of a valid contract for the disposition of the property in that way to the United States. § 2. Moreover, the Veterans' Administration is authorized to administer the estate, paying creditors' claims, if presented within designated times, and granting them the preference and priorities prescribed by local law. § 4.
19
We know that, while the Act is based on 'a conclusive presumption' that a contract to assign the property to the United States was made, there was in fact no contract in this case. During the period of Warpouske's hospitalization—from March 1, 1956, to March 19, 1956, the day of his death—he was either comatose or semicomatose.3 We deal with a presumption that is contrary to the fact (cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519). We have then a case involving the power of Congress to provide for the administration of the estate of a deceased veteran where he has in fact made no assignment of it to the Federal Government. To what power is that necessary and proper? Only recently we warned against an expansive construction of the Necessary and Proper Clause. We stated that it is 'not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry out' the powers specifically granted. Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247, 80 S.Ct. 297, 304, 4 L.Ed.2d 268. Powers not given 'were reserved,' as Madison said. VI Writings of James Madison (Hunt ed.) 390. And 'no powers were given beyond those enumerated in the Constitution, and such as were fairly incident to them.' Ibid.
20
Veterans or anyone else may make the United States a beneficiary of their estate, absent a state law that precludes it. See United States v. Burnison, supra. But if it is 'fairly incident' to raising and supporting armies and navies and conducting wars for the United States to take over the administration of the personal property of veterans who die interstate, I see no reason why Congress cannot take over their real estate too. I see no reason why, if the United States can go as far as we allow it to go today, it cannot supersede any will a veteran makes and thus better provide for the comfort, care, and recreation of other ex-service men and women who are dependent on the United States for care. And the more money the Federal Government collects for veterans the better the care they will receive. No greater collision with state law would be present where Congress took realty or displaced an entire will than here. Oregon's law providing for escheat is as explicit as her law providing for the administration of the estates of deceased people. If a contract between the United States and an utterly incompetent person can be conclusively presumed to exist when the incompetent dies intestate, it can be where he leaves a will. If it can be conclusively presumed in case of a veteran, it can be conclusively presumed in case of any federal employee, in case of any federal officeholder, in case of any federal pensioner. Of course Congress cannot be expected to use this vast new power to the extreme. But we—unlike England—live under a written Constitution that limits powers, not entrusting the Constitution to the conscience of the legislative body.
21
The Tenth Amendment does not, of course, dilute any power delegated to the national government. That is one face of the truism that runs through our decisions. United States v. Darby, 312 U.S. 100, 124, 61 S.Ct. 451, 462, 85 L.Ed. 609; State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 534, 61 S.Ct. 1050, 1063, 85 L.Ed. 1487; Case v. Bowles, 327 U.S. 92, 101, 66 S.Ct. 438, 443, 90 L.Ed. 552. But when the Federal Government enters a field as historically local as the administration of decedents' estates, some clear relation of the asserted power to one of the delegated powers should be shown. At times the exercise of a delegated power reaches deep into local problems. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122, allowed the commerce power to extent to home-grown and home-used wheat, because total control was essential for effective control of the interstate wheat market. But there is no semblance of likeness here. The need of the Government to enter upon the administration of veterans' estates—made up of funds not owing from the United States—is no crucial phase of the ability of the United States to care for ex-service men and women or to manage federal fiscal affairs.
22
Today's decision does not square with our conception of federalism. There is nothing more deeply imbedded in the Tenth Amendment, as I read history, than the disposition of the estates of deceased people. I do not see how a scheme for administration of decedents' estates of the kind we have here can possibly be necessary and proper to any power delegated to Congress.
23
Raising money by borrowing or by taxing are explicitly provided for in Art. I, § 8. Raising money by appropriating assets of those who have a relationship with the Federal Government (as most people do today) is not among the enumerated powers. At bottom of the present statute, as the Court points out, is a desire to make those who use a Veterans' Hospital help finance its operations.4 Congress can set rates for services rendered; it can obtain from patients assignments of assets to the United States; it can induce and encourage people to make these hospitals beneficiaries under their wills. But I do not see how it is possible for the United States to take a man's property without his consent when the United States is not a creditor in the accepted sense. The only constitutional way in which that can be done is by taxation or by condemnation. This law as applied is indeed a levy that has no support in the Constitution; and it makes a serious inroad on the Tenth Amendment. With all deference, I dissent.
1
Ore.Rev.Stat. § 120.010 provides: 'Immediately upon the death of any person who dies intestate without heirs, leaving any real, personal or mixed property, interest or estate in this state, the same escheats to and vests in the state, subject only to the claims of the creditors and as provided in ORS 120.060 to 120.130; and the clear proceeds derived therefrom shall be paid into and become a part of the Common School Fund of this state and be loaned or invested by the State Land Board, as provided by law.'
2
38 U.S.C. (1952 ed.) § 17; 38 U.S.C.A. § 5220.
3
222 Or. 40, 352 P.2d 539.
4
The conflict alleged is with the decisions in Skriziszouski's Estate, 382 Pa. 634, 116 A.2d 841; and In re Gonsky's Estate, 79 N.D. 123, 55 N.W.2d 60.
5
364 U.S. 877, 81 S.Ct. 165, 5 L.Ed.2d 100.
6
36 Stat. 703, 736.
7
'In passing the Act of June, 1910, Congress merely directed the terms and conditions under which veterans, consistently with state law, can obtain admittance to Homes built, maintained, and operated by the government for the benefit of veterans. Homes for the aged, needy, or infirm, in return for the benefits bestowed by them, generally receive some benefit from any property or estates of their members.' United States v. Stevens, 302 U.S. 623, 627, 58 S.Ct. 388, 390, 82 L.Ed. 484.
8
55 Stat. 868, 38 U.S.C. (1952 ed.) § 17 et seq.; 38 U.S.C.A. § 5220 et seq.
9
38 U.S.C. (1952 ed.) § 17; 38 U.S.C.A. § 5220.
10
38 U.S.C. (1952 ed.) § 17a; 38 U.S.C.A. § 5221.
11
These fears doubtless arose, in part at least, from the fact that the Circuit Court of Appeals had, in the Stevens case, supra, declared even the milder provisions of the 1910 Act unconstitutional under the Tenth Amendment, Stevens v. United States, 1 Cir., 89 F.2d 151, a holding ultimately reversed by this Court.
12
See the Brief History of Legislation Pertaining to Veterans' Benefits, 38 U.S.C.A. 1.
13
87 Cong.Rec. 5203—5204.
14
Cf. United States v. Bowen, 100 U.S. 508, 513—514, 25 L.Ed. 631; National Home for Disabled Volunteer Soldiers, Danville, Ill. v. Wood, 299 U.S. 211, 216, 57 S.Ct. 137, 139, 81 L.Ed. 130.
15
87 Cong.Rec. 5203.
16
See H.R.Rep. No. 609, 77th Cong., 1st Sess., pp. 1—2.
17
See, e.g., Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218. This was also implicit in the holding in United States v. Stevens, 302 U.S. 623, 58 S.Ct. 388. See note 11, supra. Cf. Hines v. Lowrey, 305 U.S. 85, 59 S.Ct. 31, 83 L.Ed. 56, in which this Court rejected the contention that the Federal Constitution does not confer any authority upon Congress to deal with mental incompetents.
18
See, e.g., Case v. Bowles, 327 U.S. 92, 66 S.Ct. 438, 90 L.Ed. 552; State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487; United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609.
1
See Restitution, Restatement of the Law, Am.L.Inst. (1937), § 114; 5 Corbin on Contracts (1951) § 1109.
2
Ore.Rev.Stat. 120.010 provides:
'Immediately upon the death of any person who dies intestate without heirs, leaving any real, personal or mixed property, interest or estate in this state, the same escheats to and vests in the state, subject only to the claims of the creditors and as provided in ORS 120.060 to 120.130; and the clear proceeds derived therefrom shall be paid into and become a part of the Common School Fund of this state and be loaned or invested by the State Land Board, as provided by law.'
3
Adam Warpouske spent a large part of his life in Veterans' Hospitals, especially during the years from 1930 to 1945. (The record also shows that he received care in the facilities of various states.) But the claim to administer his personal property arises solely from 'the fact of death' in a Veterans' Hospital.
4
The inspiration for this law, as seen from the legislative history (H.R.Rep.No. 609, 77th Cong., 1st Sess.; S.Rep.No. 900, 77th Cong., 1st Sess.), was the Veterans' Administration, a fact which perhaps makes relevant the following observation: 'Politicians and taxpayers have assumed (with occasional phases of doubt) that a rising total in the number of civil servants must reflect a growing volume of work to be done. Cynics, in questioning this belief, have imagined that the multiplication of officials must have left some of them idle or all of them able to work for shorter hours. But this is a matter in which faih and doubt seem equally misplaced. The fact is that the number of the officials and the quantity of the work are not related to each other at all. The rise in the total of those employed is governed by Parkinson's Law and would be much the same whether the volume of the work were to increase, diminish, or even disappear. The importance of Parkinson's Law lies in the fact that it is a law of growth based upon an analysis of the factors by which that growth is controlled.' Parkinson, Parkinson's Law (1957), pp. 3—4.
| 12
|
366 U.S. 599
81 S.Ct. 1144
6 L.Ed.2d 563
Abraham BRAUNFELD et al., Appellants,v.Albert N. BROWN, Commissioner of Police of the City of Philadelphia, Pennsylvania, et al.
No. 67.
Argued Dec. 8, 1960.
Decided May 29, 1961.
Mr. Theodore R. Mann, Philadelphia, Pa., for appellants.
Mr. David Berger, Philadelphia, Pa., for appellees.
Mr. Chief Justice WARREN announced the judgment of the Court and an opinion in which Mr. Justice BLACK, Mr. Justice CLARK, and Mr. Justice WHITTAKER concur.
1
This case concerns the constitutional validity of the application to appellants of the Pennsylvania criminal statute,1 enacted in 1959, which proscribes the Sunday retail sale of certain enumerated commodities. Among the questions presented are whether the statute is a law respecting an establishment of religion and whether the statute violates equal protection. Since both of these questions, in reference to this very statute, have already been answered in the negative, Two Guys from Harrison-Allentown, Inc., v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551, and since appellants present nothing new regarding them, they need not be considered here. Thus the only question for consideration is whether the statute interferes with the free exercise of appellants' religion.
2
Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. Each of the appellants is a member of the Orthodox Jewish faith, which requires the closing of their places of business and a total abstention from all manner of work from nightfall each Friday until nightfall each Saturday. They instituted a suit in the court below seeking a permanent injunction against the enforcement of the 1959 statute. Their complaint, as amended, alleged that appellants had previously kept their places of business open on Sunday; that each of appellants had done a substantial amount of business on Sunday, compensating somewhat for their closing on Saturday; that Sunday closing will result in impairing the ability of all appellants to earn a livelihood and will render appellant Braunfeld unable to continue in his business, thereby losing his capital investment; that the statute is unconstitutional for the reasons stated above.
3
A three-judge court was properly convened and it dismissed the complaint on the authority of the Two Guys from Harrison case. 184 F.Supp. 352. On appeal brought under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253, we noted probable jurisdiction, 362 U.S. 987, 80 S.Ct. 1078, 4 L.Ed.2d 1020.
4
Appellants contend that the enforcement against them of the Pennsylvania statute will prohibit the free exercise of their religion because, due to the statute's compulsion to close on Sunday, appellants will suffer substantial economic loss, to the benefit of their non-Sabbatarian competitors, if appellants also continue their Sabbath observance by closing their businesses on Saturday; that this result will either compel appellants to give up their Sabbath observance, a basic tenet of the Orthodox Jewish faith, or will put appellants at a serious economic disadvantage if they continue to adhere to their Sabbath. Appellants also assert that the statute will operate so as to hinder the Orthodox Jewish faith in gaining new adherents. And the corollary to these arguments is that if the free exercise of appellants' religion is impeded, that religion is being subjected to discriminatory treatment by the State.
5
In McGowan v. Maryland, 366 U.S. at pages 437—440, 81 S.Ct. at page 1111, we noted the significance that this Court has attributed to the development of religious freedom in Virginia in determining the scope of the First Amendment's protection. We observed that when Virginia passed its Declaration of Rights in 1776, providing that 'all men are equally entitled to the free exercise of religion,' Virginia repealed its laws which in any way penalized 'maintaining any opinions in matters of religion, forbearing to repair to church, or the exercising any mode of worship whatsoever.' But Virginia retained its laws prohibiting Sunday labor.
6
We also took cognizance, in McGowan, of the evolution of Sunday Closing Laws from wholly religious sanctions to legislation concerned with the establishment of a day of community tranquillity, respite and recreation, a day when the atmosphere is one of calm and relaxation rather than one of commercialism, as it is during the other six days of the week. We reviewed the still growing state preoccupation with improving the health, safety, morals and general well-being of our citizens.
7
Concededly, appellants and all other persons who wish to work on Sunday will be burdened economically by the State's day of rest mandate; and appellants point out that their religion requires them to refrain from work on Saturday as well. Our inquiry then is whether, in these circumstances, the First and Fourteenth Amendments forbid application of the Sunday Closing Law to appellants.
8
Certain aspects of religious exercise cannot, in any way, be restricted or burdened by either federal or state legislation. Compulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute. Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213; Reynolds v. United States, 98 U.S. 145, 166, 25 L.Ed. 244. Thus, in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, this Court held that state action compelling school children to salute the flag, on pain of expulsion from public shool, was contrary to the First and Fourteenth Amendments when applied to those students whose religious beliefs forbade saluting a flag. But this is not the case at bar; the statute before us does not make criminal the holding of any religious belief or opinion, nor does it force anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets.
9
However, the freedom to act, even when the action is in accord with one's religious convictions, is not totally free from legislative restrictions. Cantwell v. State of Connecticut, supra, 310 U.S. at pages 303—304, 306, 60 S.Ct. at pages 903—904. As pointed out in Reynolds v. United States, supra, 98 U.S. at page 164, legislative power over mere opinion is forbidden but it may reach people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion. This was articulated by Thomas Jefferson when he said:
10
'Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.' (Emphasis added.) 8 Works of Thomas Jefferson 113.2
11
And, in the Barnette case, the Court was careful to point out that 'The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. * * * It is * * * to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind.' 319 U.S. at pages 630, 633, 63 S.Ct. at page 1181. (Emphasis added.)
12
Thus, in Reynolds v. United States, this Court upheld the polygamy conviction of a member of the Mormon faith despite the fact that an accepted doctrine of his church then imposed upon its male members the duty to practice polygamy. And, in Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, this Court upheld a statute making it a crime for a girl under eighteen years of age to sell any newspapers, periodicals or merchandise in public places despite the fact that a child of the Jehovah's Witnesses faith believed that it was her religious duty to perform this work.
13
It is to be noted that, in the two cases just mentioned, the religious practices themselves conflicted with the public interest. In such cases, to make accommodation between the religious action and an exercise of state authority is a particularly delicate task, id., 321 U.S. at page 165, 64 S.Ct. at page 441, because resolution in favor of the State results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.
14
But, again, this is not the case before us because the statute at bar does not make unlawful any religious practices of appellants; the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive. Furthermore, the law's effect does not inconvenience all members of the Orthodox Jewish faith but only those who believe it necessary to work on Sunday.3 And even these are not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution. Fully recognizing that the alternatives open to appellants and others similarly situated—retaining their present occupations and incurring economic disadvantage or engaging in some other commercial activity which does not call for either Saturday or Sunday labor—may well result in some financial sacrifice in order to observe their religious beliefs, still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful.
15
To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature. Statutes which tax income and limit the amount which may be deducted for religious contributions impose an indirect economic burden on the observance of the religion of the citizen whose religion requires him to donate a greater amount to his church; statutes which require the courts to be closed on Saturday and Sunday impose a similar indirect burden on the observance of the religion of the trial lawyer whose religion requires him to rest on a weekday. The list of legislation of this nature is nearly limitless.
16
Needless to say, when entering the area of religious freedom, we must be fully cognizant of the particular protection that the Constitution has accorded it. Abhorrence of religious persecution and intolerance is a basic part of our heritage. But we are a cosmopolitan nation made up of people of almost every conceivable religious preference. These denominations number almost three hundred. Year Book of American Churches for 1958, 257 et seq. Consequently, it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions. We do not believe that such an effect is an absolute test for determining whether the legislation violates the freedom of religion protected by the First Amendment.
17
Of course, to hold unassailable all legislation regulating conduct which imposes solely an indirect burden on the observance of religion would be a gross oversimplification. If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden. See Cantwell v. State of Connecticut, supra, 310 U.S. at pages 304—305, 60 S.Ct. at pages 903—904.4
18
As we pointed out in McGowan v. Maryland, supra, 366 U.S. at pages 444—445, 81 S.Ct. at page 1115, we cannot find a State without power to provide a weekly respite from all labor and, at the same time, to set one day of the week apart from the others as a day of rest, repose, recreation and tranquillity—a day when the hectic tempo of everyday existence ceases and a more pleasant atmosphere is created, a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which people may visit friends and relatives who are not available during working days, a day when the weekly laborer may best regenerate himself. This is particularly true in this day and age of increasing state concern with public welfare legislation.
19
Also, in McGowan, we examined several suggested alternative means by which it was argued that the State might accomplish its secular goals without even remotely or incidentally affecting religious freedom. 366 U.S. at pages 450—452, 81 S.Ct. at pages 1118—1119. We found there that a State might well find that those alternatives would not accomplish bringing about a general day of rest. We need not examine them again here.
20
However, appellants advance yet another means at the State's disposal which they would find unobjectionable. They contend that the State should cut an exception from the Sunday labor proscription for those people who, because of religious conviction, observe a day of rest other than Sunday. By such regulation, appellants contend, the economic disadvantages imposed by the present system would be removed and the State's interest in having all people rest one day would be satisfied.
21
A number of States provide such an exemption,5 and this may well be the wiser solution to the problem. But our concern is not with the wisdom of legislation but with its constitutional limitation. Thus, reason and experience teach that to permit the exemption might well undermine the State's goal of providing a day that, as best possible, eliminates the atmosphere of commercial noise and activity. Although not dispositive of the issue, enforcement problems would be more difficult since there would be two or more days to police rather than one and it would be more difficult to observe whether violations were occurring.
22
Additional problems might also be presented by a regulation of this sort. To allow only people who rest on a day other than Sunday to keep their businesses open on that day might well provide these people with an economic advantage over their competitors who must remain closed on that day;6 this might cause the Sunday-observers to complain that their religions are being discriminated against. With this competitive advantage existing, there could well be the temptation for some, in order to keep their businesses open on Sunday, to assert that they have religious convictions which compel them to close their businesses on what had formerly been their least profitable day. This might make necessary a state-conducted inquiry into the sincerity of the individual's religious beliefs,7 a practice which a State might believe would itself run afoul of the spirit of constitutionally protected religious guarantees. Finally, in order to keep the disruption of the day at a minimum, exempted employers would probably have to hire employees who themselves qualified for the exemption because of their own religious beliefs,8 a practice which a State might feel to be opposed to its general policy prohibiting religious discrimination in hiring.9 For all of these reasons, we cannot say that the Pennsylvania statute before us is invalid, either on its face or as applied.
23
Mr. Justice HARLAN concurs in the judgment. Mr. Justice BRENNAN and Mr. Justice STEWART concur in our disposition of appellants' claims under the Establishment Clause and the Equal Protection Clause. Mr. Justice FRANKFURTER and Mr. Justice HARLAN have rejected appellants' claim under the Free Exercise Clause in a separate opinion.
24
Accordingly, the decision is affirmed.
25
Affirmed.
26
(For opinion of Mr. Justice FRANKFURTER, joined by Mr. Justice HARLAN, see 366 U.S. 459, 81 S.Ct. 1153.)
27
(For dissenting opinion of Mr. Justice DOUGLAS, see 366 U.S. 561, 81 S.Ct. 1218.).
28
Mr. Justice BRENNAN, concurring and dissenting.
29
I agree with THE CHIEF JUSTICE that there is no merit in appellants' establishment and equal-protection claims. I dissent, however, as to the claim that Pennsylvania has prohibited the free exercise of appellants' religion.
30
The Court has demonstrated the public need for a weekly surcease from worldly labor, and set forth the considerations of convenience which have led the Commonwealth of Pennsylvania to fix Sunday as the time for that respite. I would approach this case differently, from the point of view of the individuals whose liberty is—concededly—curtailed by these enactments. For the values of the First Amendment, as embodied in the Fourteenth, look primarily towards the preservation of personal liberty, rather than towards the fulfillment of collective goals.
31
The appellants are small retail merchants, faithful practitioners of the Orthodox Jewish faith. They allege—and the allegation must be taken as true, since the case comes to us on a motion to dismiss the complaint—that '* * * one who does not observe the Sabbath (by refraining from labor) * * * cannot be an Orthodox Jew.' In appellants' business area Friday night and Saturday are busy times; yet appellants, true to their faith, close during the Jewish Sabbath, and make up some, but not all, of the business thus lost by opening on Sunday 'Each of the plaintiffs,' the complaint continues, 'does a substantial amount of business on Sundays, and the ability of the plaintiffs to earn a livelihood will be greatly impaired by closing their business establishment on Sundays.' Consequences even more drastic are alleged: 'Plaintiff, Abraham Braunfeld, will be unable to continue in his business if he may not stay open on Sunday and he will thereby lose his capital investment.' In other words, the issue in this case—and we do not understand either appellees or the Court to contend otherwise—is whether a State may put an individual to a choice between his business and his religion. The Court today holds that it may. But I dissent, believing that such a law prohibits the free exercise of religion.
32
The first question to be resolved, however, is somewhat broader than the facts of this case. That question concerns the appropriate standard of constitutional adjudication in cases in which a statute is assertedly in conflict with the First Amendment, whether that limitation applies of its own force, or as absorbed through the less definite words of the Fourteenth Amendment. The Court in such cases is not confined to the narrow inquiry whether the challenged law is rationally related to some legitimate legislative end. Nor is the case decided by a finding that the State's interest is substantial and important, as well as rationally justifiable. This canon of adjudication was clearly stated by Mr. Justice Jackson, speaking for the Court in West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628:
33
'In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a state to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the state it is the more specific limiting principles of the First Amendment that finally govern this case.'
34
This exacting standard has been consistently applied by this Court as the test of legislation under all clauses of the First Amendment, not only those specifically dealing with freedom of speech and of the press. For religious freedom—the freedom to believe and to practice strange and, it may be, foreign creeds—has classically been one of the highest values of our society. See, e.g., Murdock v. Commonwealth of Pennsylvania, 1943, 319 U.S. 105, 115, 63 S.Ct. 870, 876, 87 L.Ed. 1292; Jones v. City of Opelika, 1943, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Martin v. City of Struthers, 1943, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Follett v. Town of McCormick, 1944, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938; Marsh v. State of Alabama, 1946, 326 U.S. 501, 510, 66 S.Ct. 276, 280, 90 L.Ed. 265. Even the most concentrated and fully articulated attack on this high standard has seemingly admitted its validity in principle, while deploring some incidental phraseology. See Kovacs v. Cooper, 1949, 336 U.S. 77, 89, 95—96, 69 S.Ct. 448, 454, 458, 93 L.Ed. 513 (concurring opinion); but cf. Ullmann v. United States, 1956, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511. The honored place of religious freedom in our constitutional hierarchy, suggested long ago by the argument of counsel in Permoli v. Municipality No. 1 of City of New Orleans, 1845, 3 How. 589, 600, 11 L.Ed. 739, and foreshadowed by a prescient footnote in United States v. Carolene Products Co., 1938, 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234, note 4, must now be taken to be settled. Or at least so it appeared until today. For in this case the Court seems to say, without so much as a deferential nod towards that high place which we have accorded religious freedom in the past, that any substantial state interest will justify encroachments on religious practice, at least if those encroachments are cloaked in the guise of some nonreligious public purpose.
35
Admittedly, these laws do not compel overt affirmation of a repugnant belief, as in Barnette, nor do they prohibit outright any of appellants' religious practices, as did the federal law upheld in Reynolds v. United States, 1878, 98 U.S. 145, 25 L.Ed. 244, cited by the Court. That is, the laws do not say that appellants must work on Saturday. But their effect is that appellants may not simultaneously practice their religion and their trade, without being hampered by a substantial competitive disadvantage. Their effect is that no one may at one and the same time be an Orthodox Jew and compete effectively with his Sunday-observing fellow tradesmen. This clog upon the exercise of religion, this state-imposed burden on Orthodox Judaism, has exactly the same economic effect as a tax levied upon the sale of religious literature. And yet, such a tax, when applied in the form of an excise or license fee, was held invalid in Follett v. Town of McCormick, supra. All this the Court, as I read its opinion, concedes.
36
What, then, is the compelling state interest which impels the Commonwealth of Pennsylvania to impede appellants' freedom of worship? What overbalancing need is so weighty in the constitutional scale that it justifies this substantial, though indirect, limitation of appellants' freedom? It is not the desire to stamp out a practice deeply abhorred by society, such as polygamy, as in Reynolds, for the custom of resting one day a week is universally honored, as the Court has amply shown. Nor is it the State's traditional protection of children, as in Prince v. Commonwealth of Massachusetts, 1944, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, for appellants are reasoning and fully autonomous adults. It is not even the interest in seeing that everyone rests one day a week, for appellants' religion requires that they take such a rest. It is the mere convenience of having everyone rest on the same day. It is to defend this interest that the Court holds that a State need not follow the alternative route of granting an exemption for those who in good faith observe a day of rest other than Sunday.
37
It is true, I suppose, that the granting of such an exemption would make Sundays a little noisier, and the task of police and prosecutor a little more difficult. It is also true that a majority—21—of the 34 States which have general Sunday regulations have exemptions of this kind.1 We are not told that those States are significantly noisier, or that their police are significantly more burdened, than Pennsylvania's. Even England, not under the compulsion of a written constitution, but simply influenced by considerations of fairness, has such an exemption for some activities.2 The Court conjures up several difficulties with such a system which seem to me more fanciful than real. Non-Sunday observers might get an unfair advantage, it is said. A similar contention against the draft exemption for conscientious objectors (another example of the exemption technique) was rejected with the observation that 'its unsoundness is too apparent to require' discussion. Selective Draft Law Cases (Arver v. United States) 1918, 245 U.S. 366, 390, 38 S.Ct. 159, 165, 62 L.Ed. 349. However widespread the complaint, it is legally baseless, and the State's reliance upon it cannot withstand a First Amendment claim. We are told that an official inquiry into the good faith with which religious beliefs are held might be itself unconstitutional. But this Court indicated otherwise in United States v. Ballard, 1944, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148. Such an inquiry is no more an infringement of religious freedom than the requirement imposed by the Court itself in McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, that a plaintiff show that his good-faith religious beliefs are hampered before he acquires standing to attack a statute under the Free-Exercise Clause of the First Amendment. Finally, I find the Court's mention of a problem under state antidiscrimination statutes almost chimerical. Most such statutes provide that hiring may be made on a religious basis if religion is a bona fide occupational qualification.3 It happens, moreover, that Pennsylvania's statute has such a provision.4
38
In fine, the Court, in my view, has exalted administrative convenience to a constitutional level high enough to justify making one religion economically disadvantageous. The Court would justify this result on the ground that the effect on religion, though substantial, is indirect. The Court forgets, I think, a warning uttered during the congressional discussion of the First Amendment itself: '* * * the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand * * *.'5
39
I would reverse this judgment and remand for a trial of appellants' allegations, limited to the free-exercise-of-religion issue.
40
Mr. Justice STEWART, dissenting.
41
I agree with substantially all that Mr. Justice BRENNAN has written. Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no State can constitutionally demand. For me this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their constitutional right to the free exercise of their religion.
1
18 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) § 4699.10 provides:
'Selling certain personal property on Sunday
'Whoever engages on Sunday in the business of selling, or sells or offers for sale, on such day, at retail, clothing and wearing apparel, clothing accessories, furniture, housewares, home, business or office furnishings, household, business or office appliances, hardware, tools, paints, building and lumber supply materials, jewelry, silverware, watches, clocks, luggage, musical instruments and recordings, or toys, excluding novelties and souvenirs, shall, upon conviction thereof in a summary proceeding for the first offense, be sentenced to pay a fine of not exceeding one hundred dollars ($100), and for the second or any subsequent offense committed within one year after conviction for the first offense, be sentenced to pay a fine of not exceeding two hundred dollars ($200) or undergo imprisonment not exceeding thirty days in default thereof.
'Each separate sale or offer to sell shall constitute a separate offense.
'Information charging violations of this section shall be brought within seventy-two hours after the commission of the alleged offense and not thereafter.'
2
Oliver Ellsworth, a member of the Constitutional Convention and later Chief Justice, wrote:
'But while I assert the rights of religious liberty, I would not deny that the civil power has a right, in some cases, to interfere in matters of religion. It has a right to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and detriment.' (Emphasis added.) Written in the Connecticut Courant, Dec. 17, 1787, as quoted in 1 Stokes, Church and State in the United States, 535.
3
See the concurring opinion of Mr. Justice Cardozo, joined by Mr. Justice Brandeis and Mr. Justice Stone, in Hamilton v. Regents of University, 293 U.S. 245, 265—268, 55 S.Ct. 197, 205 206, 79 L.Ed. 343.
4
Thus in cases like Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, and Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938, this Court struck down municipal ordinances which, in application, required religious colporteurs to pay a license tax as a condition to the pursuit of their activities because the State's interest, the obtaining of revenue, could be easily satisfied by imposing this tax on nonreligious sources.
5
E.g., Ind.Ann.Stat. § 10—4301.
6
'If he (the Orthodox Jewish storekeeper) opens on Saturday, he is subjected to very fierce competition indeed from Christian shopkeepers, whereas on Sunday, supposing he closes on Saturday, he has an absolutely free run and no competition from Christian shopkeepers at all.' 311 Parliamentary Debates, Commons, 492.
'It is true that the orthodox Jew will only be allowed to trade until two o'clock on Sunday, but during that time he will have a monopoly. That is a tremendous advantage. In many districts he will be the only trader with a shop open in that district.' 101 Parliamentary Debates, Lords, 430.
7
Connecticut, which has such an exemption statute, requires that Sabbatarians, in order to qualify, file a written notice of religious belief with the prosecuting attorney. Conn.Gen.Stat.Rev. § 53—303.
8
E.g., Va.Code Ann., § 18.1—359.
9
E.g., 43 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) §§ 951 963.
1
Conn.Gen.Stat., 1958 rev., § 53—303; Fla.Laws 1959, c. 59 1650, § 2; Ill.Rev.Stat., 1959, c. 38, § 549; Burns' Ind.Ann.Stat., 1956 repl., § 10—4301; Kan.Gen.Stat.Ann., 1949, § 21—953; Ky.Rev.Stat., 1959, § 436.160(2); Me.Rev.Stat., 1954, c. 134, § 44; Mass.Gen.Laws Ann., 1958, c. 136, § 6; Mich.Stat.Ann., 1957 rev., §§ 18.855, 18.122, 9.2702, Comp.Laws Supp.1956, § 435.252; Comp.Laws 1948, §§ 338.682, 435.7; Mo.Rev.Stat., 1959, § 563.700; Neb.Rev.Stat., 1943, § 28—940; N.J.Stat.Ann., 1953, § 2A:171—4; McKinney's N.Y.Laws, Penal Law, § 2144; N.D.Rev.Code, 1943, § 12—2117; NDCC 12—21—17; Page's Ohio Rev.Code Ann., 1954, § 3773.24; Okla.Stat.Ann., 1958, Tit. 21, § 909; R.I.Gen.Laws, 1956, § 11—40—4; S.D.Code, 1939, § 13.1710; Vernon's Ann.Tex.Pen.Code art. 284; Va.Code, 1950, § 18.1—359; Wash.Rev.Code, 1951, § 9.76.020; W.Va.Code Ann., 1955, c. 61, Art. 8, § 6073. Cf. Wis.Stat.Ann., 1958, § 301.33.
2
E.g., Shops Act, 1950, 14 Geo. VI, c. 28, § 53.
3
E.g., Mass.Gen.Laws Ann., 1958, c. 151B, § 4, par. 1.
4
43 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) § 955.
5
I Annals of Cong. 730 (remarks of Representative Daniel Carroll of Maryland, August 15, 1789).
| 23
|
366 U.S. 656
81 S.Ct. 1303
6 L.Ed.2d 584
PAN AMERICAN PETROLEUM CORPORATION, Petitioner,v.SUPERIOR COURT OF the State of DELAWARE IN AND FOR NEW CASTLE COUNTY et al. TEXACO, INC., Petitioner, v. SUPERIOR COURT OF the State of DELAWARE IN AND FOR NEW CASTLE COUNTY et al.
Nos. 80, 81.
Argued April 18, and 19, 1961.
Decided May 29, 1961.
Mr. Byron M. Gray, Topeka, Kan., for petitioner in No. 80.
Mr. Paul F. Schlicher, New York City, for petitioner in No. 81.
Mr. Charles V. Wheeler, Oklahoma City, Okl., for respondent, Cities Service Gas Co. in both cases.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This case presents for review the judgment of the Supreme Court of Delaware denying a petition for a writ of prohibition to prevent further proceedings before the Superior Court of the State of Delaware, in and for New Castle County, in actions by Cities Service Gas Company against petitioners involving contracts for the sale of natural gas by petitioners to Cities Service. The claim of petitioners is that the Natural Gas Act, 52 Stat. 821, as amended, 15 U.S.C. § 717 et seq., 15 U.S.C.A. § 717 et seq., has deprived state courts of jurisdiction over the subject matter of these cases. The sole question, both below and here, is whether the state courts had jurisdiction.1 The importance of the problems thereby raised justified their disposition here, so we granted the petition for certiorari. 363 U.S. 818, 80 S.Ct. 1258, 4 L.Ed.2d 1516.
2
Cities Service is a natural gas pipeline company. Petitioners are producers of natural gas. Cities Service purchases natural gas from petitioners and transports it through its pipelines, in interstate commerce, for sale to local distributing companies. During the period 1949—1951 Cities Service entered into contracts for the purchase of natural gas produced by petitioners from the Hugoton field in Kansas. In each instance the price agreed upon was less than eleven cents per thousand cubic feet (Mcf) measured on a pressure base of 14.65 pounds per square inch absolute (psia).
3
On December 2, 1953, the Corporation Commission of the State of Kansas promulgated an order, to take effect on January 1, 1954, fixing a minimum price of eleven cents per Mcf on a pressure base of 14.65 psia for gas taken from the Kansas Hugoton Field. The effect of this order was to require Cities Service to pay petitioners at a higher rate than those specified in the pre-existing contracts. Cities Service brought suit in the Kansas courts to obtain judicial review of the order.
4
On January 21, 1954, Cities Service advised each of the petitioners by letter of the Kansas minimum-rate order and of its suit for judicial review of that order, adding the following:
5
'Pending final judicial determination of the said Order and beginning January 1, 1954, Cities Service Gas Company intends to pay for all gas purchased by it in the Kansas Hugoton Field in strict compliance with the terms and conditions of the said Order.
6
Such compliance with said Order by this Company, however, is made to avoid the penalties and actions provided by the Kansas statutes for a violation thereof, and the payments made to you in compliance with said Order pending its final judicial determination are to be considered and accepted by you as involuntary payments on our part, without prj udice to our rights in said litigation, and in no event as an acquiescence by us in the validity of said Order.
7
'In the event the said Order is finally judicially modified or declared to be invalid in whole or in part, as a result of which you have been overpaid for gas purchased during the interim aforesaid, Cities Service Gas Company will expect you to refund to it the amount of said overpayment.'
8
Thereafter, each voucher check sent by Cities Service to petitioners in payment for gas purchased bore a notation stating that it was tendered 'subject to provisions' of the January 21, 1954, letter. Petitioners cashed these checks without objection to the conditions of their tender. Petitioner Pan American Petroleum Corporation (formerly Stanolind) wrote in reply to the Cities Service letter of January 21:
9
'We construe the last paragraph of said letter to mean that Cities will expect Stanolind to refund to it the amount of over-payments, if any, without any interest thereon should the said Order of December 2, 1953 be finally judicially modified or declared to be invalid in whole or in part by an adjudication which would be binding and controlling on Stanolind. We will, therefore, accept payments on this basis.'
10
Petitioner Texaco, Inc., acknowledged receipt of Cities Service's payment of February 25, 1954, by a letter dated March 2, 1954, without objection to the conditions of payment.
11
On June 7, 1954, this Court, in Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, held that the jurisdiction of the Federal Power Commission extended to 'the rates of all wholesales of natural gas in interstate commerce, whether by a pipeline company or not and whether occurring before, during, or after transmission by an interstate pipeline company.' 347 U.S. at page 682, 74 S.Ct. at page 799. Following the Phillips decision, the Commission, in accordance with the provisions of the Natural Gas Act, on July 16, 1954, issued an order requiring independent producers to file with the Commission rate schedules setting forth the terms and conditions of service and all rates and charges for transportation or sales effective on June 7, 1954. 'Rate schedule' was defined to mean 'the basic contract and all supplements or agreements amendatory thereof, effective and applicable on and after June 7, 1954 * * *.' 18 CFR, 1960 Cum.Supp., § 154.93. In compliance with the Commission's directive, petitioner Texaco filed the basic contract between it and Cities Service, an amendatory letter, sample billing statements, the Kansas minimum-rate order, and the Cities Service letter of January 21, 1954. Petitioner Pan American filed its basic contract with Cities Service, a number of supplemental letters and agreements (not including the letter of January 21, 1954), a sample billing, and the Kansas order. With reference to that order, Pan American explained that it had been upheld by a court of competent jurisdiction and that therefore the gas sales contract had 'in effect' been 'amended thereby.'
12
On December 8, 1956, the Supreme Court of Kansas sustained the validity of the Kansas Corporation Commission's minimum-rate order, Cities Service Gas Co. v. State Corporation Comm., 180 Kan. 454, 304 P.2d 528, but on January 20, 1958, that decision was reversed here, Cities Service Gas Co. v. State Corporation Comm., 355 U.S. 391, 78 S.Ct. 381, 2 L.Ed.2d 355.
13
In complaints filed in the Superior Court of Delaware in June of 1958, Cities Service set forth the original contracts between the parties, the Kansas minimum-rate order and its bearing on the contractually determined prices, the letter of January 21, 1954, the voucher checks, other relevant correspondence, and this Court's reversal of the Kansas Supreme Court's decision upholding the order's validity. On the basis of these allegations Cities Service sued for overcharges by Texaco in the sum of $412,995.95 and Pan American of $10,324,468.67, paid under compulsion of the Kansas order for a § purchased at rates higher than those stipulated by contract. After intermediate procedural steps, the defendants moved for summary judgments, which were denied. There followed this petition for a writ of prohibition, attacking the jurisdiction of the Superior Court to entertain the actions brought by Cities Service.
14
The Supreme Court of Delaware sustained the jurisdiction of the Superior Court over these causes, stating that the claims of Cities Service 'are not founded upon any liability created by the Natural Gas Act, but upon a private contract deriving its force from state law.' (Emphasis in the original.) Columbian Fuel Corp. v. Superior Court, 52 Del. —-, 158 A.2d 478, 482.
15
'It is certainly true that the adjudication of these claims does entail an examination of the provisions of the Natural Gas Act, the regulations of the Commission, and the applicable federal decisions. But these have been brought into the cases by way of defense to complaints which, on their face, are based on nothing more than contracts to refund amounts measured by the contract or 'filed' rate and the rate fixed by the Kansas order. The general rule is that in such a case the plaintiff's suit is not one arising under federal law. * * *' 52 Del. at page —-, 158 A.2d at page 483.
16
The argument against this conclusion runs as follows. Under the Natural Gas Act the prices to be paid for natural gas sold wholesale in interstate commerce must be in accordance with the rates filed with the Federal Power Commission. Since the suits instituted by Cities Service involve rates so filed, they must either be to enforce a filed rate or to challenge a filed rate. If the former, they are subject to § 22 of the Act, which provides, for present purposes, that 'The District Courts of the United States * * * shall have exclusive jurisdiction of violations of this (statute) or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this (statute) or any rule, regulation, or order thereunder.' 52 Stat. 833, 15 U.S.C. § 717u, 15 U.S.C.A. § 717u. If the latter, they lie within the purview of § 19 of the Act, which provides for review of Commission orders in the United States Courts of Appeals. 52 Stat. 831, 15 U.S.C. § 717r, 15 U.S.C.A. § 717r. In either case, the state courts are deprived of jurisdiction.
17
But questions of exclusive federal jurisdiction and ouster of jurisdiction of state courts are, under existing jurisdictional legislation, not determined by ultimate substantive issues of federal law. The answers depend on the particular claims a suitor makes in a state court—on how he casts his action. Since 'the party who brings a suit is master to decide what law he will rely upon,' The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716, the complaints in the Delaware Superior Court determine the nature of the suits before it. Their operative paragraphs demand recovery on alleged contracts to refund overpayments in the event of a judicial finding that the Kansas minimum-rate order was invalid, or for restitution of the overpayments by which petitioners have allegedly been unjustly enriched under the compulsion of the invalid Kansas order. No right is asserted under the Natural Gas Act.
18
The suits are thus based upon claims of right arising under state, not federal, law. It is settled doctrine that a case is not cognizable in a federal trial court, in the absence of diversity of citizenship, unless it appears from the face of the complaint that determination of the suit depends upon a question of federal law. See, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672, 70 S.Ct. 876, 879, 94 L.Ed. 1194, and cases cited. Apart from diversity jurisdiction, 'a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. * ** and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. * * *' Gully v. First National Bank, 299 U.S. 109, 112—113, 57 S.Ct. 96, 97, 81 L.Ed. 70.
19
For this requirement it is no substitute that the defendant is almost certain to raise a federal defense. See Skelly Oil Co. v. Phillips Petroleum, supra; Gully v. First National Bank, supra, and authorities cited in those cases. Equally immaterial is it that the plaintiff could have elected to proceed on a federal ground. Henry v. A. B. Dick Co., 224 U.S. 1, 14—17, 32 S.Ct. 364, 366—367, 56 L.Ed. 645. If the plaintiff decides not to invoke a federal right, his claim belongs in a state court.
20
The rights as asserted by Cities Service are traditional common-law claims. They do not lose their character because it is common knowledge that there exists a scheme of federal regulation of interstate transmission of natural gas. What was said in Gully v. First National Bank, 299 U.S. at page 116, 57 S.Ct. at page 99, is apposite:
21
'We recur to the test announced in Puerto Rico v. Russell & Co. (288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903), supra: 'The federal nature of the right to be established is decisive—not the source of the authority to establish it.' Here the right to be established is one created by the state. If that is so, it is unimportant that federal consent is the source of state authority. To reach the underlying law we do not travel back so far. By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby. Louisville & Nashville R. Co. v. Mottley (211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126), supra. With no greater reason can it be said to arise thereunder because permitted thereby.'
22
We are not called upon to decide the extent to which the Natural Gas Act reinforces or abrogates the private contract rights here in controversy. The fact that Cities Service sues in contract or quasicontract, not the ultimate validity of its arguments, is decisive.
23
Nor does § 22 of the Natural Gas Act help petitioners. 'Exclusive jurisdiction' is given the federal courts but it is 'exclusive' only for suits that may be brought in the federal courts. Exclusiveness is a consequence of having jurisdiction, not the generator of jurisdiction because of which state courts are excluded. This was settled long ago in Pratt v. Paris Gaslight & Coke Co., 168 U.S. 255, 18 S.Ct. 62, 42 L.Ed. 458, a case involving a grant of exclusive jurisdiction to the federal courts in all cases arising under the patent laws. Suit was brought in a state court on a common-law contract claim. The complaint contained no mention of a patent, but the invalidity of certain patents was set up in defense. In response to the argument that this deprived the state courts of jurisdiction, the Court said:
24
'Section 711 (the jurisdictional provision) does not deprive the state courts of the power to determine questions arising under the patent laws, but only of assuming jurisdiction of 'cases' arising under those laws. There is a clear distinction between a case and a question arising under the patent laws. The former arises when the plaintiff in his opening pleading—be it a bill, complaint or declaration—sets up a right under the patent laws as ground for a recovery. Of such the state courts have no jurisdiction. The latter may appear in the plea or answer or in the testimony. The determination of such question is not beyond the competency of the state tribunals.' (Emphasis in the original.) 168 U.S. at page 259, 18 S.Ct. at page 64.2
25
Petitioners contend that to permit the state courts to entertain the suits brought by Cities Service will jeopardize the uniform system of regulation that Congress established through the Natural Gas Act. Apart from other considerations that dispel such fears, it should be remembered that the route to review by this Court is open to parties aggrieved by adverse state-court decisions of federal questions. In Great Northern R. Co. v. Merchants Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943, the question before the Court was whether not merely the state courts but any court had jurisdiction to construe a tariff prior to consideration of the disputed question of construction by the Interstate Commerce Commission. It was argued in that case, as it is argued here, that to permit entry into the courts, without initial resort to the Commission, would destroy essential uniformity. The answer there given by Mr. Justice Brandeis, speaking for the Court, applies here:
26
'This argument is unsound. It is true that uniformity is the paramount purpose of the Commerce Act. But it is not true that uniformity in construction of a tariff can be attained only through a preliminary resort to the Commission to settle the construction in dispute. Every question of the construction of a tariff is deemed a question of law; and where the question concerns an interstate tariff it is one of federal law. If the parties properly preserve their rights, a construction given by any court, whether it be federal or state, may ultimately be reviewed by this court either on writ of error or on writ of certiorari; and thereby uniformity in construction may be secured. Hence, the attainment of uniformity does not require that in every case where the construction of a tariff is in dispute, there shall be a preliminary resort to the Commission.' 259 U.S. at pages 290—291, 42 S.Ct. at page 478.
27
We hold that the state courts of Delaware do have jurisdiction to hear and decide the claims that Cities Service has formulated.
28
Affirmed.
1
It is apparent from the opinion of the Delaware Supreme Court that this was the only question decided there. See also Clendaniel v. Conrad, 3 Boyce 549, 26 Del. 549, 598, 83 A. 1036, 1052.
'The writ of prohibition * * * issues only from a superior court to an inferior court, tribunal or judge, and only for the purpose of keeping such inferior court within the limits of its jurisdiction. That is the sole purpose of the writ.'
Accord, Knight v. Haley, 6 W.W.Harr. 366, 374, 36 Del. 366, 374, 176 A. 461, 464; Canaday v. Superior Court, 10 Terry 332, 338 339, 49 Del. 332, 338—339, 116 A.2d 678, 681—682.
2
The foregoing conclusions are not affected by want of explicit limitation to jurisdiction 'arising under' the Natural Gas Act. Such limitation is clearly implied, as the authoritative Committee Reports indicate. 'This section (referring to § 22) imposes appropriate jurisdiction upon the courts of the United States over cases ars ing under the act.' H.R.Rep. No. 709, 75th Cong., 1st Sess., p. 9; S.Rep. No. 1162, 75th Cong., 1st Sess., p. 7.
| 78
|
366 U.S. 696
81 S.Ct. 1294
6 L.Ed.2d 614
UNITED STATES, Petitioner,v.Stanley S. NEUSTADT et ux.
No. 533.
Argued May 2, 1961.
Decided May 29, 1961.
Mr. William H. Orrick, Jr., San Francisco, Cal., for petitioner.
Mr. Lawrence J. Latto, Washington, D.C., for respondents.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
Pursuant to the provisions of the National Housing Act of 1934,1 as amended, the Federal Housing Administration (FHA) is authorized, in certain instances, to insure the partial repayment of loans secured by mortgages executed to finance the purchase of private residential properties.2 When duly requested to do so by a qualified lender, the FHA, through its appraisal staff, makes an inspection of property offered for sale in order to determine whether the property is eligible for FHA mortgage insurance, and to assign an appraised value establishing the maximum amount of mortgage insurance obtainable.3
2
The question for decision in this case is whether the United States may be held liable, under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b),4 to a purchaser of residential property who has been furnished a statement reporting the results of an inaccurate FHA inspection and appraisal, and who, in reliance thereon, has been induced by the seller to pay a purchase price in excess of the property's fair market value. The answer turns upon the correct interpretation of 28 U.S.C. § 2680(h), 28 U.S.C.A. § 2680(h), which precludes recovery under the Tort Claims Act upon ( a)ny claim arising out of * * * misrepresentation.' The material facts giving rise to the controversy are not in dispute, and may be summarized as follows.
3
Early in 1957, the property in question, consisting of a 16-year-old singlefamily brick house and lot located in Alexandria, Virginia, was offered for sale by its owners. To assure that FHA mortgage insurance would be available to secure a loan in the event that the purchaser, when ascertained, might desire to finance the purchase by that method, the owners requested a qualified lending institution to take the necessary steps to have the property inspected and appraised by the FHA; and pursuant to the lending agent's application,5 an FHA appraiser visited and inspected the premises. On the basis of that inspection, which disclosed no defects that would disqualify the property for mortgage insurance, the FHA issued to the lending agency a 'conditional commitment,'6 stating that the property had been approved for mortgage insurance and, for that purpose, had been assigned an appraised value of $22,750. Under § 203(b)(2) of the National Housing Act,7 the maximum amount of mortgage insurance obtainable on an appraised value of $22,750 was $18,800.8
4
Shortly thereafter, the respondents, Mr. and Mrs. Stanley S. Neustadt, examined the property and became interested in buying it. After negotiations extending over the period of a month, in the course of which respondents were advised by the sellers that the property had been appraised by the FHA at a value of $22,750 for mortgage insurance purposes, respondents entered into a conditional contract to purchase the property at a price of $24,000. The contract was conditioned upon the respondents' obtaining a loan secured by an FHA-insured mortgage in the amount of $18,000. In accordance with § 226 of the National Housing Act,9 the contract also provided that the sellers would deliver to respondents, prior to the sale of the property, a written statement setting forth the FHA-appraised value. Both conditions were fulfilled, and on the settlement date, July 2, 1957, respondents took title to the property, and acknowledged by their signatures that they had been furnished with a written 'Statement of FHA Appraisal.' This was an official FHA document, stating that the FHA 'has appraised the property identified * * * and for mortgage insurance purposes has placed an FHA-appraised value of $22,750 on such property as of the date of this statement. (The FHA appraised value does not establish sales price.)' (Emphasis in original.)
5
Respondents moved into the house on July 10, 1957. According to their testimony, they had previously inspected the house 'quite carefully,' and had found 'absolutely nothing which would indicate the necessity for any redecoration at all.' The house was 'immaculately clean' and the walls and ceilings 'looked fine.' However, within a month after respondents moved in, substantial cracks developed in the ceilings and in the interior and exterior walls throughout the house. When building repair contractors were unable to ascertain the cause of the cracks, the original builder of the house and four FHA field inspectors were summoned, and a thorough investigation was made by them. By drilling a hole through the concrete floor of the basement, it was discovered that the subsoil was composed of a type of clay which becomes pliable when moist. Due to poor drainage conditions on the surface, water had seeped into the clay, causing it to shift beneath the foundations of the house and to produce the cracks which had appeared in the walls and ceilings.
6
Ten months thereafter, respondents commenced this action against the Government, under the Federal Tort Claims Act, in the United States District Court for the Eastern District of Virginia, seeking recovery of the difference between the fair market value of the property and the purchase price of $24,000. The complaint alleged that the FHA's inspection and appraisal of the property for mortgage insurance purposes had been conducted negligently; that respondents were justified in relying upon the results of that inspection and appraisal; and that they 'would not have purchased the property for $24,000 but for the carelessness and negligence of (FHA).'
7
After trial, the District Court found10 that respondents 'in good faith relied upon the (FHA's) appraisal in consummating their contract of purchase,' and that 'reasonable care by a qualified appraiser would have warned' respondents of the 'serious structural defects' in the house which had been 'preponderantly proved.' On that basis, the court adjudged the Government liable in the amount of $8,000, which it found to be the difference between the property's fair market value at the time of sale ($16,000) and the purchase price (24,000).
8
On appeal, the judgment was affirmed by the Court of Appeals for the Fourth Circuit, 281 F.2d 596, over the Government's sedulous objection that recovery was barred by 28 U.S.C. § 2680(h), 28 U.S.C.A. § 2680(h), which excepts from the coverage of the Tort Claims Act '(a)ny claim arising out of * * * misrepresentation.' Because of the importance of the question, and the resolve an apparent conflict between the Fourth Circuit's decision and the holdings of other Circuits uniformly construing the 'misrepresentation' exception of s 2680(h) to preclude recovery on closely analogous facts,11 we granted certiorari. 364 U.S. 926, 81 S.Ct. 354, 5 L.Ed.2d 265. We have concluded that the interpretation adopted by the Fourth Circuit is erroneous, and that the Government must be absolved from liability.
9
In its complete form, § 2680(h) excludes recovery under the Federal Tort Claims Act upon '(a)ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepe sentation, deceit, or interference with contract rights.' (Emphasis added.) The Government's position is that, since Congress employed both the terms 'misrepresentation' and 'deceit' in § 2680(h), it clearly meant to exclude claims arising out of negligent, as well as deliberate, misrepresentation; and therefore, even assuming that the District Court correctly found that the inaccurate FHA appraisal in this case resulted from a negligent inspection, and that respondents relied upon that appraisal to their detriment,12 the claim must nevertheless fail as one 'arising out of * * * (negligent) misrepresentation.'
10
We are in accord with the view urged by the Government, and unanimously adopted by all Circuits which have previously had occasion to pass on the question, that § 2680(h) comprehends claims arising out of negligent, as well as willful, misrepresentation.
11
The leading precedent has been the Second Circuit's decision in Jones v. United States, 207 F.2d 563, which involved a statement issued to the plaintiffs by the United States Geological Survey erroneously estimating the oil-producing capacity of certain land. In reliance upon that statement, plaintiffs sold securities representing oil and gas rights in the land for less than their actual value, and later sought to recoup their loss from the Government under the Tort Claims Act on a complaint alleging negligent misrepresentation. Affirming a dismissal of the complaint, the Second Circuit tersely pointed out that § 2680(h) applies to both 'misrepresentation' and 'deceit,' and, '(a)s 'deceit' means fraudulent misrepresentation, 'misrepresentation' must have been meant to include negligent misrepresentation, since otherwise the word 'misrepresentation' would be duplicative.' 207 F.2d at page 564. Following this interpretation, in an unbroken line, are the cases of National Mfg. Co. v. United States, 8 Cir., 210 F.2d 263; Clark v. United States, 9 Cir., 218 F.2d 446; Miller Harness Co. v. United States, 2 Cir., 241 F.2d 781; Anglo-American & Overseas Corp. v. United States, 2 Cir., 242 F.2d 236; Hall v. United States, 10 Cir., 274 F.2d 69. In accord also are Social Security Administration Baltimore Federal Credit Union v. United States, D.C.D.Md., 138 F.Supp. 639, and United States v. Van Meter, D.C.N.D.Cal., 149 F.Supp. 493.
12
Throughout this line of decisions, the argument has been made by plaintiffs, and consistently rejected by the courts, until this case, that the bar of § 2680(h) does not apply when the gist of the claim lies in negligence underlying the inaccurate representation, i.e., when the claim is phrased as one 'arising out of' negligence rather than 'misrepresentation.' But this argument, as was forcefully demonstrated by the Tenth Circuit in Hall v. United States, supra, is nothing more than an attempt to circumvent § 2680(h) by denying that it applies to negligent misrepresentation. In the Hall case, it was alleged that agents of the Department of Agriculture had negligently inspected the plaintiff's cattle and, as a result, mistakenly reported that the cattle were diseased. Relying upon that report, plaintiff sold the cattle at less than their fair value, and sought recovery from the Government of his loss on the ground that it had been caused by the negligent inspection underlying the agents' report, rather than by the report itself. The Tenth Circuit rejected the claim, stating:
13
'We must then look beyond the literal meaning of the language to ascertain the real cause of complaint. * * * Plaintiff's loss came about when the Government agents misrepresented the condition of the cattle, telling him they were diseased when, in fact, they were free from disease. * * * This stated a cause of action predicated on a misrepresentation.
14
Misrepresentation as used in the exclusionary provision (of § 2680(h)) was meant to include negligent misrer esentation.' 274 F.2d at page 71.13
15
In the instant case, the Fourth Circuit took the opposite view, and held that respondents could recover on the sole basis of the underlying negligence. Although it agreed that § 2680(h) embraces both 'negligent' and 'willful' misrepresentation, and that respondents' claim 'might form the basis of an action for misrepresentation under general common-law principles,' 281 F.2d at page 601, it deemed § 2680(h) inapplicable here for the reason that the misrepresentation was 'merely incidental' to the 'gravamen' of the claim, i.e., 'the careless making of an excessive appraisal so that (respondents were) * * * deceived and suffered substantial loss.' Id., at page 602. Since § 226 of the National Housing Act14 requires that a seller of property approved for FHA mortgage insurance 'shall agree to deliver, prior to the sale of the property, to the person purchasing such (property), a written statement setting forth the amount of the (FHA) appraised value * * *,' the Fourth Circuit reasoned that the FHA appraisal procedure was designed to protect prospective home purchasers; that the Government (through the FHA) therefore 'owed a specific duty' to respondents to make a careful appraisal; and that 'if the government assumes a duty and negligently performs it, a party injured thereby may recover damages from the United States even though the careless performance of the duty may have been accompanied by some misrepresentation of fact.' Id., at page 599.
16
Whether or not this analysis accords with the law of States which have seen fit to allow recovery under analogous circumstances,15 it does not meet the question of whether this claim is outside the intended scope of the Federal Tort Claims Act, which depends solely upon what Congress meant by the language it used in § 2680(h).
17
To say, as the Fourth Circuit did, that a claim arises out of 'negligence,' rather than 'misrepresentation,' when the loss suffered by the injured party is caused by the breach of a 'specific duty' owed by the Government to him, i.e., the duty to use due care in obtaining and communicating information upon which that party may reasonably be expected to rely in the conduct of his economic affairs, is only to state the traditional and commonly understood legal definition of the tort of 'negligent misrepresentation,' as is clearly, if not conclusively, shown by the authorities set forth in the margin,16 and which there is every reason to believe Congress had in mind when it placed the word 'misrepresentation' before the word 'deceit' in § 2680(h). As the Second Circuit observed in Jones v. United States, supra, 'deceit' alone would have been sufficient had Congress intended only to except deliberately false representations.17 Certainly there is no warrant for assuming that Congress was unaware of established tort definitions when it enacted the Tort Claims Act in 1946, after spending 'some twenty-eight years of congressional drafting and redrafting, amendment and counter-amendment.' United States v. Spelar, 338 U.S. 217, 219—220, 70 S.Ct. 10, 11, 94 L.Ed. 3. Moreover, as we have said in considering other aspects of the Act: 'There is nothing in the Tort Claims Act which shows that Congress intended to draw distinctions so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation.' Indian Towing Co. v. United States, 350 U.S. 61, 68, 76 S.Ct. 122, 126, 100 L.Ed. 48.
18
Regarding the Court of Appeals' assertion that the Government owed respondents a 'specific duty' to make and communicate and accurate appraisal of the property, by virtue of the provisions of the National Housing Act, we have carefully examined the rather extensive legislative history of that statute, giving particular attention to § 226 thereof,18 and have found nothing from which we may reasonably infer that Congress intended, in a case such as this, to limit or suspend the application of the 'misrepresentation' exception of the Tort Claims Act. Long before § 226 was added to the National Housing Act, in 1954, requiring sellers to inform prospective buyers of FHA-appraised value, it had been recognized in Congress that FHA appraisals would be a matter of public record, and would thus inure, incidentally, to the benefit of prospective home purchasers, by affording them the 'benefit of knowing the appraised value set upon the property * * * by a trained valuator acting in accordance with a procedure designed to reduce to a minimum, errors that might result from casual or hasty conclusions.'19 But at the same time, it was repeatedly emphasized that the primary and predominant objective of the appraisal system was the 'protection of the Government and its insurance funds';20 that the mortgage insurance program was not designed to insure anything other than the repayment of loans made by lender-mortgagees;21 and that 'there is no legal relationship between the FHA and the individual mortgagor.'22 Never once was it even intimated that, by an FHA appraisal, the Government would, in any sense, represent or guarantee to the purchaser that he was receiving a certain value for his money.
19
Nor is there any indication that Congress intended, by its 1954 addition of § 226, to modify the legislation's fundamental design from a system of mortgage repayment insurance to one of guaranty or warranty to the purchaser of value received. On its face, § 226 goes no further than to require that a seller of property approved for FHA mortgage insurance shall furnish to the buyer, prior to sale, a written statement disclosing the FHA-appraised value.23 That Congress did not thereby intend to convert the FHA appraisal into a warranty of value, or otherwise to extend to the purchaser any actionable right of redress against the Government in the event of a faulty appraisal, was made irrefutably clear in the Committee Hearings in both Houses of Congress, the pertinent excerpts from which are set forth in the margin.24 Moreover, it is not unreasonable to suppose that, at the time § 226 was adopted, Congress was aware of the 'misrepresentation' exception in the Tort Claims Act, and that it had been construed by the courts to inl ude 'negligent misrepresentation.'25
20
The compulsory disclosure provision of § 226 is but one of numerous instances in which Congress has relegated to a governmental agency the duty either to disclose directly, or to require private persons to disclose, information for the assistance and guidance of other persons in the conduct of their economic and commercial affairs. In practically all such instances, it may be said that the Government owes a 'specific duty' to obtain and communicate information carefully, less the intended recipient be misled to his financial harm. While we do not condone carelessness by government employees in gathering and promulgating such information, neither can we justifiably ignore the plain words Congress has used in limiting the scope of the Government's tort liability.26
21
It follows that respondents' claim is one 'arising out of * * *misrepresentation,' within the meaning of § 2680(h), and hence is not actionable against the Government under the Tort Claims Act. Accordingly, the judgment below must be reversed.
22
Reversed.
23
Mr. Justice DOUGLAS dissents.
24
Mr. Justice STEWART took no part in the consideration or decision of this case.
1
48 Stat. 1246, 12 U.S.C. § 1701 et seq., 12 U.S.C.A. § 1701 et seq.
2
Section 203 of the National Housing Act of 1934, as amended, 12 U.S.C. § 1709, 12 U.S.C.A. § 1709, provided at the times here pertinent that:
'(a) * * * The (Federal Housing) Commissioner is authorized, upon application by the mortgagee, to insure as hereinafter provided any mortgage offered to him which is eligible for insurance as hereinafter provided, and, upon such terms as the Commissioner may prescribe, to make commitments for the insuring of such mortgages prior to the date of their execution or disbursement thereon * * *
'(b) * * * To be eligible for insurance under this section a mortgage shall—
'(2) Involve a principal obligation * * * not to exceed an amount equal to the sum of (i) 95 per centum * * * of $9,000 of the (FHA) appraised value (as of the date the mortgage is accepted for insurance), and (ii) 75 per centum of such value in excess of $9,000 * * *.'
3
24 CFR §§ 200.145, 200.146, 200.148 (1959 ed.).
4
'(T)he district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for injury or loss of property * * * 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.'
5
An application for FHA mortgage insurance may be made only by a financial institution approved as a mortgagee by the FHA. § 203(a), National Housing Act, supra, 12 U.S.C. § 1709(a), 12 U.S.C.A. § 1709(a). Applications may be, and commonly are, made in advance of actual sale and execution of the mortgage, 24 CFR § 221.9 (1959 ed.), in order that the seller may have the property inspected, approved, and appraised for mortgage insurance while the purchaser is still unknown.
6
The commitment to insure a mortgage is conditioned upon the mortgagor's being found financially able to carry the mortgage. 24 CFR §§ 200.147, 200.148(1) (1959 ed.).
7
Note 2, supra.
8
Under § 203(b)(2), the maximum insurable amount was.$18,862.50 (95% of $9,000, plus 75% of $13,750). By FHA regulations, mortgages were insurable only on multiples of $100. 24 CFR § 221.17(a) (1958 Supp.).
9
Section 226 was enacted in 1954 (68 Stat. 0 7, 12 U.S.C. § 1715q, 12 U.S.C.A. § 1715q) and provides in pertinent part as follows:
'The Commissioner is (hereby) authorized and directed to require that, in connection with any property * * * approved for mortgage insurance * * * the seller or builder * * * shall agree to deliver, prior to the sale of the property, to the person purchasing such dwelling for his own occupancy, a written statement setting forth the amount of the appraised value of the property as determined by the Commissioner * * *.'
10
There is no right to a jury trial under the Tort Claims Act. 28 U.S.C. § 2402, 28 U.S.C.A. § 2402.
11
The cases are cited and discussed at pages 702—705 of 366 U.S., at pages 1298—1299 of 81 S.Ct., infra.
12
Neither in the Court of Appeals, nor in this Court, has the Government chosen to contest these findings.
13
In Anglo-American & Overseas Corp. v. United States, 242 F.2d 236, at page 237, the Second Circuit analyzed a similar claim and exposed its true basis: '(Plaintiff), contracted to sell tomato paste to the United States, which required as a condition precedent to its acceptance of the paste that it satisfy the standards of the Food and Drug Administration. The paste was imported; and the Food and Drug Administration, after sampling it, issued 'release notices' that notified Customs officers that the tomato paste could enter the country. (Plaintiff) then accepted delivery. When it in turn delivered the paste to the government, federal officials once again inspected the paste, found that it did not satisfy the standards of the Food and Drug Administration, and ordered it destroyed. (Plaintiff) sues now on the ground that the negligence of officials of the Food and Drug Administration in sampling the tomato paste and in issuing the 'release notices' induced it to accept the paste and thus suffer damages.
'This claim, it is clear, 'arose out of' the assertedly negligent representation of the quality of the tomato paste by federal employees. Such a claim is barred by * * * Section 2680(h) * * * (which excepts) from liability negligent as well as intentional misrepresentation.'
14
Note 9, supra.
15
The Fourth Circuit sought primary support from the New York Court of Appeals' decision in Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276, 23 A.L.R. 1425, in which the defendants, who were public weighers, were requested by a vendor to weigh certain goods and to issue a certificate of weight to the buyer. The goods were weighed inaccurately, and on the strength of the erroneous weight certificate, the buyer paid an excessive purchase price. In allowing the buyer to recover from defendants, the New York court looked primarily to the negligence in performing the act of weighing, and stated that defendants were liable both for their 'careless words' and their 'careless performance of a service.' The case has been widely discussed by tort authorities as epitomizing 'negligent misrepresentation.' See, e.g., 1 Harper and James, Torts,5 46—548 (1956); Prosser, Torts, 734, 737 (1941 ed.); Bohlen, Should Negligent Misrepresentations Be Treated as Negligence or Fraud? 18 Va.L.Rev. 703, 708 (1932). Glanzer has been followed a in number of States which have broken from the earlier, virtually unanimous, American view subscribing to the English case of Derry v. Peek, L.R. 14 App.Cas. 337, 58 L.J.Rep.Ch. 864 (1889) (refusing to allow recovery for negligent misrepresentation). See cases cited in 1 Harper and James, Torts 546, n. 5 (1956). Cf. Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441, 74 A.L.R. 1139.
Under the Federal Tort Claims Act, when a claim is not barred by one of the Act's exclusionary provisions, the liability of the Government must be determined '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). The Fourth Circuit's opinion, although it concluded that § 2680(h) did not bar respondents' claim, did not indicate whether Virginia law follows the New York rule of Glanzer v. Shepard, supra. In view of our conclusion that § 2680(h) applies, we need not explore this question.
16
The American Law Institute's Restatement of Torts (1938), c. 22, 'Deceit: Business Transactions,' Topic 3, 'Negligent Misrepresentations,' states as follows:
§ 552. Information Negligently Supplied for the Guidance of Others.
'One who in the course of his business or profession supplies information for the guidance of others in their business transactions is
subject to liability for harm caused to them by their reliance upon the information if
'(a) he fails to exercise that care and competence in obtaining and communicating the information which its recipient is justified in expecting, and
'(b) the harm is suffered
'(i) by the person or one of the class of persons for whose guidance the information was supplied, and
'(ii) because of his justifiable reliance upon it in a transaction in which it was intended to influence his conduct or in a transaction substantially identical therewith.'
Prosser, Torts (1941 ed.), c. 16, 'Misrepresentation,' § 87, 'Basis of Responsibility,' states:
'Responsibility for misrepresentation may be divided into the usual tort classifications. It may rest upon:
'a. An intent to deceive, consisting of belief that the representations is false * * *. (S)uch an ine nt is required for the action of deceit.
'b. Negligence in obtaining information or in making the representation. * * *
'c. A policy holding the maker strictly responsible for the truth of the representation * * *.'
See also Bohlen, Misrepresentation as Deceit, Negligence, or Warranty, 42 Harv.L.Rev. 733, 735—739 (1929); 23 Am.Jur., Fraud and Deceit, § 126, 'Negligent Representations' (1939).
17
See 2 Harper and James, Torts, § 29.13, The Federal Tort Claims Act: Exceptions to Liability, p. 1655 (1956).
18
78 Cong.Rec. 11980 et seq.; 1st Annual Report of FHA (1935) (passim); 100 Cong.Rec. 12349—12360; S.Rep. No. 1472, 83d Cong., 2d Sess.; H.R.Rep. No. 1429, 83d Cong., 2d Sess.; H.R.Conf.Rep. No. 2271, 83d Cong., 2d Sess.; Hearings Before the Senate Committee on Banking and Currency on the Housing Act of 1954, 83d Cong., 2d Sess.; Hearings Before the House Committee on Banking and Currency on Housing Act of 1954, 83d Cong., 2d Sess.
19
First Annual Report of FHA 17 (1935). See also 90 Cong.Rec. A2985; 78 Cong.Rec. 11981.
20
H.R.Conf.Rep. No. 2271, 83d Cong., 2d Sess., pp. 66—67.
21
78 Cong.Rec. 11981; 1st Annual Report of FHA 15 (1935).
22
H. R. Conf.Rep. No. 2271, 83d Cong., 2d Sess., p. 66.
23
Note 9, supra.
24
It was stated by Representative Dollinger, in the Hearings before the Subcommittee on Housing of the House Committee on Banking and Currency on 'Housing Constructed Under VA and FHA Programs,' 82d Cong., 2d Sess., at 163:
'The Government did not guarantee, on your getting the home, that the home would be in good condition. As I pointed out before, there has been a misconception of the idea. The Government never approved the building. All it says is that the FHA loans are guaranteed to the builder or to the bank.'
In the Hearings before the Senate Committee on Banking and Currency on Housing Act of 1954, 83d Cong., 2d Sess., at 1402 1403, the following colloquy was recorded between Senator Bennett and Home Finance Administrator Cole:
'Mr. Cole: * * * I agree with the Senator that the home buyer should understand that the Federal Government is not guaranteeing his home.
'Senator Bennett: That is correct. * * * The idea of the inspection service under title II is to protect the Federal Government, which undertakes to insure the loan. The fact that the inspection is made, provides collateral benefits to the property owner. There is no question about that. But in the last analysis the property owner cannot say to the Federal Government, 'Well, your inspector inspected my house, and now look what's happened; therefore, you are responsible; therefore, you must come down here and fix it up."
25
Jones v. United States, supra, and National Mfg. Co. v. United States, supra, had both been decided, by the Second and Eighth Circuits, respectively, when Congress enacted § 226 in 1954.
26
Our conclusion neither conflicts with nor impairs the authority of Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, which held cognizable a Torts Act claim for property damages suffered when a vessel ran aground as a result of the Coast Guard's allegedly negligent failure to maintain the beacon lamp in a lighthouse. Such a claim does not 'arise out of * * * misrepresentation,' any more than does one based upon a motor vehicle operator's negligence in giving a misleading turn signal. As Dean Prosser has observed, many familiar forms of negligent conduct may be said to involve an element of 'misrepresentation,' in the generic sense of that word, but '(s)o far as misrepresentation has been treated as giving rise in and of itself to a distinct cause of action in tort, it has been identified with the common law action of deceit,' and has been confined 'very largely to the invasion of interests of a financial or commercial character, in the course of business dealings.' Prosser, Torts, § 85, 'Remedies for Misrepresentation,' at 702—703 (1941 ed.). See also 2 Harper and James, Torts, § 29.13, at 1655 (1956).
| 78
|
367 U.S. 203
81 S.Ct. 1469
6 L.Ed.2d 782
Junius Irving SCALES, Petitioner,v.UNITED STATES of America.
No. 1.
Reargued Oct. 10, 1960.
Decided June 5, 1961.
Rehearing Denied June 19, 1961.
See 366 U.S. 978, 81 S.Ct. 1912.
[Syllabus from pages 203-204 intentionally omitted]
Mr. Telford Taylor, New York City, for petitioner.
Mr. John F. Davis, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
Our writ issued in this case (358 U.S. 917, 79 S.Ct. 289, 3 L.Ed.2d 237) to review a judgment of the Court of Appeals (4 Cir., 260 F.2d 21) affirming petitionr § conviction under the so-called membership clause of the Smith Act. 18 U.S.C. § 2385, 18 U.S.C.A. § 2385. The Act, among other things, makes a felony the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force or violence.1 The indictment charged that from January 1946 to the date of its filing (November 18, 1954) the Communist Party of the United States was such an organization, and that petitioner throughout that period was a member thereof, with knowledge of the Party's illegal purpose and a specific intent to accomplish overthrow 'as speedily as circumstances would permit.'
2
The validity of this conviction is challenged on statutory, constitutional, and evidentiary grounds, and further on the basis of certain alleged trial and procedural errors. We decide the issues raised upon the fullest consideration, the case having had an unusually long history in this Court.2 For reasons given in this opinion we affirm the Court of Appeals.
I.
3
Statutory Challenge.
4
Petitioner contends that the indictment fails to state an offense against the United States. The claim is that § 4(f) of the Internal Security Act of 1950, 64 Stat. 987, 50 U.S.C. § 781 et seq., 50 U.S.C.A. § 781 et seq., constitutes a pro tanto repeal of the membership clause of the Smith Act by excluding from the reach of that clause membership in any Communist organization. Section 4(f) provides:
5
'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 7 or section 8 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.'
6
To prevail in his contention petitioner must, of course, bring himself within the first sentence of this provision, since the second sentence manifestly refers only to exclusion from evidence of the fact of registration, thus assuming that a prosecution may take place.
7
We turn first to the provision itself, and find that, as to petitioner's construction of it, the language is at best ambiguous if not suggestive of a contrary conclusion. Section 4(f) provides that membership or office-holding in a Communist organization shall not constitute 'per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.' Petitioner would most plainly be correct if the statute under which he was indicted purported to proscribe membership in Communist organizations, as such, and to punish membership per se in an organization engaging in proscribed advocacy. But the membership clause of the Smith Act on its face, much less as we construe it in this case, does not do this, for it neither proscribes membership in Communist organizations, as such, but only in organizations engaging in advocacy of violent overthrow, nor punishes membership in that kind of organization except as to one 'knowing the purposes thereof,' and, as we have interpreted the clause, with a specific intent to further those purposes (infra, 367 U.S. at pages 219—222, 81 S.Ct. at pages 1481—1483). We have also held that the proscribed membership must be active, and not nominal, passive or theretical (infra, 367 U.S. at pages 222—224, 81 S.Ct. at pages 1482—1484). Thus the words of the first sentence of § 4(f) by no means unequivocally demand the result for which petitioner argues. When we turn from those words to their context, both in the section as a whole and in the scheme of the Act of which they are a part, whatever ambiguity there may be must be resolved, in our view, against the petitioner's contention.
8
In the context of § 4 as a whole, the first sentence of subsection (f) does not appear to be a provisions repealing in whole or in part any other provision of the Internal Security Act. Subsection (a) of § 4 makes it a crime
9
'for any person knowingly to combine, conspire, or agree with any other person to perform any act which would substantially contribute to the establishment within the United States of a totalitarian dictatorship * * * the direction and control of which is to be vested in, or exercised by or under the domination or control of, any foreign government, foreign organization or foreign individual * * *.'
10
Subsection (c) makes it a crime for any officer or member of a 'Communist organization' to obtain classified information. We should hesitate long before holding that subsection (f) operates to repeal pro tanto either one of these provisions which are found in the same section of which subsection (f) is a part; and indeed the petitioner does not argue for any such quixotic result. The natural tendency of the first sentence of subsection (f) as to the criminal provisions specifically mentioned is to provide clarification of the meaning of those provisions, that is, that an offense is not made out on proof of mere membership in a Communist organization. As to these particularly mentioned criminal provisions immunity, such as there is, is specifically granted in the second sentence only, where it is said that the fact of registration shall not be admitted in evidence. Yet petitioner argues that when we come to the last phrase of the first sentence, the tag 'or * * * any other criminal statute,' the operative part of the sentence, 'membership * * * shall (not) constitute per se a violation,' has an altogether different purport and effect. What operated as a clarification and guide to construction to the specifically identified provisions is, petitioner argues, a partial repealer as to the statutes referred to in the omnibus clause at the end of the sentence.
11
It seems apparent from the foregoing that the language of § 4(f) in its natural import and context should not be taken to immunize members of Communist organizations from the membership clause of the Smith Act, but rather as a mandate to the courts charged with the construction of subsections (a) and (c) 'or * * * any other criminal statute' that neither those two named criminal provisions nor any other shall be construed so as to make 'membership' in a Communist organization 'per se a violation.' Indeed, as we read the first sentence of § 4(f), even if the membership clause of the Smith Act could be taken as punishing naked Communist Party membership, it would then be our duty under § 4(f) to construe it in accordance with that mandate, certainly not to strike it down. Although we think that the membership clause on its face goes beyond making mere Party membership a violation, in that it requires a showing both of illegal Party purposes and of a member's knowledge of such purposes, we regard the first sentence of § 4(f) as a clear warrant for construing the clause as requiring not only knowing membership, but active and purposive membership, purposive that is as to the organization's criminal ends. (Infra, 367 U.S. at pages 219—244, 81 S.Ct. at pages 1481—1484.) By its terms, then, subsection (f) does not effect a pro tanto repeal of the membership clause; at most it modifies it.
12
Petitioner argues that if the § 4(f) provision does not bar this prosecution under the membership clause, then the phrase 'or of any other criminal statute' becomes meaningless, for there is no other federal criminal statute that makes this sort of membership a crime. But the argument assumes the answer. The first sentence was intended to clarify, not repeal, § 4(a) of the Internal Security Act. By a parity of reasoning, its effect on 'any other criminal statute' is also clarification, not repeal.
13
Petitioner's contentions do not stop, however, with the words of § 4(f) itself. The supposed partial repeal of the membership clause by that provision, it is claimed, is a consequence of the latter's purpose in the whole scheme of the Internal Security Act of 1950, as illuminated by its legislative history. The argument runs as follows: The core of the Internal Security Act is its registration provisions (§§ 7 and 8), requiring disclosure of membership in the Communist Party following a valid final determination of the Subversive Activities Control Board as to the status of the Party. See No. 12, ante, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625. The registration requirement would be rendered nugatory by a plea of selfi ncrimination and could only be save by a valid grant of immunity from prosecution by reason of any such disclosure. However, the immunity provided by the second sentence of § 4(f) is insufficient, in that it forbids only the use of the 'fact of * * * registration' as evidence in any future prosecution, and not also its employment as a 'lead' to other evidence. See Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306. Therefore to effectuate the congressional purpose it becomes necessary to consider the first sentence of § 4(f) a pro tanto repealer of the membership clause of the Smith Act, thereby assuring effective immunity from the criminal consequences of registration in this instance.
14
Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute. Certainly the section before us cannot be construed as petitioner argues. The fact of registration may provide a significant investigatory lead not only in prosecutions under the membership clause of the Smith Act, but equally probably to prosecutions under § 4(a) of the Internal Security Act, let alone § 4(c). Thus, if we accepted petitioner's argument that § 4(f) must be read as a partial repealer of the membership clause, we would be led to the extraordinary conclusion that Congress also intended to immunize under § 4(f) what it prohibited in these other subsections which it passed at the same time. Furthermore, the thrust of petitioner's argument cannot be limited to the membership clause, for it is equally applicable to any prosecution under any of a host of criminal provisions where Communist Party membership might provide an investigatory lead as to the elements of the crime.3 We cannot attribute any such sweeping purpose to Congress on the basis of the attenuated inference offered by petitioner.
15
Presented as we are with every indication in the statute itself that Congress had no purpose to bar a prosecution such as this, we turn to the legislative history of the Internal Security Act of 1950 to see if a different conclusion is indicated.
16
Section 4(f) is the product of the fusion of provisions contained in measures conceived by the House and the Senate to deal with the problem which is the subject of the present Internal Security Act. Primarily, however, § 4 is the result of the Senate's efforts. In 1949 Senator Mundt reintroduced in the Senate a bill, the Mundt-Nixon bill, which had died in committee the year before. S. 2311, 81st Cong., 1st Sess. The bill, which was referred to the Committee on the judiciary, contained registration provisions similar to those in the present statute, and a § 4(a), a criminal provision identical to that of the present § 4(a). In response to an enquiry, the Committee received a letter from an eminent lawyer, the late John W. Davis of New York, to the effect that although the primary purpose of the bill appears to be 'ventilation rather than prohibition,' there was a question whether 'mere membership in a Communist political organization, which is * * * required to register (might) constitute an act such as section 4(a) proscribes? If so,' the letter continued, 'is there not inherent contradiction between these sections, and might not a person called on to register as a member claim that he would involuntarily incriminate himself by so doing?' (Emphasis supplied.) S. Rep. No. 1358, 81st Cong., 1st Sess., pp. 43—44. Thus, the Davis letter seemed to address is elf only to self-incrimination under the proscriptions of § 4(a), and only to the extent that the membership disclosed by registration would without more constitute a violation of § 4(a).
17
In response to this narrow objection the Committee drafted the predecessor of the present § 4(f). That section, also numbered § 4(f), provided that:
18
'Neither the holding of office nor membership in any Communist organization by any person shall constitute a violation of subsection (a) * * * of this section. The fact of the registration of any person * * * shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) * * *.' S. 2311, as amended.
19
The Committee in reporting the bill out to the Senate made it abundantly clear that whatever objections might be made could, in its view, be overcome by the clarification of § 4(a) contained in § 4(f), to wit: that 'mere membership in an organization required to register is not an overt act such as to bring a person within the prohibitions of section 4. This amendment was inserted to make clear the intent of Congress that registration * * * was not evidence of a violation of section 4 of the bill.'4 (Emphasis supplied.) S. Rep. No. 1358, supra, p. 2. To the drafters of the original version of the section, then, the perforce limited immunity of the second sentence of § 4(f) together with the clarification of the meaning of § 4(a) in the first sentence was adequate to deal with the self-incrimination problem under § 4(a), raised by the Davis letter. There is no mention of the Smith Act or any other criminal statute as yet, but the problem of the necessary scope of immunity is no different in relation to § 4(a) than it would be to such other statutes.
20
The subsequent history of the section in the Senate reinforces the conclusion that there was no intent to grant a broad immunity such as would meet the reasoning of Counselman v. Hitchcock. The Mundt-Nixon bill was incorporated in the body of an omnibus measure, the McCarran bill. S. 4037, 81st Cong., 2d Sess. When this bill was reported out to the Senate no further mention was made in the majority report of the Judiciary Committee of the sections under consideration. However, Senator Kilgore's minority report squarely presented two questions as to the insufficiency of the immunity provisions of § 4(f): (1) that the immunity was inadequate to meet the Counselman rule, and (2) that in any case there was no immunity of any sort granted in respect of the Smith Act. S.Rep. No. 2369, 81st Cong., 2d Sess., Pt. 2, pp. 12—13. These grounds were urged against the bill also in debate by its opponents. Senator Humphrey read into the Record a 'brief' prepared by the Justice Department which in effect restated the objections of the minority report. 96 Cong.Rec. 14475, at 14479. Senator Lehman stated the same objections, and also suggested that the membership clause of the Smith Act as well as § 4(a) made Communist membership per se a crime. This latter contention was vigorously denied by the proponents of the measure.5 Thus, the Senate passed its predecessor version of § 4(f), even though it had had clearly presented to it constitutional objections to that provision which are the same as the objections petitioner now makes to a natural and lie ral reading of the present statute. There was no immunity of any kind against Smith Act prosecutions, and only limited immunity against prosecutions under the comparable provisions of § 4(a).
21
The history of the original House measure is likewise relevant to the issue under consideration. That measure the Wood bill, which also provided for regstration, contained no provision similar to § 4(a), but did have a provision similar to the prsent § 4(c), forbidding members of Communist organizations from obtaining classified information. H.R. 9490, 81st Cong., 2d Sess. The bill included an immunity provision in the same subsection as the predecessor to present § 4(c), which declared that:
22
'* * * the fact of the registration of any person * * * shall not be received in evidence against such person in any prosecution for any alleged violation * * * of this section.'
23
Once again, the Wood bill demonstrates the same narrow view of the self-incrimination problem as was evidenced by the Senate bill. In debate Congressmen Cller and Marcantonio, opposing the bill, pointed to the twofold inadequacy of the immunity provision: its failure to meet Counselman, and its not reachingo ther criminal statutes. 96 Cong.Rec. 13739—13740. The House responded to these objections by adding the words 'or for any alleged violation of any other * * * criminal statute' at the end of the abovequoted provision. 96 Cong.Rec. 13761. It is, therefore, even clearer than in the case of the Senate's action that there was no attempt to grant complete immunity or to repeal any other statute at least as to prosecution of Communist Party members, since the House's immunity provision in terms only dealt with the admission into evidence of the fact of registration, having no provision comparable to the first sentence of present § 4(f). That there was no such provision may perhaps be explained by the fact that there was no equivalent to § 4(a) in need of clarification.
24
In conference, the substance of the Senate bill was accepted by the conferees, including the criminal provision of the present § 4(a). The Senate version of § 4(f) was amended to its present form by the addition of the House 'or any other criminal statute' language to both the first and second sentences of the subsection, and by the addition of 'per se' to the first sentence. Thus we are asked by petitioner to hold that although neither House in its preconference bills evidenced any purpose to repeal the Smith Act insofar as Communist Party membership was concerned, let alone other possibly applicable statutes under which registration as a Party member might produce an investigatory lead (see note 3, supra), the amalgamation of these two bills was intended, though without any notification by the conferees to either House in their conference reports, to have this result. No does the addition of the words 'per se' advance petitioner's argument. On its face the addition would seem simply to make more explicit the clarifying purpose of the sentence. In its context of worries that § 4(a) or the Smith Act makes Communist membership per se criminal, and of statements by the proponents of the bills that this was an unfounded fear as to both provisions, the purely clarifying purpose of per se is apparent. Furthermore, we are asked to attribute this purpose to the conferees, although neither they nor the proponents of the measure as it finally emerged from conference said a word about such an important departure from the original purposes of the two Houses.6
25
Finally, it is worth noting that after the conference measure returned to the floor of the Senate it was attacked by Senator Kefauver on precisely the same grounds as had been urged againt it in both Houses prior to conference: that the immunity conferred by the present § 4(f) was too narrowly drawn to save the registration provisions against an attack under Counselman. 96 Cong.Rec. 15198 15199. This same attack was renewed after the President's veto, which was overridden by Congress.7 96 Cong.Rec. 15553—15554.
26
The legislative history of § 4(f), therefore, far from weakening the conclusion flowing from analysis of the terms of the statute itself, fortifies that analysis at every point. To conclude that Congress' desire to protect the registration provisions of the Internal Security Act against pleas of self-incrimination should prevail over its advertent failure to assure that result at the expense of wiping out the membership clause of the Smith Act, as applied to Communists, would require a disregard by this Court of the evidence congressional purpose. Whatever may be the consequences of that failure upon the Internal Security Act, we are concerned here solely with the question whether Congress by § 4(f) intended a partial repeal of the membership clause of the Smith Act. We conclude that it did not and hold that this prosecution is not barred by § 4(f) of the Internal Security Act of 1950.
II.
27
Constitutional Challenge to the Membership Clause on its Face.
28
Petitioner's constitutional attack goes both to the statute on its face and as applied. At this point we deal with the first aspect of the challenge and with one part of its second aspect. The balance of the latter, which essentially concerns the sufficiency of the evidence, is discussed in the next section of this opinion.
29
It will bring the constitutional issues into clearer focus to notice first the premises on which the case was submitted to the jury. The jury was instructed that in order to convict it must find that within the three-year limitations period8 (1) the Communist Party advocated the violent overthrow of the Government, in the sense of present 'advocacy of action' to accomplish that end as soon as circumstances wer propitious; and (2) petitioner was an 'active' member of the Party, and not merely 'a nominal, passive, inactive or purely technical' member, with knowledge of the Party's illegal advocacy and a specific intent to bring about violent overthrow 'as speedily as circumstances would permit.'
30
The constitutional attack upon the membership clause, as thus construed, is that the statute offends (1) the Fifth Amendment,9 in that it impermissibly imputes guilt to an individual merely on the basis of his associations and sympathies, rather than because of some concrete personal involvement in criminal conduct; and (2) the First Amendment,10 in that it infringes on free political expression and association. Subsidiarily, it is argued that the statute cannot be intepreted as including a requirement of a specific intent to accomplish violent overthrow, or as requiring that membership in a proscribed organization must be 'active' membership, in the absence of both or either of which it is said the statute becomes a fortiori unconstitutional.11 It is further contended that even if the adjective 'active' may properly be implied as a qualification upon the term 'member,' petitioner's conviction would nonetheless be unconstitutional, because so construed the statute would be impermissibly vague under the Fifth and Sixth Amendments,12 and so applied would in any event infringe the Sixth Amendment, in that the indictment charged only that Scales was a 'member,' not an 'active' member, of the Communist Party.
31
1. Statutory Construction.
32
Before reaching petitioner's constitutional claims, we should first ascertain whether the membership clause permissibly bears the construction put upon it below. We think it does.
33
The trial court's definition of the kind of organizational advocacy that is proscribed was fully in accord with what was held in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356.13 And the statute itself requires that a defendant must have knowledge of the organization's illegal advocacy.
34
The only two elements of the crime, as defined below, about which there is controversy are therefore 'specific intent' and 'active' membership. As to the former, this Court held in Dennis v. United States, 341 U.S. 494, 499—500, 71 S.Ct. 857, 862, 95 L.Ed. 1137, that even though the 'advocacy' and 'organizing' provisions of the Smith Act, unlike the 'literature' section (note 1, supra), did not expressly contain such a specific intent element, such a requirement was fairly to be implied. We think that the reasoning of Dennis applies equally to the membership clause, and are left unpersuaded by the distinctions petitioner seeks to draw between this clause and the advocacy and organizing provisions of the Smith Act.
35
We find hardly greater difficulty in interpreting the membership clause to reach only 'active' members. We decline to attribute to Congress a purpose to punish nominal membership, even though accompanied by 'knowledge' and 'intent,' not merely because of the close constitutional questions that such a purpose would raise (cf. infra, 367 U.S. at page 228, 81 S.Ct. at page 1486; Yates, supra, 354 U.S. at page 319, 77 S.Ct. at page 1077), but also for two other reasons: It is not o be lightly inferred that Congress intended to visit upon mere passive members the heavy penalties imposed by the Smith Act.14 Nor can we assume that it was Congress' purpose to allow the quality of the punishable membership to be measured solely by the varying standards of that relationship as subjectively viewed by different organizations. It is more reasonable to believe that Congress contemplated an objective standard fixed by the law itself, thereby assuring an evenhanded application of the statute.
36
This Court in passing on a similar provision requiring the deportation of aliens who have become members of the Communist Party—a provision which rested on Congress' far more plenary power over aliens, and hence did not press nearly so closely on the limits of constitutionality as this enactment—had no difficulty in interpreting 'membership' there as meaning more than the mere voluntary listing of a person's name on Party rolls. Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Rowoldt v. Perfetto, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140; see Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103. A similar construction is called for here.15
37
Petitioner's particular constitutional objections to this construction are misconceived. The indictment was not defective in failing to charge that Scales was an 'active' member of the Party, for that factor was not in itself a discrete element of the crime, but an inherent quality of the membership element. As such it was a matter not for the indictment, but for elucidating instructions to the jury on what the term 'member' in the statute meant. Nor do we think that the objection on the score of vagueness is a tenable one. The distinction between 'active' and 'nominal' membership is well understood in common parlance (cf. Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367; United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167), and the point at which one shades into the other is something that goes not to the sufficiency of the statute, but to the adequacy of the trial court's guidance to the jury by way of instructions in a particular case. See note 29, infra. Moreover, whatever abstract doubts might exist on the matter, this case presents no such problem. For petitioner's actions on behalf of the Communist Party most certainly amounted to active membership by whatever standards one could reasonably anticipate, and he can therefore hardly be considered to have acted unadvisedly on this score.
38
We find no substance in the further suggestion that petitioner could not be expected to anticipate a construction of the statute that included within its elements activity and specific intent, and hence that he was not duly warned of what the statute made cruiminal. It is, of course, clear that the lower courts' construction was narrower, not broader, than the one for which petitioner argues in defining the character of the forbidden conduct and that therefore, according to petitioner's own construction, his actions were forbidden by the statute. The contention must then be that petitioner had a right to rely on the statute's, as he construed it, being held unconstitutional. Assuming, arguendo, that petitioner's construction was not unreasonable, no more can be said than that in light of the courts' traditional avoidance of constructions of dubious constitutionality and in light of their role in construing the purpose of a statute—there were two ways one could reasonably anticipate this statute's being construed, and that petitioner had clear warning that his actions were in violation of both constructions. There is no additional constitutional requirement that petitioner should be entitled to rely upon the statute's being construed in such a way as possibly to render it unconstitutional. In sum, this argument of a 'right' to a literal construction simply boils down to a claim that the view of the statute taken below did violence to the congressional purpose. Of course a litigant is always prejudiced when a court errs, but whether or not the lower courts erred in their construction is an issue which can only be met on its merits, and not by reference to a 'right' to a particular interpretation.
39
We hold that the statute was correctly interpreted by the two lower courts, and now turn to petitioner's basic constitutional challenge.
40
2. Fifth Amendment.
41
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in an organization engaged in illegal advocacy, it is now said, has not heretofore been recognized by this Court to be such a relationship.16 This claim stands, and we shall examine it, independently of the claim made under the First Amendment.
42
Any thought that due process puts beyond the reach of the criminal law all individual associational relationships, unless accompanied by the commission of specific acts of criminality, is dispelled by familiar concepts of the law of conspiracy and complicity. While both are commonplace in the landscape of the criminal law, they are not natural features. Rather they are particular legal concepts manifesting the more general principle that society, having the power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior.17 The fact that Congress has not resorted to either of these familiar concepts means only that the enquiry here must direct itself to an analysis of the relationship between the fact of membership and the underlying substantive illegal conduct, in order to determine whether that relationship is indeed too tenuous to permit its use as the basis of criminal liability. In this instance it is an organization which engages in criminal activity,18 and we can perceive no reason why one who actively and knowingly works in the ranks of that organization, intending to contribute to the success of those specifically illegal activities, should be any more immune from prosecution than he to whom the organization has assigned the task of carrying out the substantive criminal act. Nor should the fact that Congress has focussed here on 'membership,' the characteristic relationship between an individual and the type of conspiratorial quasi-political associations with the criminal aspect of whose activities Congress was concerned, of itself require the conclusion that the legislature has traveled outside the familiar and permissible bounds of criminal imputability. In truth, the specificity of the proscribed relationship is not neces arily a vice; it provides instruction and warning.19
43
What must be met, then, is the argument that membership, even when accompanied by the elements of knowledge and specific intent, affords an insufficient quantum of participation of the organization's alleged criminal activity, that is, an insufficiently significant form of aid and encouragement to permit the imposition of criminal sanctions on that basis. It must indeed by recognized that a person who merely becomes a member of an illegal organization, by that 'act' alone need be doing nothing more than signifying his assent to its purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete, practical impetus given to a criminal enterprise which is lent for instance b a commitment on the part of a conspirator to act in furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his membership without thereby necessarily committing himself to further it by any act or course of conduct whatever.
44
In an area of the criminal law which this Court has indicated more than once demands its watchful scrutiny (see Dennis, supra, 341 U.S. at page 516, 71 S.Ct. at page 870, 95 L.Ed. 1137; Yates, supra, 354 U.S. at page 328, 77 S.Ct. at page 1081, 1 L.Ed.2d 1356; and see also Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836), these factors have weight20 and must be found to be overborne in a total constitutional assessment of the statute. We think, however, they are duly met when the statute is found to reach only 'active' members having also a guilty knowledge and intent, and which therefore prevents a conviction on what otherwise might be regarded as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action.
45
Thus, given the construction of the membership clause already discussed, we think the factors called for in rendering members criminally responsible for the illegal advocacy of the organization fall within established, and therefore presumably constitutional, standards of criminal imputability.
46
3. First Amendment.
47
Little remains to be said concerning the claim that the statute infringes First Amendment freedoms. It was settled in Dennis that the advocacy with which we are here concerned is not constitutionally protected speech, and it was further established that a combination to promote such advocacy, albeit under the aegis of what purports to be a political party, is not such association as is protected by the First Amendment. We can discern no reason why membership, when it constitutes a purposeful form of complicity in a group engaging in this same forbidden advocacy, should receive any greater degree of protection from the guarantees of that Amendment.
48
If it is said that the mere existence of such an enactment tends to inhibit the exercise of constitutionally protected rights, in that it engenders an unhealthy fear that one may find himself unwittingly embroiled in criminal liability, the answer surely is that the statute provides that a defendant must be proven to have knowledge of the proscribed advocacy before he may be convicted. It is, of course, true that quasi-plitical parties or other groups that may embrace both legal and illegal aims differ from a technical conspiracy, which is defined by its criminal purpose, so that all knowing association with the conspiracy is a proper subject for criminal proscription as far as First Amendment liberties are concerned. If there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause, as here construed, does not cut deeper into the freedom of association than is necessary to deal with 'the substantive evils that Congress has a right to prevent.' Schenck v. United States, 249 U.S. 47, 52, 39 L.Ed. 247, 249, 63 L.Ed. 470. The clause does not make criminal all association with an organization which has been shown to engage in illegal advocacy. There must be clear proof that a defendant 'specifically intend(s) to accomplish (the aims of the organization) by resort to violence.' Noto v. United States, post, 367 U.S. 290, to v. United States, post, 367 U.S. at page 299, 81 S.Ct. at page 1522. Thus the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fallw ithin the ban of the statute: he lacks the requisite specific intent 'to bring about the overthrow of the government as speedily as circumstances would permit.' Such a person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal.
49
We conclude that petitioner's constitutional challenge must be overruled.21
III.
50
Evidentiary Challenge.
51
Only in rare instances will this Court review the general sufficiency of the evidence to support a criminal conviction, for ordinarily that is a function which properly belongs to and ends with the Court of Appeals. We do so in this case and in No. 9, Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836 our first review of convictions under the membership clause of the Smith Act—not only to make sure that substantive constitutional standards have not been thwarted, but also to provide guidance for the future to the lower courts in an area which borders so closely upon constitutionally protected rights.
52
On this phase of the case petitioner's principal contention is that the evidence was insufficient to establish that the Communist Party was engaged in present advocacy of violent overthrow of the Government in the sense required by the Smith Act, that is, in 'advocacy of action' for the accomplishment of such overthrow either immediately or as soon as circumstances proved propitious, and uttered in terms reasonably calculated to 'incite' to such action. See Yates v. United States, supra, 354 U.S. 318—322, 77 S.Ct. 1076—1078. This contention rests largely on the proposition that the evidence on this aspect of the case does not differ materially from that which the Court in Yates stated was inadequate to establish that sort of Party advocacy there.
53
In Yates the Government sought to use the Communist Party, or at least the California branch of the Party, as the conspiratorial nexus between various individuals charged, among other things, with a conspiracy to engage in illegal advocacy. Upon reversal here for error in the trial court's charge on the nature of the advocacy proscribed by the Smith Act, this Court, in the exercise of its powers under 28 U.S.C. § 2106, 28 U.S.C.A. § 2106,22 went on to consider the adequacy of the evidence for the purpose of determining as to which defendants an acquittal should be ordered, and as to which ones the way for a new trial should be left open. In the process it was stated that the Government's Party-conspiratorial-nexus theory was unavailing because the evidence fell short of establishing that the Party's advocacy constituted 'a call to forcible action' for the accomplishment of immediate or future overthrow, in contrast to the teaching of mere 'abstract doctrine' favoring that end. 354 U.S. at page 329, 77 S.Ct. at page 1082. At the same time, however, it was found that the record reflected certain episodes which, it was considered, might permissibly lend themselves to an inference of illegal advocacy by particular Party members (see id., 354 U.S. at pages 331—333, 77 S.Ct. at pages 1083—1084). It was concluded, however, that these and similar episodes were too 'sporadic' and remote (id., 354 U.S. 330, 77 S.Ct. 1082) to justify their attribution to the Party, possibly casting its abstract teaching of the 'Communist classics' in a different mold. Accordingly, the Court directed an acquittal of those defendants who had not themselves been connected with such episodes.
54
We age e with petitioner that the evidentiary question here is controlled in large part by Yates. The decision in Yates rested on the view (not articulated in the opinion, though perhaps it should have been) that the Smith Act offenses, involving as they do subtler elements than are present in most other crimes, call for strict standards in assessing the adequacy of the proof needed to make out a case of illegal advocacy. This premise is as applicable to prosecutions under the membership clause of the Smith Act as it is to conspiracy prosecutions under that statute as we had in Yates.
55
The impact of Yates with respect to this petitioner's evidentiary challenge is not limited, however, to that decision's requirement of strict standards of proof. Yates also articulates general criteria for the evaluation of evidence in determining whether this requirement is met. The Yates opinion, through its characterizations of large portions of the evidence which were either described in detail or referred to by reference to the record, indicates what type of evidence is needed to permit a jury to find that (a) there was 'advocacy of action' and (b) the Party was responsible for such advocacy.
56
First, Yates makes clear what type of evidence is not in itself sufficient to show illegal advocacy. This category includes evidence of the following: the teaching of Marxism-Leninism and the connected use of Marxist 'classics' as textbooks; the official general resolutions and pronouncements of the Party at past conventions; dissemination of the Party's general literature, including the standard outlines on Marxism; the Party's history and organizational structure; the secrecy of meetings and the clandestine nature of the Party generally; statements by officials evidencing sympathy for and alliance with U.S.S.R. It was the predominance of evidence of this type which led the Court to order the acquittal of several Yates defendants, with the comment that they had not themselves 'made a single remark or been present when someone else made a remark which would tend to prove the charges against them.' However, this kind of evidence, while insufficient in itself to sustain a conviction, is not irrelevant. Such evidence, in the context of other evidence, may be of value in showing illegal advocacy.
57
Second, the Yates opinion also indicates what kind of evidence is sufficient. There the Court pointed to two series of events which justified the denial of directed acquittals as to nine of the Yates defendants. The Court noted that with respect to seven of the defendants, meetings in San Francisco which were described by the witness Foard might be considered to be 'the systematic teaching and advocacy of illegal action which is condemned by the statute.' 354 U.S. at page 331, 77 S.Ct. at page 1083. In those meetings, a small group of members were not only taught that violent revolution was inevitable, but they were also taught techniques for achieving that end. For example, the Yates record reveals that members were directed to be prepared to convert a general strike into a revolution and to deal with Negroes so as to prepare them specifically for revolution. In addition to the San Francisco meetings, the Court referred to certain activities in the Los Angeles area 'which might be considered to amount to 'advocacy of action" and with which two Yates defendants were linked. Id., 354 U.S. 331—332, 77 S.Ct. 1083. Here again, the participants did not stop with teaching of the inevitability of eventual revolution, but went on to explain techniques, both legal and illegal, to be employed in preparation for or in connection with the revolution. Thus, one member was 'surreptitiously indoctrinated in methods * * * of moving 'masses of people in time of crisis"; others were told to adopt such Russian prerevolutionary techniques as the development of a special communication system through a newspaper similar to Pravda. Id., 354 U.S. 332, 77 S.Ct. 1083. Viewed together, these events describd in Yates indicate at least two patterns of evidence sufficient to show illegal advocacy: (a) the teaching of forceful overthrow, accompanied by directions as to the type of illegal action which must be taken when the time for the revolution is reached; and (b) the teaching of forceful overthrow, accompanied by a contemporary, though legal, course of conduct clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated. Compare Noto v. United States, post, 367 U.S. at pages 297—299, 81 S.Ct. at pages 1520—1522.
58
Finally, Yates is also relevant here in indicating, at least by implication, the type and quantum of evidence necessary to attach liability for illegal advocacy to the Party. In discussing the Government's 'conspiratorial-nexus theory' the Court found that the evidence there was insufficient because the incidents of illegal advocacy were infrequent, sporadic, and not fairly related to the period covered by the indictment. In addition, the Court indicated that the illegal advocacy was not sufficiently tied to officials who spoke for the Party as such.
59
Thus, in short, Yates imposes a strict standard of proof, and indicates the kind of evidence that is insufficient to show illegal advocacy under that standard, the kind of evidence that is sufficient, and what pattern of evidence is necessary to hold the Party responsible for such advocacy. With these criteria in mind, we now proceed to an examination of the evidence in this case.
60
We begin with what was also present in Yates, the general evidence as to the doctrines, organization, and tactical procedures of the Communist Party, exposited by Lautner, the Government's foundational witness both here and in Yates. Together with documentary evidence, Lautner's testimony, based on high-level participation in Party affairs from 1929 to 1950, furnished the necessary background in Party theory and terminology which is crucial to the proper appreciation of the tenor of Party pronouncements, for these pronouncements, taken out of this larger context, might appear harmless and peaceable without in reality being so. The distinction that was drawn in Yates between theoretical advocacy and advocacy of violence as a rule of action is of course basic, but when the teaching is carried out in a special vocabulary, knowledge of that vocabulary is at least relevant to an understanding of the quality and tenor of the teaching.
61
Lautner's testimony, having covered the pre-war history of the Party, passed to the 1945 reconstitution of the organization. Prior to that time the Party, as the Communist Political Association, had adhered to the position that the change to a Communist society could be achieved through peaceful, democratic means. The reconstitution, which was finally approved at a National Convention in July of 1945, involved a return to the principles of Marxism-Leninism. As found in the so-called Communist classics, the adoption of a program of industrial concentration, the increased effort among Negroes, especially in the South, the complete repudiation of the former Party leader, Browder, and his doctrine of 'revisionism,' all signified, so Lautner testified, that the United States was henceforth to be regarded as no exception to the teachings of Lenin that communism could only be achieved in an industrialized nation such as this by resort to violent revolution, and that a belief in peaceful means was foolishness or treachery. Lautner testified that the industrial concentration program, as well as the emphasis on the Negro minority, was an articulation of this doctrine, in that it involved a concentration on those elements in society which the Party believed could do most damage, in time of crisis, to the existing social fabric in relation to their numbers, and that victory at the polls was not its concern. Lautner testified that it was further resolved at the 1945 National Convention that in order to implement the principles of the reconstitui on, a program of thorough re-education of the whole Party membership should be undertaken, and Lautner himself was charged with the duty of carrying out this re-education as a District Organizer and State Chairman. The balance of Lautner's testimony was devoted to a detailed description of the elaborate underground 'apparatus' which he and others were charged with setting up in the various portions of the country assigned to them.
62
Mrs. Hartle testified as to her activities in the Party, primarily in the Pacific Northwest area, from 1934 to approximately 1952. Mrs. Hartle confirmed, in many respects, Lautner's testimony as to Party teaching and doctrine throughout this period. After the 1945 reconstitution she was sent to the National Training School in New York, where thirty 'officers and functionaries' from various parts of the country were 're-educated' in accordance with the decisions and resolutions of the 1945 Convention. She was taught about 'dialectical materialism,' and the theory of struggle between the capitalist class and the working class. They were taught 'and reference was made to a quotation * * * that it is the duty of a revolutionary not to try to gloss over this class struggle or to try to compromise it, but to unravel it, to allow this class struggle and help this class struggle to unfold, the clash to proceed.' The class was told that 'it is the duty of a Marxist-Leninist to be a revolutionary and not a reformist.' They were further instructed 'that the United States * * * was objectively at the stage for Proletarian revolution,' that the time for the proletariat revolution would come when the objective conditions of political or economic crisis coincided with the 'subjective condition' of a Communist Party which was large enough, with enough 'influence' among the working classes, 'to give the necessary leadership to lead to the seizure of power.' Much of the testimony summarized so far may indeed by considered to relate to the mere theory of revolution, abstract advocacy. However, the teaching at the National Training School also descended to a lower level of generality. Mrs. Hartle was told that the 'role' of the Communist Party was 'preparing the workers and the people to be ready to be able to take power, to know how to take power' when a 'revolutionary situation arose.' At that time, 'the plan and program of the Party would be to lead the working class to seize power' and 'to smash the Bourgeois state machine.' With respect to this latter task, the class was told:
63
'* * * the Bourgeois state machine is not smashed after the seizure of power, but in the course of seizing power that the armies, the police, the prisons have to be dealt with and smashed up and rendered inoperative in the course of the seizure of power, that other matters, that some other matters in replacing the, a state, such as the, some of the administrative apparatus and some other matters would take a longer period of time, but the forcible elements of the capitalist state must be smashed in the course of taking power, but some other things like reorganizing the banking system, or some matters like that, could be done in a somewhat longer process.'
64
In pressing toward the fulfillment of the 'subjective conditions' necessary for such action, Mrs. Hartle was taught that 'the struggles and activities of the Communist Party prepare the working class for this act of seizure of power,' and the history of the Russian Communist Party and Revolution was taught in the school and the events and principles of this history were constantly related to contemporary conditions in the United States. Thus, for example, the class was told that the coalition of workers and peasants which had proved so successful in Russia should have its counterpart in America in a coalition of workers and Negroes, especially in the South.
65
Following her classes at the National Training School, Mr. Hartle returned to Washington, where she helped to recruit and organize in 'undergroud fashion' the employees of the Boeing Aircraft Plant in that State. At the same time, Mrs. Hartle was active in Party schools in her area. She testified that she had both been instructed and had herself taught:
66
'* * * the means by which the ultimate goal might be attained was that those means would be forcible. The teaching was that any teaching, any theory of a peaceful road to socialism, or a growing over from capitalism to socialism was a betrayal of the working class and that the Communist Party leading the working class would have to arm it in the first place with the theory that the workers must know and must be prepared to know that they can only take power forcibly.
67
'The action that Communist Party members should take in preparing for the ultimate goal that I was taught and that I taught, were to build the Communist Party as the vanguard party of the working class, a theoretically equipped party, equipped with the theory of Marxism-Leninism, a highly organized party that could act as a unit, as a monolithic whole, with democratic centralism, the principle guiding it * * * and that the Communist Party should be the connection between the vanguard and the working class millions in this preparation by working with and winning the confidence of the working class and allies of the working class, such as, the Negro people, the poor farmers, other national groups, and in this way, in the course of struggle, constant struggle taking the forms of strikes and demonstrations and picket lines and marches and various kinds of activities to train the working class and the people for revolutionary battle.'
68
The witness Duran, who attended a Party School in Los Angeles in 1951, described what he had been taught by one Moreau, a member of the National Education Commission of the Communist Party:
69
'He divided in his explanation the * * * Proletariat * * * as being divided into two groups. Those in industry that would lead the revolution, and those in agriculture that would follow, and speaking about the revolution, Professor Moreau stated to the class in a very emotional manner that he could see himself carrying a gun against the capitalist S.O.B.'s and explained to the class it was all based on the science of Marx and Lenin.
70
'In discussing the Proletarian Revolution more thoroughly Professor Moreau explained throughout the school that the Proletarian Revolution would only come about if a Bolshevik rank and file, the sincere Communists, would get out and teach, and teach the people, the desirability of changing the system and the necessity of changing them, and in doing that, we had to teach the people that you cannot change the capitalist system to a Socialist system, to socialism successfully, the peaceful way; it had to be erupted from, and had to be taken away by force and violence, away from them and the entire state machinery of the Bourgeoisie smashed, the F.B.I., the courts and the Army and the Navy, whatever was on it, what—the entire instrumentality of the Bourgeoisie had to be smashed and substituted by the Proletarian machinery.
71
'* * * and during the period of the revolution the transition, the violent transition, we had to make mass work to get the masses away from the Bourgeoisie so they would not join a counterrevolution movement.
72
'It meant after the people of the Communist Party, the vanguard, had become satisfied, that the Bourgeoisie machinery was smashed, and they were in control, then they also had to collect guns from the people and control the people themselves.
73
'Q. Do I understand, Mr. Moreau (sic) that during this period of revolution the people, that is, the masses of the people, would be carrying guns? A. Yes, sir.
74
'Q. And after the revolution do I understand that the Party would go around and collect these guns and take them away from the people? A. Yes, sir; take them away from those that helped them overthrow the capitalist system in order to assure the revolution itself. * * *
75
'm mediately after the overthrow of the capitalist system and establishment of the dictatorship of the Proletariat, it became necessary for a Communist to establish Red Army in this country, not only to secure and maintain the dictatorship of the proletariat, but control the people as well, and those people that did help overthrow the Government would not have any civil rights whatsoever, no voting rights, or anything; they would be dished out to them according to the way they felt, way they fell in with the Communist office by the dictatorship.
76
'Q. Now, Mr. Duran, what, if anything, did Mr. Moreau teach you in this school about the role that would be played by the Communist Party during this period of revolution when the Government would be overthrown by force and violence? A. The role of the Communist Party, and specifically within the Communist Party, the Bolsheviks was to play a vanguard role, a leading role; that is explained scientifically in that so that first we teach the people the desirability of overthrowing them and teach them the, it could only be done through the Proletarian Revolution, and then when the time is ripe we could stampede them against the capitalist class.'
77
Duran also testified to what he had been taught by Art Berry, District Organizer for seven States, in a Colorado school in 1952:
78
'* * * we were discussing the scientific application of Marx and Lenin to the transition period between capitalism and socialism, and he demonstrated this with the kettle of water, that you could put a quantitative amount of water in a kettle and set it somewhere, nothing would happen, just like the masses, nothing does happen.
79
'* * * (he) said, however, if you get that same amount, same kettle with the same amount of water in it, and put fire underneath it, then you begin to get quantitative changes, and eventually it reaches a nodule point to where it has a qualitative and abrupt transition into steam. He continued, same applied to the development of the revolution in this sense the American people will not and cannot make a successful change over from capitalism to socialism by themselves, like the fire underneath the water, the Communist Party teaches and leads them to where when the society reaches that nodule point, the Communist people teaches the people before and then leads them to make that abrupt change into the society of socialism.
80
'Substantially, within the same explanation of violent overthrow of the Government * * * he stated that not only would it be that, but that we would have to set up barricades, establish a central point from where we would participate from; he stated that 'we' literally speaking 'we', would have to have a central point because during the revolution it may become necessary to ebb, retreat in certain battles, and we would have to learn to retreat in an organizational way and a correct way. It was essential to learn to ebb as it was to flow on the revolution.
81
'In the ebbing we were to see that we ebb before the enemy wiped everybody out. Ebbing to the central point that had been barricaded, reorganization, and then at the correct time start flowing forward in the revolution.'
82
The witness Obadiah Jones testified concerning a Party Training School in St. Louis which he attended in 1947. Jones was taught 'that the only way the national problem could be solved would be in connection with the Proletariat Revolution.' Jones was also instructed as to the nature of a Communist army:
83
'A. He said general staff of an army was different from the Communist Party * * * general staff of an army operated from a safe spot from behind the line and led the army from a far distance, and that the Communist Party went forth and fought with the workers.
84
'Q. Did he say anything with reference to the techniques? A. Yes, he said that you couldn't be a good leader without knowing all of the techniques of fighting.
85
'Q. Did he say anything with respect to carrying out instructions? A. Yes, sir.
86
'Q. What di he say in that connection? A. He said that capitalists in the army did not carry out the instructions in full, but the Communists did, irregardless of what the cost would be, the would carry out instructions completely.'
87
At the final session, the students were required by the instructor to take a pledge:
88
'The pledge was each of us are Communists or members of the Party and each of us have a responsibility and we must carry out our responsibility and work for the interests of the Party and its recipients and carry out the full will of the Party even though it meant to fight and to kill, we must carry out the demands of the Party and all of them.'
89
The witnesses Clontz, Childs, and Reavis testified primarily as to their dealings with petitioner Scales. We regard this testimony, which finds no counterpart in the Yates record with respect to any of the defendants whose acquittal was directed, as being of special importance in two ways: it supplies some of the strongest and most unequivocal evidence against the Party based on the statements and activities of a man whose words and deeds, by virtue of his high Party position, carry special weight in determining the character of the Party from the standpoint of the Smith Act; and it appears clearly dispositive as to the quality of petitioner's Party membership, and his knowledge and intent, when we come to consider him not as a Party official but as the defendant in this case.23
90
In 1948 Ralph C. Clontz, Jr., then a student at Duke Law School, undertook to furnish the F.B.I. with information he had gained about Communist Party activities in North Carolina, and to volunteer his services in attempting to penetrate the Party to acquire further information. As a result, in September of that year, Clontz sent a postcard to petitioner, informing him that he was a law student and that he was interested in communism. Petitioner replied by sending Clontz 'a large cardborad box filled with Communist literature.' An accompanying letter, headed 'Carolina District Communist Party U.S.A.' with the notation 'Junius Scales, Chairman,' explained:
91
'Under separate cover I have already sent you a rather varied sample of our literature. I hope you will give it close attention. If I can discuss any matter relating to my Party and its program with you in person, I will be glad to do so.'
92
Several days later Clontz went to visit petitioner and thus began a relationship which was to bring him into intimate contact with the Communist Party, its teachings, purposes and activities.
93
At an early meeting between the two, petitioner told Clontz that it was impossible for the Communist Party to succeed to power through educating the people in this country and gaining their votes at the polls, but that a forceful revolution would be necessary. At a later meeting, the discussion was not limited to the theoretical inevitability of revolution, but went beyond the theory itself to an explanation of 'basic strategy' which the Communist Party was using to give concrete foundation o the theory, i.e., to bringing about the revolution:
94
'The defendant (petitioner) explained that basically their strategy was bottomed on a concept that there were two classes of people in this country, that could be used by the Communist Party to foment a revolution.
95
'The first class he termed the working class or Proletariat, working class, he said, had as its natural born leaders or vanguard, the Communist Party.
96
'The second class, he described, in this country was what he termed the Negro nation. The Negro nation he described as a separate nation in what he termed the Black Belt, including thirteen Southern States, and the strategy of the Communist Party was to bring the working class, led by the Communist Party, and what he termed the Negro nation, together, to bring about a forceful overthrow of the Government.
97
'Now Scales and the Communist Party taught that the basic strategy of the Communist Party would never change, but that tactics might be altered as the situation changed.'
98
On petitioner's invitation, Clontz joined the Communist Party on January 17, 1950. He was not assigned to a particular group but became a member 'at large,' in order to continue his instruction under petitioner. In the course of this instruction, petitioner repeatedly told Clontz of the necessity for revolution to bring about the Dictatorship of the Proletariat. Scales analogized the situation in the United States to that in Russia prior to the 1917 Revolution. He pointed out that revolution would be 'easier' in this country than it had been in Russia:
99
'that while in the Soviet Union there had been no one to help the Soviet Party, that in this country when the revolution started, we would have the benefit of the help from the mother country, Russia, in bringing about our own revolution, because part of the purposes of the Communist Party in the Soviet Union was international in scope and that we naturally would continue to receive help in all circumstances from the Soviet Party when the revolution was started here in this country.'
100
Petitioner explained that the Soviet Union could not be expected to land troops to start a revolution here. A similar procedure had been unsuccessful in China. Rather, he said 'that we Communists in this country would have to start the revolution, and we would have to continue fighting it,' but that the Soviet Union would aid the Communist Party in this endeavor by furnishing it 'with experienced revolutionaries from Russia.'24 He added that 'if the United States declared war on the Communists in their revolution, then the Soviet Union would land troops, and he said that would be a bloody time for all.' When asked by Clontz when all this would occur, Scales noted that a 'depression would greatly accelerate the coming of the revolution' if the Communists used it properly to prepare the masses of the people.
101
Petitioner arranged for Clontz to be awarded a scholarship to study in New York at th Jefferson School of .social Science, an official Communist Party School, during the month of August 1950. Because Clontz arrived at a time when few scheduled courses were being offered, the bulk of his training at the school was received in private instruction from Doxey A. Wilkerson, the teacher with whom petitioner had communicated in arranging Clontz' scholarship.25 Wilkerson, like petitioner, told Clontz 'that the Communist Party recognized and expressed to themselves that the only kind of means would be proper means, which would be forceful means, that no longer was there any even pretense among intelligent Communists that any voting system or any people's election could bring this government.' He also stated, as Scales had, that 'the revolution basically would come about by combining the forces of what had been already identified as the Negro nation and the working class as the vanguard.'
102
In line with this strategy, Wilkerson advised Clontz that he should not let his membership in the Communist Party become known, that by remaining 'under cover' he 'would be much more helpful to the Party when the revolution came.' As part of his undercover activity, Clontz was directed to attempt to infiltrate various organizations of the working class in order to achieve 'a background of respectability' and to be able to lead such organizations 'toward the goal of the Communist Party, * * * the undermining of the Government and overthrowing the Government, bringing communism in the United States.' But Clontz was not to lose contact with the Party, for if he 'got isolated without Party direction * * * (his) efforts would be pretty largely wasted.' In connection with these instructions, Wilkerson mentioned 'one of the things that frightened the United States leaders was they knew that not only did they have to contend with China and the other Communist-dominated countries, but that also in every capitalist country the working class party, the Communists, would be working from within.'
103
When Clontz returned to North Carolina, he reported to petitioner on his activities at the Jefferson School. He also informed petitioner, under instructions from the F.B.I., that he wished to move to New York. Petitioner arranged for Clontz to remain under his direction and to pay dues to him, while in New York, rather than effecting a formal transfer. Clontz moved to New York in March of 1951. While there Scales directed him to 'get in with the A.C.L.U. organization to report on what value they might have in the coming struggle * * *.' Clontz had also been advised by an associate of petitioner to 'infiltrate * * * the Civilian Defense setup.'
104
The witnesses Childs and Reavis also testified to their relationship with Scales, who among other things arranged for their attendance at Party schools where their instruction followed much the same pattern as that described by Clontz.26 In 1952 Childs attended a 'Party Training School' of which petitioner was a director. The school was given 'for outstanding cadres in the North and South Carolina and Virginia Districts of the Communist Party.' It was held on a farm and strict security measures were taken. The District Organizer of Virginia instructed at the school. He told the students that 'the role of the Communist Party is to lead the working masses to the overthrow of the capitalist government.' With respect to the preliminary task of gaining the 'broad coalition' necessary to achieve this task, he stated that,
105
'* * * the Communist Party has a program of industrial concentration in which they try to get people, that is, people who are Communist Party members, into key shops or key industries which the Party has determined or designated to be industrial concentration industries or plants. This is so that the Communist Party members in a particular plant will be able to have a cell, or a Communist Party group in which they will be able to more effectively plan for such things as attempting to control the union in that particular plant.'
106
And, in a compulsory recreation period, this same instructor gave a demonstration of jujitsu and, explaining that the students 'might be able to use this on a picket line,' how to kill a person with a pencil. According to Childs' testimony, 'what he showed us to do was to take our pencil, * * * just take the pencil and place it simply in the palm of your hand so that the back will rest against the base of the thumb, and then we were to take it, and the person, and give a quick jab so that it would penetrate through here (demonstrating), and enter the heart, and then if w could not do that, we just take it and grab it at the base of the throat.'
107
Reavis attended the Party's New York Jefferson School in 1942. In a course on 'Negro History' the students, drawn primarily from the South, were taught that '* * * the Negro people was the only revolutionary group within the United States that we could align themselves (sic) with, and hope to reach their (sic) gains through the avenue of force and violence, by overthrow of the Government, by Proletariat faction * * *.' Reavis was later advised to seek employment at the Western Electric Plant in Winston-Salem. He stated:
108
'I bumped into Mr. Scales at Harvey's home and I—the report said * * * the advice I'd been getting was confirmed by him. I advanced the question on what I should do in case I did get employment there at Western Electric, and I knew if was a, Government work, what I should do in case I was asked to sign certain papers, and I was told to do the same, that they had when signing a Taft-Hartley affidavit, to go ahead and sign them, that before they did, the defendant asked me if I had signed any papers that might be used as proof that I was in the Party, and I didn't remember any.'
109
We conclude that this evidence sufficed to make a case for the jury on the issue of illegal Party advocacy. Dennis and Yates have definitely laid at rest any doubt that present advocacy of future action for violent overthrow satisfies statutory and constitutional requirements equally with advocacy of immediate action to that end. 341 U.S. at page 509, 71 S.Ct. at page 867, 95 L.Ed. 1137; 354 U.S. at page 321, 77 S.Ct. at page 1078, 1 L.Ed.2d 1356. Hence this record cannot be considered deficient because it contains no evidence of advocacy for immediate overthrow.
110
Since the evidence amply showed that Party leaders were continuously preaching during the indictment period the inevitability of eventual forcible overthrow, the first and basic question is a narrow one: whether the jury could permissibly infer that such preaching, in whole or in part, 'was aimed at building up a seditious group and maintaining it in readiness for action at a propitious time * * * the kind of indoctrination preparatory to action which was condemned in Dennis.' Yates, supra, 354 U.S. at pages 321—322, 77 S.Ct. at page 1078. On this score, we think that the jury, under instructions which fully satisfied the requirements of Yates,27 was entitled to infer from this systematic preaching that where the explicitness and concreteness, of the sort described previously, seemed necessary and prudent, the doctrine of violent revolution—elsewhere more a theory of historical predictability than a rule of conduct—was put forward as a guide to future action, in whatever tone, be it emotional or calculating, that the audience and occasion required; in short, that 'advocacy of action' was engaged in.
111
The only other question on this phase of the case is whether such advocacy was sufficiently broadly based to permit its attribution to the Party. We think it was. The advocacy of action was not 'sporadic' (cf. 367 U.S. at page 226, 81 S.Ct. at page 1485, supra), the instances of it being neither infrequent, remote in time nor casual.28 It cannot be said that the jury could not have found that the criminal advocacy was fully authorized and condoned by the Party. We regard the testimony of the witnesses, whose credibility, of course, is not for us, as indicating a sufficiently systematic and substantial course of utterances and conduct on the part of those high in the councils of the Party, including the petitioner himself, to entitle the jury to infer that such activities reflected tenets of the Party. The testimony described activities in various States, including the teaching at some seven schools, among them the national Party school. The witnesses told of advocacy by high Party officials, including that of leaders of the Party in nine States. Further, there was testimony that the Party followed the principle of 'democraticentralism' whereby a position once adopted by the Party must be unquestionably adhered to by the whole membership. The conformity of the views expressed and the terms employed in advocating violent overthrow in such States as Washington, North Carolina, Missouri, Colorado and Virginia could reasonably be taken by the jury as a practical manifestation of 'democratic-centralism.' Another concrete illustration of this principle could have been found in the circumstance that in almost every instance where a speaker engaged in advocacy of violent overthrow, he not only advocated violence to his audience but urged others to go out and do likewise. All of these factors combine to justify the inference that the illegal individual advocacy as to which testimony was adduced was in truth the expression of Party policy and purpose.
112
The requirement of Party imputability is adequately met in the record. (See note 18, supra.)
113
The sufficiency of the evidence as to other elements of the crime requires no exposition. Scales' 'active' membership in the Party is indisputable, and that issue was properly submitted to the jury under instructions that were entirely adequate.29 The elements of petitioner's 'knowledge' and 'specific intent' (ante, 376 U.S. at page 220, 81 S.Ct. at page 1481) require no further discussion of the evidence beyond that already given as to Scales' utterances and activities. Compare Noto v. United States, 367 U.S. at pages 299—300, 81 S.Ct. at pages 1521—1522. They bear little resemblance to the fragmentary and equivocal utterances and conduct which were found insufficient in Nowak v. United States, 356 U.S. 660, 666—667, 78 S.Ct. 955, 959, 2 L.Ed.2d 1048, and in Maisenberg v. United States, 356 U.S. 670, 673, 78S.Ct. 960, 962, 2 L.Ed.2d 1056.
114
We hold that this prosecution does not fail for insufficiency of the proof.
IV.
115
Alleged Trial Errors.
116
Petitioner contends that a number of errors were committed, having the effect of vitiating the fairness of his trial. For reasons substantially similar to those given by the Court of Appeals (260 F.2d 38—46), we find that none of petitioner's contentions raise points meriting reversal.
117
1. Admission of Remote or Prejudicial Evidence.
118
Petitioner complains as to the admission of certain evidence relating the the Party's general or specific purposes. In particular, he objects to the admission of evidence about the Party's program in the so-called 'Black Belt' and especially to the admission of a pamphlet called 'I Saw the Truth in Korea,' which contained a very gruesome description of alleged American atrocities in Korea. There can be no doubt that this matter, and particularly the latter, would not have reflected well on the petitioiner or the Party in the eyes of the jury, but if it was relevant to an element of the crime, then whether its asserted prejudicial effect so far outweighed its probative value as to require exclusion of the evidence, was a decision which rested in the sound discretion of the trial judge. Particularly in light of the fact that the most damaging of this material emanated from petitioner himself (260 F.2d at page 38), we cannot say that its admission involved an abuse of discretion which would warrant out reversal of the conclusions of the trial judge and the Court of Appeals on this score.
119
We therefore need only consider whether the complained-of evidence was legally relevant and therefore admissible. As we have pointed out in our review of the record, the jury could have inferred that part of the Communist Party's program for violent revolution was the winning of favor with the Negro population in the South, which it thought was particularly susceptible to revolutionary propaganda and action. Surely, then, the evidence of the Party's teaching that the Negro population should be given the right to form a separate nation is not irrelevant to the issue of whether or not the Party's program as a whole constituted a call to stand in readiness for violent action, when this particular plank in the platform was intended as baitf or one of the substantial battalions in the hoped-for revolutionary array. Of course, the preaching that the Negro population in the South has the right to form a separate nation does not of itself constitute illegal advocacy. But neither does the teaching of the abstract theory of Marxism-Leninism, which we have held cannot alone form the basis for a conviction for violation of the Smith Act, Yates v. United States, supra; yet it cannot be seriously urged that evidence of such teaching is legally irrelevant to the charge. Similarly the evidence of the pamphlet on alleged American atrocities in Korea cannot be said to be irrelevant to the issue of illegal advocacy by the Party. Once again, the pamphlet may not in itself constitute such an incitement to violence as would justify a finding that the Party advocated violent overthrow, but it is possible to infer from it that it was the purpose of the Party to undermine the Government in the eyes of the people in time of war as a preparatory measure, albeit legal in itself, to the teaching and sympathetic reception of illegal advocacy to violent revolution.
120
Petitioner also argues that this and other evidence was not connected up with him or his activities. Whether it was or not, since it is necessary under the membership clause to prove the advocacy of the Party as an independent element of the offense, this renders admissible evidence not connected up with the defendant in the accepted conspiracy sense. (See note 23, supra.) Doubtless because of this there is a special need to make sure that the evidence establishing a defendant's personal knowledge of illegal Party advocacy and his intent in becoming or remaining a Party member to accomplish violent overthrow is cogent and adequately brought home to him. But, having said that, we have said all, in respect to petitioner's claim on this point.
121
2. The 'Jencks' Claim.
122
When this case was first before us we reversed the conviction, 355 U.S. 1, 78 S.Ct. 9, 2 L.Ed.2d 19, on the authority of our decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. Before the second trial Congress enacted the so-called Jencks statute, 18 U.S.C. § 3500, 18 U.S.C.A. § 3500. Petitioner, as we understand him, does not now argue that that statute was incorrectly applied in his case; rather he attacks, on constitutional grounds, the statute itself. That the procedure set forth in the statute does not violate the Constitution and that the procedure required by the decision of this Court in Jencks was not required by the Constitution was assumed by us in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287. It is enough to say here that there can be no complaint by a criminal defendant that he has been denied the opportunity to examine statements by government witnesses which do not relate to the subject matter of their testimony, for such statements bear no greater relevance to that testimony which he seeks to impeach than would statements by persons unconnected with the prosecution. Whether the statements so relate to prosecution testimony is a decision which is vested not in the Government but in the trial judge with full opportunity for appellate review. Once this question has been determined, whether the statements may be useful for purposes of impeachment is a decision which rests, of course, with the defendant himself.
123
Petitioner also objects to the limitation of the Act to written statements signed or adopted by the witness or to any form of substantially verbatim transcription of an oral statement by the witness. However, petitioner does not assert that he has been prejudiced by this provision, or that any statement or document requested by him was withheld on the authority of the statute. In these circumstances we perceive no basis for this aspect of petitioner's
124
claims. 3. Congressional Findings in the Communist Control Act of 1954 and the Internal Security Act of 1950.
125
Petitioner asserts that the congressin al findings as to the character of the Communist Party contained in both statutes deprived him of a fair trial on the issue of the character of the Party That legislative action may have the effect of precluding a fair trial is not impossible, see Delaney v. United States, 1 Cir., 199 F.2d 107, 39 A.L.R.2d. 1300, but petitioner's claim here appears to be no more than an afterthought. There is no showing of any prejudice, nor that during the voir dire examination of jurors petitioner attempted to ascertain whether any juror had even heard of these enactments, much less that petitioner attempted to have any juror disqualified on that ground. We cannot on this record regard this as a substantial contention.
126
Finally, for the reasons stated by the Court of Appeals, 260 F.2d at pages 44—46, we think that petitioner waived any right he might have had to question the method of choosing grand jurors by his failure to comply with Rule 12, Fed.Rules Crim.Proc., 18 U.S.C.A. and further that no impropriety in the method of choosing grand jurors has been shown.
127
The judgment of the Court of Appeals must be
128
Affirmed.
129
Mr. Justice BLACK, dissenting.
130
Petitioner was convicted for violation of the 'membership clause' of the Smith Act which imposes a penalty of up to twenty years' imprisonment together with a fine of $20,000 upon anyone who 'becomes or is a member of, or affiliates with, any * * * society, group, or assembly of persons (who teach, advocate, or encourage the overthrow of the existing government by force or violence), knowing the purposes thereof * * *.'1 Rejecting numerous contentions urged for reversal, the Court upholds a six-year sentence imposed upon petitioner under the authority of its prior decisions in Dennis v. United States2 and Yates v. United States.3 My reasons for dissenting from this decision are primarily those set out by Mr. Justice BRENNAN—that § 4(f) of the Subversive Activities Control Act4 bars prosecutions under the membership clause of the Smith Act—and Mr. Justice DOUGLAS—that the First Amendment absolutely forbids Congress to outlaw membership in a political party or similar association merely because one of the philosophical tenets of that group is that the existing government should be overthrown by force at some distant time in the future when circumstances may permit. There are, however, two additional points that I think should also be mentioned.
131
In an attempt to bring the issue of the constitutionality of the membership clause of the Smith Act within the authority of the Dennis and Yates cases, the Court has practically rewritten the statute under which petitioner stands convicted by treating the requirements of 'activity' and 'specific intent' as implicit in words that plainly do not include them. Petitioner's conviction is upheld just as though the membership clause had always contained these requirements. It seems clear to me that neither petitioner nor anyone else could ever have guessed that this law would be held to mean what this Court now holds it does mean. For that reason, it appears that petitioner has been convicted under a law that is, at best, unconstitutionally vague and, at worst, ex post facto.5 He has therefore been deprived of his right to be tried under a clearly defined, pre-existing 'law of the land' as guaranteed by the Due Process Clause and I think his conviction should be reversed on that ground.6
132
Secondly, I think it is important to point out the manner in which this case re-emphasizes the freedom-destroying nature of the 'balancing test' presently in use by the Court to justify its refusal to apply specific constitutional protections of the Bill of Rights. In some of the recent cases in which it has 'balanced' away the protections of the First Amendment, the Court has suggested that it was justified in the application of this 'test' because no direct abridgment of First Amendment freedoms was involved, the abridgment in each of these cases being, in the Court's opinion, nothing more than 'an incident of the informed exercise of a valid governmental function.'7 A possible implication of the suggestion was that if the Court were confronted with what it would call a direct abridgment of speech, it would not apply the 'balancing test' but would enforce the protections of the First Amendment according to its own terms. This case causes me to doubt that such an implication is justified. Petitioner is being sent to jail for the express reason that he has associated with people who have entertained unlawful ideas and said unlawful things, and that of course is a direct abridgment of his freedoms of speech and assembly—under any definition that has ever been used for that term. Nevertheless, even as to this admittedly direct abridgment, the Court relies upon its prior decisions to the effect that the Government has power to abridge speech and assembly if its interest in doing so is sufficient to outweigh the interest in protecting these First Amendment freedoms.8
133
This, I think, demonstrates the unlimited breadth and danger of the 'balancing test' as it is currently being applied by a majority of this Court. Under that 'test,' the question in every case in which a First Amendment right is asserted is not whether there has been an abridgment of that right, not whether the abridgment of that right was intentional on the part of the Government, and not whether there is any other way in which the Government o uld accomplish a lawful aim without an invasion of the constitutionally guaranteed rights of the people. It is, rather, simply whether the Government has an interest in abridging the right involved and, if so, whether that interest is of sufficient importance, in the opinion of a majority of this Court, to justify the Government's action in doing so. This doctrine, to say the very least, is capable of being used to justify almost any action Government may wish to take to suppress First Amendment freedoms.
134
Mr. Justice DOUGLAS, dissenting.
135
When we allow petitioner to be sentenced to prison for six years for being a 'member' of the Communist Party, we make a sharp break with traditional concepts of First Amendment rights and make serious Mark Twain's lighthearted comment that 'It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them.'1
136
Even the Alien and Sedition Laws—shameful reminders of an early chapter in intolerance—never went so far as we go today. They were aimed at conspiracy and advocacy of insurrection and at the publication of 'false, scandalous and malicious' writing against the Government, 1 Stat. 596. The Government then sought control over the press 'in order to strike at one of the chief sources of disaffection and sedition.' Miller, Crisis in Freedom (1951), p. 56. There is here no charge of conspiracy, no charge of any overt act to overthrow the Government by force and violence, no charge of any other criminal act. The charge is being a 'member' of the Communist Party, 'well-knowing' that it advocated the overthrow of the Government by force and violence, 'said defendant intending to bring about such overthrow by force and violence as speedily as circumstances would permit.' That falls far short of a charge of conspiracy. Conspiracy rests not in intention alone but in an agreement with one or more others to promote an unlawful project. United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 206, 85 L.Ed. 128; Direct Sales Co. v. United States, 319 U.S. 703, 713, 63 S.Ct. 1265, 1270, 87 L.Ed. 1674. No charge of any kind or sort of agreement hitherto embraced in the concept of a conspiracy is made here.
137
We legalize today guit by association, sending a man to prison when he committed no unlawful act. Today's break with tradition is a serious one. It borrows from the totalitarian philosophy. As stated by O'Brian, National Security and Individual Freedom (1955), pp. 27—28:
138
'The Smith Act of 1940 made it unlawful for any person to be or to become a member of or affiliate with any society, group, or assembly which teaches, advocates, or encourages the overthrow or destruction of any government in the United States by force or violence. These statutes (the Smith Act together with a 1920 amendment to the Immigration Law, Act of June 5, 1920, 41 Stat. 1008, 8 U.S.C.A. §§ 1101, 1182), therefore, imported into our law the alien doctrine of guilt by association, which up to this time had been regarded as abhorrent and which had never been recognized either by the courts or by the Department of Justice, even during the perils and excitements of the First World War.'
139
The case is not saved by showing that petitioner was an active member. None of the activity constitutes a crime. The record contains evidence that Scales was the Chairman of the North and South Carolina Districts of the Communist Party. He recruited new members into the Party, and promoted the advanced education of selected young Party members in the theory of communism to be undertaken at secret schools. He was a director of one such school. He explained the principles of the Party to an FBI agent who posed as someone interested in joining the Party, and furnished him literature, including articles which criticized in vivid language the American 'aggression' in Korea and describe American 'atrocities' committed on Korean citizens. He once remarked that the Party was setting up underground means of communication, and in 1951 he himself 'went underground.' At the school of which Scales was director, students were told (by someone else) that one of the Party's weaknesses was in failing to place people in key industrial positions. One witness told of a meeting arranged by Scales at which the staff of the school urged him to remain in his position in an industrial plant rather than return to college. In Scales' presence, students at the school were once shown how to kill a person with a pencil, a device which, it was said, might come in handy on a picket line. Other evidence showed Scales to have made several statements or distributed literature containing implicating passages. Among them were comments to the effect that the Party line was that the Negroes in the South and the working classes should be used to foment a violent revolution; that a Communist government could not be voted into power in this country because the Government controlled communication media, newspapers, the military, and the educational systems, and that force was the only way to achieve the revolution; that if a depression were to come the Communist America would be closer at hand than predicted by William Z. Foster; that the revolution would come within a generation; that it would be easier in the United States than in Russia to effectuate the revolution because of assistance and advice from Russian Communists. Petitioner at different times said or distributed literature which said that the goals of communism could only be achieved by violent revolution that would have to start internally with the working classes.
140
Not one single illegal act is charged to petitioner. That is why the essence of the crime covered by the indictment is merely belief2—belief in the proletarian revolution, belief in Communist creed.
141
Spinoza summed up in a sentence much of the history of the struggle of man to think and speak what he believes:
142
'Laws which decree what every one must believe, and forbid utterance against this or that opinion, have too often been enacted to confirm of enlarge the power of those who dared not suffer free inquiry to be made, and have by a perversion of authority turned the superstition of the mob into violence against opponents.' Tractatus Theologico-Politicus (London 1862) p. 349.
143
'The thought of man shall not be tried, for the devil himself knoweth not the thought of man,' said Chief Justice Brian in Y. B. Pasch, 17 Edw. IV, f. 2, pl. 2. The crime of belief—presently prosecuted—is a carryback to the old law of treason where men were punished for compassing the death of the King. That law, which had been employed for 'suppression of political opposition or the expression of ideas or beliefs distasteful to those in power,' Hurst, Historic Background of the Treason Clause, 6 Fed.B.J. 305, 307, was rejected here, and the treason clause of our Constitution was 'most praised for the reason that it prevented the use of treason trials as an instrument of political faction.' Id., 307. Sedition or treason in the realm of politics and heresy in the eccelesiastical field ha long centered on beliefs as the abhorrent criminal act. The struggle on this side of the Atlantic was to get rid of that concept and to punish men not for what they thought but for overt acts against the peace of the Nation. Cramer v. United States, 325 U.S. 1, 28—30, 65 S.Ct. 918, 931—933, 69 L.Ed. 1441. Montesquieu, who was a force in the thinking of those times (id., 15, n. 21), proclaimed against punishing thoughts or words:
144
'There was a law passed in England under Henry VIII, by which whoever predicted the king's death was declared guilty of high treason. This law was extremely vague; the terror of despotic power is so great that it recoils upon those who exercise it. In the king's last illness, the physicians would not venture to say he was in danger; and surely they acted very right. * * * Marsyas dreamed that he had cut Dionysius's throat. Dionysius put him to death, pretending that he would never have dreamed of such a thing by night if he had not thought of it by day. This was a most tyrannical action: for though it had been the subject of his thoughts, yet he had made no attempt towards it. The laws do not take upon them to punish any other than overt acts.' The Spirit of Laws (1949), Vol. 1, pp. 192—193.
145
'Words do not constitute an overt act; they remain only in idea.' Id., 193.
146
These were the notions that led to the restrictive definition of treason, presently contained in Art. III, § 3, of the Constitution, which requires overt acts. Cramer v. United States, supra; Haupt v. United States, 330 U.S. 631, 645, 67 S.Ct. 874, 880, 91 L.Ed. 1145 (concurring opinion); Hurst, Treason in the United States, 58 Harv.L.Rev. 395. Our long and painful experience with the law of treason, wholly apart from the First Amendment, should be enough warning that we as a free people should not venture again into the field of prosecuting beliefs.
147
That was the philosophy behind West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641—642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628:
148
'We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
149
'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.'
150
Nothing but beliefs is on trial in this case. They are unpopular and to most of us revolting. But they are nonetheless ideas or dogmas or faiths within the broad framework of the First Amendment. See Barenblatt v. United States, 360 U.S. 109, 145—152, 79 S.Ct. 1081, 1102—1106, 3 L.Ed.2d 1115 (dissent). The creed truer to our faith was stated by the Bar Committee headed by Charles E. Hughes which in 1920 protested the refusal of the New York Assembly to seat five members of the Socialist Party:3
151
'* * * it is of the essence of the institutions of liberty that it be recognized that guilt is personal and cannot be attributed to the holding of opinion or to mere intent in the absence of overt acts * * *.'
152
Belief in the principle of revolution is deep in our traditions. The Declaration of Independence4 proclaims it:
153
'whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.'
154
This right of revolution has been and is a part of the fabric of our institutions.5 Last century when Russia invaded Hungary and subdued her, Louis Kossuth came here to enlist American support. On January 8, 1852, Lincoln spoke in sympathy of the Hungarian cause and was a member of a committee which on January 9, 1852, submitted Resolutions in Behalf of Hungarian Freedom. Among these resolutions was one that read:
155
'That it is the right of any people, sufficiently numerous for national independence, to throw off, to revolutionize, their existing form of government, and to establish such other in its stead as they may choose.' Basler, Vol. II, The Collected Works of Abraham Lincoln (1953), p. 115.
156
On January 12, 1848, Lincoln in an address before the United States House of Representatives stated: 'Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable,—a most sacred right—a right, which we hope and believe, is to liberate the world.' Id., Vol. I, p. 438.
157
Of course, government can move against those who take up arms against it. Of course, the constituted authority has the right of self-preservation. But we deal in this prosecution of Scales only with the legality of ideas and beliefs, not with overt acts. The Court speaks of the prevention of 'dangerous behavior' by punishing those 'who work to bring about that behavior.' That formula returns man to the dark days when government determined what behavior was 'dangerous' and then policed the dissidents for tell-tale signs of advocacy. What is 'dangerous behavior' that must be suppressed in its talk-stage has had a vivid history even on this continent. The British colonial philosophy was summed up by Sir William Berkeley, who served from 1641 to 1677 as Virginia's Governor: '* * * I think God, there are no free schools nor printing, and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both!' 2 Hening's Stat.Va. 1660 1682, p. 517. The history is familiar; much of it is reviewed in Chafee, The Blessings of Liberty (1956). He states in one paragraph what I think is the Jeffersonian conception of the First Amendment rights involved in the present case:
158
'We must choose between freedom and fear—we cannot have both. If the citizens of the United States persist in being afraid, the real rulers of this country will be fanatics fired with a zeal to save grown men from objectionable ideas by putting them under the care of official nursemaids.' Id., 156.
159
In recent years we have been departing, I think, from the theory of government expressed in the First Amendment. We have too often been 'balancing' the right o speech and association against other values in society to see if we, the judges, feel that a particular need is more important than those guaranteed by the Bill of Rights. Dennis v. United States, 341 U.S. 494, 508—509, 71 S.Ct. 857, 866—867, 95 L.Ed. 1137; American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 399 400, 70 S.Ct. 674, 684—685, 94 L.Ed. 928; N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 463—466, 78 S.Ct. 1163, 1172—1174, 2 L.Ed.2d 1488; Uphaus v. Wyman, 360 U.S. 72, 78—79, 79 S.Ct. 1040, 1045, 3 L.Ed.2d 1090; Barenblatt v. United States, 360 U.S. 109, 126—134, 79 S.Ct. 1081, 1092—1097, 3 L.Ed.2d 1115; Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653; Konigsberg v. State Bar, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105; In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135. This approach, which treats the commands of the First Amendment as 'no more than admonitions of moderation' (see Hand, The Spirit of Liberty (1960 ed.), p. 278), runs counter to our prior decisions. See Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628.
160
It also runs counter to Madison's views of the First Amendment as we are advised by his eminent biographer, Irving Brant:
161
'When Madison wrote, 'Congress shall make no law' infringing these rights, he did not expect the Supreme Court to decide, on balance, whether Congress could or could not make a law infringing them. It was true, he observed in presenting his proposals, that state legislative bodies had violated many of the most valuable articles in bills of rights. But that furnished no basis for judging the effectiveness of the proposed amendments:
162
"If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.'
163
'This statement by Madison, along with all the rest of his speech, is so devastating to the 'balance theory' that efforts have been and are being made to discredit its authenticity. The Annals of Congress, it is said, is not an official document, but a compilation of stenographic reports (by a shorthand reporter admitted to the floor for that purpose) published in the press and containing numerous errors. That is true, although the chief complaint was that partially caught sentences were meaningless. In general, that which was clearly reported was truly reported. In the case of this all-important speech, Madison spoke from notes, and the notes in his handwriting are in the Library of Congress. They parallel the speech from end to end, scantily, but leaving no doubt of the fundamental faithfulness of the report.' The Madison Heritage, 35 N.Y.U.L.Rev. 882, 899—900.
164
Brant goes on to relate how Madison opposed a resolution of censure against societies creating the political turmoil that was behind the Whiskey Rebellion. Id., p. 900. He expressed in the House the view that opinions are not objects of legislation. 'If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.' Id., p. 900.
165
The trend of history, as Jefferson noted, has been against the rights of man. He wrote that 'The natural progress of things is for liberty to yield and government to gain ground.'6 The formula he prepared for a society where ideas flourished was not punishment of the unorthodox but education and enlightenment of the masses. Jefferson wrote to Madison on December 20, 1787:7
166
'I own, I am not a friend to a very energetic government. It is always oppressive. It places the governors indeed more at their ease, at the expense of the people. The late rebellion in Massachusetts has given more alarm, than I think it should have done. Calculate that one rebellion in thirteen States in the course of eleven years, is but one for each State in a century and a half. No country should be so long without one. Nor will any degree of power in the hands of government, prevent insurrections. In England, where the hand of power is heavier than with us, there are seldom half a dozen years without an insurrection. In France, where it is still heavier, but less despotic, as Montesquieu supposes, than in some other countries, and where there are always two or three hundred thousand men ready to crush insurrections, there have been three in the course of the three years I have been here, in every one of which greater numbers were engaged than in Massachusetts, and a great deal more blood was spilt. In Turkey, where the sole nod of the despot is death, insurrections are the events of every day. Compare again the ferocious depredations of their insurgents, with the order, the moderation and the almost self-extinguishment of ours. And say, finally, whether peace is best preserved by giving energy to the government, or information to the people. This last is the most certain, and the most legitimate engine of government. Educate and inform the whole mass of the people. Enable them to see that it is their interest to preserve peace and order, and they will preserve them. And it requires no very high degree of education to convince them of this. They are the only sure reliance for the preservation of our liberty.'
167
This is the only philosophy consistent with the First Amendment. When belief in an idea is punished as it is today, we sacrifice those ideals and substitute an alien, totalitarian philosophy in their stead.8
168
'The most indifferent arguments,' Bismarck said, 'are good when one has a majority of bayonets.' That is also true when one has the votes.
169
What we lose by majority vote today may be reclaimed at a future time when the fear of advocacy, dissent, and nonconformity no longer cast a shadow over us.
170
Appendix to Opinion of Mr. Justice DOUGLAS.
171
The constitutions of 15 States have, at one time or another, made specific provision for the right of revolution by reserving to the people the right to 'alter, reform or abolish' the existing frame of government. See Pennsylvania Const. of 1873, Art. I, § 2, P.S.Const.; Maryland Const. of 1867, Dec. of Rights, Art. I; Virginia Const. of 1902, Art. I, § 3; Alabama Const. of 1865, Art. I, § 2; Arkansas Const. of 1874, Art. II, § 1; Idaho Const. of 1889, Art. I, § 2; Kansas Const. of 1958, Art. I, § 2; Kentucky Const. of 1890, Bill of Rights, § 4; Ohio Const. of 1851, Art. I, § 2; Oregon Const. of 1857, Art. I, § 1; Tennessee Const. of 1870, Art. I, § 1; Texas Const. of 1876, Art. I, § 2, Vernon's Ann.St.; Vermont Const. of 1793, c. 1, Art. 7; West Virginia Const. of 1872, Art. 3, § 3; Wyoming Const. of 1889, Art. I, § 1. Some 24 other States have, or have had, slightly varying forms of the same provision. See New Hampshire Const., Pt. I, Art. 10; Massachusetts Const., M.G.L.A.; Part the First, Article VII; Connecticut Const., Article First, § 2, C.G.S.A.; New Jersey Const., Art. I, 2, N.J.S.A.; Delaware Const., Preamble, Del.C.Ann.; North Carolina Const., Art. I, § 3; South Carolina Const., Art. 1, § 1; Rhode Island Const., Art. I, § 1; California Const., Art. I, § 2, West's Ann.Cal.Const.; Colorado Const., Art. II, § 2; Florida Const., Dec. of Rights, § 2, F.S.A.; Indiana Const., Art. I, § 1; Iowa Const., Art. I, § 2 I.C.A.; Maine Const., Art. I, § 2; Michigan Const. of 1835, Art. I, § 2; Minnesota Const., Art. I, § 1, M.S.A.; Mississippi Const., Art. 3, § 6; Missouri Const., Art. I, § 3, V.A.M.S.; Montana Const., Art. III, § 2; Nevada Const., Art. I, § 2; North Dakota Const., Art. I, § 2; Oklahoma Const., Art. II, § 1, O.S.A.; South Dakota Const., Art. VI, § 26; Utah Const., Art. I, § 2. The older constitutions often add a clause which shows the roots of these provisions in the right of revolution. 'The doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind,' the New Hampshire Const., Pt. I, Art. 10, recites. The same language may be found in Maryland Const., Dec. of Rights, Art. 6; Tennessee Const., Art. I, § 2.
172
These provisions have been considered by several state courts. It has been held that the general right of the people to alter or abolish the government does not deprive state courts from passing on the validity of constitutional amendments peacefully passed. Wells v. Bain, 75 Pa. 39, 46—49; Koehler & Lange v. Hill, 60 Iowa 543, 614—617, 14 N.W. 738,1 5 N.W. 609, 614—616; Bennett v. Jackson, 186 Ind. 533, 538—541, 116 N.E. 921, 922—923; Erwin v. Nolan, 280 Mo. 401, 406—407, 217 S.W. 837, 838—839. More recently, several state courts have had occasion to consider these provisions in connection with the persecution of Communists. See Commonwealth v. Widovich, 295 Pa. 311, 317—318, 145 A. 295, 297 298 (State Sedition Act); Nelson v. Wyman, 99 N.H. 33, 50—51, 105 A.2d 756, 770—771 (legislative investigation); Braverman v. Bar Ass'n of Baltimore, 209 Md. 328, 346—347, 121 A.2d 473, 481 482 (disbarment of a lawyer convicted under the Smith Act). The last two of these decisions relied on language in the decision of this Court in Deennis v. United States, 341 U.S. 494, 501, 71 S.Ct. 857, 863, 95 L.Ed. 1137: 'Whatever theoretical merit there may be to the argument that there is a 'right' to revellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.'
173
Yet the right of revolution has always meant more than this. 'The words * * *,' said the court in Wells v. Bain, supra, 75 Pa. 47, 'embrace but three known recognised modes by which the whole people, the state, can give their consent to an alteration of an existing lawful frame of government, viz.:
174
'1. The mode provided in the existing constitution.
175
'2. A law, as the instrumental process of raising the body for revision and conveying to it the powers of the people.
176
'3. A revolution.
177
'The first two are peaceful means through which the consent of the people to alteration is obtained, and by which the existing government consents to be displaced without revolution. The government gives its consent, either by pursuing the mode provided in the constitution, or by passing a law to call a convention. If consent be not so given by the existing government the remedy of the people is in the third mode—revolution.'
178
This does not mean the helplessness of the established government in the face of armed resistance, for that government has the duty of maintaining existing institutions. Wells v. Bain, supra, 75 Pa. 49. But it does mean that the right of revolution is ultimately reserved to the people themselves, whatever formal, but useless, remedies the existing government may offer. This is shown in the history of our own revolution. Legislatures and governments have the right to protect themselves. They may judge as to the appropriate means of meeting force directed against them, but as to the propriety of the exercise of the ultimate right of revolution, there, as John Locke says, 'The people shall be judge.' Second Treatise on Civil Government, § 240. To forbid the teaching of the propriety of revolution, even where the teacher believes his own lesson, is to hinder the people in the free exercise of this great sovereign right. See Dennis v. United States, 341 U.S. 494, 581—586, 71 S.Ct. 857, 903—905, 95 L.Ed. 1137 (dissenting opinion).
179
Lincoln's full statement, made in 1848 and already referred to, reads:
180
'Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable,—a most sacred right—a right, which we hope and believe, is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government, may choose to exercise it. Any portion of such people that can, may revolutionize, and make their own, of so much of the teritory (sic) as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority, intermingled with, or near about them, who may oppose their movement. Such minority, was precisely the case, of the tories of our own revolution. It is a quality of revolutions not to go by old lines, or old laws; but to break up both, and make new ones.' I Basler, The Collected Works of Abraham Lincoln (1953), pp. 438—439.
181
Mr. Justice BRENNAN, with wo m The CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
182
I think that in § 4(f) of the Internal Security Act Congress legislated immunity from prosecution under the membership clause of the Smith Act. The first sentence of § 4(f) is: 'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.' The immunity granted by that sentence is not in my view restricted, as the Court holds, to mere membership, that is to membership which is nominal, passive or theoretical. The immunity also extends to 'active and purposive membership, purposive that is as to the organization's criminal ends,' which is the character of membership to which the Court today restricts the application of the membership clause of the Smith Act.
183
In its approach to the relation of the first sentence of § 4(f) to the membership clause of the Smith Act, I think the Court asks the wrong question. The question is not whether the Congress meant in § 4(f) to 'repeal' the membership clause of the Smith Act. The 'repeal' of a statute connotes its erasure from the statute books. The grant of immunity from prosecution under a criminal statute merely suspends prosecution under the statute so long as the immunity is not withdrawn. For example, when we recently decided in Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249, that the Narcotic Control Act of 1956, 18 U.S.C.A. § 1401 et seq., legislated immunity from prosecution under state, as well as federal, narcotics laws, our decision did not remotely suggest that the immunity effected the 'repeal' of either the state or the federal criminal statutes.
184
The Congress was faced with a dilemma in legislating the policy of compulsory registration of Communists into the Internal Security Act. This statute represented, in the words of the late John W. Davis, a policy of 'ventilation rather than prohibition.' Communists were to be forced to expose themselves to public view in order that the menace they present might be dealt with more effectively. The registration provisions of the Act are the very vitals of that measure. But compulsory disclosure of membership would compel admission of a crime, or provide a link to proof of a crime. Communists then could invoke their constitutional right to silence and the registration provisions would be wrecked on the rock of the Self-Incrimination Clause of the Fifth Amendment. It is no disparagement of the Congress to say that their deliberations reflect great uncertainty how to resolve the dilemma. Congress wrote the Internal Security Act knowing that the privilege against self-incrimination was a solid barrier against compulsory self-incrimination by congressional fiat. The legislative history of § 4(f) is murky but I think there clearly emerges a congressional decision to extend immunity from prosecution for any membership in a Communist organization in order to safeguard against constitutional frustration the policy of disclosure embodied in the registration provisions.1
185
The purpose of the first sentence of § 4(f) seems clear in the setting of the Act. In § 2 Congress describes the Communist Party as a group bent on overthrowing the Government by force and violence, such as is described in the Smith Act, and establishing a totalitarian dictatorship in the United States. Section 4(a) makes it a crime to conspire to that end. Sections 7 and 8 provide for compulsory registration of Communist organizations and members. Penalties for not registering are imposed. If members were required to register under the 1950 Act and if membership were a crime under the 1940 Act, then self-incrimination in violation of the Fifth Amendment might be required by the registration requirements of the 1950 Act. Plainly it was with that problem that Congress dealt in § 4(f).
186
The bills introduced in the Eighty-first Congress2 provided for compulsory registration of members of the Communist Party, but afforded no immunity for registering. When the House Committee reported out its bill,3 a provision was included which forbade receipt in evidence of the fact of registration under the Internal Security Act. When the bill reached the floor, Congressman Celler pointed out that the immunity provision was constitutionally insufficient. In the first place, that bill only provided that the fact of registration under the Act should not be received in evidence against the registrant in prosecutions under the Act. Congressman Celler pointed out that there were other criminal statutes, including the Smith Act, for which no immunity was granted.4 He secondly pointed out that the immunity to be constitutionally protective must be complete; and he discussed Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, in support of that thesis.5 During these debates and in response to the challenge made by Congressman Celler, the manager of the bill, Congressman Wood, offered an amendment extending the same protection against prosecutions 'for any alleged violation of any other criminal statute.'6 It was adopted without discussion and the bill passed the House.
187
At that juncture it seems obvious that restricting the immunity to use of the fact of registration in any criminal prosecution did not satisfy the constitutional requirements. Such a limited immunity was granted by statute in Counselman v. Hitchcock, supra. Yet as the Court stated in that case, 142 U.S. at page 564, 12 S.Ct. at page 198:
188
'This, of course, protected him against the use of his testimony against him or his property in any prosecution against him or his property, in any criminal proceeding, in a court of the United States. But it had only that effect. It could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding in such court. It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted.'
189
Meanwhile the Senate bill7 was reported out. The late John W. Davis had stated in a letter to the Senate Committee8 that compulsory registration might make a member 'involuntarily incriminate himself.' The Senate bill accordingly provided that neither holding office nor membership in the Communist Party should constitute a violation of certain provisions of the bill; and it also provided that the fact of registration should not be received in evidence against the registrant in prosecutions under those provisions. Senator Kilgore in a minority report9 made the same point that Congressman Celler had made in the House—that this immunity provision did not even purport to avoid self-incrimination in relation to the membership clause of the Smith Act and did not provide that complete immunity which Counselman v. Hitchcock, supra, held essential.
190
Senator Lehman spoke to the same effect when the bill reached the floor:10
191
"In support of the statement made by the Senator from Illinois that the real Communists would simply fail to register, and could not be forced to register, and would be outside the control of the law-enforcement officials, is it not a fact that there would be every reason why a real Communist should not register—because if he did register, would not he make himself liable to incrimination under the Smith Act?'
192
'Mr. Douglas. 'Certainly.'
193
'Mr. Lehman. 'So he would be virtually pleading guilty of a penal offense; would he not?'
194
'Mr. Douglas. 'Yes; the real leaders would be."
195
Senator Lehman stated on another day of the debate:11
196
'What dyed-in-the-wool Communist will run to the nearest registration office to list himself as such and expose himself to the penalties contained in the Mundt-Ferguson bill? Obviously, if he did, he would lose all of his effectiveness as a Communist, besides subjecting himself to the penalties set forth in this bill. He would also expose himself to the penalties set forth in other laws, such as the Smith Act, under which the 11 top Communist leaders were recently convicted. In fact, registration would constitute self-incrimination, if not under the terms of this law, then under the terms of the Smith Act. Obviously, the Communists would not register.'
197
Senator Humphrey voiced the same objection:12
198
'* * * his registration would be equivalent to testimony; and under the interpretation of very prominent attorneys,13 it could be that he could be prosecuted under the Smith Act.'
199
The answers to these objections were wide of the mark. Senator McCarran said that the registrant a § immunized from prosecutions under § 4 of the bill.14 The relevancy of the Smith Act was not recognized. Senator Ferguson and Senator Mundt likewise did not meet the point. They noted15 that membership was held irrelevant to the Smith Act in the prosecution of Dennis v. United States, supra, overlooking the fact that that case involved not membership but a conspiracy to practice the Communist dogma.
200
But no change in the bill was made in this respect before it passed the Senate. The important changes in § 4(f)—the ones that are critical here—took place in Conferences.16 No contemporary statement of the intended sweep of the revised § 4(f) is in the legislative record. But I have set out enough history to indicate that the motivation was clearly the fear that the immunity granted under the earlier versions of the bill was not constitutionally sufficient to compel registration, since it did not extend to prosecutions under the membership clause of the Smith Act.
201
When the bill came back from the Conference Committee Congressman Multer referred to § 4(f) in its new form and predicted it would 'vitiate one of the most important parts of the Smith law.'17 No reply was made to his comments. And only brief reference was made to § 4(f) in the Senate. Senator Kefauver said,18 'There is nothing in the bill which provides that when a person registers that fact shall not be used in evidence against him in connection with the Smith Act.'19 But that statement is irrelevant to our problem because the Senator apparently did not realize that the bill had been amended in Conference to include the words 'or any other criminal statute.' Senator Kilgore stated that the Conference bill differed from the one approved by the Judiciary Committee over his dissent, since it nullified the Smith Act.20 No one challenged the statement.
202
From this legislative history it seems tolerably clear that one purpose of § 4(f) was to protect registrants from prosecution under the membership clause of the Smith Act.
203
The Court holds, however, that the first sentence of § 4(f) is simply 'a mandate to the courts charged with the construction of subsections (a) and (c) 'or * * * any other criminal statute' that neither those two named criminal provisions nor any other shall be construed so as to make 'membership * * * per se a violation." If the phraseology were that immunity is extended only to 'membership per se,' there might be support for the argument that the immunity granted by § 4(f) extends only to nominal membership, excluding the type of active membership which we have here. But the statute does not say 'membership per se.' It provides that '(n)either the holding of office nor membership in any Communist organization shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.' The kind of membership given immunity is not restricted. It may be nominal, short-term, long-term, dues-paying, non-dues-paying, inactive, or active membership. Every type of membership is included. What the Congress is saying is that no type of membership shall violate alone or by itself (that is to say, per se) any criminal statute. When Congress said that membership 'shall not constitute per se' a violation of any criminal statute, it meant that additional conduct besides membership, whatever its nature, is necessary to constitute a violation. Only by transposing per se in § 4(f) and making it modify 'membership' can the Court's argument be made plausible. That entails a substantial revision of the Act and a drastic dilution of rights of immunity which have been granted by it.
204
If the Court is correct in its view, the constitutionality of registration provisions of the 1950 Act are called into question. True, today's decision in Communist Party of America v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625, puts off to another day the constitutionality of the registration provisions in their conflict with the Fifth Amendment; I have noted my dissent as to the provision of the registration requirements that designated officials of the Party must complete, sign, and file the Party's registration statement. But if 'active membership' remains a crime under the Smith Act, there would be a serious question whether any Communist—active or nominal—could constitutionally be compelled to register under the 1950 Act. For it could be urged that the act of registering would supply one link that might complete the chain of evidence against him under the Smith Act. It is no answer to that contention that mere membership would not support a conviction. As we said in Blau v. United States, 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170:
205
'Whether such admissions by themselves would support a conviction under a criminal statute is immaterial. Answers to the questions asked by the grand jury would have furnished a link in the chain of evidence needed in a prosecution of petitioner for violation of (or conspiracy to violate) the Smith Act. Prior decisions of this Court have clearly established that under such circumstances, the Constitution gives a witness the privilege of remaining silent. The attempt by the courts below to compel petitioner to testify runs counter to the Fifth Amendment as it has been interpreted from the beginning.'
206
This principle had been an established one ever since Counselman v. Hitchcock, supra, was decided.
207
The registration provisions of the 1950 Act were the very heart of that law. Disclosure of who the Communists were was the provision from which all other controls stemmed. As the Senate Report stated,21 the registration requirement is the 'central provision' of the Act, the purpose being '(a) to expose the Communist movement and protect the public against innocent and unwitting collaboration with it; (b) to expose, and protect the public against, certain acts which are declared unlawful.'
208
A fair and literal reading of § 4(f) can save the 1950 Act against this Fifth Amendment objection. By reading § 4(f) to provide that being a member of the Communist Party shall not 'constitute per se' a crime, immunity from prosecution under the membership clause of the Smith Act is effected. And that is in full harmony with the purpose to make something more than 'membership' necessary for conviction. That something more can be some kind of unlawful activity. After the 1950 Act was passed, membership without other activity was no longer sufficient for Smith Act prosecutions. That seems to me to be the only fair way to read § 4(f). That conclusion necessarily requires a dismissal of ths indictment.
1
Section 2385 (whose membership clause we place in italics) reads: 'Whoever knowingly or willfully advocates, abets, advises, or treaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or
'Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or
'Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—
'Shall be fined not more than $20,000 or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
'If two or more persons conspire to commit any offense named in this section, each shall be fined not more than $20,000 or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.'
2
Petitioner was first convicted before a jury in the Middle District of North Carolina in 1955. The conviction was upheld by the Court of Appeals, 4 Cir., 227 F.2d 581, and we granted certiorari at the 1955 Term. 350 U.S. 992, 76 S.Ct. 542, 100 L.Ed. 858. The case was first heard here at the 1956 Term, and was later set for reargument at the 1957 Term. Before reargument the judgment of conviction was reversed, upon the Solicitor General's concession that this Court's intervening decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, in any event entitled Scales to a new trial. Scales was retried and again convicted in 1958. The Court of Appeals again affirmed, 260 F.2d 21, and we again brought the case here. 358 U.S. 917, 79 S.Ct. 289, 3 L.Ed.2d 237. Argument on the present writ was first heard at the 1958 Term, the case being set for reargument at the following Term under an order in which the Court propounded certain questions to which counsel were requested particularly to address themselves. 360 U.S. 924, 79 S.Ct. 1444, 3 L.Ed.2d 1540. Before reargument was had, certiorari was granted (361 U.S. 951, 80 S.Ct. 502, 4 L.Ed.2d 536) in Communist Party v. Subversive Activities Cot rol Board, No. 12, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625, certain of the statutory and constitutional issues in which were closely related to some of those in the Scales case. Because of this interrelation of the two cases, the Court deemed it advisable that they should be heard and considered together, and accordingly put over this case for argument with the Communist Party case at the present Term. 361 U.S. 952, 80 S.Ct. 500, 4 L.Ed.2d 536.
3
E.g., 18 U.S.C. § 2385, 18 U.S.C.A. § 2385 (the remaining provisions of the Smith Act); 29 U.S.C. § 159(h), 29 U.S.C.A. § 159(h), repealed by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, § 201(d) (non-Communist affidavits to be filed by union officers); or any of the offenses created by the Internal Security Act of 1950, for instance under §§ 4, 5 or 6.
4
The report also stated: 'Nowhere does the bill restrict or impair the constitutional privilege against self-incrimination under the fifth amendment. * * * As to whether any registration itself infringes upon the privilege of self-incrimination, * * * (w)ith respect to individual members, a person may be compelled to register, keep records, make reports or statements, etc., concerning any activity which the State properly may regulate, and he is not protected therefrom by the privilege * * *. This becomes purely academic, however, in the light of the specific bar to self-incrimination written into section 4(f).' Id., at pp. 20—21.
5
Senator Lehman, arguing that the bill required self-incrimination, stated:
'We already have on the statute books more than 20 laws to control and penalize subversive activities. * * * We also have the Smith Act, recently upheld by the Court of Appeals, which makes membership in the Communist Party prima facie evidence of criminal intent. * * *
'* * * (R)egistration would constitute self-incrimination, if not under the terms of this law, then under the terms of the Smith Act.' 96 Cong.Rec. 14190.
As the debate continued, Senator Long said:
'I was under the impression from hearing the Senator from New York yesterday, that he said that under a previous statute it was unlawful to belong to an organization that advocated the overthrow of the United States government by force * * * that there was a previous act * * * which made it unlawful for one to be a member of (such) an organization * * *.
'Senator Ferguson. It is not true that Judge Medina, in his charge to the jury in the trial of the 11 Communists, told them that mere membership in the Communist Party was not sufficient to warrant the jury in convicting them under the Smith Act? (The petitioner in the present case correctly notes that this reference was to the
Dennis case involving an indictment for conspiracy to advocate, not the membership clause of the Smith Act.)
'Mr. Mundt (who was one of the proponents of the original bill). Precisely.
'Mr. Ferguson. So that it could not apply to that law.
'Mr. Mundt. It could not conceivably apply. * * * (I)t would still be an incorrect interpretation of the (Smith) Act. * * *' 96 Cong.Rec. 14235.
Senator McCarran, whose name the new omnibus Senate measure bore, stated in connection with the Smith Act:
'It was arresting to hear the Senator from New York declare on Tuesday that—' (t)he Smith Act * * * makes membership in the Communist Party prima facie evidence of criminal intent.'
'* * * (O)f course, the statement about the Smith Act making membership in the Communist Party prima facie evidence of criminal intent simply has no foundation in fact.
'* * * Of course, in order to make a statement like the one he made a man must not have read Judge Medina's scholarly charge to the jury, in which he specifically pointed out that the Communist membership or affiliation of the 11 defendants was not * * * a part of the charged offense * * *.
'Mr. President, subsection 4(f) provides as follows: 'neither the holding of office nor membership * * * shall constitute a violation of subsection (a) * * *.'
'* * * I hope the Senator from New York may find time to read (the section as a whole), and then I hope he may see fit to tell the Senate whether he still thinks Communists, as such, would obviously be indictable and subject to imprisonment under section 4(a).' 96 Cong.Rec. 14442—14443. (Emphasis supplied.)
6
Perhaps the closest we come to any suggestion that § 4(f) repeals, pro tanto, the Smith Act is the statement by Representative Multer of New York, an opponent of the measure, during the debate on the final version of the bill: 'Another very bad provision in this bill is the new—to this House—first sentence (of § 4(f)) * * *.
'I venture to predict that if this bill becomes law you not only vitiate one of the most important parts of the Smith law, but you will give a new argument and defense to the 11 Communists recently convicted in the Federal court in New York of crimes against the United States, as proscribed in the Smith law,' 96 Cong.Rec. 15289, or a similar argument against the bill by Senator Kilgore, 96 Cong.Rec. 15192.
7
Petitioner makes reference to the legislative history of an amendment to the Communist Control Act of 1954, 50 U.S.C.A. § 841 et seq., S. 3706, 83d Cong., 2d Sess., introduced and passed with modifications in a hurried and confused debate in both Houses. The amendment, proposed by Senator Humphrey, provided that it would be criminal knowingly and wilfully to become or remain a member of the Communist Party, or any other organization whose purpose is to overthrow the government by force and violence. The amendment was opposed by the proponents of the Internal Security Act of 1950, among others, on the grounds that it would impair the effectiveness of § 4(f) of the 1950 Act, possibly rendering the registration provisions of that Act unconstitutional. But it seems clear that this result was conceived to flow from the fact that the amendment mentioned the Communist Party by name, thus making registration tantamount to an admission of the crime itself. As Representative Halleck, the then majority leader who opposed the amendment, put it:
'* * * (W)e have the Internal Security Act of 1950, which was worked out after the most careful consideration * * * and the Smith Act, under which we have had more than 100 indictments and sixty-some convictions, all of Communist leaders * * *. Those act we have on the books * * * they have established themselves.
'* * * (T)he Attorney-General * * * (s)peaking of the Internal Security Act * * * said: 'Essential to the validity of this careful plan, however, is the provision of section 4(f) of the act * * *. It is apparent that the enactment of legislation making membership in the Communist Party per se a crime would be indirect conflict with these provisions of the Internal Security Act. If membership alone is made criminal, to require him to declare his membership is to require him to give self-incriminating evidence. By nullifying this portion of the act, its entire operation would be jeopardized * * *.'
'In other words, what we are doing permits outlawing the Communist Party, and maintaining the Internal Security Act, the Smith Act, and all other acts by which we deal realistically with the Communist conspiracy.' 100 Cong.Rec. 14658.
There is no doubt that the Humphrey amendment is in many respect similar to the membership clause. But it was assumed by many of the proponents of the 1950 Act, perhaps illogically and under a misapprehension as to the law, that the amendment should be defeated to preserve the integrity of the 1950 Act and the Smith Act. Certainly it was considered by no one that the membership clause had been repealed, or its application to Communists barred by § 4(f) of the 1950 Act.
8
November 18, 1951, to November 18, 1954. See 18 U.S.C. § 3282, 18 U.S.C.A. § 3282.
9
'No person shall * * * be deprived of life, liberty or property, without due process of law * * *.'
10
'Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'
11
While the Government undertakes to defend the statute in the absence of either or both of such elements, its ultimate constitutional position rests on the presence of both.
12
'In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation * * *.'
13
See note 27, infra.
14
The statute allows a fine of not more than $10,000 and imprisonment for not more than ten years to be imposed, and makes one convicted under the statute ineligible for employment by the United States or any department or agency thereof for five years following conviction. Petitioner was sentenced to imprisonment for six years.
15
The element of 'activity' in the proscribed membership stands apart from the ingredient of guilty 'knowledge' in that the former may be shown by a defendant's participation in general Party affairs, whereas the latter requires linking him with the organization's illegal activities.
16
But compare Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Burns v. United States, 274 U.S. 328, 47 S.Ct. 650, 71 L.Ed. 1077, sustaining state convictions under the organizing and membership provisions of the California Criminal Syndicalism Act, West's Ann.Cal.Pen. Code, § 11400 et seq.
17
Complicity has been defined thus: 'A person is an accomplice of another person in commission of a crime if:
'(a) With the purpose of promoting or facilitating the commission of the crime, he
'(1) commanded, requested, encouraged or provoked such other person to commit it; or
'(2) aided, agreed to aid or attempted to aid such other person in planning or committing it * * *
'(b) acting with knowledge that such other person was committing or had the purpose of committing the crime, he knowingly, substantially facilitated its commission * * *.' American Law Institute, Model Penal Code § 2.04(3), tentative draft No. 1 (1953). The formulation restates the statutory provisions generally found in jurisdictions in the United States. See, e.g., 18 U.S.C. § 2(a), 18 U.S.C.A. § 2(a); Ariz.Code Ann., 1939, § 43—116, A.R.S. §§ 13—137, 13—139, 13—141, 13—143; Vernon's Texas Stat., 1952, Pen.Code, Art. 70; cf. Criminal Code of Canada, Tremeear's, 1944, § 69. It should be noted that the membership clause as here construed is more limited than subsection (b) of this provision, since it is not enough that one had knowingly facilitated the substantive criminal conduct, but there must also be present the specific purpose of facilitating it.
There is, of course, considerable overlap between the law of complicity and the law of conspiracy, and genuine problems arise as to whether a conspirator is, by reason of his conspiracy, to be considered an accomplice and therefore guilty also of the substantive offense. See ALI, Model Penal Code, tentative draft No. 1 (1953), at pp. 20—33; Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 922, 993—1000 (1959). But we are solely concerned here with pointing up the accepted limits of imputation of guilt, not with exploring the problems created by the various provisions by which such imputation is effected.
18
The problems in attributing criminal behavior to an abstract entity rather than to specified individuals, though perhaps difficult theoretically, as a practical matter resolve themselves into problems of proof. Whether it has been successfully shown that a particular group engages in forbidden advocacy must depend on the nature of the organization, the occasions on which such advocacy took place, the frequency of such occasions, and the position within the group of the persons engaging in the advocacy. (See pages 253—254 of 367 U.S., pages 1498—1499 of 81 S.Ct., infra.) Understood in this way, there is no great difference between a charge of being a member in a group which engages in criminal conduct and being a member of a large conspiracy, many of whose participants are unknown or not before the court. Whatever difficulties might be thought to inhere in ascribing a course of criminal conduct to an abstract entity are certainly cured, so far as any particular defendant is concerned, by the requirement of proof that he knew that the organization engages in criminal advocacy, and that it was his purpose of further that criminal advocacy.
19
See generally Hart, The Aims of the Criminal Law, 23 Law & Contemp.Prob. 401 (1958).
20
Compare concurring opinion of Mr. Justice Brandeis in Whitney v. People of State of California, 274 U.S. 357, 372, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095.
21
As both sides appear to agree that the 'clear and present danger' doctrine, as viewed and applied in Dennis, supra, 341 U.S. at pages 508—511, 71 S.Ct. at pages 866—868, also reaches the membership clause of the Smith Act, and since the petition for certiorari tenders no issue as to the method of applying it here, we do not consider either question.
22
That statute gives the Court power upon review to 'direct the entry of such appropriate judgment * * * as may be just under the circumstances.'
23
Petitioner complains that the evidence as to Party activities emanating from such witnesses as Lautner, Hartle, Duran, and Jones, was inadmissible because not tied up with him. This confuses the nature of the offense Congress has created, for it is important as a preliminary matter, without adverting to the particular defendant in the prosecution, to prove the character of the organization of which he is charged with being a member. The other side of petitioner's claim on this score would entail giving greater or conclusive weight to petitioner's admissions as to the nature of the Party merely because he is the defendant in this case. But that would be as illogical on the preliminary question as would be excluding evidence not connected up with petitioner. The evidence as to Scales' words and deeds is weighty and strong against the Party only because of his position in the Party, not because he is the defendant here.
24
As stated by Clontz: 'Scales said that we could not expect the Soviet Union to land troops to start our revolution and finish it.
'Scales further said that experience had taught the Communists that that sort of approach was disastrous, * * * that they in China, the Communists, had sent in Russian generals and the only result had been that the Chinese Communists had been licked completely, that the new approach, of the Soviet Union, was shown in the example of Mao, who was then Mao-Tse-Tung, who was then the leader in the Communist Chinese Government.
'He pointed out that Mao had never even been to Russia, but instead the Soviet Union and the Soviet Communist Party had sent over military leaders to instruct Mao, and his leaders, and had sent over professional revoluntionaries that could aid them in bringing about their revolution.
'He said that we could count on drawing on the experience of the Soviet Union, and that they also would furnish us when the revolution came with experienced revolutionaries from Russia.'
25
At one point in the course of instructing Clontz, Wilkerson wrote out the formula 'M-L=F&V' which he told Clontz illustrated the position adopted by the appellate courts in the United States that Marxist-Leninist teaching equalled force and violence. Clontz testified:
'Doxey Wilkerson explained to me that since that formula had been established, action had had to be taken by the National Party to conceal the fact that their principles and their goal and their aims and their doctrines included forceful and violent revolution. He pointed out, for example, that an official statement had been issued by the Education Commission of the Communist Party U.S.A. disowning or disclaiming certain study outlines, certain texts, certain publications put out by the Communist Party.
'In fact, the order had ordered all Communist Party members to turn those in, and the statement, he said, after that particular date—I don't recall the exact date—had said henceforth, we will not recognize these as official Party publications.
'He said by doing that they accomplished two things. They, first of all, established a technicality for Communists on trial and their attorneys, that the Party no longer accepted Marxism-Leninism, because, he said, all Marxism-Leninism included in its teachings and in its concept the basis of a violent revolution.
'He said, secondly, that it did not unduly hamper the Communist Party, that in the future many things would be left unsaid that previously had been said, many things would be left unwritten that previously had been written, that, for example, in teaching a more bare outline, would be given, and the instructor would fill in the revolutionary part, or the students would be sent into the Marxist-Leninist works as references to find the revolution, without having it spelled out in the outline.
'He said, that, naturally, would not change the basic Party goal or the basic aims of the Communist Party, but that it would make it more difficult for Communists to be convicted.
'One thing I recall during our discussion, he had given me a pamphlet, a study outline entitled White Chauvinism, and he pointed out to me, he said, 'Now I have been instructing you from that outline, but technically it is illegal because we Communists have disclaimed it, so that you are holding an illegal document there, actually."
26
One of Childs' early tasks, assigned him by the District Organizer, as a Communist Party member was to serve as bodyguard for a visiting official of the Civil Rights Congress. The official, accompanied by Childs and petitioner, spoke in Chapel Hill in February of 1951 on the Korean War. His theme, according to Childs, was 'that the Korean War was being used by the capitalists as a means or oppressing the Negro people * * * that the capitalists are sending the Negroes to Korea to fight the Korean people who are trying to fight for their rights, the same as the Negro people are in the South.' Childs took notes on the speech, and testified that the official's 'exact words' were:
'In Korea they are still called niggers. Niggers are court-martialed for refusing to have their men slaughtered. Lieutenant Gilbert is one example. They say that the nigger is yellow. Yellow, give the niggers in North Carolina and Georgia rifles and tell them to fight for their rights. Yellow, man, you will see fighting like you have never seen before.'
27
The trial court charged: 'Moreover, the teaching in the abstract or teaching objectively, that is, teaching, discussing, explaining, or expounding what is meant by the aim or purpose of any author, group, or society of overthrowing the Government by force and violence is not criminal. For example, study and discussion by the Communist Party or by any other group in classrooms, or in study groups, or public or private meetings with the object of informing the participants or the audience of the aims and purposes of the doctrines of Marx, Lenin, Stalin, or the Communist Party is entirely lawful. Furthermore, without being criminal, the Communist Party could privately or publicly endeavor to persuade its members that they should adopt and espouse the belief that the Government of the United States should be overthrown by force and violence as speedily as circumstances will permit. This is no more than advocating an idea, and advocating an idea is no crime. Moreover, without transgressing the Smith Act, the Party might even instruct its members that it would be for their good and benefit, if this belief or idea wr e carried into effect.
'All of this is permissible because such utterances are protected by the First Amendment of the Federal Constitution, guaranteeing freedom of speech.
'However, if the Party went further, and with the intention of overthrowing Amendment of the Federal Constitution, taught, or advocated a rule or principle of action which both, one, called on its members to take forcible and concrete action at some advantageous time thereafter to overthrow the Government by force and violence, and, two, expressed that call in such written or oral words as would reasonably and ordinarily be calculated to incite its members to take concrete and forcible action for such overthrow; then, if the Communist Party did that, the Party became such a society or group, as was outlawed by the Smith Act.
'To be criminal the teaching or advocacy, or the call to action just described need not be for immediate actiion, that is, for action today, tomorrow, next month, or next year. It is criminal, nonetheless, if the action is to be at an unnamed time in the future, to be fixed by the circumstances or on signal from the Party.
'It is criminal if it is a call upon the members to be ready, or to stand in readiness for action, or for a summons to action at a favorable, or opportune time in the future, or as speedily as circumstances will permit, provided always that the urging of such readiness be by words which would reasonably and ordinarily be calculated to spur a person to ready himself for, and to take action towards, the overthrow of the Government. But those to whom the advocacy or urging is addressed must be urged to do something now or in the future, rather than merely to believe in something. In other words, the advocacy must be of concrete action, and not merely a belief in abstract doctrine. However, the immediate concrete action urged should be intended to lead towards the forcible overthrow, and be so understood by those to whom the advocacy is addressed.'
28
Although most of the particularized evidence related toe vents not within the limitations period, it was of course open to the jury, under proper instructions which were given, to infer that such events reflected the character of Party advocacy during the limitations period. Petitioner does not contend to the contrary.
29
The trial court charged: 'The defendant admits that he was a member of the Party. For his membership to be criminal, however, it is not sufficient that he be simply a member. It must be more than a nominal, passive, inactive, or purely technical membership. In determining whether he was an active or inactive member, consider how much of his time and efforts he devoted to the Party. To be active he must have devoted all, or a substantial part, of his time and efforts to the Party.'
1
18 U.S.C. § 2385, 18 U.S.C.A. § 2385.
2
341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137.
3
354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356.
4
50 U.S.C. § 783(f), 50 U.S.C.A. § 783(f).
5
The fact that the Court's rewriting of the statute, has in this case, narrowed the statute rather than broadened it does not change this conclusion. Petitioner has a right to have the constitutionality of the statute considered on the basis upon which it was originally written, for that was the condition of the statute when he violated it. The danger of the practice in which the Court is engaging is pointed up by its decision in the companion case, communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625, in which it imposes the burden upon the members of that Party to guess as to what sections of the Subversive Activities Control Act will be held unconstitutional. The difficulty of that burden is tremendously increased by the decision in this case for they cannot know how many and what kind of additional requirements will be found to be 'implied' and placed into the 'balance' by which the constitutionality of questionable provisions of that Act will be determined.
6
Cohen v. Hurley, 366 U.S. 117, 131, 81 S.Ct. 954, 972, 6 L.Ed.2d 156 (dissenting opinion). See also Konigsberg v. State Bar of California, 366 U.S. 36, 56, 81 S.Ct. 997, 1010, 6 L.Ed.2d 105 (dissenting opinion).
7
Konigsberg v. State Bar of California, 366 U.S. 36, 51, 81 S.Ct. 997, 1007, 6 L.Ed.2d 105. See also Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653; In re Anastaplo, 366 U.S. 82, 81 S.Ct. 978, 6 L.Ed.2d 135. In each of these cases, I disagreed, as I still do, with the majority's characterization of the abridgment involved as 'incidental,' as I understand that term to have significance in First Amendment cases. See particularly my dissenting opinion in the Konigsberg case, supra, 366 U.S. at pages 68—71, 81 S.Ct. at pages 1016—1018.
8
The decisions in both of the cases upon which the Court here relies were rested on the 'balancing test.' See Dennis v. United States, supra, 341 U.S. at pages 506—511, 71 S.Ct. at pages 865—868; Yates v. United States, supra, 354 U.S. at page 321, 77 S.Ct. at page 1078.
1
Following the Equator (1903), Vol. I, p. 198.
2
The prototype of the present prosecution is found in Communist lands. The Communist Government in Czechoslovakia on October 6, 1948, promulgated a law, § 3 of which provided:
'(1) Whoever publicly or before several people instigates against the Republic, against its independence, constitutional unity, territorial integrity or its people's democratic system (of government), its social or economic order, or against its national character as guaranteed by the Constitution, shall be punished for a minor crime by rigorous confinement for from three months to three years.
'(2) The following shall be punished in like manner: Whoever intentionally or through gross negligence makes the dissemination of the instigative statement specified in Subsection 1 possible or easy.'
3
N.Y.L.Doc., 143d Sess., 1920, Vol. 5, No. 30, p. 4.
4
'When honest men are impelled to withdraw their allegiance to the established law or custom of the community, still more when they are persuaded that such law or custom is too iniquitous to be longer tolerated, they seek for some principle more generally valid, some 'law' of higher authority, than the established law or custom of the community. To this higher law or more generally valid principle they then appeal in justification of actions which the community condemns as immoral or criminal. They formulate the law or principle in such a way that it is, or seems to them to be, rationally defensible. To them it is 'true' because it brings their actions into harmony with a rightly ordered universe, and enables them to think of themselves as having chosen the nobler part, as having withdrawn from a corrupt world in order to serve God or Humanity of a force that makes for the highest good.' Becker, The Declaration of Independence (1942), pp. 277—278.
5
See the Appendix to this opinion, 376 U.S. 275, 81 S.Ct. 1509.
6
7 The Writings of Thomas Jefferson (Memorial ed. 1903) p. 37.
7
6 The Writings of Thomas Jefferson (Memorial ed. 1903) pp. 391—392.
8
Gellhorn, American Rights (1960), in commenting on Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, and Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, states:
'The aftermath of the Yates case is interesting. By the end of 1956 convictions of Communist leaders under the Smith Act had numbered 114. Many of these cases were still pending in the appellate courts when the Yates decision was announced in June of 1957. On one ground or another, convictions were set aside and new trials were granted to many of these defendants. The Department of Justice itself dropped the prosecution of a considerable number, on the ground that they could not properly be convicted on the basis of the evidence now available. Most significantly of all, the cases against the nine remaining defendants in Yates, as to whom the Supreme Court had refused to dismiss the charges, were abandoned by the prosecution because there was insufficient evidence that they had advocated action as distinct from opinion. After all the clamor, after all the expressed alarm about the peril into which the United States was being plunged by this handful of misguided fanatics, the prosecution felt itself unable to show persuasively that the Communist spokesmen had engaged in the forbidden incitements to illegality.
'This should stimulate a sober second look at the surface attractions of programs of suppression and coercion. Occasionally the supporters of these programs are scoundrels who falsely parade themselves as upholders of democracy; but more often they are good and sincere men. Men genuinely devoted to worthy ends sometimes endorse efforts to force unanimity of sentiment, not because they consciously espouse u thoritarianism, but because they hope thus to assure maximum support for the nation and its people. No matter how well intentioned they may be, however, those efforts themselves create a graver danger than they overcome. The perils sought to be suppressed are regularly overestimated. History shows in one example after another how excessive have been the fears of earlier generations, who shuddered at menaces that, with the benefit of hindsight, we now know were mere shadows. This in itself should induce the modern generation to view with prudent skepticism the recurrent alarms about the fatal potentialities of dissent. In any event, in a world torn between the merits of freedom and the blandishments of totalitarian power, the lovers of freedom cannot afford to sacrifice their moral superiority by adopting totalitarian methods in order to create a self-deluding sense of security. Suppression, once accepted as a way of life, is likely to spread. It reinforces the herd urge toward orthodoxies of all kinds—religious, economic, and moral as well as political.' Pp. 82—83.
1
Senator McCarran, the floor manager of the bill in the Senate, spoke of the exposure of Communists as one of the 'principal objectives' of the bill. 96 Cong.Rec. 14174.
The other principal objective was the definition of certain conduct as criminal, it being the sense of Congress that existing provisions to preserve the security of the Nation were inadequate (H.R.Rep. No. 2980, 81st Cong., 2d Sess., p. 2; S.Rep. No. 1358, 81st Cong., 2d Sess., p. 7; 96 Cong.Rec. 14174—14175) and not effective to combat the threat of subversion from within. The criminal provisions of the Internal Security Act are broad and comprehensive. Section 4(a) prohibits conspiracy to perform any act which would substantially contribute to the establishment of a totalitarian dictatorship under the direction and control of a foreign power. Section 4(b) makes it unlawful for a governmente mployee without authorization to communicate classified information to anyone whom he believes to be a representative of a foreign government or member of a Communist organization, and § 4(c) prohibits the receipt of such information. Section 10 prohibits a Communist organization from using the mails or broadcasting on any radio or television station without designating, by printing on the envelope or announcement as the case may be, that it is 'a Communist organization.' A member of a Communist organization which is registered or ordered to register by the Subversive Activities Control Board, who has knowledge or notice of such registration or order, cannot fail to disclose his membership when he is seeking or accepting employment by the United States or at any defense facility. It is also unlawful for such a person to hold employment under the United States or in any defense facility if he is a member of a Communist-action organization. § 5(a). Such a person cannot apply for or use a passport. § 6(a). The Act also modified several existing statutes dealing with subversives and espionage in order to expand their coverage. These extensive criminal provisions belie the thought that Congress regarded the Smith Act as the main gun in the arsenal of antisubversive weapons. The many allusions to the fact that Communists were being more covert in their activities so as to avoid coming within the provisions of the Smith Act make it clear that that Act was not to be of major importance in the campaign against domestic Communists.
2
S. 2311, 81st Cong., 2d Sess.; H.R. 9490, 81st Cong., 2d Sess.
3
H.R. 9490, 81st Cong., 2d Sess.; see H.R.Rep. No. 2980, 81st Cong., 2d Sess., p. 8.
4
96 Cong.Rec. 13739.
5
Id., 13740.
6
Id., 13761.
7
S. 4037, 81st Cong., 2d Sess.
8
S.Rep. No. 1358, 81st Cong., 1st Sess., pp. 43—44.
9
S.Rep. No. 2369, Pt. 2, 81st Cong., 2d Sess., pp. 12—13.
10
96 Cong.Rec. 14421.
11
Id., 14190.
12
Id., 14500.
13
This reference apparently was to Charles Evans Hughes, Jr. and John W. Davis. Id., 14500. The statement of Mr. Davis is referred to in note 8, supra. That of Mr. Hughes can be found in Hearings on H.R. 5852, Senate Committee on the Judiciary, 80th Cong., 2d Sess. 415—420.
14
'In the opinion of the chairman of the Committee on the Judiciary, this provision leans over backward to protect Communists against self-incrimination; but it is one of the many safeguards written into the bill by the Judiciary Committee to assure the complete constitutionality of the measure.' Id., 14175. See also id., 14443.
15
'Mr. Long. I was under the impression, from hearing the Senator from New York (Sen. Lehman) yesterday, that he said that under a previous statute it was unlawful to belong to an organization that advocated the overthrow of the United States Government by force * * *
'Mr. Ferguson. Is it not true that Judge Medina, in his charge to the jury in the trial of the 11 Communists, told them that mere membership in the Communist Party was not sufficient to warrant the jury in convicting them under the Smith Act?
'Mr. Mundt. Precisely.
'Mr. Ferguson. So that it could not apply to that law.
'Mr. Mundt. It could not conceivably apply. Even if the impression which the junior Senator from Louisiana had were correct, it would still be an incorrect interpretation of the act.' Id., 14235.
16
H.R.Conf.Rep. No. 3112, 81st Cong., 2d Sess., p. 49.
17
96 Cong.Rec. 15289.
18
Id., 15198.
19
Ibid.
20
Id., 15192.
21
S.Rep. No. 2369, 81st Cong., 2d Sess., p. 4.
| 23
|
366 U.S. 717
81 S.Ct. 1639
6 L.Ed.2d 751
Leslie IRVIN, Petitioner,v.A. F. DOWD, Warden.
No. 41.
Argued Nov. 9, 1960.
Decided June 5, 1961.
Messrs. Theodore Lockyear, Jr., and James D. Lopp, Evansville, Ind., Messrs. Hahn, Zimmerman, Nafe & Fisher by Mr. James D. Nafe, South Bend, Ind., on the brief, for petitioner.
Mr. Richard M. Givan, Indianapolis, Ind., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
This is a habeas corpus proceeding, brought to test the validity of petitioner's conviction of murder and sentence of death in the Circuit Court of Gibson County, Indiana. The Indiana Supreme Court affirmed the conviction in Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, and we denied direct review by certiorari 'without prejudice to filing for federal habeas corpus after exhausting state remedies.' 353 U.S. 948, 77 S.Ct. 827, 1 L.Ed.2d 857. Petitioner immediately sought a writ of heabea corpus, under 28 U.S.C. § 2241, 28 U.S.C.A. § 2241,1 in the District Court for the Northern District of Indiana, claiming that his conviction had been obtained in violation of the Fourteenth Amendment in that he did not receive a fair trial. That court dismissed the proceeding on the ground that petitioner had failed to exhaust his state remedies. 153 F.Supp. 531. On appeal, the Court of Appeals for the Seventh Circuit affirmed the dismissal. 251 F.2d 548. We granted certiorari, 356 U.S. 948, 78 S.Ct. 921, 2 L.Ed.2d 842, and remanded to the Court of Appeals for decision on the merits or remand to the District Court for reconsideration. 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900. The Court of Appeals retained jurisdiction and decided the claim adversely to petitioner. 271 F.2d 552. We granted certiorari, 361 U.S. 959, 80 S.Ct. 607, 4 L.Ed.2d 542.
2
As stated in the former opinion, 359 U.S. at pages 396—397, 79 S.Ct. at page 827:
3
'The constitutional claim arises in this way. Six murders were committed in the vicinity of Evansville, Indiana, two in December 1954, and four in March 1955. The crimes, extensively covered by news media in the locality, aroused great excitement ad indignation throughout Vanderburgh County, where Evansville is located, and adjoining Gibson County, a rural county of approximately 30,000 inhabitants. The petitioner was arrested on April 8, 1955. Shortly thereafter, the Prosecutor of Vanderburgh County and Evansville police officials issued press releases, which were intensively publicized, stating that the petitioner had confessed to the six murders. The Vanderburgh County Grand Jury soon indicted the petitioner for the murder which resulted in his conviction. This was the murder of Whitney Wesley Kerr allegedly committed in Vanderburgh County on December 23, 1954. Counsel appointed to defend petitioner immediately sought a change of venue from Vanderburgh County, which was granted, but to adjoining Gibson County. Alleging that the widespread and inflammatory publicity had also highly prejudiced the inhabitants of Gibson County against the petitioner, counsel, on October 29, 1955, sought another change of venue, from Gibson County to a county sufficiently removed from the Evansville locality that a fair trial would not be prejudiced. The motion was denied, apparently because the pertinent Indiana statute allows only a single change of venue.'
4
During the course of the voir dire examination, which lasted some four weeks, petitioner filed two more motions for a change of venue and eight motions for continuances. All were denied.
5
At the outset we are met with the Indiana statute providing that only one change of venue shall be granted 'from the county' wherein the offense was committed.2 Since petitioner had already been afforded one change of venue, and had been denied further changes solely on the basis of the statute, he attacked its constitutionality. The Court of Appeals upheld its validity. However, in the light of State ex rel. Gannon v. Porter Circuit Court, 239 Ind. 637, 159 N.E.2d 713, we do not believe that argument poses a serious problem. There the Indiana Supreme Court held that if it was 'made to appear after attempt has actually been made to secure an impartial jury that such jury could not be obtained in the county of present venue * * * it becomes the duty of the judiciary to provide to every accused a public trial by an impartial jury, even though to do so the court must grant a second change of venue and thus contravenue (the statute) * * *.' 239 Ind at page 642, 159 N.E.2d at page 715. The prosecution attempts to distinguish that case on the ground that the District Attorney there conceded that a fair trial could not be had in La Porte County and that the court, therefore, properly ordered a second change of venue despite the language of the statute. Inasmuch as the statute says nothing of concessions, we do not believe that the Indiana Supreme Court conditions the duty of the judiciary to transfer a case to another county solely upon the representation by the prosecutor regardless of the trial court's own estimate of local conditions that an impartial jury may not be impaneled. As we read Gannon, it stands for the proposition that the necessity for transfer will depend upon the totality of the surrounding facts. Under this construction the statute is not, on its face, subject to attack on due process grounds.
6
England, from whom the Western World has largely taken its concepts of individual liberty and of the dignity and worth of every man, has bequeathed to us safeguards for their preservation, the most priceless of which is that of trial by jury. This right a § become as much American as it was once the most English. Although this Court has said that the Fourteenth Amendment does not demand the use of jury trials in a State's criminal procedure, Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, every State has constitutionally provided trial by jury. See Columbia University Legislative Drafting Research Fund, Index Digest of State Constitutions, 578—579 (1959). In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. 'A fair trial in a fair tribunal is a basic requirement of due process.' In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as 'indifferent as he stands unsworne.' Co.Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr's Trial 416(1807).3 'The theory of the law is that a juror who has formed an opinion cannot be impartial.' Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244.
7
It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Spies v. People of State of Illinois, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; Reynolds v. United States, supra.
8
The adoption of such a rule, however, 'cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner's life or liberty without due process of law.' Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. As stated in Reynolds, the test is 'whether the nature and strength of the opinion formed are such as in law necessarily * * * raise the presumption of partiality. The question thus presented is one of mixed law and fact * * *.' At page 156 of 98 U.S. 'The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside * * *. If a positive and decided opinion had e en formed, he would have been incompetent even though it had not been expressed.' At page 157 of 98 U.S. As was stated in Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469, the 'so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.' It was, therefore, the duty of the Court of Appeals to independently evaluate the voir dire testimony of the impaneled jurors.
9
The rule was established in Reynolds that '(t)he finding of the trial court upon that issue (the force of a prospective juror's opinion) ought not be set aside by a reviewing court, unless the error is manifest.' 98 U.S. at page 156. In later cases this Court revisited Reynolds, citing it in each instance for the proposition that findings of impartiality should be set aside only where prejudice is 'manifest.' Holt v. United States, supra; Spies v. People of State of Illinois, supra; Hopt v. People of State of Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708. Indiana agrees that a trial by jurors having a fixed, preconceived opinion of the accused's guilt would be a denial of due process, but points out that the voir dire examination discloses that each juror qualified under the applicable Indiana statute.4 It is true that the presiding judge personally examined those members of the jury panel whom petitioner, having no more peremptory challenges, insisted should be excused for cause, and that each indicated that notwithstanding his opinion he could render an impartial verdict. But as Chief Justice Hughes observed in United States v. Wood, 299 U.S. 123, 145—146, 57 S.Ct. 177, 185, 81 L.Ed. 78: 'Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.'
10
Here the build-up of prejudice is clear and convincing. An examination of the then current community pattern of thought as indicated by the popular news media is singularly revealing. For example, petitioner's first motion for a change of venue from Gibson County alleged that the awaited trial of petitioner had become the cause celebre of this small community—so much so that curbstone opinions, not only as to petitioner's guilt but even as to what punishment he should receive, were solicited and recorded on the public streets by a roving reporter, and later were broadcast over the local stations. A reading of the 46 exhibits which petitioner attached to his motion indicates that a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his trial. The motion further alleged that the newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County and that, in addition, the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents. These stories revealed the details of his background, including a reference to crimes committed when a juvenile, his convictions for arson almost 20 years previously, for burglary and by a court-martial on AWOL charges during the war. He was accused of being a parole violator. The headlines announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime and that the six murders were solved but petitioner refused to confess. Finally, they announced his confession to the six murders and the fact of his indictment for four of them in Indiana. They reported petitioner's offer to plead guilty if promised a 99-year sentence, but also the determination, on the other hand, of the prosecutor to secure the death penalty, and that petitioner had confessed to 24 burglaries (the modus operandi of these robberies was compared to that of the murders and the similarity noted). One story dramatically relayed the promise of a sheriff to devote his life to securing petitioner's execution by the State of Kentucky, where petitioner is alleged to have committed one of the six murders, if Indiana failed to do so. Another characterized petitioner as remorseless and without conscience but also as having been found sane by a court-appointed panel of doctors. In many of the stories petitioner was described as the 'confessed slayer of six,' a parole violator and fraudulent-check artist. Petitioner's court-appointed counsel was quoted as having received 'much criticism over being Irvin's counsel' and it was pointed out, by way of excusing the attorney, that he would be subject to disbarment should he refuse to represent Irvin. On the day before the trial the newspapers carried the story that Irvin had orally admitted the murder of Kerr (the victim in this case) as well as 'the robbery-murder of Mrs. Mary Holland; the murder of Mrs. Wilhelmina Sailer in Posey County, and the slaughter of three members of the Duncan family in Henderson County, Ky.'
11
It cannot be gainsaid that the force of this continued adverse publicity caused a sustained excitement and fostered a strong prejudice among the people of Gibson County. In fact, on the second day devoted to the selection of the jury, the newspapers reported that 'strong feelings, often bitter and angry, rumbled to the surface,' and that 'the extent to which the multiple murders—three in one family—have aroused feelings throughout the area was emphasized Friday when 27 of the 35 prospective jurors questioned were excused for holding biased pretrial opinions * * *.' A few days later the feeling was described as 'a pattern of deep and bitter prejudice against the former pipe-fitter.' Spectator comments, as printed by the newspapers, were 'my mind is made up'; 'I think he is guilty'; and 'he should be hanged.'
12
Finally, and with remarkable understatement, the headlines reported that 'impartial jurors are hard to find.' The panel consisted of 430 persons. The court itself excused 268 of those on challenges for cause as having fixed opinions as to the guilt of petitioner; 103 were excused because of conscientious objection to the imposition of the death penalty; 20, the maximum allowed, were peremptorily challenged by petitioner and 10 by the State; 12 persons and two alternates were selected as jurors and the rest were excused on personal grounds, e.g., deafness, doctor's orders, etc. An examination of the 2,783-page voir dire record shows that 370 prospective jurors or almost 90% of those examined on the point (10 members of the panel were never asked whether or not they had any opinion) entertained some opinion as to guilt—ranging in intensity from mere suspicion to absolute certainty. A number admitted that, if they were in the accused's place in the dock and he in theirs on the jury with their opinions, they would no want him on a jury.
13
Here the 'pattern of deep and bitter prejudice' shown to be present throughout the community, cf. Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872, was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was guilty. With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. See Delaney v. United States, 1 Cir., 199 F.2d 107, 39 A.L.R.2d 1300. Where one's life is at stake and accounting for the frailties of human nature—we can only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards. Two-thirds of the jurors had an opinion that petitioner was guilty and were familiar with the material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome their belief. One said that he 'could not * * * give the defendant the benefit of the doubt that he is innocent.' Another stated that he had a 'somewhat' certain fixed opinion as to petitioner's guilt. No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before one's fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. As one of the jurors put it, 'You can't forget what you hear and see.' With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt. Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599; Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740 (concurring opinion); Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543.
14
Petitioner's detention and sentence of death pursuant to the void judgment is in violation of the Constitution of the United States and he is therefore entitled to be freed therefrom. The judgments of the Court of Appeals and the District Court are vacated and the case remanded to the latter. However, petitioner is still subject to custody under the indictment filed by the State of Indiana in the Circuit Court of Gibson County charging him with murder in the first degree and may be tried on this or another indictment. The District Court has power, in a habeas corpus proceeding, to 'dispose of the matter as law and justice require.' 28 U.S.C. § 2243, 28 U.S.C.A. § 2243. Under the predecessors of this section, 'this court has often delayed the discharge of the petitioner for such reasonable time as may be necessary to have him taken before the court where the judgment was rendered, that defects which render discharge necessary may be corrected.' Mahler v. Eby, 264 U.S. 32, 46, 44 S.Ct. 283, 288, 68 L.Ed. 549. Therefore, on remand, the District Court should enter such orders as are appropriate and consistent with this opinion, cf. Grandsinger v. Bovey, D.C., 153 F.Supp. 201, 240, which allow the State a reasonable time in which to retry petitioner. Cf. Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215; Tod v. Waldman, 266 U.S. 113, 45 S.Ct. 85, 69 L.Ed. 195.
15
Vacated and remanded.
16
Mr. Justice FRANKFURTER, concurring.
17
Of course I agree with the Court's opinion. But this is, unfortunately, not an isolated case that happened in Evansville, Indiana, nor an atypical miscarriage of justice due to anticipatory r ial by newspapers instead of trial in court before a jury.
18
More than one student of society has expressed the view that not the least significant test of the quality of a civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community. One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.
19
Not a Term passes without this Court being importuned to review convictions, had in States throughout the country, in which substantial claims are made that a jury trial has been distorted because of inflammatory newspaper accounts—too often, as in this case, with the prosecutor's collaboration—exerting pressures upon potential jurors before trial and even during the course of trial, thereby making it extremely difficult, if not impossible, to secure a jury capable of taking in, free of prepossessions, evidence submitted in open court. Indeed such extraneous influences, in violation of the decencies guaranteed by our Constitution, are sometimes so powerful that an accused is forced, as a practical matter, to forego trial by jury. See State of Maryland v. Baltimore Radio Show, 338 U.S. 912, 915, 70 S.Ct. 252, 253, 94 L.Ed. 562. For one reason or another this Court does not undertake to review all such envenomed state prosecutions. But, again and again, such disregard of fundamental fairness is so flagrant that the Court is compelled, as it was only a week ago, to reverse a conviction in which prejudicial newspaper intrusion has poisoned the outcome. Janko v. United States, 366 U.S. 716, 81 S.Ct. 1662, 6 L.Ed.2d 846; see e.g., Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. See also Stroble v. State of California, 343 U.S. 181, 198, 72 S.Ct. 599, 607, 96 L.Ed. 872 (dissenting opinion); Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740 (concurring opinion). This Court has not yet decided that the fair administration of criminal justice must be subordinated to another safeguard of our constitutional system—freedom of the press, properly conceived. The Court has not yet decided that, while convictions must be reversed and miscarriages of justice result because the minds of jurors or potential jurors were poisoned, the poisoner is constitutionally protected in plying his trade.
1
Section 2241 provides in pertinent part:
'(a) Writs of habeas corpus may be granted by the * * * district courts * * * within their respective jurisdictions. * * *
'(c) The writ of habeas corpus shall not be extended to a prisoner unless * * *
'(3) He is in custody in violation of the Constitution or laws or treaties of the United States * * *.'
2
Burns' Ind.Stat.Ann., 1956 Replacement Vol., § 9—1305, provides in pertinent part: 'When affidavits for a change of venue are founded upon excitement or prejudice in the county against the defendant, the court, in all cases not punishable by death, may, in its discretion, and in all cases punishable by death, shall grant a change of venue to the most convenient county. * * * Provided, however, That only one (1) change of venue from the judge and only one (1) change from the county shall be granted.'
3
'(L)ight impressions which may fairly be supposed to yield to the testimony that may be offered; which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him.'
4
'Challenges for cause.—The following shall be good causes for challenge to any person called as a juror in any criminal trial:
'Second. That he has formed or expressed an opinion as to the guilt or innocence of the defendant. But if a person called as a juror states that he has formed or expressed an opinion as to the guilt or innocence of the defendant, the court or the parties shall thereupon proceed to examine such juror on oath as to the ground of such opinion; and if it appears to have been founded upon reading newspaper statements, communications, comments or reports, or upon rumors or hearsay, and not upon conversation with witnesses of the transaction, or reading reports of their testimony, or hearing them testify, and the juror states on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and evidence, the court, if satisfied that he is impartial and will render such verdict, may in its discretion, admit him as competent to serve in such case.' Burns' Ind.Stat.Ann., 1956 Replacement Vol., § 9—1504.
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366 U.S. 731
81 S.Ct. 1603
6 L.Ed.2d 762
INTERNATIONAL LADIES' GARMENT WORKERS' UNION, AFL-CIO, Petitioner,v.NATIONAL LABOR RELATIONS BOARD and Bernhard-Altmann Texas Corporation.
No. 284.
Argued April 17, 1961.
Decided June 5, 1961.
Messrs. Charles J. Morris, Dallas, Tex., and Morris P. Glushien, New York City, for petitioner.
Mr. Dominick L. Manoli, Washington, D.C., for respondents.
Mr. Justice CLARK delivered the opinion of the Court.
1
We are asked to decide in this case whether it was an unfair labor practice for both an employer and a union to enter into an agreement under which the employer recognized the union as exclusive bargaining representative of certain of his employees, although in fact only a minority of those employees had authorized the union to represent their interests. The Board found1 that by extending such recognition, even though done in the good-faith belief that the union had the consent of a majority of employees in the appropriate bargaining unit, the employer interfered with the organizational rights of his employees in violation of § 8(a)(1) of the National Labor Relations Act and that such recognition also constituted unlawful support to a labor organization in violation of § 8(a)(2).2 In addition, the Board found that the union violated § 8(b)(1)(A)3 by its acceptance of exclusive bargaining authority at a time when in fact it did not have the support of a majority of the employees, and this in spite of its bona fide belief that it did. Accordingly, the Board ordered the unfair labor practices discontinued and directed the hl ding of a representation election. The Court of Appeals, by a divided vote, granted enforcement, 108 U.S.App.D.C. 68, 280 F.2d 616. We granted certiorari. 364 U.S. 811, 81 S.Ct. 68, 5 L.Ed.2d 44. We agree with the Board and the Court of Appeals that such extension and acceptance of recognition constitute unfair labor practices, and that the remedy provided was appropriate.
2
In October 1956 the petitioner union initiated an organizational campaign at Bernhard-Altmann Texas Corporation's knitwear manufacturing plant in San Antonio, Texas. No other labor organization was similarly engaged at that time. During the course of that campaign, on July 29, 1957, certain of the company's Topping Department employees went on strike in protest against a wage reduction. That dispute was in no way related to the union campaign, however, and the organizational efforts were continued during the strike. Some of the striking employees had signed authorization cards solicited by the union during its drive, and, while the strike was in progress, the union entered upon a course of negotiations with the employer. As a result of those negotiations, held in New York City where the home offices of both were located, on August 30, 1957, the employer and union signed a 'memorandum of understanding.' In that memorandum the company recognized the union as exclusive bargaining representative of 'all production and shipping employees.' The union representative asserted that the union's comparison of the employee authorization cards in its possession with the number of eligible employees representatives of the company furnished it indicated that the union had in fact secured such cards from a majority of employees in the unit. Neither employer nor union made any effort at that time to check the cards in the union's possession against the employee roll, or otherwise, to ascertain with any degree of certainty that the union's assertion, later found by the Board to be erroneous,4 was founded on fact rather than upon good-faith assumption. The agreement, containing no union security provisions, called for the ending of the strike and for certain improved wages and conditions of employment. It also provided that a 'formal agreement containing these terms' would 'be promptly drafted * * * and signed by both parties within the next two weeks.'
3
Thereafter, on October 10, 1957, a formal collective bargaining agreement, embodying the terms of the August 30 memorandum, was signed by the parties. The bargaining unit description set out in the formal contract, although more specific, conformed to that contained in the prior memorandum. It is not disputed that as of execution of the forma contract the union in fact represented a clear majority of employees in the appropriate unit.5 In upholding the complaints filed against the employer and union by the General Counsel, the Board decided6 that the employer's good-faith belief that the union in fact represented a majority of employees in the unit on the critical date of the memorandum of understanding was not a defense, 'particularly where, as here, the Company made no effort to check the authorization cards against its payroll records.' 122 N.L.R.B. 1289, 1292. Noting that the union was 'actively seeking recognition at the time such recognition was granted,' and that 'the Union was (not) the passive recipient of an unsolicited gift bestowed by the Company,' the Board found that the union's execution of the August 30 agreement was a 'direct deprivation' of the nonconsenting majority employees' organizational and bargaining rights. At pp. 1292, 1293, note 9. Accordingly, the Board ordered the employer to withhold all recognition from the union and to cease giving effect to agreements entered into with the union;7 the union was ordered to cease acting as bargaining representative of any of the employees until such time as a Boardconducted election demonstrated its majority status, and to refrain from seeking to enforce the agreements previously entered.
4
The Court of Appeals found it difficult to 'conceive of a clearer restraint on the employees' right of self-organization than for their employer to enter into a collective-bargaining agreement with a minority of the employees.' 280 F.2d at page 619. The court distinguished our decision in National Labor Relations Board v. Drivers, Chauffeurs, Helpers, Local Union No. 639, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710, on the ground that there was involved here neither recognitional nor organizational picketing. The court held that the bona fides of the parties was irrelevant except to the extent that it 'was arrived at through an adequate effort to determine the true facts of the situation.' 280 F.2d at page 622.
5
At the outset, we reject as without relevance to our decision the fact that, as of the execution date of the formal agreement on October 10, petitioner represented a majority of the employees. As the Court of Appeals indicated, the recognition of the minority union on August 30, 1957, was 'a fait accompli depriving the majority of the employees of their guaranteed right to choose their own representative.' 280 F.2d at page 621. It is, therefore, of no consequence that petitioner may have acquired by October 10 the necessary majority if, during the interim, it was acting unlawfully. Indeed, such acquisition of majority status itself might indicate that the recognition secured by the August 30 agreement afforded petitioner a deceptive cloak of authority with which to persuasively elicit additional employee support.
6
Nor does this case directly involve a strike. The strike which occurred was in protest against a wage reduction and had nothing to do with petitioner's quest for recognition. Likewise, no question of picketing is presented. Lastly, the violation which the Board found was the grant by the employer of exclusive representation status to a minority union, as distinguished from an employer's bargaining with a minority union for its members only. Therefore, the exclusive representation provision is the vice in the agreement, and discussion of 'collective bargaining,' as distinguished from 'exclusive recognition,' is pointless.8 Moreover, the insistence that we hold the agreement valid and enforceable as to those employees who consented to it must be rejected. On the facts shown, the agreement must fail in its entirety. It was obtained under the erroneous claim of majority representation. Perhaps the employer would not have entered into it if he had known the facts. Quite apart from other conceivable situations, the unlawful genesis of this agreement precludes its partial validity.
7
In their selection of a bargaining representative, § 9(a) of the Wagner Act guarantees employees freedom of choice and majority rule. J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 339, 64 S.Ct. 576, 581, 88 L.Ed. 762. In short, as we said in Brooks v. National Labor Relations Board, 348 U.S. 96, 103, 75 S.Ct. 176, 181, 99 L.Ed. 125, the Act placed 'a nonconsenting minority under the bargaining responsibility of an agency selected by a majority of the workers.' Here, however, the reverse has been shown to be the case. Bernhard-Altmann granted exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the nonconsenting majority. There could be no clearer abridgment of § 7 of the Act, assuring employees the right 'to bargain collectively through representatives of their own choosing' or 'to refrain from' such activity.9 It follows, without need of further demonstration, that the employer activity found present here violated § 8(a)(1) of the Act which prohibits employer interference with, and restraint of, employee exercise of § 7 rights. Section 8(a)(2) of the Act makes it an unfair labor practice for an employer to 'contribute * * * support' to a labor organization. The law has long been settled that a grant of exclusive recognition to a minority union constitutes unlawful support in violation of that section, because the union so favored is given 'a marked advantage over any other in securing the adherence of employees,' National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 267, 58 S.Ct. 571, 574, 82 L.Ed. 831. In the Taft-Hartley Law, Congress added § 8(b)(1)(A) to the Wagner Act, prohibiting, as the Court of Appeals held, 'unions from invading the rights of employees under § 7 in a fashion comparable to the activities of employers prohibited under § 8(a)(1).' 280 F.2d at page 620. It was the intent of Congress to impose upon unions the same restrictions which the Wagner Act imposed on employers with respect to violations of employee rights.10
8
The petitioner, while taking no issue with the fact of its minority status on the critical date, maintains tha both Bernhard-Altmann's and its own good-faith beliefs in petitioner's majority status are a complete defense. To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act—that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives.11 We find nothing in the statutory language prescribing scienter as an element of the unfair labor practices are involved. The act made unlawful by § 8(a)(2) is employer support of a minority union. Here that support is an accomplished fact. More need not be shown, for, even if mistakenly, the employees' rights have been invaded. It follows that prohibited conduct cannot be excused by a showing of good faith.12
9
This conclusion, while giving the employee only the protection assured him by the Act, places no particular hardship on the employer or the union. It merely requires that recognition be withheld until the Board-conducted election results in majority selection of a representative. The Board's order here, as we might infer from the employer's failure to resist its enforcement, would apparently result in similarly slight hardship upon it. We do not share petitioner's apprehension that holding such conduct unlawful will somehow induce a breakdown, or seriously impede the progress of collective bargaining. If an employer takes reasonable steps to verify union claims, themselves advanced only after careful estimate—precisely what Bernhard-Altmann and petitioner failed to do here—he can readily ascertain their validity and obviate a Board election. We fail to see any onerous burden involved in requiring responsible negotiators to be careful, by cross-checking, for example, well-analyzed employer records with union listings or authorization cards. Individual and collective employee rights may not be trampled upon merely because it is inconvenient to avoid doing so. Moreover, no penalty is attached to the violation. Assuming that an employer in good faith accepts or rejects a union claim of majority status, the validity of his decision may be tested in an unfair labor practice proceeding.13 If he is found to have erred in extending or withholding recognition, he is subject only to a remedial order requiring him to conform his conduct to the norms set out in the Act, as was the case here. No further penalty results. We believe the Board's remedial order is the proper one in such cases. National Labor Relations Board v. District 50, United Mine Workers of America, 355 U.S. 453, 78 S.Ct. 386, 2 L.Ed.2d 401.
10
Affirmed.
11
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting in part.
12
I agree that, under the statutory scheme, a minority union does not have the standing to bargain for all employees. That principle of representative government extends only to the majority. But where there is no majority union, I see no reason why the minority union should be disabled from bargaining for the minority of the members who have joined it.1 Yet the order of the Board, now approved, enjoins petitioner union from acting as the exclusive bargaining representative 'of any of the employees, and it enjoins the employer from recognizing the union as the representative of 'any of its employees.'
13
We have indicated over and again that, absent an exclusive agency for bargaining created by a majority of workers, a minority union has standing to bargain for its members. In Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 549, note 6, 57 S.Ct. 592, 600, 81 L.Ed. 789, the Court quoted with approval a concession that 'If the majority of a craft or class has not selected a representative, the carrier is free to make with anyone it pleases and for any group it pleases contracts establishing rates of pay, rules, or working conditions.'
14
That case was under the Railway Labor Act. But it has been followed under the National Labor Relations Act. In Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126, a union, the Brotherhood of Electrical Workers, was allowed to act as a bargaining representative for the employees who were its members, even though they were a minority. The Court said, '* * * in the absence of such an exclusive agency the employees represented by the Brotherhood, even if they were a minority, clearly had the right to make their own choice.' Id., 305 U.S. 237, 59 S.Ct. 220. Maintenance of the status of a minority union, until an election was held, might well serve the purpose of protecting commerce 'from interruptions and obstructions caused by industrial strife.' Id., 305 U.S. 237, 59 S.Ct. 220. A decree requiring the employer to cease recognizing the Brotherhood as the exclusive representative of its members was modified:
15
'The contracts do not claim for the Brotherhood exclusive representation of the companies' employees but only representation of those who are its members, and the continued operation of the contracts is necessarily subject to the provision of the law by which representatives of the employees for the purpose of collective bargaining can be ascertained in case any question of 'representation' should arise. * * * We construe (the order) as having no more effect than to provide that there shall be no interference with an exclusive bargaining agency if one other than the (union) should be established in accordance with * * * the Act.' Id., 305 U.S. 239, 59 S.Ct. 221.
16
It was in that tradition that we recently sustained the right of a minority union to picket peacefully to compel recognition. National Labor Relations Board v. Drivers Local Union No. 639, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710. There a minority union sought to compel exclusive representation rights. To be sure, this Court recognized in that case that 'tension exists between * * * (the) right to form, join or assist labor organizations and (the) right to refrain from doing so.' Id., 362 U.S. 280, 80 S.Ct. 710. But when a minority union seeks only to represent its own, what provision of the Act deprives it of its right to represent them, where a majority have not selected another union to represent them?
17
Judge Learned Hand in Douds v. Local 1250, 2 Cir., 173 F.2d 764, 770, 9 A.L.R.2d 685, stated that 'the right to bargain collectively and the right to strike and induce others to do so, are derived from the common-law; it is only in so far as something in the Act forbids their exercise that their exercise becomes unlawful.' In that case a minority union was recognized as having standing in a grievance proceeding outside the collective bargaining agreement, even where a majority had chosen another union. See American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189.
18
Honoring a minorityu nion—where no majority union exists or even where the activities of the minority union do not collide with a bargaining agreement—is being respectful of history. Long before the Wagner Act, employers and employees had the right to discuss their problems. In the early days the unions were representatives of a minority of workers.2 The aim—at least the hope— of the legislation was that majority unions would emerge and provide stabilizing influences. Yet I have found nothing in the history of the successive measures, starting with the Wagner Act, that indicates any purpose on the part of Congress to deny a minority union the right to bargain for its members when a majority have not in fact chosen a bargaining representative.3
19
I think the Court is correct insofar as it sets aside the exclusive recognition clause in the contract. I think it is incorrect in setting aside the entire contract. First, that agreement secured valuable benefits for the union's members regarding wages and hours, work standards and distribution, discharge and discipline, holidays, vacations, health and welfare fund, and other matters. Since there was no duly selected representative for all the employees authorized in accordance with the Act, it certainly was the right of the employee union members to designate the union or any other appropriate person to make this contract they desired. To hold the contract void as to the union's voluntary members seems to me to go beyond the competency of the Board under the Act and to be unsupported by any principle of contract law. Certainly there is no principle of justice or fairness with which I am familiar that requires these employees to be stripped of the benefits they acquired by the good-faith bargaining of their designated agent. Such a deprivation gives no protection to the majority who were not members of the union and arbitrarily takes from the union members their contract rights.
20
Second, the result of today's decision is to enjoin the employer from dealing with the union as the representative of its own members in any manner, whether in relation to grievances or otherwise, until it is certified as a majority union. A case for complete disestablishment of the union cannot be sustained under our decisions. While the power of the Board is broad, it is 'not limitless.' National Labor Relations Board v. District 50, United Mine Workers of America, 355 U.S. 453, 458, 78 S.Ct. 386, 389, 2 L.Ed.2d 401. Thus a distinction has been taken between remedies in situations where a union has been dominated by the employer and where unions have been assisted but not dominated. Id., 355 U.S. 458—459, 78 S.Ct. 389—390.
21
The present case is unique. The findings are that both the employer and the union were in 'good faith' in believing that the union represented a majority of the workers. Good-faith violations of the Act are nonetheless violations; and the present violation warrants disestablishment of the union as a majority representative. But this good-faith mistake hardly warrants full and complete disestablishment, heretofore reserved for flagrant violations of the Act. Its application here smacks more of a penalty than of a remedial measure.
22
I think this union is entitled to speak for its members until another union is certified as occupying the bargaining field. That is its common-law right in no way diluted or impaired by the Act.
1
Except for filing an answer, the employer, Bernhard-Altmann Texas Corporation, did not resist enforcement of the Board's order and has not sought review in this Court.
2
Section 8(a)(1) and (2), insofar as pertinent, provides:
'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;
'(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it * * *.' 61 Stat. 140, 29 U.S.C. § 158(a)(1, 2), 29 U.S.C.A. § 158(a)(1, 2).
3
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 th 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).
4
The Board found that as of August 30 the union in fact had authority to represent either 70 employees out of a relevant total of 280, or 158 out of 368, depending upon the criteria used in determining employee eligibility. 'Accordingly, the Union could not, under any circumstances, have represented a majority of the employees involved on August 30, 1957.' 122 N.L.R.B. 1289, 1291 1292.
5
The Court of Appeals considered irrelevant the achievement of majority status during the period that the union maintained the unlawful agreement. 280 F.2d 616, 619, note 3.
6
Member Fanning agreed with a majority of the Board that the employer violated § 8(a)(1) and (2), but dissented as to the finding of union violation of § 8(b)(1)(A). 122 N.L.R.B. 1289, 1297.
7
However, the terms and conditions of employment fixed by the agreement were not required to be varied or abandoned. We take it that the Board's order restraining the union and employer from dealing will, in any event, terminate after the election is held.
8
Relying upon reference to § 9 decertification proceedings, petitioner contends that such a contract with a minority union does not prevent employees from exercising complete freedom. The availability of such a remedy is doubtful in view of the Board's position that the 'contract bar' defense prevents a showing of lack of majority status at the time a contract was made. See In re Columbia River Salmon & Tuna Packers Assn., 91 N.L.R.B. 1424, and cases cited therein.
9
Section7 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).' 61 Stat. 140, 29 U.S.C. § 157, 29 U.S.C.A. § 157.
10
See S.Rep. No. 105, 80th Cong., 1st Sess. 50 (Supp.Views), I Leg.Hist. (1947) 456; II Leg.Hist. (1947) 1199, 1204, 1207.
11
Although it is of no significance to our holding, we note that there was made no reasonable effort to determine whether in fact petitioner represented a majority of the employees.
12
See National Labor Relations Board v. Perfect Circle Co., 7 Cir., 162 F.2d 566; National Labor Relations Board v. Illinois Tool Works, 7 Cir., 153 F.2d 811; McQuay-Norris Mfg. Co. v. National Labor Relations Board, 7 Cir., 116 F.2d 748; and cf. National Labor Relations Board v. Industrial Cotton Mills, 4 Cir., 208 F.2d 87, 45 A.L.R.2d 880.
13
Section 8(a)(5) makes it an unfair labor practice for an employer 'to refuse to bargain collectively with the representatives of his employees * * *.' 61 Stat. 141, 29 U.S.C. § 158(a)(5), 29 U.S.C.A. § 158(a)(5).
1
The collective bargaining agreement in the present case undertakes to make the union 'the sole and exclusive bargaining representative' for all workers in the bargaining unit. Article II. But the agreement also contains a separability clause—that if 'any provision' is held 'invalid,' the remainder of the agreement is not affected. Article XXIX.
2
Twentieth Century Fund, How Collective Bargaining Works (1942), p. 24; U.S.Dept. of Labor Information Bulletin, Vol. 5, No. 6 (1938), pp. 5—8. For examples of such 'members only' contracts, see, e.g., 2 Lab.Rel.Rep.Man. 964, 967. See also Union Recognition as Shown in Contracts, 1A Lab.Rel.Rep.Man. 781—787: 'The beginning point of collective bargaining in labor relations is the recognition by an employer of the other party to any contract entered into as the party representing employees * * *. (U)nion-recognition clauses, as embodied in most recent contracts generally fall into two different patterns. In some contracts, the union is recognized as the exclusive bargaining agent for all employees. In others, the union is recognized as bargaining agent for those employees only who are or may become members of the union.'
3
The Board has frequently recognized that recognition of a minority union as representative of its members only was not an unfair labor practice, absent the choice by a majority of a different bargaining representative. See Solvay Process Co., 5 N.L.R.B. 330, 340; Hoover Co., 90 N.L.R.B. 1614, 1618. And see Cleveland Worsted Mills Co., 43 N.L.R.B. 545; Black Diamond S.S.Corp. v. National Labor Relations Board, 2 Cir., 94 F.2d 875.
| 67
|
366 U.S. 745
81 S.Ct. 1630
6 L.Ed.2d 772
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, Appellant,v.UNITED STATES et al. Ezra Taft BENSON, Secretary of Agriculture of the United States, Appellant, v. UNITED STATES et al.
Nos. 306 and 307.
Argued May 2, 1961.
Decided June 5, 1961.
Mr. Raymond K. Merrill, Chicago, Ill., for appellant in both cases.
Mr. Robert W. Ginnane, Washington, D.C., for appellees, The United States and I.C.C. Mr. Fletcher Rockwood, Portland, Or., for appellee, R.R. Companies, in both cases.
Mr. Justice CLARK delivered the opinionn of the Court.
1
These are direct appeals from an order of a three-judge District Court dismissing appellants' complaint seeking to set aside an Interstate Commerce Commission decision which refused to prescribe through routes and joint rates for traffic moving between appellant railroad and the Spokane, Portland and Seattle Railway (the 'S.P. & S.') system1 via Spokane, Washington. The Commission found, contrary to appellants' contention, that, with limited exceptions, no through routes existed for the movement of freight by the S.P. & S. system and appellant railroad (the 'Milwaukee') via Spokane. It also held that the short-haul protection provided in § 15(4) of the Interstate Commerce Act2 applied because the S.P. & S. was operated in conjunction with and under common management of its parents, the Great Northern Railway Co. and the Northern Pacific Railway Co. (the 'Northern Lines'), each of which owned 50% of the S.P. & S. Finally, it entered a finding that the refusal of the S.P. & S. system to grant the through routes3 and joint rates4 requested did not result in discrimination against the Milwaukee or in undue preference or prejudice between shippers and localities and further found that they were not 'needed in order to provide adequate and more efficient or more economic transportation.' 300 I.C.C. 453. The District Court held that the findings of the Commission were supported by substantial evidence and affirmed its ruling as to the application of § 15(4). 182 F.Supp. 81. We noted probable jurisdiction. 364 U.S. 860, 81 S.Ct. 106, 5 L.Ed.2d 84. We affirm the judgment.
2
The factual situation is described in detail in the Commission's report and we will, therefore, set it out only briefly. It appears that the S.P. & S. was built by the Northern Lines for the purpose of relieving congestion, avoiding double mountain trackage, and obtaining low grade road facilities to the West Coast. Its lines—approximately 950 miles in length—run along the Snake and Columbia Rivers westward between Spokane, Washington, and the Pacific Coast via Portland, Oregon. The lines of its parents, the Northern Lines, operate between Minneapolis-St. Paul, Minnesota, and the head of the Great Lakes on the east and Portland, Oregon, and coastal points in Washington on the west. They serve the larger cities in northern Idaho, Montana, North and South Dakota and Minnesota. The Milwaukee operates some 10,600 miles of line from Chicago, Illinois, and Westport, Indiana, on the east and Longview, Washington, on the west. While it serves many of the same cities in Idaho, Montana, the Dakotas and Minnesota from which the Northern Lines receive traffic, appellant railroad serves no point in Oregon directly. If it could establish through routes and joint rates with the S.P. & S. system, the Milwaukee might secure, on interchange at Spokane, much of the Traffic that originates or terminates on the S.P. & S. system. On the other hand, the Northern Lines seek to obtain as much of this haul as possible and have published joint rates on all important commodities interchanged between the S.P. & S. system and the Northern Lines at Spokane. These rates are lower than the combination of the local rates of the S.P. & S. and the appellant railroad now applicable to traffic which could be interchanged at the same point, Spokane, between these carriers. It appears that the S.P. & S. system and the Northern Lines are not opposed to the publication of joint rates by the S.P. & S. system and the Milwaukee for traffic to or from points served only by the latter (local points) but refuse to establish through routes and joint rates via appellant's line to points which are also served by the Northern Lines.
3
We find, as did the District Court, that substantial evidence does support the factual findings of the Commission. We shall, therefore, forego a discussion of the appellants' contentions based on the findings. We are left with only the principal issue, namely, whether the protection of § 15(4) of the Act extends to two railroads owning a third in the relationship existing here.
4
The Northern Lines compete with each other but own in equal shares all of the bonds and stock of the S.P. & S. Their presidents alternate yearly as president and vice president of, and personally pass upon the executive problems of, the S.P. & S., which, however, has an operating vice president of its own. As to equipment, the Northern Lines furnish a substantial amount of the car supply of the S.P. & S. system. The traffic policies of the latter are directed and controlled jointly by the traffic departments of the Northern Lines. Transcontinental traffic matters are handled by representatives of the Northern Lines but local traffic problems—under the general policies aforementioned are left to the S.P. & S. officials. In short, except when the Northern Lines disagree between themselves, they entirely control the operation of the S.P. & S.
5
Sectio 1(4) of the Interstate Commerce Act requires railroads 'to establish reasonable through routes' with each other. Where such routes are not established voluntarily, the Commission has the power, under § 15(3) of the Act, to prescribe them 'whenever deemed by it to be necessary or desirable in the public interest.' This authority is restricted against short hauling, however, by § 15(4) which provides that the Commission 'shall not * * * require any carrier by railroad * * * to embrace in such route substantially less than the entire length of its railroad and of any intermediate railroad operated in conjunction and under a common management or control therewith, which lies between the termini of such proposed through route * * *.' Appellants contend that since the eastern terminus of the S.P. & S. is Spokane, the establishment of the through routes via that point would not short haul the S.P. & S. If, however, the S.P. & S. is under the 'common management or control' of the Northern Lines and the short-haul protection of § 15(4) is available to them, the through routes sought would, if granted, result in the latter being short hauled in contravention of this section.
6
The findings of the Commission, approved by the District Court, indicate clearly that neither of the Northern Lines individually controls the S.P. & S. However, it is equally clear that jointly they do manage and control it as effectively as if it were part of their own lines. This is particularly true of its traffic policy, which is the heart of the problem here. However, appellants contend that, regardless of the factual circumstances, as a matter of law only a single railroad can operate or control another line within the meaning of the short-haul protection of § 15(4).
7
The short-haul exception of § 15(4) originated in the Mann-Elkins Act of 1910. 36 Stat. 539, 552. The crucial words 'common management or control' were not defined and the subsequent legislative history of the provision is of little assistance to our inquiry. However, the overriding purpose of the Congress seems to have been the protection of the traffic of the controlling line. As Senator Elkins, a coauthor of the measure, stated to the Senate, the exception 'is one which has always been recognized in the transportation business of the country. The road that initiates the freight and starts it on its movement in interstate commerce should not be required * * * to transfer its business from its own road to that of a competitor * * * when the commerce initiated by it can be as promptly and safely transported * * * by its road as by the line of its competitor.' 45 Cong.Rec. 3475—3476. The same reasoning would equally apply here. Moreover, the Senate Report on the provision emphasizes the same purpose.5
8
While the language of the section is framed in the singular, it appears to us that the reason for this exception is as valid and necessary in the case of two railroads owning a third as it is when only a single railroad and its subsidiary are involved. See Lousiville & N.R. Co. v. United States, 1916, 242 U.S. 60, at page 73, 37 S.Ct. 61, at page 63, 61 L.Ed. 152, where this Court, in construing the discrimination provisions of the predecessor of § 3(4) of the Act, stated, '(t)herefore, if either carrier owned and used this terminal alone it could not be found to discriminate against the Tennessee Central by merely refusing to switch for it * * *.' We conceive that what is true of one owner would be equally true of two joint owners * * *.'
9
Appellants rely heavily on the fc t that the Congress, in enacting the Transportation Act of 1940, broadened the definition of the term 'control' in many of the sections of the Interstate Commerce Act6 but did not do so in § 15(4), thereby indicating an intention to restrict the scope of the exception. This definition, however, was enacted as the result of this Court's holding in Rochester Telephone Corp. v. United States, 1939, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147, which gave a broad construction to 'control' as used in § 2(b) of the Communications Act. 47 U.S.C. § 152(b), 47 U.S.C.A. § 152(b). It appears that the Congress decided to extend this broad definition to certain sections of the Interstate Commerce Act to insure Commission jurisdiction over persons in indirect control of carriers. See H.R.Rep. No. 2016, 76th Cong., 3d Sess. 58. If, however, that definition were applied to § 15(4), the opposite result would obtain and the Commission's power would be restricted, for the shorthaul exception would then be afforded to carriers having only an indirect control of another line. For this reason, the Congress 'thought (it) undesirable to make any change in the interpretation of present law, * * * notably * * * section 15(4).' H.R.Rep. No. 2832, 76th Cong., 3d Sess. 63.
10
Apparently the phrase 'operated in conjunction and under a common management or control' has received no prior judicial interpretation, as we have been unable to find any cases in point and have been referred to none by counsel. However, the decisions of the Interstate Commerce Commission support the view that control of the traffic policy of an affiliate is sufficient to constitute 'control' or 'management' within the meaning of § 15(4). The Commission's conception of these terms was first expressed in a rate case, Blackshear Mfg. Co. v. Atlantic Coast Line R. Co., 87 I.C.C. 654 (1924), in which the Commission stated that 'the term 'carriers under the same management and control' * * * refers to carriers generally controlled through ownership, lease, or otherwise to the extent of controlling traffic policy, even though separate corporate entity may be maintained.' At p. 664. (Emphasis added.) In subsequent rate cases the Commission has continued to apply this criterion to determine whether or not lines are under the same 'management' or 'control.'7
11
In another line of rate-making cases, the Commission has held that there can be joint management and control of a third railroad.8 In rate cases, the Commission generally prescribes a higher scale of distance rates for traffic moving over a combination of independent lines than it does for goods carried over a single line or over a parent-subsidiary system. The distinction is made because the latter are expected to result in economies of operation which should be passed on to the public. Livestock To, From, and Between Points in the Southeast, 101 I.C.C. 105 (1925). For the same reason, short or 'weak' lines are allowed arbitraries, i.e., differentially higher rates in addition to rate scales prescribed for general application, whereas small railroads under the 'management' or 'control' of larger lines are not permitted the additional rates. Rate Structure Investigation, Part 13, Salt, 197 I.C.C. 115 (1933).
12
Unless the long haul of railroads, under joint management and control as interpreted by the rate-making cases, is protected by § 15(4), the advantages which the Commission assumed existed, i.e., economies of operation, will be taken from them. The very reasons for applying the higher distance rates and denying arbitraries would cease to exist. Such a result, flowing from the failure to construe § 15(4) as including joint control, would be clearly inconsistent with Commission policy in the rate-making cases. Therefore, the Commission has relied upon the same criteria in § 15(4) cases. In Alabama, T. & N.R. Co. v. Southern R. Co., 148 I.C.C. 708 (1928), the Commission specifically referred to its definition in Blackshear, supra, and applied the limitation of § 15(4) to the three roads there involved. See also Georgia & F.R. Co. v. Atlantic Coast Line R. Co., 191 I.C.C. 489 (1933). In fact, in seven separate proceedings involving the S.P. & S.,9 the Commission has noted that for rate-making purposes it must be considered as part of the Northern Lines. In one of these proceedings, West Coast Lumbermen's Assn. v. Chicago, M. & St. P.R. Co., 129 I.C.C. 363 (1927), joint through rates via Canada were sought to destinations served by the Milwaukee and the Northern Lines. It was urged that the joint rates, if they were prescribed, should be made over routes that would secure the long haul of these railroads. The Commission refused to establish the joint rates via the Canadian routes, holding, inter alia, that the S.P. & S. 'is considered for rate-making purposes a part of the Northern Pacific and Great Northern.' At p. 364.
13
Likewise, the case of Seaboard Air Line R. Co. v. Carolina & N.R. Co., 204 I.C.C. 416 (1934), applied the Blackshear definition to discrimination cases under s 3(4) of the Act.10 The Commission held that under § 3(3), the predecessor of § 3(4), there could be no discrimination where the roads involved were under a common management and control. The Commission found that the Carolina & Northwestern officials 'determine the policy to be adopted with regard to traffic matters local to that carrier, but in matters of common interest between the Southern and the Carolina & Northwestern, the policy determined by the Southern prevails. It is apparent, therefore, that both carriers are operated under a common management and control.' At p. 420. Although not a § 15(4) case, it is significant, as pointed out by the District Court, because the Commission applied the Blackshear test and, upon finding the roads under common management and control, permitted them to retain the long haul as protected by § 15(4). The interrelationship between the two sections as applied by the Commission indicates the necessity for the use of the same criteria as to control in each.
14
We do not consider the cases,11 relied upon by the appellants, to the contrary. Common management and control was not established. They were concerned with ownership, as distinguished from control, and even that by more than two railroads. There is nothing in these cases holding that such control cannot exist under the joint ownership and active management of two carriers. Nor do we feel that appellants' other Commission cases are apposite.
15
Summarizing, we find that the Commission has for many years followed the Blackshear criteria §§ to what constitutes 'common management' or 'control.' Likewise, it has since permitted such management and control to be jointly exercised by more than one railroad. We believed that the Congress took note of these cases in 1940 when it decided not 'to make any change in the interpretation' of the limitation provision of § 15(4) of the Act. The judgment is therefore affirmed.
16
Affirmed.
17
Mr. Justice STEWART took no part in the consideration or decision of this case.
18
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
19
Four lines pass through the Spokane gateway to the West Coast: The Milwaukee, the Northern Pacific, and the Great Northern, that reach Puget Sound, and the S.P. & S., that reaches Portland, Oregon. The 'triangle' referred to by the Commission has its apex in Spokane and its two base points in Portland and Seattle-Tacoma. The S.P. & S. is owned 50% by the Great Northern and 50% by the Northern Pacific.
20
The Milwaukee is at present under a disadvantage in shipments via the Spokane gateway. The disadvantage is not in service or facilities for service, but in the rate structure. When the Milwaukee—a road that reaches to Chicago—wants to ship goods to Portland over the shortest route—the S.P. & S.—it must quote combination rates. When the Great Northern and the Northern Pacific make those shipments, they get a preferred joint rate on a through route via Spokane. The result is to 'close the Spokane gateway in a commercial sense' so far as the Milwaukee is concerned. 300 I.C.C. 453, 457. The advantage which the S.P. & S. affords the Great Northern and Northern Pacific was stated by the Commission in Portland Chamber of Commerce v. Oregon R. & N. Co., 19 I.C.C. 265, 283, 'It is used by the Great Northern and Northern Pacific in the transportation of all business between coast and interior points which can be handled more cheaply over it than over the existing lines of the Great Northern or Northern Pacific.' That is a monopolistic advantage; it is control over traffic which the two lines are not entitled to exploit to the exclusion of the Milwaukee.
21
'Through routes' are the rule, § 1(4), and the maintenance of discriminatory 'combination rates,' the exception. Under the terms of § 15(3), the Commission is to establish the former whenever 'necessary or desirable in the public interest.' Only in § 15(4) do we have an exception to this policy. Since 1910, Congress has recognized a railroad's limited right not to be 'short-hauled,' that is, not to have to carry over its lines traffic originating on, or destined to, another line when the entire carriage could as well have taken place on its own line. Here, the Northern Lines claim that they together with the jointly owned S.P. & S. make up a single system which the Milwaukee wants to short-haul.
22
The question presented concerns the meaning of the words 'common management or control' as they are used in § 15(4) of the Act.
23
First. If the Great Northern and Northern Pacific are to be granted the special monopolistic protection now extended, § 15(4) needs to be rewritten. It says that the Commission shall not 'require any carrier * * * to embrace in such route substantially less than the entire length of its railroad and of any intermediat railroad operated in conjection and under a common management or control therewith.' The section is framed in the singular. When the short-haul protection was first given, the amended § 15 referred to 'carrier or carriers' seven times (36 Stat. 551—553) and 'line or lines' twice (36 Stat. 553). So it seems apparent that when the plural was intended, the plural was used. Senator Elkins, in explaining the provision, spoke in the singular: 'The road that initiates the freight and starts it on its movement in interstate commerce should not be required, where it is a line not unreasonably long, to transfer its business from its own road to that of a competitor, especially when the commerce initiated by it can be as promptly and safely transported from the point of shipment to the point of destination by its road as by the line of its competitor.' 45 Cong.Rec. 3476. (Emphasis added.)
24
The Senate Report spoke of the shorthaul protection as extending to a railroad 'having a line of its own between two designated termini.' S.Rep. No. 355, 61st Cong., 2d Sess., p. 10. While the Transportation Act of 1940 greatly expanded the meaning of 'control,' the new definition was not made applicable to § 15(4) because it was thought 'undesirable to make any change in the interpretation of present law' in that regard.1 H.R.Rep. No. 2832, 76th Cong., 3d Sess., p. 63.
25
Second. Prior to the 1940 legislation the Commission had held that joint ownership by two or more railroads was not sufficient to create 'common management or control' within the meaning of § 15(4). Absorption of Switching Charges, 157 I.C.C. 129, 132; Manufacturers R. Co. v. Ahnapee & W.R. Co., 172 I.C.C. 554, 564. 'Those two cases involved a terminal railroad jointly owned by 15 connecting roads. On oral argument counsel for the Commission conceded that those decisions are out of line with the present one. If control by 15 roads is not 'common' control within the meaning of § 15(4), I fail to see how control by two railroads is.2 The other cases relied upon by the Court did not involve § 15(4).
26
Cases such as Blackshear Mfg. Co. v. Atlantic Coast Line R. Co., 87 I.C.C. 654, are irrelevant. There the Commission was concerned with what rates to fix that were 'single-line' and what rates that were 'joint-line.' It defined 'single-line rates' as those applicable over 'single lines of railway or over two or more lines under the same general management and control'; and it defined 'joint-line rates' as those applicable 'only when the lines embraced in the route are not under common ownership or control.' Id., 664. It defined the term 'carriers under the same management and control' as carriers 'generally controlled through ownership, lease, or otherwise to the extent of controlling traffic policy, even though separate corporate entity may be maintained.' Id., 664. 'Common ownership an control' for rate-making purposes was an innovation of the Commission, not a statutory term. The same is true of the other line of rate-making cases to which the Court refers—the ones represented by Chicago, M. & St. P.R. Co. v. Minneapolis Civic & Commerce Ass'n, 247 U.S. 490, 38 S.Ct. 553, 62 L.Ed. 1229. There two railroads owning a third which in turn owned terminal tracks made no charge for use of the terminal against traffic moving over its lines but did not charge for its use by a competitor. This line of cases like those involving 'single-line' rates—is concerned with just rates and rates that are non-discriminatory. Economies of operation will not disappear merely because a carrier has competition. Of course, a monopoly position may make an affiliated short line more profitable, but I do not think that that is the sole reason for denying such short lines 'arbitraries.'
27
Section 15(4) deals with the highly specialized problem of the short-haul. The 'short-haul' protection needs to be narrowly construed, lest it too end up as a device to discriminate against competitors and foreclose them from a market. That is why, I think, it was closely confined by Congress and put in the singular not the plural and not extended to group activities of railroads such as are involved here and in the terminal cases.
28
I would reverse the judgment below and remand the case to the Commission for further proceedings.
1
The S.P. & S. system is composed of the Spokane, Portland and Seattle Railway Co. and two wholly owned subsidiaries, the Oregon Trunk Railway and the Oregon Electric Railway Co.
2
49 U.S.C. § 15(4), 49 U.S.C.A. § 15(4) provides in pertinent part:
'In establishing any such through route the Commission shall not * * * require any carrier by railroad, without its consent, to embrace in such route substantially less than the entire length of its railroad and of any intermediate railroad operated in conjunction and under a common management or control therewith, which lies between the termini of such proposed through route * * *.'
3
'A 'throughr oute' is an arrangement, express or implied, between connecting railroads for the continuous carriage of goods from the originating point on the line of one carrier—to destination on the line of another.' St. Louis Southwestern R. Co. v. United States, 1917, 245 U.S. 136, 139, note 2, 38 U.S. 49, 50, 62 L.Ed. 199.
4
'(T)he essential feature of a joint rate is that connecting roads have agreed or mutually consented to carry traffic from points on one road to points on another road for an aggregate charge which is less than the sum of their local charges between the same points.' New York, N.H. & H.R. Co. v. Platt, 7 I.C.C. 323, 333 (1897).
5
'It would seem to be unreasonable to empower the commission to require a railroad company having a line of its own between two designated termini to allow a portion only of that line to be taken and linked up with other lines for the purpose of creating another through route in competition with it, thus depriving it of the natural advantage of possessing a direct line between the termini * * *.' S.Rep.No. 355, 61st Cong., 2d Sess. 10.
6
49 U.S.C. § 1(3)(b), 49 U.S.C.A. § 1(3)(b).
7
Rates on Chert, Clay, Sand, and Gravel, 197 I.C.C. 215 (1933); Humbard Construction Co. v. Southern R. Co., 161 I.C.C. 38 (1930); Justice Co. v. Holton Interurban R. Co., 153 I.C.C. 673 (1929); Raleigh Freight Traffic Bureau v. Atlantic Coast Line R. Co., 107 I.C.C. 156 (1926); Livestock To, From, and Between Points in the Southeast, 101 I.C.C. 105 (1925); Livestock To, From, and Between Points in the Southeast, 91 I.C.C. 292 (1924).
8
This group of cases is bottomed on Chicago, M. & St. P.R. Co. v. Minneapolis Civic & Commerce Ass'n, 1918, 247 U.S. 490, 38 S.Ct. 553, 62 L.Ed. 1229, wherein this Court found that two competitive railroads owning a subsidiary coequally did, for rate pup oses, each 'directly control and operate' the subsidiary and that the latter must be treated as a part of each of the two owning carriers. See Des Monies Union Ry. Switching, 231 I.C.C. 631 (1939); Blum Packing Co. v. Southern Pacific R. Co., 204 I.C.C. 93 (1934); Russ Market Co. v. Northwestern Pacific R. Co., 171 I.C.C. 117 (1930); Eriksen v. Ann Arbor R. Co., 102 I.C.C. 374 (1925); Pacific Lumber Co. v. North-western Pacific R. Co., 51 I.C.C. 738 (1918).
9
Helix Milling Co. v. Great Northern R. Co., 287 I.C.C. 77 (1952); Pillsbury-Astoria Flour Mills Co. v. Great Northern R. Co., 198 I.C.C. 642 (1934); Spokane, P. & S.R. Co., 41 I.C.C. Valuation Reports 1 (1932); West Coast Lumbermen's Assn. v. Chicago, M. & St. P.R. Co., 129 I.C.C. 363 (1927); Inland Empire Shippers League v. Director General, 59 I.C.C. 321 (1920); Astoria v. Spokane, P. & S.R. Co., 38 I.C.C. 16 (1916); Portland Chamber of Commerce v. Oregon Railroad & Navigation Co., 19 I.C.C. 265 (1910).
10
49 U.S.C. § 3(4), 49 U.S.C.A. § 3(4) provides in part that carriers 'shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distributio of traffic that is not specifically routed by the shipper.'
11
Manufacturers R. Co. v. Ahnapee & W.R. Co., 172 I.C.C. 554 (1931); Absorption of Switching Charges, 157 I.C.C. 129 (1929).
1
The Court admits that Congress refused to broaden the protection of § 15(4) in 1940. Yet it seems to think this refusal of no relevance. If Congress has refused 'short-haul' protection to indirectly controlled lines, is it to be lightly assumed that that protection extends to both owners who jointly control a third line?
2
In Helix Milling Co. v. Great Northern R. Co., 287 I.C.C. 77, shippers wanted through routes and joint rates on the Great Northern, the Northern Pacific, and the S.P. & S. via the Spokane gateway. The Great Northern objected on the basis of the short-haul protection afforded by § 15(4) of the Act. The Commission recognized that the short-haul issue was involved and made the findings as to the need for through routes on the assumption that the through routes would short-haul the objecting road. But no analysis or discussion of the present problem was made. Cf. West Coast Lumbermen's Assn. v. Chicago, M. & St. P.R. Co., 129 I.C.C. 363, 364. It should be noted that Alabama, T. & N.R. Co. v. Southern R. Co., 148 I.C.C. 708, 711, cited by the Court, does not involve joint control under § 15(4).
| 78
|
367 U.S. 1
81 S.Ct. 1357
6 L.Ed.2d 625
See 82 S.Ct. 20. COMMUNIST PARTY OF the UNITED STATES of America, Petitioner,
v.SUBVERSIVE ACTIVITIES CONTROL BOARD.
No. 12.
Argued Oct. 11, 12, 1960.
Decided June 5, 1961.
Rehearing Denied Oct. 9, 1961.
[Syllabus from pages 1-4 intentionally omitted]
Messrs. John J. Abt, New York City, and Joseph Forer, Washington, D.C., for petitioner.
Mr. J. Lee Rankin, Washington, D.C., Sol. Gen., for respondent.
Mr. Justice FRANKFURTER delivered the opinion of the Court.
1
This is a proceeding pursuant to § 14(a) of the Subversive Activities Control Act of 1950 to review an order of the Subversive Activities Control Board requiring the Communist Party of the United States to register as a Communist-action organization under § 7 of the Act. The United States Court of Appeals for the District of Columbia has affirmed the Board's registration order. Because important questions of construction and constitutionality of the statute were raised by the Party's petition for certiorari, we brought the case here. 361 U.S. 951, 80 S.Ct. 502, 4 L.Ed.2d 536.
2
The Subversive Activities Control Act is Title I of the Internal Security Act of 1950, 64 Stat. 987, 50 U.S.C. § 781 et seq., 50 U.S.C.A. § 781 et seq. It has been amended, principally by the Communist Control Act of 1954, 68 Stat. 775, and certain of its provisions have been carried forward in sections of the Immigration and Nationality Act adopted in 1952, 66 Stat. 163, 8 U.S.C. §§ 1182, 1251, 1424, 1451, 8 U.S.C.A. §§ 1182, 1251, 1424, 1451. A brief outline of its structure, in pertinent part, will frame the issues for decision.
3
Section 2 of the Act recites legislative findings based upon evidence adduced before various congressional committees. The first of these is:
4
'There exists a world Communist movement which, in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.'
5
The characteristics of a 'totalitarian dictatorship,' as set forth in subsections (2) and (3) are the existence of a single, dictatorial political party substantially identified with the government of the country in which it exists, the suppression of all opposition to the party in power, the subordination of the rights of the individual to the state, and the denial of fundamental rights and liberties characteristic of a representative form of government. Subsection (4) finds that the direction and control of the 'world Communist movement' is vested in and exercised by the Communist dictatorship of a foreign country; and subsection (5), that the Communist dictatorship of this foreign country, in furthering the purposes of the world Communist movement, establishes and utilizes in various countries action organizations which are not free and independent organizations, but are sections of a world-wide Communist organization and are controlled, directed, and subject to the discipline of the Communist dictatorship of the same foreign country. Subsection (6) sets forth that
6
'The Communist action organizations so established and utilized in various countries, acting under such control, direction, and discipline, endeavor to carry out the objectives of the world Communist movement by bringing about the overthrow of existing governments by any available means, including force if necessary, and setting up Communist totalitarian dictatorships which will be subservient to the most powerful existing Communist totalitarian dictatorship. Although such organizations usually designate themselves as political parties, they are in fact constituent elements of the world-wide Communist movement and promote the objectives of such movement by conspiratorial and coercive tactics, instead of through the democratic processes of a free elective system or through the freedom-preserving means employed by a political party which operates as an agency by which people govern themselves.'
7
In subsection (7) it is found that the Communist organizations thus described are organized on a secret conspiratorial basis and operate to a substantial extent through 'Communist-front' organizations, in most instances created or used so as to conceal their true character and purpose, with the result that the 'fronts' are able to obtain support from persons who would not extend their support if they knew the nature of the organizations with which they dealt. Congress makes other findings: that the most powerful existing Communist dictatorship has caused the establishment in numerous foreign countries of Communist totalitarian dictatorships, and threatens to establish such dictatorships in still other countries (10); that Communist agents have devised ruthless espionage and sabotage tactics successfully carried out in evasion of existing law (11); that the Communist network in the United States is inspired and controlled in large part by foreign agents who are sent in under various guises (12); that international travel is prerequisite for the carrying on of activities in furtherance of the Communist movement's purposes (8); that Communists have infiltrated the United States by procuring naturalization for disloyal aliens (14); that under our present immigration laws, many deportable aliens of the subversive, criminal or immoral classes are free to roam the country wito ut supervision or control (13). Subsection (9) finds that in the United States individuals who knowingly participate in the world Communist movement in effect transfer their allegiance to the foreign country in which is vested the direction and control of the world Communist movement. Finally, in § 2(15), Congress concludes that
8
'The Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement, it seeks converts for an wide by an extensive system of schooling and indoctrination. Such preparations by Communist organizations in other countries have aided in supplanting existing governments. The Communist organization in the United States, pursuing its stated objectives, the recent successes of Communist methods in other countries, and the nature and control of the world Communist movement itself, present a clear and present danger to the security of the United States and to the existence of free American institutions, and make it necessary that Congress, in order to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government, enact appropriate legislation recognizing the existence of such world-wide conspiracy and designed to prevent if from accomplishing its purpose in the United States.'
9
Pursuant to these findings, § 7(a) of the Act requires the registration with the Attorney General, on a form prescribed by him by regulations, of all Communist-action organizations. A Communist-action organization is defined by § 3(3) as
10
'(a) any organization in the United States (other than a diplomatic representative or mission of a foreign government accredited as such by the Department of State) which (i) is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and (ii) operates primarily to advance the objectives of such world Communist movement as referred to in section 2 of this title; and
11
'(b) any section, branch, fraction, or cell of any organization defined in subparagraph (a) of this paragraph which has not complied with the registration requirements of this title.'
12
Registration must be made within thirty days after the enactment of the Act, or, in the case of an organization which becomes a Communist-action organization after enactment, within thirty days of the date upon which it becomes such an organization; in the case of an organization which is ordered to register by the Subversive Activities Control Board, registration must take place within thirty days of the date upon which the Board's order becomes final. § 7(c). Registration is to be accompanied by a registration statement, which must contain the name of the organization and the address of its principal office; the names and addresses of its present officers and of individuals who have been its officers within the past twelve months, with a designation of the office held by each and a brief statement of the functions and duties of each; an accounting of all moneys received and expended by the organization during the past twelve months, including the sources from which the moneys were received and the purposes for which they were expended; the name and address of each individual who was a member during the past twelve months; in the case of any officer or member required to be listed and who uses or has used more than one name, each name by which he is or has been known; and a listing of all printing presses and machines and all printing devices which are in the possession, custody, ownership, or cot rol of the organization or its officers, members, affiliates, associates, or groups in which it or its officers or members have an interest. § 7(d). Once an organization has registered, it must file an annual report containing the same information as is required in the registration statement. § 7(e). A registered Communist-action organization must keep accurate records and accounts of all moneys received and expended, and of the names and addresses of its members and of persons who actively participate in its activities. § 7(f).
13
Section 7(b) requires the registration of Communist-front organizations, defined as those substantially directed, dominated, or controlled by a Communist-action organization and primarily operated for the purpose of giving aid and support to a Communist-action organization, a Communist foreign government, or the world Communist movement. § 3(4). The procedures and requirements of registration for Communist fronts are identical with those for Communist-action organizations, except that fronts need not list their non-officer members.1 In case of the failure of any organization to register, or to file a registration statement or annual report as required by the Act, it becomes the duty of the executive officer, the secretary, and such other officers of the organization as the Attorney General by regulations prescribes, to register for the organization or to file the statement or report. § 7(h). Any individual who is or becomes a member of a registered Communist-action organization which he knows to be registered as such but to have failed to list his name as a member is required to register himself within sixty days after he obtains such knowledge; and any individual who is or becomes a member of an organization concerning which there is in effect a final order of the Subversive Activities Control Board requiring that it register as a Communist-action organization, but which has not so registered although more than thirty days have elapsed since the order became final, is required to register himself within thirty days of becoming a member or within sixty days after the registration order becomes final, whichever is later. § 8. Criminal penalties are imposed upon organizations, officers and individuals who fail to register or to file statements as required: fine of not more than $10,000 for each offense by an organization; fine of not more than $10,000 or imprisonment for not more than five years or both for each offense by an officer or individual; each day of failure to register constituting a separate offense. Individuals who in a registration statement or annual report willfully make any false statement, or willfully omit any fact required to be stated or which is necessary to make any information given not misleading, are subject to a like penalty. § 15.
14
The Attorney General is required by § 9 to keep in the Department of Justice separate registers of Communist-action and Communist-front organizations, containing the names and addresses of such organizations, their registration statements and annual reports, and, in the case of Communist-action organizations, the registration statements of individual members. These registers are to be open for public inspection. The Attorney General must submit a yearly report to the President and to Congress including the names and addresses of registered organizations and their listed members. He is required to publish in the Federal Register the fact that any organization has registered as a communist-action or Communist-front organization, and such publication constitutes notice to all members of the registration of the organization.
15
Whenever the Attorney General has reason to believe that any organization which has not registered is an organization of a kind required to register, or that any individual who has not registered is required to register, he shall petition the Subversive Activities Control Board for an order that the organization or individual register in the manner provided by the Act. §§ 12, 13(a). Any organization or any individual registered, or any individual listed in any registration statement who denies that he holds office or membership in the registered organization and whom the Attorney General, upon proper request, has failed to strike from the register, may, pursuant to designated procedures, file with the Subversive Activities Control Board a petition for cancellation of registration or other appropriate relief. § 13(b).
16
The Board, whose organization and procedure are prescribed, §§ 12, 13(d), 16, is empowered to hold hearings (which shall be public), to examine witnesses and receive evidence, and to compel the attendance and testimony of witnesses and the production of documents relevant to the matter under inquiry. § 13(c), (d). If after hearing the Board determines that an organization is a Communist-action or a Communist-front organization or that an individual is a member of a Communist-action organization, it shall make a report in writing and shall issue an order requiring the organization or individual to register or denying its or his petition for relief. § 13(g), (j). If the Board determines that an organization is not a Communist-action or a Communist-front organization or that an individual is not a member of a Communist-action organization, it shall make a report in writing and issue an order denying the Attorney General's petition for a registration order, or canceling the registration of the organization or the individual, or striking the name of the individual from a registration statement or annual report, as appropriate. § 13(h), (i).
17
The party aggrieved by any such order of the Board may obtain review by filing in the Court of Appeals for the District of Columbia a petition praying that the order be set aside. The findings of the Board as to the facts, if supported by the preponderance of the evidence, shall be conclusive. If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material, the court may order such additional evidence to be taken before the Board, and the Board may modify its findings as to the facts, and shall file such modified or new findings, which, if supported by the preponderance of the evidence, shall be conclusive. The court may enter appropriate orders. Its judgment and decree shall be final, except that they may be reviewed in this Court on writ of certiorari. § 14(a). When an order of the Board requiring the registration of a Communist organization has become final upon the termination of proceedings for judicial review or upon the expiration of the time allowed for institution of such proceedings, the Board shall publish in the Federal Register the fact that its order has become final, and that publication shall constitute notice to all members of the organization that the order has become final. §§ 13(k), 14(b).
Section 13(e) of the Act provides that
18
'In determining whether any organization is a 'Communist-action organization', the Board shall take into consideration-
19
'(1) the extent to which its policies are formulated and carried out and its activities performed, pursuant to directives or to effectuate the policies of the foreign government or foreign organization in which is vested, or under the domination or control of which is exercised, the direction and control of the world Communist movement referred to in section 2 of this title; and
20
'(2) the extent to which its views and policies do not deviate from those of such foreign government or foreign organization; and
21
'(3) the extent to which it receives financial or other aid, directly or indirectly, from or at the direction of such foreign government or foreign organization; and
22
'(4) the extent to which it sends members or representatives to any foreign country for instruction or training in the principles, policies, strategy, or tactics of such world Communist movement; and
23
'(5) the extent to which it reports to such foreign government or foreign organization or to its representatives; and
24
'(6) the extent to which its principal leaders or a substantial number of its members are subject to or recognize the disciplinary power of such foreign government or foreign organization or its representatives; and
25
'(7) the extent to which, for the purpose of concealing foreign direction, domination, or control, or of expediting or promoting its objectives, (i) it fails to disclose, or resists efforts to obtain information as to, its membership (by keeping membership lists in code, by instructing members to refuse to acknowledge membership, or by any other method); (ii) its members refuse to acknowledge membership therein; (iii) it fails to disclose, or resists efforts to obtain information as to, records other than membership lists; (iv) its meetings are secret; and (v) it otherwise operates on a secret basis; and
26
'(8) the extent to which its principal leaders or a substantial number of its members consider the allegiance they owe to the United States as subordinate to their obligations to such foreign government or foreign organization.'
27
Similarly, § 13(f) enumerates a set of evidentiary considerations to guide the inquiry and judgment of the Board in determining whether a given organization is or is not a Communist-front organization.
28
When an organization is registered under the Act, or when there is in effect with respect to it a final order of the Board requiring it to register, § 10(1) prohibits it, or any person acting in behalf of it, from transmitting through the mails or by any means or instrumentality of interstate or foreign commerce any publication which is intended to be, or which it may be reasonably believed is intended to be, circulated or disseminated among two or more persons, unless that publication, and its envelope, wrapper or container, bear the writing: 'Disseminated by (the name of the organization), a Communist organization.' Section 10(2) prohibits the organization, or any person acting in its behalf, from broadcasting or causing to be broadcast any matter over any radio or television station unless the matter is preceded by the statement: The following program is spn sored by (the name of the organization), a Communist organization.' Under § 11 of the Act, the organization is not entitled to exemption from federal income tax under § 101 of the 1939 Internal Revenue Code, 26 U.S.C.A. § 101, and no deduction for federal income tax purposes is allowed in the case of a contribution to it. It is unlawful for any officer or employee of the United States, or of any department or agency of the United States, or of any corporation whose stock is owned in a major part by the United States, to communicate to any other person who such officer or employee knows or has reason to believe is an officer or member of a Communist organization, any information classified by the President as affecting the security of the United States, knowing or having reason to know that such information has been classified. § 4(b). It is unlawful for any officer or member of a Communist organization knowingly to obtain or receive, or attempt to obtain or receive, any classified information from any such government officer or employee. § 4(c). When a Communist organization is registered or when there is in effect with respect to it a final registration order of the Subversive Activities Control Board, it is unlawful for any member of the organization, knowing or having notice that the organization is registered or the order final, to hold non-elective office or employment under the United States or to conceal or fail to disclose that he is a member of the organization in seeking, accepting, or holding such office or employment; and it is unlawful for him to conceal or fail to disclose that he is a member of the organization in seeking, accepting or holding employment in any defense facility,2 or, if the organization is a Communist-action organization, to engage in any employment in any defense facility. It is unlawful for such a member to hold office or employment with any labor organization, as that term is defined in § 2(5) of the National Labor Relations Act, as amended, 29 U.S.C. § 152, 29 U.S.C.A. § 152, or to represent any employer in any matter or proceeding arising or pending under that Act. § 5(a)(1). It is unlawful for any officer or employee of the United States or of a defense facility, knowing or having notice that the organization is registered or a registration order concerning it is final, to advise or urge a member of the organization, with knowledge or notice that he is a member, to engage in conduct which constitutes any of the above violations of the Act, or for such an officer or employee to contribute funds or services to the organization. § 5(a)(2). When a Communist organization is registered or when there is in effect with respect to it a final registration order of the Subversive Activities Control Board, it is unlawful for a member of the organization, with knowledge or notice that it is registered or the order final, to apply for a passport, or the renewal of a passport, issued under the authority of the United States, or to use or to attempt to use a United States passport; and, in the case of a Communist-action organization, it is unlawful for any officer or employee of the United States to issue or renew a passport for any individual, knowing or having reason to believe that he is a member of the organization. § 6. Aliens who are members or affiliates of any organization during the time it is registered or required to be registered, unless they establish that they did not have knowledge or reason to believe that it was a Communist organization, are ineligible to receive visas, are excluded from admission to the United States, and, if in the United States, are subject to deportation upon the order of the Attorney General. Immigration and Nationality Act, §§ 212(a)(28)(E), 241(a)(6)(E), 66 Stat. 163, 185, 205, 8 U.S.C. §§ 1182(a)(28)(E), 1251(a)(6)(E), 8 U.S.C.A. §§ 1182(a)(28)(E), 1251(a)(6)(E).3 No person shall be naturalized as a citizen of the United States who is, or, with certain excet ions, has within ten years immediately preceding filing of his naturalization petition been, a member or affiliate of any Communist-action organization during the time it is registered or is required to be registered, or a member or affiliate of any Communist-front organization during the time it is registered or required to be registered unless he establishes that he did not have knowledge or reason to believe that it was a Communist-front organization. Immigration and Nationality Act, § 313(a)(2)(G), (H), (c), 66 Stat. 163, 240, 241, 8 U.S.C. § 1424(a)(2)(G, H), (c), 8 U.S.C.A. § 1424(a)(2)(G, H), (c). If any person naturalized after the effective date of the Act4 becomes within five years following his naturalization a member or affiliate of any organization, membership in which or affiliation with which at the time of naturalization would have precluded his having been naturalized, it shall be considered prima facie evidence that such person was not attached to the principles of the Constitution and was not well disposed to the good order and happiness of the United States at the time of naturalization, and in the absence of countervailing evidence, this shall suffice to authorize the revocation of naturalization. Immigration and Nationality Act, § 340(c), 66 Stat. 163, 261, 8 U.S.C. § 1451(c), 8 U.S.C.A. § 1451(c). Service in the employ of any organization then registered or in connection with which a final registration order is then in effect is not 'employment' for purposes of the Social Security Act, as amended, 70 Stat. 807, 839, 42 U.S.C. § 410(a)(17), 42 U.S.C.A. § 410(a)(17), and Chapter 21 of the Internal Revenue Code of 1954, as amended, 70 Stat. 807, 839, 26 U.S.C. § 3121(b)(17), 26 U.S.C.A. § 3121(b)(17), if performed after June 30, 1956.
29
Section 4(f) of the Subversive Activities Control Act of 1950 provides that neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of penal provisions of the Act or of any other criminal statute, and the fact of registration of any person as an officer or member of such an organization shall not be received in evidence against the person in any prosecution for violations of penal provisions of the Act or any other criminal statute. Section 32 provides:
30
'If any provision of this title, or the application thereof to any person or circumstances, is held invalid, the remaining provisions of this title, or the application of such provision to other persons or circumstances, shall not be affected thereby.'
I.
31
This litigation has a long history. On November 22, 1950, the Attorney General petitioned the Subversive Activities Control Board for an order t require that the Communist Party register as a Communist-action organization. The Party thereupon brought suit in the District Court for the District of Columbia, seeking to have the proceedings of the Board enjoined. A statutory three-judge court denied preliminary relief, Communist Party of the United States v. McGrath, D.C., 96 F.Supp. 47, but stayed answer and hearings before the Board pending appeal. After this Court denied a petition for extension of the stay, 340 U.S. 950, 71 S.Ct. 566, 95 L.Ed. 685, the Party abandoned the suit. Hearings began on April 23, 1951, and ended on July 1, 1952.5 Twenty-two witnesses for the Attorney General and three for the Party presented oral testimony; 507 exhibits, many of book length, were received; the stenographic record, exclusive of these exhibits, amounted to more than 14,000 pages. On April 20, 1953, the Board issued its 137-page report concluding that the Party was a Communist-action organization within the meaning of the Subversive Activities Control Act, and its order requiring that the Party register in the manner prescribed by § 7.6 Pending disposition in the Court of Appeals for the District of Columbia of the Party's petition for review of the registration order, the Party moved in that court, pursuant to § 14(a),7 for leave to adduce additional evidence which it alleged would show that three witnesses for the Attorney General-Crouch, Johnson, and Matusow-had testified perjuriously before the Board. The Court of Appeals denied the motion and affirmed the order of the Board, one judge dissenting. Communist Party of United States v. Subversive Activities Control Board, 96 U.S.App.D.C. 66, 223 F.2d 531. Finding that the Party's allegations of perjury had not been denied by the Attorney General, and concluding that the registration order based on a record impugned by a charge of perjurious testimony on the part of three witnesses whose evidence constituted a not insubstantial portion of the Government's case could not stand, this Court remanded to the Board 'to make certain that (it) bases its findings upon untainted evidence.' 351 U.S. 115, 125, 76 S.Ct. 663, 668, 100 L.Ed. 1003.
32
On remand the Party filed several motions with the Board seeking to reopen the record for the introduction of additional evidence. These were denied. A motion in the Court of Appeals for leave to adduce additional evidence was similarly denied, except that the Board was granted permission to entertain a motion concerning the Party's offer to show that another of the Attorney General's witnesses, Mrs. Markward, had committed perjury with regard to a specified aspect of her testimony. The Board granted the Party's motion; hearings were reopened; Mrs. Markward was cross-examined. Motions by the Party for orders requiring the Government to produce certain documents relevant to the matter of her testimony were denied. On December 18, 1956, the Board issued its 240-page Modified Report. It found that Mrs. Markward was a credible witness, made new findings of fact, and, having expunged the testimony of Crouch, Johnson and Matusow, reaffirmed its conclusion that the Party was a Communist-action organization and recommended that the Court of Appeals affirm its registration order. That court, while affirming the Board's actions in other regards, held that the Party was entitled to production of several documents relating to Mrs. Markward's testimony, and remanded. Communist Party of the United States v. Subversive Activities Control Board, 102 U.S.App.D.C. 395, 254 F.2d 314. The scope of this remand was enlarged by subsequent orders requiring the production of recorded statements made to the F.B.I. by the Attorney General's witness Budenz, the existence of these recordings having become known to government counsel and to the Board only at this time. These statements related to Budenz's testimony at the original hearings concerning the 'Starobin letter' and the 'Childs-Weiner conversation.' Motions pursuant to § 14(a) seeking the production of other government-held documents-memoranda furnished to the Government by the Attorney General's witness Gitlow, and recordings made by the F.B.I. of interviews with Budenz-were denied.
33
On second remand, the documents specified by the orders of the Court of Appeals were made available to the Party. The hearing was reopened before a member of the Board sitting as an examiner. When the illness of Budenz made impossible his recall for cross-examination in connection with the documents produced, the examiner denied the Party's motion to strike all of Budenz's testimony, but did strike so much as related to the Starobin and Childs-Weiner matters. After re-evaluating the credibility of Budenz and Markward, and affirming the action of its examiner in striking only that portion of Budenz's testimony which concerned the Starobin letter and the Childs-Weiner conversation, the Board re-examined the record as a whole and issued its Modified Report on Second Remand-its findings of fact consisting principally of the findings contained in its first Modified Report, with a few deletions-again concluding that the Communist Party of the United States was a Communist-action organization, and again recommending that its order to register be affirmed. The same panel of the Court of Appeals affirmed the order, at the same time denying the Party's motion under § 14(a) for an order requiring production of all statements made by government witnesses and now in the possession of the Government, 107 U.S.App.D.C. 279, 277 F.2d 78, the dissenting judge again dissenting in part. It is this decision which is now before us for review.
II.
34
The Communist Party urges, at the outset, that procedural rulings by the Board and the Court of Appeals constitute prejudicial error requiring that this proceeding be remanded to the Board. Before reaching the statutory and constitutional issues which this case presents, we must consider these rulings.
35
A. The Board's Refusal to Strike All Testimony of the Witness Budenz. At the original hearing before the Board, Budenz testified during almost two days on direct examination and five days on cross-examination. His testimony fills more than 700 pages. Of these, eight pages of direct and thirty pages of cross-examination relate to the Starobin letter; two pages of direct and ten pages of cross-examination relate to the Childs-Weiner conversation. Motions to require production of reports or statements by Budenz to the F.B.I. on these two subjects were denied at that time by the Board. After this Court's remand, the motions were repeated and again denied. The Court of Appeals affirmed the denial of the motions on the ground that there did not then appear to be in the possession of the Government any such reports or statements. Subsequent to the court's remand on other grounds, however, government counsel for the first time discovered in the F.B.I. files mechanical transcriptions of interviews with Buden concerning the Starobin and Childs-Weiner matters. Counsel reported this discovery to the Court of Appeals, which thereupon enlarged the scope of remand to require the production of all 'statements,' as defined in 18 U.S.C. § 3500, 18 U.S.C.A. § 3500, made by Budenz to the F.B.I. relating to these matters. The question of the propriety of these various rulings on the Party's motions for production is not now before us.
36
After an inspection of the F.B.I. recordings in camera by a member of the Board sitting as an examiner, excerpts relating to the Starobin letter and Childs-Weiner conversation were furnished to the Party. The Party sought to recall Budenz for further cross-examination in light of these statements. Upon receipt of a letter from Budenz's personal physician stating that, because of a serious heart condition, it would imperil Budenz's health to appear, the member-examiner caused an independent physical examination of the witness by a heart specialist. The specialist confirmed that cross-examination might seriously affect Budenz's health or cause his death, and counsel for the Government and the Party agreed that the witness was unavailable for recall. The Party then moved that all of Budenz's testimony be stricken, on the grounds that its unreliability was shown by his prior statements and that cross-examination which, with the aid of the recordings produced, might permit the Party to discredit Budenz entirely, had been rendered impossible by delay for which the Government was responsible. The examiner denied the motion, but granted an alternative motion to strike so much of Budenz's testimony as concerned the Starobin letter and the Childs-Weiner conversation. The Board and the Court of Appeals have affirmed these rulings. The Party argues that they are error.
37
The 'Childs-Weiner conversation' concerns an interview in New York at which Budenz, Childs and Weiner discussed the financing of the Midwest Daily Record, a Party newspaper then edited by Budenz. At the hearing before the Board, Budenz testified that Childs had asked Weiner if money couldn't be got from abroad, and that Weiner replied that normally it might, but that the channels of communication had been broken for the time being, that perhaps they might be re-established so that money could come. Budenz testified that although it was not definitely stated what Weiner meant by 'abroad,' Budenz's familiarity with the term as used by Party members led him to believe that it meant 'from Moscow.' In the recordings produced by the Government made during a series of F.B.I. interviews in 1945, Budenz did not mention this incident, although he did advert to the financing problems of the Daily Record and to trips which he made to New York to seek funds for it. Asked whether he had seen any indication of funds coming from Russia, Budenz replied: 'The only indication would be is that in addition to Krumbein as Treasurer, Weiner still maintains a certain general supervisory control over finances.' Budenz explained that Weiner was 'trusted financially,' and again mentioned that Weiner's being 'a super financial person' was 'indicative' of the source of money. He did not relate any specific conduct of Weiner's which rendered his status 'indicative.' In an interview in 1946, as reported in an office memorandum prepared by an F.B.I. agent, Budenz stated that he 'could recall only one instance wherein it was indicated that the Soviet Union might be sending money': this was the Childs-Weiner conversation in New York. Childs had asked Weiner, the memorandum stated, whether he didn't expect a consignment 'from across the sea.'
38
'* * * Weiner immediately changed the subject matter, indicating that he did not want to discuss the question of transmission of Soviet funds in the presence of Budenz, even though Budenz was a trusted Communist. Budenz concluded from the remark that was made that funds were actually being sent to this country at that time by the Soviet Union for propaganda purposes.'
39
An F.B.I. document based on an interview with Budenz in 1947 describes the incident as follows:
40
'* * * Childs suggested that Weiner try to get some money from Moscow to finance the paper. Weiner stated that he had temporarily lost his contacts in Moscow, hence, he could not do anything.'
41
Finally, in a 1950 interview, as recorded in an office memorandum, Budenz related:
42
'* * * Childs asked that funds be advanced him by Weiner from the reserve fund (large sums of money held in bank accounts 'in reserve for Moscow' or earmarked for Communist organizations) and Weiner advised that he didn't have any at that time as his communication system had temporarily broken down. Budenz took this to mean that Weiner's source of supply was from foreign countries, particularly Russia.' The 'Starobin letter' was an alleged communication from Starobin, a Daily Worker correspondent at the United Nations Conference in San Francisco in 1945, which Budenz had opened and of which he had read only a part before it was taken from him and transmitted to certain higher-ups at the Daily Worker. The letter was purportedly received at about the time of the appearance in a French Communist journal of an article by Jacques Duclos, severely criticizing the reorganization of the Communist Party of the United States as the Communist Political Association under Earl Browder in 1944, a reorganization apparently marked by an ideological shift away from the more revolutionary Marxist-Leninist principles, and toward a doctrine of peaceful Soviet-American coexistence. At roughly the same time, Budenz was instructed to reprint the Duclos article in the Daily Worker; shortly thereafter, the Communist Political Association was reconstituted as the Communist Party U.S.A., Browder was ousted, and the Party, in the words of its new national chairman, William Z. Foster, 'suddenly reverted to its basic Communist principles.' Budenz testified at the hearing that 'In this letter Mr. Starobin stated that D. Z. Manuilsky (A Ukrainian delegate to the conference and an important Communist figure) * * * had expressed indignation at the fact that the American Party had not criticized the American leaders, that is, in the government, more severely, and that the American Party should observe more carefully the guidance and the counsel of the French Communists.' The F.B.I. recordings produced pursuant to the remand order of the Court of Appeals show that in 1945 interviews with the F.B.I., Budenz had spoken of 'private communications sent from Starobin to us,' in connection with the ideological shift which marked the end of the Browder 'collaborationist' policy. He did not then speak specifically of the Starobin letter as he described it in his testimony. In response to a question by his F.B.I. examiner, Budenz agreed that Starobin himself was not an important enough figure to inaugurate a change of policy. This colloquy followed:
43
'Q. Do you think then that the instructions relative to this change of policy that Starobin and Fields must have received came from the Russian delegation? Oh, you said maybe Manuilsky, the Ukrainian delegate? A. Sure, sure, I mean-after all, they got the atmosphere there. In fact I mentioned Manuilsky very much, because definitely he is a figure in the CI.
44
'Q. He certainly is. A. He used to lay down the law like a general, you know, to his troops. * * *'
45
In 1946, Budenz reported to the F.B.I. that in a letter from the San Francisco Conference, Starobin advised that "the French comrades have the line and the support of the Soviet Union-and the French comrades blasted Stettinius and the United States Delegation, and therefore Starobin directed that the Party in this country should immediately blast Stettinius and the United States Delegation.' Budenz stated that in this letter Starobin inferred (sic) that he and/or his associates at the Conference had conferred with Manuilsky regarding this question, and that the changed policy was predicated upon Manuilsky's instrc tions as well as on advice received from French Communists at UNCIO.' Testifying in that same year before the House Committee on Un-American Activities, Budenz quoted the Starobin letter as relating that the French Comrades asserted there should be more of an attack upon Stettinius by the American Communists, and that this was likewise the opinion of Comrade Manuilsky.
46
In ruling on the Party's motion to strike all of Budenz's testimony because of his unavailability for cross-examination in light of these earlier statements, the Board took account not only of the similarities and variations of the witness's several accounts of the Starobin and Childs-Weiner matters, but also of Budenz's responses under extensive cross-examination on all subjects of his testimony at the initial hearing; of the substantial corroboration of Budenz's testimony by other evidence in the administrative record; and of the failure of the Party to attempt to rebut that testimony, which was specific and detailed. The Board found that the prior statements produced did not demonstrate, in the context of the 'pertinent circumstances of record,' that Budenz's Starobin and Childs-Weiner testimony was deliberately false, and also that, assuming arguendo such testimony were false, all of Budenz's evidence would not thereby be discredited. It concluded that 'the fair disposition of the question' was to strike Budenz's testimony only on the two subjects as to which failure of timely production of prior statements had deprived the Party of effective cross-examination. The Court of Appeals, independently reviewing the record, affirmed the Board's refusal to strike, finding that the discrepancies among the various versions of the Starobin-letter and Childs-Weiner-conversation incidents 'are not such as to indicate perjury, much less the habit of perjury essential to be shown to taint all the witness's testimony.' 107 U.S.App.D.C. at page 283, 277 F.2d at page 82.
47
The considerations relevant to the Party's contention that all of Budenz's testimony must be expunged are, first, the extent to which his prior statements to the F.B.I., compared with his testimony in the present proceedings, discredit him as a witness and impugn his testimony in its entirety, and, second, the extent to which, on the whole record, it appears that the inability to cross-examine Budenz in light of those prior statements had prejudiced the Party. These are questions which can best be answered by those entrusted with ascertaining the fact; that is, the tribunal that conducts the hearing and passes judgment on the reliability of the witness in light of his total testimony and its relation to the more than 14,000 pages, exclusive of exhibits, of the administrative transcript. Wide discretion would be left to a trial judge and not less must be left to an agency like the Board in a matter of this kind-a matter of adjusting the process of inquiry to the exigencies of a particular situation as they appear to administrators immediately acquainted with the course of proceedings. On this record we cannot say that both the hearing examiner and the Board abused that discretion, or that the Court of Appeals erred in affirming their rulings. In saying this, we do not ignore the argument of the Party that the deprivation of its opportunity to cross-examine Budenz on the basis of his prior statements is the 'fault' of government counsel. Suffice that we find no basis for overruling the determinations below that the Government is not to be charged with an attempt unfairly to hamper the Party's presentation of its case. We would not, therefore, be justified in holding that evidence should have been struck which the Board found otherwise probative, inherently believable, and not discredited despite five days of cross-examination by the Party, and which the Court of Appeals found unexceptionable.
48
B. The Board's Refusal to Order Production of the Gitlow Memoranda. In 1940 Gitlow, who had been during the years prior to 1929 a hig official of the Communist Party, turned over to the F.B.I. a quantity of documents and papers pertaining to the Party. Shortly thereafter he dictated a series of memoranda explaining and interpreting them. At the original hearing in the present proceeding, Gitlow, testifying for the Attorney General, identified a number of these documents, which were then put in evidence, and described their contents and significance. The Party moved the Board for an order requiring that the Attorney General produce the explanatory memoranda. The motion was denied. In its first petition in the Court of Appeals to review the order of the Board, the Party assigned the Board's refusal to order the production of documentary evidence as error; but it did not mention the Gitlow memoranda in the argument portion of its brief, nor, apparently, in oral argument. The point was not among the questions presented in the petition for certiorari in this Court in 1955 and was not relied on in the briefs here. After our remand, the Party again moved the Board to order production of the memoranda. The Board again refused. The Court of Appeals, in its second opinion reviewing the Board proceedings, held that the ruling by the Board declining to order production could not be corrected on petition to review the Board's order. Relying on Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126, the court said that the Party's exclusive remedy was to move the Court of Appeals, under § 14(a) of the Act, for leave to adduce additional evidence, and that failure to make such a motion at the time when the Board refused to order the documents produced barred the Party from later challenging the action of the Board. After the second remand, the Party did make a motion pursuant to § 14(a) seeking the Gitlow memoranda. This the court refused, holding that the Party's procedural error could not be cured nunc pro tunc.
49
We may assume arguendo, without deciding the point, that the Board erred in refusing to order the Gitlow memoranda produced at the original hearing. But we do not reach the question of the applicability of the Consolidated Edison case to this situation. It is too late now for the Party to raise this error of the Board. That error could have been raised here five years ago. Had it been raised then, we could have ordered to cured at the time of the first remand to the Board. The demands not only of orderly procedure but of due procedure as the means of achieving justice according to law require that when a case is brought here for review of administrative action, all the rulings of the agency upon which the party seeks reversal, and which are then available to him, be presented. Otherwise we would be promoting the 'sporting theory' of justice, at the potential cost of substantial expenditures of agency time. To allow counsel to withhold in this Court and save for a later stage procedural error would tend to foist upon the Court constitutional decisions which could have been avoided had those errors been invoked earlier.8 We hold that the Communist Party abandoned its claim of error in the Board's denial of its motion to require the Gitlow documents produced, by failing to raise that question in its previous petition for certiorari here. Of course, it could not resurrect that claim by repeating the same motion before the Board after our remand.
50
C. Denial by the Court of Appeals of the Party's Motions of Orders Requiring Production of All Statements by the Witness Budenz, and of All Statements by All Witnesses for the Attorney General. On February 14, 1958, after this case had been remanded to the Board for the second time, and more than five and a half years after the termination of the initial hearings, the Party moved the Court of Appeals, under § 14(a), for an order requiring production of all recordings, notes and memoranda made by the F.B.I. of interviews with Budenz, insofar as these related to his testimony at the hearings. On April 14, 1959, after the Board had considered the record for the third time and written its third opinion, the Party filed a second motion in the Court of Appeals, seeking production of all statements by all government witnesses relating to their testimony. A motion of similar scope had been made before the Board on second remand in December 1958. The court denied these motions as untimely. We cannot say that in doing so it abused its discretion.
51
With reference to the Budenz records, the Party seeks to excuse its delay by pointing out that not until early in February 1958 did it discover that the F.B.I. had made mechanical transcriptions of interviews with this witness. The Party was misled, it argues, at the time of the original Board hearings, into believing that no prior statements by Budenz were in the possession of the Government. The short answer to this may be found in the transcript of Budenz's replies to questions of counsel for the Party during his testimn y on cross-examination.9 Although the Party might not have known of the disc recordings made of the Budenz interviews, it knew that notes or records had been taken of those interviews by the F.B.I. Indeed the Party sought production of such reports, insofar as they related to the Starobin letter and the Childs-Weiner conversation, by motions made to the Board at the time Budenz testified. Had similar motions been made with regard to other aspects of Budenz's testimony, or with regard to other witnesses, and had the Board denied those motions, this issue could have been brought here on review five years ago.10 If production had been ordered, presumably all statements by Budenz would have been found. Statements by others, if they existed, would have been found. We cannot say that the Court of Appeals was clearly wrong in holding that at the time these motions were made it was too late to remand to the Board and require production of documents in order to reopen cross-examination of witnesses who testified in 1951 and 1952.
III.
52
We come to the Communist Party's contentions tht the Board and the Court of Appeals erred in their construction of the Act and in their application of it, on the facts of this record, to the Party. It is argued that both elements of the statutory definition of a Communist-action organization in § 3(3) of the Act-what have come in the course of this litigation to be known as the 'control' and 'objectives' components-were misinterpreted below; that the Board misconceived the nature of each of the eight evidentiary considerations directed to its attention by § 13(e) as pertinent to its determination whether an organization is or not a Communist-action organization; that the Board misapplied the phrase 'world Communist movement' in § 2; and that the Board erred in taking account, as relevant to that determination, of conduct of the Party prior to the date of the Act. The Court of Appeals is said to have erred in failing to remand to the Board after striking one of its subsidiary findings as unsupported by the evidence. Finally, it is contended, the record as a whole does not support by the preponderance of the evidence, as required by § 14(a), the conclusion that the Party is a Communist-action organization within the correct meaning of that phrase.
53
A. The 'Control Component.' Under § 3(3) of the Act an organization cannot be found to be a Communist-action organization unless it is 'substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement * * *.' The Party asserts that this requirement is not satisfied by any lesser demonstration than that the foreign government or foreign organization controlling the world Communist movement exercises over the organization an enforceable, coercive power to exact compliance with its demands. The Court of Appeals disagreed, holding that in the circumstances of this record a consistent, undeviating dedication, over an extended period of time, to carrying out the programs of the foreign government or foreign organization, despite significant variations in direction of those programs, was sufficient. The Subversive Activities Control Board has not, in its reports, articulated any other understanding of the standard, and since its final factual determination was made after the Court of Appeals had put this definitive gloss on § 3(3), we must attribute to it acceptance of the court's interpretation.
54
We agree that substantial direction, domination, or control of one entity by another may exist without the latter's having power, in the event of non-compliance, effectively to enforce obedience to its will. The issue which the Communist Party tenders as one of construction of statutory language is more sharply drawn in the abstract sphere of words than in the realm of fact. It is true that the Court of Appeals compendiously expressed its understanding of the Party's conduct over a course of thirty years, as revealed by this record and as found by the Board, in terms of 'voluntary compliance.' Opposing this phrase, the Party insists that the statute demands 'enforceable control.' But neither of these verbalisms was used by Congress, and neither has an invariant content. Nor has the language of the statute: 'substantially directed, dominated, or controlled.' Each of these notions carries meaning only as a situation in human relationships which arises and takes shape in different modes and patterns in the context of different circumstances.
55
The statute, as amended, uses the same phrase three times. A Communist-action organization must be one substantially directed, dominated, or controlled by a foreign government or foreign organization of a designated kind. A Communist-front organization must be one substantially directed, dominated, or controlled by a Communist-action organization. § 3(4). A Communist-infiltrated organization must be one substantially directed, dominated, or controlled by an individual or individuals engaged in giving aid or support to a Communist-action organization, Com unist foreign government, or the world Communist movement. § 3(4A). Variations of this language also occur. Subsection 13(e) (1) refers to 'the foreign government or foreign organization in which is vested, or under the domination or control of which is exercised, the direction and control of the world Communist movement * * *.' Section 2(5) relates that the action organizations established by the Communist dictatorship in which is vested the direction and control of the world Communist movement are sections of a world-wide Communist organization and are 'controlled, directed, and subject to the discipline of (that) * * * Communist dictatorship * * *.' Manifestly, the various relationships among nations, organizations, movements and individuals of which the Act speaks will take a multiplicity of forms. A foreign government 'dominates' or 'controls' the 'direction' of the world Communist movement through very different means and in very different ways than one organization 'dominates' or 'controls' another, or than an individual 'dominates' or 'controls' an organization. These differences do not deprive the concepts 'domination' and 'control' of ample meaning. Throughout various manifestations these concepts denote a relationship in which one entity so much holds ascendancy over another that it is predictably certain that the latter will comply with the directions expressed by the former solely by virtue of that relationship, and without reference to the nature and content of the directions. This is the sense we find in the opinions expounding the decisions of the Court of Appeals. The reports of the Board evidence a similar understanding.
56
Nothing in the Committee Reports pertinent to the Internal Security Act of 1950, or in what was said by Congressmen in charge of its passage, affords a gloss on 'substantially directed, dominated, or controlled,' as used in § 3(3). There is nothing to indicate that Congress meant that phrase to have any arcane, technical meaning. Its reach is suggested, however, by comparison with a cognate enactment, the so-called Voorhis Act of 1940, 54 Stat. 1201, now 18 U.S.C. § 2386, 18 U.S.C.A. § 2386, requiring the registration with the Attorney General of, inter alia, certain organizations 'subject to foreign control.'11 Section 1(e) of that Act, 54 Stat. 1202, provided that
57
'An organization shall be deemed 'subject to foreign control' if (1) it solicits or accepts financial contributions, loans, or support of any kind, directly or indirectly, from, or is affiliated directly or indirectly with, a foreign government or a political subdivision thereof, or an agent, agency, or instrumentality of a foreign government or political subdivision thereof, or a political party in a foreign country, or an international political organization, or (2) its policies, or any of them, are determined by or at the suggestion of, or in collaboration with, a foreign government or political subdivision thereof, or an agent, agency, or instrumentality of a foreign government or a political subdivision thereof, or a political party in a foreign country, or an international political organization.'
58
The Committee Report on the House bill from which the Subversive Activities Control Act derived indicates that its enactment was occasioned, in part, by the inadequacy of existing legislation. Although the Voorhis Act had been directed 'against both Nazis and Communists,' it had 'proved largely ineffective against the latter, due in part to the skill and deceit which the Communists have used in concealing their foreign ties.' H.R.Rep. No. 2980, 81st Cong., 2d Sess. 2, U.S.Code Cong.Service 1950, p. 3887; see also H.R.Rep. No. 1844, 80th Cong., 2d Sess. 5. It is reasonable to infer that Congress intended the registration provisin § of the 1950 Act to be applicable, at the very least, to organizations concerning which a showing of 'control' was made which would have brought the organization under the registration provisions of the Voorhis Act. And the 1940 Act, by its explicit definitions, did not require what the Party signifies by 'enforceable' control.
59
The subjection to foreign direction, domination, or control of which § 3(3) speaks is a disposition unerringly to follow the dictates of a designated foreign country or foreign organization, not by the exercise of independent judgment on the intrinsic appeal that those dictates carry, but for the reason that they emanate from that country or organization. No more apt term than domination or control could be used to describe such a relationship. The nature of the circumstances which bind an organization to unwavering compliance may be diverse. They may consist, of course, of the sort of enforceable power over the organization's members which an employer has over an employee-the power to compel obedience by threat of discharge. But they may also consist of other incidents which assure that the organization will unquestioningly adhere to the line of conduct appointed for it. Some of these incidents are suggested by the evidentiary considerations which Congress has enumerated in § 13(e) of the Act-foreign financial or other aid whose menaced withdrawal may serve as an instrument of influence, § 13(e)(3); subjection to, or recognition of, personal disciplinary power of the designated foreign organs by the leaders or a substantial number of the members of an organization, § 13(e)(6); obligations in the nature of allegiance owed to those foreign organs by an organization's leaders or a substantial number of its members. § 13(e)(8). Other incidents may involve other forces felt by individuals or groups to be compelling: a recognition of mastery, for example, which makes criticism itself a severe sanction. The existence of direction, domination, or control in each instance is an issue of particular fact. The question whether in the case of a given organization such a compulsion or impulsion arises from the complex of ties which link it to a foreign government or organization that it will, because of those ties alone, adhere in its conduct to decisions made for it abroad, is one which Congress has committed, in the first instance, to an expert trier of fact. Since the determination that an organization is or is not a Communist-action organization is largely a matter of the working out of legislative policy in multiform situations of potentially great variety, the 'construction' of the statute which ensues from its application to particular circumstances by the administrative agency charged with its enforcement is to be given weight by a reviewing court. Cf. National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170. Our decision in Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147, is especially apposite here. The case involved the question whether one communications corporation controlled another for purposes of § 2(b) of the Communications Act of 1934, 48 Stat. 1065, 47 U.S.C.A. § 152(b), providing that the Federal Communications Commission should not have jurisdiction over any carrier 'engaged in interstate or foreign communication solely through physical connection with the facilities of another carrier not directly or indirectly controlling or controlled by * * * such carrier.' Refusing to set aside an order based on the Commission's finding that the New York Telephone Company controlled the Rochester Telephone Corporation, we said: 'Investing the Commission with the duty of ascertaining 'control' of one company by another, Congress did not imply artificial tests of control. This is an issue of fact to be determined by the special circumstances of each case. So long as there is warrant in the record for the judgment of the expert body it must stand' Id., 307 U.S. at pages 145-146, 59 S.Ct. at page 764.
60
While under § 14(a) of the Subversive Activities Control Act, providing that the findings of the Board as to facts shall be conclusive if supported by the preponderance of the evidence, a stricter standard of re-examination is set than that to which administrative findings are ordinarily subject, we cannot in this case say that the Board-and, in affirming its order, the Court of Appeals-have misapplied the Act. Neither its written report nor the opinion of the court below supports the Party's interpretation of them. They do not hold, as the Party suggests, that conformity which stems from nothing more than ideological agreement satisfies the requirements of § 3(3). What they do hold is that 'the definition of a Communist-action organization was not intended by the Congress to be restricted to organizations which are subject to enforceable demands of the Soviet Union. * * * An organization or a person may be substantially under the direction or domination of another person or organization by voluntary compliance as well as through compulsion. This is especially true if voluntary compliance is simultaneous in time with the direction and is undeviating over a period of time and under variations of direction. If the Soviet Union directs a line of policy and an organization voluntarily follows the direction, the terms of this statutory definition would be met.' 102 U.S.App.D.C. 395, 400, 254 F.2d 314, 319.
61
This must be read in the context of the facts of record in this proceeding. Since the determinative issue of the meaning of 'substantially directed, dominated, or controlled,' and the constitutional questions which the construction of this statutory language raises, are to be determined essentially on the basis of the assignment of legal significance to the Board's findings of fact, those findings must be allowed to speak for themselves. They can neither be summarized nor fairly conveyed in bits and pieces. Their large scope and critical importance necessitates and justifies burdening this opinion with more extensive quotation than is customary in cases where summaries of the record may more meaningfully be made. The Board wrote:
62
'The present world Communist movement was first manifested organizationally by the formation in March of 1919 in Moscow, Russia, of the Third Communist International. As this event is recorded in the History of the Communist Party of the Soviet Union * * *, it was 'on the initiative of the Bolsheviks, headed by Lenin,' that the first Congress of Communist Parties was called in Moscow, the work of which 'was guided by Lenin'; and, 'Thus was founded an international revolutionary proletarian organization of a new type-the Communist International-the Marxist-Leninist International.'
63
'One year later, July 17-August 7, 1920, the Second Congress of the Communist International adopted and promulgated its Theses and Statutes, setting forth its aims and purposes as later herein detailed, and described itself as 'a single universal Communist party, of which the parties operating in every country form individual sections.' * * *
64
'A 'Statute' of the Comintern insured that it would serve the interests of Russia by providing:
65
"The Communist International fully and unreservedly upholds the gains of the great proletarian revolution in Russia, the first victorious socialist revolution in the world's history, and calls upon all workers to follow the same road. The Communist International makes it its duty to support with all the power at its disposal every Soviet Republic, wherever it may be formed.' * * *
66
'The Communist International was in fact a world Communist Party, organized and controlled as to policies and activities by the Soviet Union, consisting of the various Communist Parties of the countries throughout the world, which constituted its sections. With headquarters in Moscow, it embodied an elaborate organizational structure, related to implementing the basi strategy and tactics of Marxism-Leninism. * * * There was no North American Bureau, but the Political Bureau of respondent acted in that capacity, supervising the Communists in Canada, Cuba, Mexico, and others down to the Panama Canal.
67
'The Soviet Union was the leader of the Communist International, exercising control over its policies and activities. The Communist Party of the Soviet Union had five votes to one each for the other larger Parties in the Executive Committee of the Comintern (ECCI), which respondent in a 1934 resolution acknowledged to be 'the general staff of the world revolutionary movement giving unity and leadership to the Communist Parties of the world.' * * * The Government of the Soviet Union financed the Comintern. All of the heads of the Comintern who were identified in the record were leading members of the Communist Party of the Soviet Union. * * *
68
'Respondent joined this international Communist organization shortly after it was constituted and admittedly until 1940 participated therein. * * * (R) espondent recognized that its membership therein subordinated any national interests * * *.
69
'Further, that complete and total allegiance and dedication was demanded in affiliation with the Comintern, and was acknowledged and in turn stressed by respondent, is also shown by its 'Program':
70
"* * * The Communist International is an organization for waging class warfare for the liberation of the working class; there can be no reservations in endorsement and affiliation with it. Loyalty 'with reservations' is treachery. Endorsement and defense of Soviets in Russia, with failure to advocate the Soviet form of proletarian dictatorship in the United States is hypocrisy.' * * *
71
'Fundamental to the world Communist movement were the 21 'Conditions of Admission to the Communist International' promulgated in its Theses and Statutes in 1920 * * *. Uncontradicted testimony and documents establish that these 'Conditions' were endorsed and accepted by respondent and were binding upon it.
72
'* * * Condition No. 12 required the party to be formed upon the basis of democratic centralism, stressing that only when possessed of an 'iron discipline' * * * will it be able to fully and thoroughly carry out its duty as part of the world Communist movement. Condition No. 20, in order to aid control, required that two-thirds of all committee members and members of central institutions consist of comrades who have made open declarations as to their desire to join the Comintern. Condition No. 11 required an inspection of personnel and the removal of unreliable elements from parliamentary party fractions, and Condition No. 13 required a systematic check of personnel to remove petty bourgeois elements which may have infiltrated a party. Condition No. 16 made binding upon the party all resolutions of the Comintern, and Condition No. 21 made liable to exclusion from the party anyone who rejected the theses and conditions of the Third Communist International.
73
'As to specific policies and programs, Condition No. 15 required the maintenance of a program in accordance with the resolutions of the Comintern. * * *
74
'Another aspect of the 'Conditions' was to make the allegiance of a section party and its members to the Comintern, and hence to the Soviet Union, paramount to any other. For example, Condition No. 14 obligates every member party of the Comintern 'to render every possible assistance to the Soviet Republics in their struggle against all counter-revolutionary forces.' * * * It directs the member parties to use legal and illegal means to obstruct military efforts against the Soviet Union. * * *
75
'These 21 'Conditions' were never changed by the Communist International and were enforced and implemented by respondent and used to educate its members. Considerable documentary material of record also established that respondent fully complied with and fulfilled the requirements of membership in the Communist International and fi thfully followed and carried out its instructions and directives.
76
'The Communist International was formally dissolved as such in 1943, at which time the United States and the Soviet Union were military allies. One reason given for this formal dissolution by Stalin was that it would remove the foundation for 'fascist' charges that the Soviet Union was meddling in the internal affairs of other nations. * * *
77
'The world Communist movement, under the hegemony of the Soviet Union, continued, notwithstanding the 'dissolution' of its organizational form embodied in the Communist International. * * * (T)he world Communist movement, intact in the basic orientation, policies and programs discussed above, continued via the Cominform and by Communist Parties not formally affiliated with it, such as respondent.
78
'Respondent, although never formally a member of the Cominform, has * * * remained dedicated to 'proletarian internationalism,' Marxism-Leninism, and the policies and programs of the world Communist movement as continued by the Cominform.
79
'We have previously set forth that respondent joined the Communist International shortly after it was constituted and admittedly participated therein until 1940. Respondent offered no substantial evidence concerning this period of its activities, contending that this period is irrelevant, primarily because of an announced disaffiliation from the Communist International in 1940. The circumstances of the disaffiliation * * * show that there was no fundamental or significant change in respondent's relationship to the world Communist movement. * * *
80
'The oral testimony and official documents of respondent and of the Comintern show that respondent was under the complete control and direction of the Comintern. Gitlow was a top official of respondent and in the late 1920's a member of the Executive Committee of the Communist International. He stated unequivocally that the Comintern controlled all major policies of respondent. Kornfeder, also a functionary of respondent and who attended the Sixth Congress of the Comintern held in Moscow, corroborated this stating that he knew of no instance during his experience, which lasted until 1934, when respondent deviated from Comintern instructions. Nowell, based on personal experience as a member of respondent and personal contact with the Comintern, as well as what he was instructed while attending the Lenin School in Moscow in 1932, stated that the decisions of the Comintern were binding on respondent. Honig testified to Comintern directives which were carried out by respondent. * * * 'Among the specific instances of record, much of which is uncontroverted documentary material, showing the control exercised over respondent by the Comintern were: a Comintern decision in 1924 which resulted in the amalgamation of various Communist factions in the United States into the single Communist Party; a decision by Joseph Stalin in 1929, adopted by the Comintern, which expelled certain top officials of respondent and designated other individuals as leaders of respondent; advance approval by the Comintern for the holding of Communist Party conventions in the United States; Comintern instructions in 1927 that respondent charge the United States and Great Britain with intervention in Chinese affairs and to attack Chiang Kai-Shek; Comintern decision directing respondent to work for the formation of a farmer-labor party in the United States and a subsequent change directing respondent to go into elections with the Communist Party ticket; and, advance approval by the Comintern of members of respondent who were sent to training schools in Moscow. * * *
81
'Respondent makes much of the fact that it 'disaffiliated' from the Communist International in 1940. There was no dispute that respondent in 1940 announced its disaffiliation for the stated purpose of avoiding registration as a foreign agent under the Voorhis Act of October 17, 1940. An issue is the effect of the disaffiliation.
82
'* * The Browder report makes clear that the disaffiliation was but an expediency to avoid registration under the Voorhis Act and contains nothing which negatives an intent to continue as before the principle of 'proletarian internationalism.' Various passages of Browder's report indicate an intent to end only the 'formal' and 'organizational' connection with the Communist International but not to alter the preexisting fundamental relationship. Illustrative of this is that the report states the disaffiliation would not even be considered if it were thought that it would cause the Party to 'waiver' or 'vacillate' in carrying out 'the internationalism founded by Marx and Engels, and brought to its great, historically decisive victories under the leadership of Lenin and Stalin,' and to which 'the life of every Communist is unconditionally consecrated.' * * * Also, the Browder report, by characterizing the Voorhis Act as 'an extreme example of the most vicious and oppressive Exceptional Laws' * * * indicates that the organizational disaffiliation was in accord with a Comintern 'Condition' that 'In every country where, in consequence of martial law or of other exceptional laws, the Communists are unable to carry on their work lawfully, a combination of lawful and unlawful work is absolutely necessary.' * * *
83
'The 1929 reorganization followed a solution dictated by Stalin, which was adopted by the Comintern, and accepted by respondent. Lovestone, Gitlow, and others were deposed as leaders of respondent and the leadership placed in a group which included William Z. Foster, present national chairman. The reorganization of respondent was due to a factional dispute which was a reflection of a struggle in the Communist Party of the Soviet Union and in the Communist International between forces led by Stalin and those led by Bukharin. The Foster faction in respondent, representing a minority of only about 10 per cent, supported Stalin whereas the Love-stone-Gitlow faction, representing about 90 per cent, sided with Bukharin. Notwithstanding this, respondent complied with the Stalin-dictated solution. The record contains no evidence of subsequent material organizational changes until May of 1944 when respondent's name was changed to the Communist Political Association then changed back in 1945 to the name Communist Party. The change to 'CPA' was in the year following the dissolution of the Comintern and, like the announcements on that dissolution, the change was assertedly to promote a peaceful co-existence of the United States and the Soviet Union. While operating under the name 'Communist Political Association,' there was a de-emphasis on the more militant principles of Marxism-Leninism and the current publications of the Party put forward the so-called 'Teheran line.' No evidence was presented by respondent to show a break with the basic principles of the international Communist movement. The leadership of respondent remained the same.
84
'Relevant to the reconstitution of respondent under the name Communist Party, the record shows that in April of 1945 Jacques Duclos, a spokesman for the world Communist movement, issued a statement the substance and effect of which was that it was a mistake to dissolve the Communist Party of the United States. * * *
85
'After preparation throughout the Party, respondent was reconstituted as the Communist Party of the United States of America. Earl Browder, for departing from the orthodoxy of Marxism-Leninism, was branded a 'revisionist' and 'deviationist' and deposed as the leader. Foster took over as national chairman. Otherwise those who had been officials and leaders of the CPA and the Party before that, with a few minor exceptions, remained the officers and leaders of the reconstituted Communist Party. Upon taking over as national chairman, Foster pointed out the necessity for reemphasizing the revolutionary line of Marxism-Leninism. In a report to the reconstitution convention subsequently published in Political Affairs, Foster declared 'Our Party has suddenly reverted to its basic Communist principles' and 'As never before, we must train our Party in the fundamentals of Marxism-Leninism.' * * *
86
'As previously found, Foster became a leading officer in respondent in 1929 as a result of a Soviet Union directive. He has been national chairman since the 1945 reconstitution. A prior letter of his to respondent's National Committee in which he opposed Browder's policies had been suppressed from respondent's membership but his position set forth in the letter was approved in the Duclos statement while Browder's policies were condemned. For a number of years prior to respondent's announced disaffiliation from the Communist International, Foster was an an (sic) official of the International. He has been to the Soviet Union on numerous occasions on Party business. * * *
87
'In addition to Foster, a number of respondent's other present leaders have been functionaries of respondent since the time of the Communist International, have been to the Soviet Union on Party business, and have been indoctrinated and trained in the Soviet Union on Communist strategy and policies. These leaders have taught in Party schools, written for the Party press, and spoken at Party meetings, on various phases of Marxism-Leninism, including the leading position of the Soviet Union, proletarian internationalism, and the necessity of revolutionary overthrow of imperialist nations, particularly the United States. * * *
88
'The continuance in office of Moscow-trained leaders of respondent who were functionaries during the period that respondent was an open member of the open, formal organization of the world Communist movement, and the absence of any substantial evidence showing a repudiation by respondent's leaders of the program and policy of the world Communist movement, as well as the fact that Marxism-Leninism continues to be basic to respondent, are all probative of the issues herein. * * *
89
'The reorganization of respondent's leadership pursuant to Stalin's solution for the 1929 factional dispute, * * * was supervised by a Soviet Union representative sent to the United States for that purpose. A number of individuals were identified as having in the past been in the United States as representatives from the Soviet Union to supervise the carrying out of various policies, programs, and activities by respondent. Respondent's acceptance of the authority of these foreign representatives was required by the rule of the Communist International that:
90
"The E.C.C.I. (executive committee) and its Presidium have the right to send their representatives to the various Sections of the Communist International. Such representatives receive their instructions from the E.C.C.I. or from its Presidium, and are responsible to them for their activities. Representatives of the E.C.C.I. have the right to participate in meetings of the central Party bodies as well as of the local organizations of the Sections to which they are sent * * *. Representatives of the E.C.C.I. are especially obliged to supervise the carrying out of the decisions of the World Congresses and of the Executive Committee of the Communist International.' * * *
91
'Eisler is the only foreign representative shown by the record to have been in the United States subsequent to the announced dissolution of the Communist International. Respondent ceased open affiliation with the Comintern to avoid identification as a foreign representative in the United States and the Comintern as an open organization was dissolved in 1943 for Soviet tactical reasons. The absence of further showing as to foreign representatives does not itself, in the context of the record, indicate any change in respondent's nature or character.
92
'Respondent's policies, programs, and activities were originally formulated and carried out pursuant to directives of the foreign leadership of the world Communist movement. Such policies, progrm s, and activities of respondent have been consistently applied throughout respondent's existence in the United States without change or repudiation. Various tactical fluctuations in emphasis have followed those laid down by the world Communist movement. An examination of respondent's current activities shows respondent is still pursuing policies enunciated by the Soviet Union through the Communist International. * * *
93
'* * * Respondent's witnesses were unable to cite a single instance throughout its history where, in taking a position on a question which found the views or policies of the Soviet Union and the United States Government in conflict, the CPUSA had agreed with the announced position of the United States; nor could they show a single instance when the CPUSA had disagreed with the Soviet Union on any policy question where both respondent and the Soviet Union have announced a position.
94
'The testimony of Dr. Mosely and documents submitted through him embraced a tremendous area of international questions on which respondent and the Soviet Union have taken positions. * * * The uniformity is constant and on a wide variety of questions, and is corroborated by other evidence of record.
95
'It is a material consideration in viewing the spread of this evidence spanning thirty-odd years that respondent, for the first twenty such years in this area of activity, was required by the 'Conditions' for membership in the Communist International to conform to the 'programme and decisions' of the Comintern in its 'propaganda and agitation' * * *; that during the years since 1943 respondent has without a single exception, as before, continued to adhere to the views and policies of the Soviet Union; and that its witnesses when asked to do so were unable to show conflict in any of these policies. This is strong evidence that the preexisting relationship between respondent and the Soviet Union continued as before, notwithstanding the formal dissolution of the Comintern by the Soviet Union.' (Original emphasis throughout.)
96
It is on the basis of these detailed findings that the Board and the court below predicated their conclusion that the Communist Party was substantially directed, dominated, or controlled by the Soviet Union. We cannot hold that they erred in the construction of the statute and in finding that the facts shown bring the Party within it.
97
B. The 'Objectives Component.' Section 3(3), defining a Communist-action organization, requires a finding that the organization 'operates primarily to advance the objectives of (the) * * * world Communist movement as referred to in section 2 of this title.' Although asserting that the reference to § 2 is unclear, the Party offered in the Court of Appeals a construction of this requirement which defines the objectives of the world Communist movement as (a) overthrow of existing government by any means necessary, including force and violence, (b) establishment of a Communist totalitarian dictatorship, (c) which will be subservient to the Soviet Union. See § 2(1), (2), (3), (6). We need not now determine whether this interpretation, insofar as it implies that an organization must operate to advance all of these objectives in order to come within the Act, is correct. Certainly, the elements which the Party has isolated are, singly or collectively, the major 'objectives' described in § 2. The Court of Appeals accepted the Party's analysis arguendo, and its judgment affirming the order of the Board rests on its conclusion that the Party operates to advance all three of these objectives. This conclusion is supported by the findings of the Board. It adopts the interpretation most favorable to the Party.
98
Within the framework of these definitions, the Court of Appeals held sufficient to demonstrate the Communist Party's objective to overthrow existing government the finding of the Board that the Party advocates the overthrow of the Government of the United States by force and violence if necessary. The Party r gues that this finding is inadequate to satisfy the conception of overthrow embodied in § 2(1) and (6); that under the compulsion of the First Amendment the Act must be read as reaching only organizations whose purpose to overthrow existing government is expressed in illegal action or incitement to illegal action; that advocacy of the use of violence 'if necessary' amounts at most to the promulgation of abstract doctrine, not incitement. Section 2(1) recites that the purpose of the world Communist movement is 'by treachery, deceit, infiltration * * *, espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.' Section 2(6) recites that Communist-action organizations 'endeavor to carry out the objectives of the world Communist movement by bringing about the overthrow of existing governments by any available means, including force if necessary * * *.' We think that an organization may be found to operate to advance objectives so defined although it does not incite the present use of force. Nor does the First Amendment compel any other construction. The Subversive Activities Control Act is a regulatory, not a prohibitory statute. It does not make unlawful pursuit of the objectives which § 2 defines. In this context, the Party misapplies Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, and Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, on which it relies. See Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.
99
C. The Evidentiary Considerations of Section 13(e); the Striking by the Court of Appeals of a Subsidiary Finding Under Section 13(e)(7). Section 13(e) prescribes that in determining whether any organization is a Communist-action organization, the Board shall take into consideration the extent of its conduct in eight enumerated dimensions. Accordingly, the Board made basic findings of fact in each, and on them based conclusions. The Party attacks each conclusion as based upon a misinterpretation or misapplication of the statutory considerations.
100
As to three of these considerations upon which the Board placed substantial reliance in its determination that the Communist Party is controlled by the Soviet Union and operates primarily to advance the objectives of the world Communist movement-the extent to which its policies are formulated and carried out and its activities performed pursuant to directives or to effectuate policies of the Soviet Union (§ 13(e)(1)), the extent to which its principal leaders or a substantial number of its members are subject to or recognize the disciplinary power of the Soviet Union (§ 13(e)(6)), and the extent to which its principal leaders or a substantial number of its members consider the allegiance they owe to the United States as subordinate to their obligations to the Soviet Union (§ 13(e)(8))-the Party contends that the conclusions of the Board are not supported by its findings of fact. We have considered the Board's report and find the Party's contention without merit.
101
As to three other considerations-the extent to which an organization receives financial or other aid from the foreign government or foreign organization controlling the world Communist movement (§ 13(e)(3)), the extent to which it sends its members to a foreign country for instruction and training in the principles, tactics, etc., of the world Communist movement (§ 13(e)(4)), and the extent to which it reports to the foreign government or foreign organization controlling the world Communist movement (§ 13(e)(5))-the Board found, respectively, that the Communist Party had received financial aid from the Soviet Union and the Comintern, and had sent its members to the Soviet Union for training, prior to about 1940, but that there was no evidence that these activities continued after that time, and that the Communist Party 'upon occasion' reports to the Soviet Union. From a reading of its Modified Report on Second Remand, it does not appear that the Board relied on these three findings to support its ultimate determination; rather it regarded them as inconclusive, except insofar as Soviet financial aid to the Party during the period before it became a going organization could be considered 'a tile in the mosaic,' and insofar as foreign-trained Party members themselves served as instructors in Party schools in the United States at later times when there was no evidence of continued foreign training as such. The Party argues that the Board's findings required it to conclude that evidence pertinent to the considerations of § 13(e)(3), (4), and (5) tended to negate a finding that the Party was foreign-controlled. We cannot say that the basic findings of the Board compelled that conclusion and precluded its own. The Board, directed by Congress to consider 'the extent to which' an organization engages in certain classes of conduct, was not, of course, obligated to make findings in each dimension which would be conclusive of the ultimate issues before it. It was required only to consider each of these dimensions-this it has painstakingly done-and, on the whole record before it, to appraise the probative force of the evidence in each dimension. See Secretary of Agriculture v. Central Roig Ref. Co., 338 U.S. 604, 70 S.Ct. 403, 94 L.Ed. 381; 96 Cong.Rec. 14530-14534; cf. id., at 13764, 15634. The Board has explained in detail the factors which urged it to take the view it has taken of the evidence concerning financial aid, foreign training and reporting. We cannot say that on the basis of all its findings it accorded inadmissible weight to these considerations.
102
By § 13(e)(2), the Board is directed to consider, in determining whether a given organization is a Communist-action organization, 'the extent to which its views and policies do not deviate from those of (the) * * * foreign government or foreign organization' directing the world Communist movement. In connection with this consideration, Dr. Philip Mosely, Professor of International Relations at Columbia University and Director of the University's Russian Institute, appeared as an expert witness for the Attorney General. He enumerated some forty-five major international issues during thirty years with respect to which, his testimony indicated, there had been no substantial difference between the announced positions of the Soviet Union and the Communist Party.12 As to each issue, documents representative of the respective views of the Soviet and the Party were identified by Dr. Mosely and put into the record as exhibits. Both the Board and the Court of Appeals credited Dr. Mosely's testimony and placed significant reliance on it in concluding that the Communist Party is substantially dominated by the Soviet Union.
103
The Party urges two contentions relating to this aspect of the case. The first is that the Mosely evidence has no tendency to prove non-deviation, within the meaning of § 13(e)(2), and no rational relevance to the ultimate issue of Soviet domination of the Party, because Dr. Mosely did not establish that as to each of the international issues concerning which Sv iet Union and Party views coincided, the announced Soviet position antedated that of the Party,13 nor did Dr. Mosely testify that the coincidence of views evidenced parroting of the Soviet position by the Party-indeed, he expressly declined, as a matter of expert judgment, to draw any inference from the coincidence alone with respect to the reasoning processes by which the Party arrived at its views. The Party contends that under § 13(e)(2) the Board was not authorized to consider evidence merely of sameness of policy, but that sameness would become relevant only after the Attorney General had shown that the Party took its position subsequent to, and not independently of, the announced policy of the Soviet. Second, the Party argues that the Board erred in refusing to let it show, both by cross-examination of Dr. Mosely and by proffered original evidence, that many other, assertedly non-Communist groups and individuals also expressed, contemporaneously with the Soviet Union and the Party, views identical to those in which the two concurred-and, further, that the views were correct.
104
We do not agree that the Board was not entitled to consider and evaluate evidence of a consistent identity of policies of an organization and the Soviet Union until the Government had shown the temporal antecedence of the Soviet's position and negatived the possibility that independent reasoning processes brought about the identity. Here the Board found that the coincidence of policies extended over a vast area of subject matter, was absolutely invariant during more than thirty years-the entire life of the Party-and was unbroken even in the face of sharp reversals in the Soviet's views. Section 13(e)(2), directing the Board to consider the extent of non-deviation, does not purport to establish a litmus test of domination or control, requiring some fixed minimum level of policy-parroting. This requirement is satisfied by consideration of whatever is logically relevant in this regard. Of course, the Government would have established a stronger case had it shown not only identity of views on more than forty issues, but also that the Soviet's view had always led and the Party's always followed, and that the similarity could not conceivably be the result of autonomous application of similar basic philosophical principles. But this is no reason to say that the Board could not consider, and form its judgment on, the showing that the Government did make in the present proceeding. did make in the present proceeding. Certainly, if the Act contained no § 13(e), Dr. Mosely's testimony would be both relevant and significantly probative with respect to the issue of Soviet domination of the Party. To hold that § 13(e)(2) makes it a condition precedent to Board consideration of this long-continued, totally unwavering identity of policy lines, that the Attorney General also establish such elusive determinants as the dates of birth of the policies and the ratiocinative processes by which they came into being, we would have to find that by § 13(e) (2) Congress meant to limit, and severely limit, the evidences of Soviet domination of which the Board could take account. The structure of § 13(e) will not bear that construction.14
105
With respect to the rulings precluding the Party from showing certain facts which would have tended to establish that the views in which it paralleled the Soviet Union were correct views, or were reached independently, or were also held by other persons, we do not think that the Board abused its discretion. The questions which the Party sought to ask Dr. Mosely on cross-examination relating to the correctness of the Party's views were of two sorts. The first involved matters of value judgment or opinion, capable of interminable debate but incapable of proof, and which, the Board might reasonably have found, would have added little to the record beyond the witness's personal views.15 The second sort called for answers of a more objective kind, but related in general to the truth or falsity of particular, detailed assertions of fact selected out of the various documents which the Attorney General had put in evidence as illustrative of the Party's policies.16 Since in testifying as to the nature of those policies Dr. Mosely had relied on a wide background of study of Party writings, of which the exhibits put into the record were only exemplary, and since even with reference to those particular exhibits Dr. Mosely's testimony rested upon an expert analysis of each article read as a whole-its general tenor, deriving from its use of language, its selection of facts reported, its argumentative and exhortative parts, if any-litigation of the truth vel non of individual statements of fact might well have been regarded by the Board as promising to lead into distracting inquiries regarding marginal or remote issues-what in a court would constitute res inter alios acta-incommensurate with the materiality of the evidence produced. Objections to both kinds of questions were, in the Board's discretion, properly sustained. As for the question which the Party attempted to put to Dr. Mosely concerning approximately half of the international issues which he discussed, whether in each case an informed American observer, in the exercise of independent judgment and sensitive to the best interests of the United States, might not also reasonably have arrived at the view held by the Party and the Soviet,17 the question was not improperly disallowed as beyond the permissible scope of cross-examination. Dr. Mosely did not purport on direct examination to establish the thought processes or the political processes by which the Soviet and the Party arrived at their positions, but only that the positions were identical. The Party was permitted to show, and two of its witnesses testified, on both direct and cross-examination, that the policies of the Party were adopted in the autonomously reasoned belief, in each case, that a particular policy was sound and in the best interests of the American people. The Board, in itsm odified reports, took account of and evaluated this testimony. It was not prejudical that the Party was not allowed to use the Government's expert witness to negative causal connections which his testimony for the Government did not seek to show.
106
The Party also argues that it should have been permitted to demonstrate, by cross-examination of Dr. Mosely and by original evidence, that many other persons than the Soviet and the Party held views similar to those on which the two agreed. We cannot hold that the Board erred in excluding these showings. They took two forms. First, with respect to some twenty-five international issues, the question was put to Dr. Mosely whether many non-Communist commentators did not also support the view expounded by the Party.18 A similar question was asked of a witness for the Party concerning one more issue. Second, with respect to somewhat more than thirty issues, the Party offered to establish, by questioning Dr. Mosely and by documents proffered in evidence, that particular named individuals and groups had concurred in the views of the Party on each individual issue.19 The most that the Party could have proved, had it been allowed to make the offered showings, was that on the subject of each specific, isolated one among the forty-five international issues enumerated, a considerable number of persons not Soviet-dominated took positions parallel to those of the Soviet and the Party. This is only to be expected in the case of issues of this character. The Party never offered to show, despite wide lai tude allowed by the hearing panel in making proffers after similar proffers had been previously disallowed, that a continuing, substantial body of independent groups and persons concurred with the Party on a significant aggregate number of policies among the forty-five. Of the particular sources mentioned in the Party's separate questions and offers of proof, the greatest number of issues with reference to which a single source recurs-the New York Times, or individuals writing in the Times-is ten or less, and in most cases the agreement shown is with only a portion of the Party's position. No other source occurs more than roughly half a dozen times; most, two or three times.20 On the basis of these proffers, the Board's rulings did not amount to an abuse of the discretion which it must be allowed in the conduct of its hearings to avoid opening the sluices to litigation of the views of a multitude of third parties.
107
Section 13(e)(7) requires the Board to consider the extent to which 'for the purpose of concealing foreign direction, domination, or control, or of expediting or promoting its objectives,' an organization engages in specified secret practices or otherwise operates on a secret basis. In its original report the Board concluded that the Communist Party engages in secret practices for both these purposes. The Court of Appeals, in its first opinion, held that the finding of secret practices was warranted, but that the Government had not established by the preponderance of the evidence the purpose of the practices. Although no new evidence on the point was taken on remand, the Board again found in its two modified reports that the purpose of the practices was to promote the objectives of the Communist Party.21 In its third opinion the Court of Appeals again held the finding as to purpose unsupported by the preponderance of the evidence. Nevertheless, holding that the whole record supported the Board's conclusion that the Communist Party was substantially directed, dominated, or controlled by the Soviet Union, it rejected the Party's contention that the striking of this one subsidiary finding as to purpose of secret practices required remand of the proceeding to the Board.
108
We think that the Court of Appeals did not err in refusing to remand the case on that ground. Cf. National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co., 308 U.S. 241, 60 S.Ct. 203, 84 L.Ed. 219. In the summaries of its modified reports, the Board did not rely on, or even refer to, the finding of secret practices. Thus this case is unlike Securities & Exchange Commn. v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626, and National LaborR elations Board v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348, in which proceedings were remanded to administrative agencies when this Court found unsupportable the grounds upon which the agencies had expressly rested the orders reviewed. Where a Court of Appeals strikes as not sustained by the evidence a subsidiary administrative finding upon which the agency itself does not purport to rely, it would be an unwarranted exercise of reviewing power to remand for further proceedings. National Labor Relations Board v. Reed & Prince Mfg. Co., 1 Cir., 205 F.2d 131. Remand would be called for only if there were a solid reason to believe that without that subsidiary finding the agency would not have arrived at the conclusion at which it did arrive. Reading the modified reports of the Board in the present case-reports written after the Court of Appeals had once held the finding as to the purpose of the Party's secret practices unsupported-this Court cannot conclude that the Court of Appeals was wrong in regarding the finding stricken as one to which the Board did not attach weight and which did not influence its determination.
109
D. The Board Findings as to the World Communist Movement; Evidence of Past Practices; the Preponderance of the Evidence. Under the Act an organization may be found to be a Communist-action organization only if the relations specified in the 'control' and 'objectives' components of § 3(3) exist between it and the 'world Communist movement referred to in section 2 * * *.' In the present proceeding, the Board, after recognizing that 'in section 2 of the Act Congress has found the existence of a world Communist movement and has described its characteristics,' set forth its own description, based on the evidence presented in this record, of contemporary Communist institutions in their international aspect, and particularly of the role of the Soviet Union in those institutions. The Party argues that because this description does not duplicate in all details that of § 2 of the Act, the world Communist movement to which the Board found that the Communist Party bore the required statutory relationship is not the world Communist movement referred to in § 2.
110
But the attributes of the world Communist movement which are detailed in the legislative findings are not in the nature of a requisite category of characteristics comprising a definition of an entity whose existence vel non must be established, by proving those characteristics, in each administrative proceeding under the Act. Congress has itself found that that movement exists. The legislative description of its nature is not made a subject of litigation for the purpose of ascertaining the status of a particular organization under the Act. The Attorney General need not prove, in the case of each organization against whom a petition for a registration order is filed, that the international institutions to which the organization can be shown to be related fit the picture in every precise detail set forth in § 2. The only question, once an organization is found to have certain international relations, is one of statutory interpretation-of identifying the statutory referent. Are the institutions involved in those relations the 'world Communist movement' to which Congress referred? We are satisfied from the Board's report that the 'world Communist movement' to which its findings related the Communist Party was the same 'world Communist movement' meant by Congress.
111
The Party contends that the Board and the court below erred in relying on evidence of conduct in which it engaged prior to the enactment of the Act to support their conclusion that it is presently a Communist-action organization. This must be rejected. Where the current character of an organization and the nature of its connections with others is at issue, of course past conduct is pertinent. Institutions, like other organisms, are predominantly what their past has made them. History provides the ilu minating context within which the implications of present conduct may be known.
112
Finally, the Party asks that we re-examine the evidence adduced before the Board and review the Board's findings of fact. The Court of Appeals, made thoroughly familiar with this record by three such re-examinations, has held that the Board's conclusions, as expressed in its Modified Report on Second Remand, are supported by a preponderance of the evidence. We see no reason why still another court should independently reappraise the record. We have declined to do this in the case of other agencies as to whom reviewing power on the facts has been vested in the Courts of Appeals, and we find no purpose to be served in departing now from this settled policy of appellate review. National Labor Relations Board v. Pittsburgh Steamship Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479; National Labor Relations Board v. American National Ins. Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027; Federal Trade Comm. v. Standard Oil Co., 355 U.S. 396, 78 S.Ct. 369, 2 L.Ed.2d 359.
IV.
113
The Party's constitutional attack on the Subversive Activities Control Act of 1950 assails virtually every provision of this extended and intricate regulatory statute. The registration requirement of § 7, by demanding self-subjection to what may be deemed a defamatory characterization and, in addition, disclosure of the identity of all rank-and-file members, is said to abridge the First Amendment rights of free expression and association of the Communist Party and its adherents. See N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; cf. Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. The Party's officers, it is asserted, who by filing a registration statement in its behalf evidence their status as active members of the Party, are required to incriminate themselves in violation of the Fifth Amendment, as are the individual members who must register themselves under § 8 if the Party fails to register or fails to list them. Cf. Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170; Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964. The provision that Communist organizations label their publications is attacked as a prior restraint on, and such sanctions as denial of tax exemption are attacked as a penalty on the exercise of, the Party's constitutionally protected freedom of speech. Cf. Talley v. State of California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559; Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460. The various consequences of the Party's registration for its individual members-prohibition of application for and use of passports, disqualification from government or defense-facility employment, disqualification from naturalization, subjection to denaturalization, proscription of officership or employment in labor organizations-are said to deny those members due process of law by, in effect, attainting them by association, cf. De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216, and by subjecting them to potential criminal proceedings in which the nature of the organization, membership in which is an element of various offenses, may not be judicially tried. Many of the statute's provisions are challenged as unconstitutionally vague, and it is said that the establishment of an agency, the Subversive Activities Control Board, whose continued existence depends upon its finding the Communist Party a Communist-action organization within the meaning of the Act, necessarily biases the agency and deprives the Party of a fair hearing. In fact, the Party asserts, the statute as written so particularly designates the Communist Party as the organization at which it is aimed, that it constitutes an abolt ion of the Party by legislative fiat, in the nature of a bill of attainder. The provisions must be read as a whole, it is said; and when so read, they are seen to envisage not the registration and regulation of the Party, but the imposition of impossible requirements whose only purpose is to lay a foundation for criminal prosecution of the Party and its officers and members, in effect 'outlawing' the Party.
114
Many of these questions are prematurely raised in this litigation. Merely potential impairment of constitutional rights under a statute does not of itself create a justiciable controversy in which the nature and extent of those rights may be litigated. United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; International Long-shoremen's & Warehousemen's Union v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650. Even where some of the provisions of a comprehensive legislative enactment are ripe for adjudication, portions of the enactment not immediately involved are not thereby thrown open for a judicial determination of constitutionality. 'Passing upon the possible significance of the manifold provisions of a broad statute in advance of efforts to apply the separate provisions is analogous to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case.' Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416. No rule of practice of this Court is better settled than 'never to anticipate a question of constitutional law in advance of the necessity of deciding it.' Liverpool, New York & Philadelphia S.S. Co. v. Commissioners, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; Mr. Justice Brandeis, concurring, in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688. In part, this principle is based upon the realization that, by the very nature of the judicial process, courts can most wisely determine issues precisely defined by the confining circumstances of particular situations. See Parker v. County of Los Angeles, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144; Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666. In part it represents a conception of the role of the judiciary in a government premised upon a separation of powers, a role which precludes interference by courts with legislative and executive functions which have not yet proceeded so far as to affect individual interests adversely. See the Note to Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436; Com. of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. These considerations, crucial as they are to this Court's power and obligation in constitutional cases, require that we delimit at the outset the issues which are properly before us in the present litigation.
115
This proceeding was brought by the Attorney General under § 13(a) of the Subversive Activities Control Act, seeking an order of the Board that the Communist Party register as a Communist-action organization pursuant to § 7. The Board has issued such an order, in accordance with § 13(g)(1), which is here reviewed, under § 14(a). The effect of that order is to require the Party to register and to file a registration statement within thirty days after the order becomes final, § 7(c)(3), upon pain of fine up to $10,000 for each day of failure to register. When the order becomes final, other consequences also ensue, for the Party, for its members and for other persons. Certain acts of the Party-distributing its publications through the mails or through the instrumentalities of interstate or foreign commerce, or causing matter to be broadcast by radio or television, without the required identification-are prohibited, § 10, and tax exemption is denied it, § 11. Specified acts of its members-e.g., applying for or using a United States passport, holding government or defense-facility employment, holding labor union office ore mployment-are forbidden, §§ 5, 6, and those members are definitively subject to certain disqualifications-if aliens, they may not enter the United States, may be deported, may not be naturalized, may in some circumstances be denaturalized, with qualifications. 8 U.S.C. §§ 1182, 1251, 1424, 1451, 8 U.S.C.A. §§ 1182, 1251, 1424, 1451. Employment by the Party is not 'employment' for purposes of the Social Security Act, as amended, 42 U.S.C. § 410, 42 U.S.C.A. § 410; contributions to the Party are not tax deductible, Subversive Activities Control Act of 1950, § 11. Acts by third parties with regard to the Party or its members-the contributing of funds or services to the Party by government or defense-facility personnel, issuance of passports to Party members-are, under specified circumstances, prohibited, §§ 5, 6. All of these consequences depend upon action taken subsequent to the time when the registration order becomes final. Some depend upon action which is, at best, highly contingent.22 The question is which, if any, of these consequences are now before us for constitutional adjudication, as necessarily involved in the determination of the constitutionality of the Board's registration order.
116
A closely similar issue was presented to this Court in Electric Bond & Share Co. v. Securities & Exchange Comm., 303 U.S. 419, 58 S.Ct. 678, 685, 82 L.Ed. 936. That was a statutory suit brought by the Securities and Exchange Commission to enforce against certain utility holding companies the provisions of §§ 4(a) and 5 of the Public Utility Holding Company Act of 1935, 49 Stat. 803, 15 U.S.C.A. §§ 79d(a), 79e. The Act, like the Subversive Activities Control Act, was a statute of many intricate and interlocking sections, with a severability clause. Its fifth section provided that holding companies, as defined, might register with the Commission and file a registration statement containing specified information: unless such a company registered within the time fixed, § 4(a) subjected it to what the Court referred to as the 'penalty for failure to register': criminal liability for engaging in business in interstate commerce; or for selling, transporting, owning or operating utility assets for the transportation of gas or electricity in interstate commerce; or for using the mails or instrumentalities of interstate commerce to distribute or acquire utility securities, or to negotiate, make, or take any step in performing, service, sales or construction contracts for public utility or holding companies; or for owning, controlling or holding voting stock in any subsidiary engaging in any of these activities.23 Once a holding company registered, prescribed consequences ensued, some automatic,24 some requiring the initiation of further proceedings by the Commission. It was unlawful for any registered holding company or any subsidiary company of a registered holding company to sell or offer for sale any security of the holding company from house to house, or to cause any officer or employee of a subsidiary company to sell such a security; it was unlawful for any registered holding company to borrow or to receive any extension of credit from any public utility company in the same holding-company system; it was unlawful for any registered holding company or any subsidiary of such a holding company to make any contribution in connection with the candidacy, nomination, election or appointment of any person for or to any office or position in federal, state or municipal government or to make any contribution to any political party; all contracts made in violation of any provision of the Act were void. Other transactions of registered companies were prohibited unless approved by the Commission, and under the 'sip lification' provisions of § 11, the Commission was required to take steps to break up the holding-company systems of registered holding companies.
117
The Commission sued for, and the District Court granted, an injunction restraining companies of the Electric Bond and Share system from operating in violation of § 4(a) until they had either registered under § 5 or ceased to be holding companies.25 A cross bill by the companies seeking a declaratory judgment that the Act was unconstitutional in its entirety was dismissed. When the case came here, the companies argued that the scheme of the Act was a single, integrated whole; that the registration sections, which were the mechanism by which holding companies were subjected to the statute's various regulatory provisions, could not be separately considered; and that the unconstitutionality of the regulatory provisions invalidated the registration requirement. The Court affirmed the decree, but on the basis of a deliberate abstention from consideration of any but the registration section, § 5, as enforced by the sanctions of § 4(a). Noting that if the statute's severability clause were given effect, the registration obligation could be validly enforced even though any or all of the 'control' provisions applicable to registered companies were unconstitutional, and finding in the legislative history nothing to indicate that the various regulatory sections 'were intended to constitute a unitary system, no part of which can fail without destroying the rest,' 303 U.S. at pages 438-439, 58 S.Ct. at page 685 the Court declined to decide the broad constitutional questions pressed upon it. Likewise, the District Court's dismissal of the cross bill was sustained:
118
'* * * By the cross-bill, defendants seek a judgment that each and every provision of the Act is unconstitutional. It presents a variety of hypothetical controversies which may never become real. We are invited to enter into a speculative inquiry for the purpose of condemning statutory provisions the effect of which in concrete situations, not yet developed, cannot now be definitely perceived. We must decline that invitation.' Id., 303 U.S. at page 443, 58 S.Ct. at page 687.
119
Not until eight years later were some of these other related, important questions, at last properly presented, decided.26
120
The decision in Electric Bond & Share controls the present case. This Act, like the one involved there, has a section directing that if any of its provisions, or any of its applications, is held invalid, the remaining provisions and other possible applications shall not be affected. The authoritative legislative history clearly demonstrates that a major purpose of the enactment was to regulate Communist-action organizations by means of the public disclosure effected by registration, apart from the other regulatory provisions of the Act.27 Such is, of course, the very purpose of the severability clause. This being so, our consideration of any other provisions than those of § 7, requiring Communist-action organizations to register and file a registration statement, could in no way affect our decision in the present case. Were every portion of the Act purporting to regulate or prohibit the conduct of registered organizations (or organizations ordered to register) and of their members, as such, unconstitutional, we would still have to affirm the judgment below. Expatiation on the validity of those portions would remain mere pronouncements, addressed to future and hypothetical controversies. This is true with regard to those sections of the Act which prescribe consequences legally enforceable against the Communist Party once a final registration order is in effect against it-the 'labeling' and tax-exemption denial provisions of §§ 10 and 11. These are analogous to the proscription of specified credit transactions, or specified security sales, or specified political contributions, by the Public Utility Holding Company Act considered in Electric Bond & Share. Although they become operative as soon as a registration order is made final, their application remains in a very real sense problematical. We cannot now foresee what effect, if any, upon the Party the denial of tax exemption will have. We do not know whether the Party now has, or whether it will have at any time after a Board order goes into effect, any taxable income, or, indeed, any income whatever. We do not know that, after such an order is in effect, the Party will wish to utilize the mails or any instrumentality of interstate commerce for the circulation of its publications. We cannot guess the nature of whatever publications it may wish to circulate or their relation to the purposes and functions of the Party. These circumstances may be critical for constitutional determination. It will not do to discount their significance by saying, now, that no difference in circumstances will effect a different constitutional result-that the principles relevant to a determination of the validity of these statutory provisions do not depend upon the variations in circumstances in which they are potentially applicable. For this analysis presupposes that we now understand what are the relevant constitutional principles, whereas the reason of postponing decision until a constitutional issue is more clearly focused by, and receives the impact from, occurrence in particular circumstances is precisely that those circumstances may reveal relevancies that abstract, prospective supposition may not see or adequately assess.
121
These considerations are equally appropriate in the case of those sections of the Act which proscrib specified conduct by members of an organization concerning which a final registration order is in effect, or which impose obligations upon them, or which subject them to described disabilities under certain circumstances. It is wholly speculative now to foreshadow whether, or under what conditions, a member of the Party may in the future apply for a passport, or seek government or defense-facility or labor-union employment, or, being an alien, become a party to a naturalization or a denaturalization proceeding. None of these things may happen. If they do, appropriate administrative and judicial procedures will be available to test the constitutionality of applications of particular sections of the Act to particular persons in particular situations. Nothing justifies previsioning those issues now.
122
But the Party argues that the threat, however indefinite, of future application of these provisions to penalize individuals who are or become its members, affiliates or contributors, will effectively deter persons from associating with it or from aiding and supporting it. Thus, the provisions exercise a present effect upon the Party sufficiently prejudicial to justify its challenging them in this proceeding. In support of this contention, the Party cites cases in which we have held that litigants had 'standing' to attack a statute or regulation which operated to coerce other persons to withdraw from profitable relations or associations with the litigants. See, e.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; cf. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed. 1488; Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480. But these cases purported only to discuss what issues a litigant might raise, not when he might raise them. That a proper party is before the court is no answer to the objection that he is there prematurely. In none of the cases cited was the constitutional issue decided on a record which showed only potential deterrence of association with the litigant on the part of an unnamed and uncounted number of persons. In the Refugee Committee case, three organizations sued for injunctive or declaratory relief, challenging their inclusion on the Attorney General's list as Communist organizations. Each alleged that it had already suffered injury as a result of the listing: that contributors had withdrawn support, that persons had refused to take part in fund-raising activities, that members had resigned. The case came here on the pleadings, and we held such allegations sufficient as against a motion to dismiss. In Pierce v. Society of Sisters, supra, private schools were permitted to attack a state compulsory public-education statute: their complaints had alleged that because of the law, students who otherwise would have continued in attendance at the schools had withdrawn.28 In Buchanan v. Warley, supra, a contract had been made, performance refused, and the state courts had denied enforcement on the ground of the challenged ordinance; and in Truax v. Raich, supra, in which an alien employee sued to enjoin enforcement of a statute requiring certain classes of employers to retain not less than eighty per cent native-born citizens or qualified electors, Raich's employer had been arrested for violation of the statute and Raich had been threatened with immediate discharge. In Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255, both landowners and a prospective tenant brought suit to enjoin enforcement of a state statute forbidding aliens to hold land and providing that land transferred to aliens should be forfeit to the State. The complainants alleged that they were prepared to enter into a lease and would have done so but for the statute.
123
The present proceeding differs from all of these. The record here does not show that any present members, affiliates, or contributors of the Party have withdrawn because of the threatened consequences to them of its registration under the Subversive Activities Control Act, or that any prospective members, affiliates, or contributors have been deterred from joining the Party or giving it their support. We cannot know how many, if any, members or prospective members of the Party are also employees or prospective employees of the Government or of defense facilities or labor unions, or how many, if any, contributors to the Party hold government or defense-facility employment. It is thus impossible to say now what effect the provisions of the Act affecting members of a registered organization will have on the Party. Cf. State of New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70 L.Ed. 289. To pass upon the validity of those provisions would be to make abstract assertions of possible future injury, indefinite in nature and degree, the occasion for constitutional decision. If we did so, we would be straying beyond our judicial bounds. Of course, the Party may now assert those rights of its members, such as that of anonymity, which are allegedly infringed by the very act of its filing a registration statement, and which could not be otherwise asserted than by raising them here. N.A.A.C.P. v. State of Alabama, supra; Bates v. City of Little Rock, supra. But the rights of its members, as potentially affected by the Act, to receive and use passports, seek and hold certain employment, be naturalized and preserve their citizenship once naturalized, are not of this category. We limit our consideration to the constitutionality of § 7 as applied in this proceeding.
V.
124
The constitutional contentions raised by the Party with respect to the registration requirement § 7 are (A) that that requirement, in the context of the Act, in effect 'outlaws' the Party and is in the nature of a bill of attainder; (B) that compelling organizations to register and to list their members on a showing merely that they are foreign-dominated and operate primarily to advance the objectives of the world Communist movement constitutes a restraint on freedom of expression and association in violation of the First Amendment; (C) that requiring Party officers to file registration statements for the Party subjects them to self-incrimination forbidden by the Fifth Amendment; (D) that the Act violates due process by legislative predetermination of facts essential to bring the Communist Party within the definitions of a Communist-action organization, and that the evidentiary elements prescribed for consideration by the Board bear no rational relation to that definition; (E) that in several aspects the Act is unconstitutionally vague; and (F) that the Subversive Activities Control Board is so necessarily biased against the Communist Party as to deprive it of a fair hearing.
125
A. 'Outlawry' and Attainder. Our determination that in the present proceeding all questions are premature which regard only the constitutionality of the various particular consequences of a registration order to a registered organization and its members, does not foreclose the Party from arguing-and it does argue-that in light of the cumulative effect of those consequences the registration provisions of § 7 are not what they seem, but represent a legislative attempt, by devious means, to 'outlaw' the Party. The registration requirement, the Party contends, was designed not with the purpose of having Communist-action organizations register, but with a purpose to make it impossible to register, because of the onerous consequences of registration, and thus to establish a pretext for criminal prosecution of the organization and its members. The Act is said to be aimed particularlya t the Communist Party as an identifiable entity, intending to punish it, and in this aspect to constitute a bill of attainder prohibited by Art. I, § 9, cl. 3 of the Constitution.
126
Of course, 'only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.' Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435. No such proof is offered here. The Act on its face gives no indication that the registration provisions were not intended to be complied with. None of the consequences which attack to registration, whatever may be their validity when weighed separately in the constitutional balance, is so devoid of rational relation to the purposes of the Act as expressed in its second section that it appears a mere pressuring device meant to catch an organization between two fires. Section 2 recites that the world Communist movement, whose purpose is to employ deceit, secrecy, infiltration, and sabotage as means to establish a Communist totalitarian dictatorship, establishes and utilizes action organizations. The Act requires such organizations to register and to label their communications, and prohibits their members from government, defense-facility and certain labor-organization employment. Section 2 sets forth that Communist-action organizations are sections a world-wide Communist movement and that international travel of its members and agents facilitates the purposes of the movement. The Act restricts the ingress and access to United States citizenship of alien members of Communist-action organizations and deprives all members of the use of United States passports. Section 2 finds that Communist-action organizations purpose to overthrow the Government of the United States by any available, necessary means. The Act forbids government and defense-facility employees to support such organizations, and withdraws from the organizations and their contributors certain tax exemptions. None of this is so lacking in consonance as to suggest a clandestine purpose behind the registration provisions. Nor does the legislative history contain any such suggestion. Rather, the Committee reports on the bills from which the Act derived express an object 'to require the Communist movement in the United States to operate in the open rather than underground,' and 'to expose the Communist movement and protect the public against innocent and unwitting collaboration with it.'29
127
It is true, as the Party asserts, that bills had been introduced in Congress that would have applied to the Communist Party by name,30 and it is no doubt also true that the form which the Subversive Activities Control Act finally took was dictated in part by constitutional scruples against outlawing of the Party by 'legislative fiat.'31 It is probable, too, that the legislators who voted for the Act in its final form expected that the Communist Party, if it continued to engage in the activities which had been reported to Congress as characterizing its past conduct, would be required to register under § 7.32 From this the Party would have us conclude that the Act is only an instrument serving to abolish the Communist Party by indirection. But such an analysis ignores our duty of respect for the exercise of the legislative power of Congress, and, more specifically, ignores the crucial constitutional significance of what Congress did when it rejected the approach of outlawing the Party by name and accepted instead a statutory program regulating not enumerated organizations but designated activities. We would be indulging in a revisory power over enactments as they come from Congress-a power which the Framers of the Constitution withheld from this Court-if we so interpreted what Congress refused to do and what in fact Congress did; that is, if we treated this Act as merely a ruse by Congress to evade constitutional safeguards. Congress de med it an attempt to achieve its legislative purpose consistently with constitutional safeguards.33 Whether it has done so-the issue which is now before us-is to be determined by the manner in which the enactment works in its practical application. 'So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.' Barenblatt v. United States, 360 U.S. 109, 132, 79 S.Ct. 1081, 1096, 3 L.Ed.2d 1115; Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487; Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772; McCray v. United States, 195 U.S. 27, 24 S.Ct. 769, 49 L.Ed. 78. The true and sole question before us is whether the effects of the statute as it was passed and as it operates are constitutionally permissible.
128
The Act is not a bill of a attainder. It attaches not to specified organizations but to described activities in which an organization may or may not engage. The singling out of an individual for legislatively prescribed punishment constitutes an attainder whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons. See Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366. The Subversive Activities Control Act is not of that kind. It requires the registration only of organizations which, after the date of the Act, are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to advance certain objectives. This finding must be made after full administrative hearing, subject to judicial review which opens the record for the reviewing court's determination whether the administrative findings as to fact are supported by the preponderance of the evidence. Present activity constitutes an operative element to which the statute attaches legal consequences, not merely a point of reference for the ascertainment of particular persons ineluctably designated by the legislature.
129
The fact that activity engaged in prior to the enactment of the legislation may be regarded administratively and judicially as relevant to a determination that an organization is presently foreign-controlled and presently works to advance the objectives of the world Communist movement, does not alter the operative structure of the Act. The incidents which it reaches are nonetheless present incidents. The past is pertinent only as probative of these. In this proceeding the Board has found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtue of the activities in which it now engages, comes within the terms of the Act. If the Party should at any time choose to abandon these activities, after it is once registered pursuant to § 7, the Act provides adequate means of relief. As often as once a year it may apply to the Attorney General for cancellation of registration, and, in the event of his refusal to remove it from the register and to relieve it from the duty of filing annual statements, it may petition the Board for a redetermination of its amenability to the registration requirements of the Act, pursuant to a hearing which, again, is subject to judicial review. §§ 13(b), (i)(j), 14(a). Far from attaching to the past and ineradicable actions of an organization, the application of the registration section is made to turn upon continuing contemporaneous fact; its obligations arise only because, and endure only so long as, an organization presently conducts operations of a described character.
130
Nor is the statute made an act of 'outlawry' or of attainder by the fact that the conduct which it regulates is described with such particularity that, in probability, few organizations will come within the statutory terms. Legislatures may act to curb behavior which they regard as harmful to the public welfare, whether that conduct is found to be engaged in by many persons or by one. So long as the incidence of legislation is such that the persons who engage in the regulated conduct, be they many or few, can escape regulation merely by altering the course of their own present activities, there can be no complaint of an attainder. It would be ingenuous to refuse to recognize that the Subversive Activities Control Act of 1950 was designed to reach the Communist Party's operations as then reported to Congress-operations in which, the Board has found, the Party persists. But to base a determination of constitutionality on this design would be to confuse the occasion of legislation with its operative effect and consequently to mistake decisive constitutional dt erminants. No doubt, the activity whose regulation the Act seeks to achieve is activity historically associated with the Communist Party. From its legislative study of the Communist Party, Congress concluded that that kind of activity was potentially dangerous to the national interest and that it must be subjected to control. But whatever the source from which the legislative experience and instruction derived, the Act applies to a class of activity only, not to the Communist Party as such. Nothing in this offends the constitutional prohibition of attainder.
131
B. The Freedoms of Expression and Association Protected by the First Amendment. The Communist Party would have us hold that the First Amendment prohibits Congress from requiring the registration and filing of information, including membership lists, by organizations substantially dominated or controlled by the foreign powers controlling the world Communist movement and which operate primarily to advance the objectives of that movement: the overthrow of existing government by any means necessary and the establishment in its place of a Communist totalitarian dictatorship (§§ 3(3), 2(1) and (6)). We cannot find such a prohibition in the First Amendment. So to find would make a travesty of that Amendment and the great ends for the well-being of our democracy that it serves.
132
No doubt, a governmental regulation which requires registration as a condition upon the exercise of speech may in some circumstances affront the constitutional guarantee of free expression.34 Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. In that case, the Court held that a State could not constitutionally punish for contempt a public speaker who had addressed a labor-organization meeting in violation of a restraining order prohibiting him from soliciting memberships in a labor union without having first registered as paid labor organizer and secured an organizer's card. The decision was a narrow one, striking down the registration requirement only as applied to the particular circumstances of the case, id., 323 U.S. at pages 541-542, 65 S.Ct. at pages 327-328-that is, to an individual who, as the Court several times insisted, had come into the State 'for one purpose and one only-to make the speech in question.' Id., 323 U.S. at page 533, 65 S.Ct. at page 324; see also id., 323 U.S. at pages 521, 526, 65 S.Ct. at pages 318, 320.35 Since this speech was the sole incident of Thomas' conduct upon which the State relied in asserting that he was an 'organizer' and thus required to register as such, the Court regarded the statute, in this application, as basing the obligation to register upon speech activity alone.36 'So long as no more is involved than exercise of the rights of free speech and free assembly,' the Court said, 'it is immune to such a restriction.' Id., 323 U.S. at page 540, 65 S.Ct. at page 327. The present statute does not, of course, attach the registration requirement to the incident of speech, but to the incidents of foreign domination and of operation to advance the objectives of the world Communist movement-operation which, the Board has found here, includes extensive, long-continuing organizational, as well as 'speech,' activity. Thus the Thomas case is applicable here only insofar as it establishes that subjection to registration requirements may be a sufficient restraint upon the exercise of liberties protected by the First Amendment to merit that it be weighed in the constitutional balance. speak. E.g., Staub v. City of Baxley, in which this Court has struck down regulations requiring not merely registration but the securing of a license, issued either at the arbitrary discretion of licensing officials or by the application of licensing standards so broad or uncertain as to permit arbitrary action by officials, as prerequisite to the right to speak. E.g., Staub v. City of Blaxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Superior Films, Inc., v. Department of Education, 346 U.S 587, 74 S.Ct. 286, 98 L.Ed. 329; Gelling v. State of Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359; Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267; Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Largent v. State of Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949. The present statute has no such licensing provision.
133
Similarly, we agree that compulsory disclosure of the names of an organizations' members may in certain instances infringe constitutionally protected rights of association. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231. But to say this much is only to recognize one of the points of reference from which analysis must begin. To state that individual liberties may be affected is to establish the condition for, not to arrive at the conclusion of, constitutional decision. Against the impediments which particular governmental regulation causes to entire freedom of individual action, there must be weighed the value to the public of the ends which the regulation may achieve. 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; American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.
134
In the N.A.A.C.P. and Bates cases, this Court examined the circumstances under which disclosure was demanded, and concluded that 'whatever interest the State may have in obtaining names of ordinary members has not been shown to be sufficient to overcome (the) * * * constitutional objections to the production order.' N.A.A.C.P. v. State of Alabama, 357 U.S. at page 465, 78 S.Ct. at page 1173. In the N.A.A.C.P. case, the Attorney General of Alabama had brought an equity suit to enjoin the Association from conducting further activities within, and to oust it from, the State on the grounds of its non-compliance with Alabama's foreign-corporation registration statute. The Attorney General sought, and the state court ordered, production of lists of the Association's rank-and-file members as pertinent to the issues whether the N.A.A.C.P. was conducting intrastate business in violation of the statute, and whether the extent of that business justified its permanent ouster from the State. Noting that the Association had admitted its presence and conduct of activities in Alabama during almost forty years and that it had offered to comply in all respects with the qualification statute, we said that 'we are unable to perceive that the disclosure of the names of (N.A.A.C.P.'s) * * * rank-and-file members has a substantial bearing' upon any issue presented to the Alabama courts. Id., 357 U.S. at page 464, 78 S.Ct. at page 1173. Bates v. City of Little Rock, supra, involved the conviction of custodians of records of branches of the N.A.A.C.P. for failure to comply with provisions of local regulations which required organizations operating within the municipality to file with a municipal official, inter alia, financial statements showing the names of all contributors to the organizations. These regulations were amendments to ordinances levying license taxes on persons engaging in businesses, occupations or professions within municipal limits. Finding that the occupation taxes were based on the nature of the activity or enterprise conducted, not upon earnings or income, and, moreover, that there had been no showing that the N.A.A.C.P. branches were engaged in activity taxable under the ordinances, or had ever been regarded by tax authorities as subject to taxation under the ordinances the Court concluded that: '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.' 361 U.S. at page 525, 80 S.Ct. at page 417. Thus, these cases hold that where the required making public of an organization's membership lists bears no rational relation to the interest which is asserted by the State to justify disclosure, and where because of community temper publication might prejudice members whose names were revealed, disclosure cannot constitutionally be compelled.
135
Shelton v. Tucker, supra, did not involve legislation which, as a means of regulating an appropriately defined class of organizations whose activities menaced the public welfare, required those organizations to reveal their members. It involved an Arkansas statute which, conversely, as an incident of the State's attempt to control the activities of a class of individuals-the teachers in its public schools and publicly supported institutions of higher learning-required the individuals to disclose the associations to which they belonged. The statute's purported justification lay in its furtherance of the State's effective selection of teaching personnel; to subserve this end, it attempted to 'ask every one of its teachers to disclose every single organization with which he has been associated over a five-year period.' 364 U.S. at pages 487-488, 81 S.Ct. at page 252. The Court, finding that 'Many such relationships could have no possible bearing upon the teacher's occupational competence or fitness,' id., 364 U.S. at page 488, 81 S.Ct. at page 252, and hence that 'The statute's comprehensive interference with associational freedom goes far beyond what might be justified in the exercise of the State's legitimate inquiry into the fitness and competency of its teachers,' id., 364 U.S. at page 490, 81 S.Ct. at page 253, struck the legislation down. Again, the ratio decidendi of the decision was the absence of substantial connection between the breadth of disclosure demanded and the purpose which disclosure was asserted to serve.
136
The present case differs from Thomas v. Collins and from N.A.A.C.P., Bates, and Shelton in the magnitude of the public interests which the registration and disclosure provisions are designed to protect and in the pertinence which registration and disclosure bear to the protection of those interests. Congress itself has expressed in § 2 of the Act both what those interests are and what, in its view, threatens them. On the basis of its detailed investigations Congress has found that there exists a world Communist movement, foreign-controlled, whose purpose it is by whatever means necessary to establish Communist totalitarian dictatorship in the countries throughout the world, and which has already succeeded in supplanting governments in other countries. Congress has found that in furthering these purposes, the foreign government controlling the world Communist movement establishes in various countries action organizations which, dominated from abroad, endeavor to bring about the overthrow of existing governments, by force if need be, and to establish totalitarian dictatorships subservient to that foreign government. And Congress has found that these action organizations employ methods of infiltration and secretive and coercive tactics; that by operating in concealment and through Communist-front organizations they are able to obtain the support of persons who would not extend such support knowing of their true nature; that a Communist network exists in the United States; and that the agents of communism have devised methods of sabotage and espionage carried out in successful evasion of existing law. The purpose of the Subversive Activities Control Act is said to be to prevent the world-wide Communist conspiracy from accomplishing its purpose in this country.
137
It is not for the courts to re-examine the validity of these legislative findings and reject them. See Harisiades v. Shaughnessy, 342 U.S. 580, 590, 72 S.Ct. 512, 519, 96 L.Ed. 586. They are the product of extensive investigation by Committees of Congress over more than a decade and a half.37 Cf. Nebbia v. People of State of New York, 291 U.S. 502, 516, 530, 54 S.Ct. 505, 507, 513, 78 L.Ed. 940. We certainly cannot dismiss them as unfounded or irrational imaginings. See Galvan v. Press, 347 U.S. 522, 529, 74 S.Ct. 737, 741, 98 L.Ed. 911; American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 388-389, 70 S.Ct. 674, 678-679, 94 L.Ed. 925. And if we accept them, as we must, as a not unentertainable appraisal by Congress of the threat which Communist organizations pose not only to existing government in the United States, but to the United States as a sovereign, independent nation-if we accept as not wholly unsupportable the conclusion that those organizations 'are not free and independent organizations, but are sections of a world-wide Communist organization and are controlled, directed, and subject to the discipline of the Communist dictatorship of (a) * * * foreign country,' § 2(5)-we must recognize that the power of Congress to regulate Communist organizations of this nature is extensive. 'Security against foreign danger is one of the primitive objects of civil society,' James Madison wrote in The Federalist (No. 41). 'It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils.' The Federalist (Wright ed. 1961) 295. See also The Federalist (Nos. 2-5), id., at 93 et seq. Means for effective resistance against foreign incursion-whether in the form of organizations which function, in some technical sense, as 'agents' of a foreign power,38 or in the form of organia tions which, by complete dedication and obedience to foreign directives, make themselves the instruments of a foreign power-may not be denied to the national legislature. 'To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come * * *.' The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581, 606, 9 S.Ct. 623, 630, 32 L.Ed. 1068. See also Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603; Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3; Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581; United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-322, 57 S.Ct. 216, 218-221, 81 L.Ed. 255; Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 108, 60 L.Ed. 297; Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905; Mr. Justice Bradley, concurring in the Legal Tender Cases, 12 Wall. 457, 554, 556, 20 L.Ed. 287.
138
Of course congressional power in this sphere, as in all spheres, is limited by the First Amendment. Individual liberties fundamental to American institutions are not to be destroyed under pretext of preserving those institutions, even from the gravest external dangers. But where the problems of accommodating the exigencies of self-preservation and the values of liberty are as complex and intricate as they are in the situation described in the findings of § 2 of the Subversive Activities Control Act-when existing government is menaced by a world-wide integrated movement which employs every combination of possible means, peaceful and violent, domestic and foreign, overt and clandestine, to destroy the government itself-the legislative judgment as to how that threat may best be met consistently with the safeguarding of persons freedom is not to be set aside mr ely because the judgment of judges would, in the first instance, have chosen other methods. Especially where Congress, in seeking to reconcile competing and urgently demanding values within our social institutions, legislates not to prohibit individuals from organizing for the effectuation of ends found to be menacing to the very existence of those institutions, but only to prescribe the conditions under which such organization is permitted, the legislative determination must be respected. United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; American Communications Ass'n, C.I.O. v. Douds, supra.
139
In a number of situations in which secrecy or the concealment of associations has been regarded as a threat to public safety and to the effective, free functioning of our national institutions Congress has met the threat by requiring registration or disclosure.39 The Federal Corrupt Practices Act, enacted in 1925, 43 Stat. 1070, 2 U.S.C. §§ 241-245, 2 U.S.C.A. §§ 241-245, requires all political committees (organizations accepting contributions or making expenditures to influence the election of candidates for designated national offices in two or more States, or branches of national committees) to have a chairman and a treasurer, and makes it the duty of the treasurer to keep detailed financial accounts and to file with the Clerk of the House of Representatives periodic statements containing, inter alia, the names and addresses of all persons contributing more than $100 to the committee during any year. Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484, sustained that statute against the claim that Congress lacked constitutional power to regulate such political organizations; the Court found ample authority in congressional power 'to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.' Id., 290 U.S. at page 545, 54 S.Ct. at page 290. The Federal Regulation of Lobbying Act, 60 Stat. 839, 2 U.S.C. §§ 261-270, 2 U.S.C.A. §§ 261-270, applies to any person who solicits or receives money or anything of value to be used principally, or if the person's principal purpose is, to influence the passage or defeat of legislation by Congress. It requires any person receiving any contributions of expending any money for the purposes of influencing the passage or defeat of legislation to file with the Clerk of the House quarterly statements which set out the name and address of each person who has made a contribution of $500 or more not mentioned in the preceding report. It also requires that any person who engages himself for pay for the purpose of attempting to influence the passage or defeat of legislation, before doing anything in furtherance of that objective, register with the Clerk of the House and the Secretary of the Senate, and state in writing, inter alia, his name and address and the name and address of the person by whom he is employed, and in whose interest he works. These paid lobbyists must file quarterly reports of all money received and expended in carrying on their work, to whom paid, for what purposes, the names of publications in which they have caused any articles to be published, and the proposed legislation they are employed to support or oppose; this information is to be printed in the Congressional Record. In United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989, we held that the First Amendment did not prohibit the prosecution of criminal informations charging violation of the registration and reporting provisions of the Act. We said:
140
'Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent.
141
'Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much * * *' Id., 347 U.S. at page 625, 74 S.Ct. at page 816.
142
The Foreign Agents Registration Act, first enacted in 1938, 52 Stat. 631, and since several times amended, provides, as now set forth in 22 U.S.C. §§ 611-621, 22 U.S.C.A. §§ 611-621, that agents of foreign principals must register with the Attorney General and file periodic registration statements (which are to be held by the Attorney General open to public inspection) containing, among other information, the registrant's name, a comprehensive statement of the nature of the registrant's business, a complete list of the registrant's employees and a statement of the nature of the work of each (unless this requirement is waived by the Attorney General), the name and address of the registrant's foreign principals, with further information as to the principals' character, ownership and control, the names and addresses of all persons other than a registrant's foreign principal who contribute to the registrant in connection with specified activities of the registrant, and detailed financial accounts. Such agents must also file with the Attorney General and the Librarian of Congress, and must label as emanating from a registered agent of a foreign principal, and mark with the name of the agent and the principal, any political propaganda transmitted in the United States mails or through any instrumentality of interstate or foreign commerce. In addition, Title 18 U.S.C. § 2386, 18 U.S.C.A. § 2386, derived from the so called Voorhis Act of 1940, 54 Stat. 1201, requires the registration with the Attorney General of organizations subject to foreign control which engage in political or civilian military activity (as those terms are defined in the section), organizations which engage in both political and civilian military activity (as defined), and organizations whose purpose is the overthrow of government by the use or threat of force or violence or military measures. Organizations required to register must report, inter alia, the names and addresses of their officers, branch officers and contributors, a detailed desr iption of their activities, and a detailed statement of assets, and must file copies of publications which they issue or distribute; registration statements must be kept up to date and are to be open for public examination. Committee reports pertinent to the Subversive Activities Control Act of 1950 state that the necessity for the legislation derived in part from the difficulty of enforcing the Foreign Agents Registration and Voorhis Acts against Communist organizations 'due in part to the skill and deceit which the Communists have used in concealing their foreign ties.'40
143
Certainly, as the Burroughs and Harriss cases abundantly recognize, secrecy of associations and organizations, even among groups concerned exclusively with political processes, may under some circumstances constitute a danger which legislatures do not lack constitutional power to curb. In People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184, this Court held that the Due Process Clause of the Fourteenth Amendment was not offended by a state statute requiring filing with the Secretary of State of the constitution and by-laws, rules and regulations, membership oath, roster of members and list of officers of every association of twenty or more members having as a condition of membership an oath. The statute made it unlawful to become or remain a member of such an association with knowledge that it had failed to comply with the filing requirement. Exceptions for labor unions and benevolent orders indicated that the measure was directed primarily at the Ku Klux Klan. Compelling disclosure of membership lists and other information by organizations of the character of the Klan, the Court found, was reasonable both as a means for providing the government of the State with knowledge of the activities of those organizations within its borders, and because 'requiring this information to be supplied for the public files will operate as an effective or substantial deterrent from the violations of public and private right to which the association might be tempted if such a disclosure were not required.' Id., 278 U.S. at page 72, 49 S.Ct. at page 65. It was the nature of the organization regulated, and hence the danger involved in its covert operation, which justified the statute and caused us to distinguish the Bryant case in N.A.A.C.P. v. State of Alabama, supra, 357 U.S. at page 465, 78 S.Ct. at page 1173.41 In N.A.A.C.P. and Bates v. City of Little Rock, supra, as we have said, there was no showing of any danger inherent in concealment, no showing that the State, in seeking disclosure, was attempting to cope with any perceived danger. Nor was this kind of danger-arising when secrecy itself is made an active instrument of public harm-put forth to justify the statute which was held invalid in Shelton v. Tucker, supra.
144
Congress, when it enacted the Subversive Activities Control Act, did attempt to cope with precisely such a danger. In light of its legislative findings, based on voluminous evidence collected during years of investigation, we cannot say that that danger is chimerical, or that the registration requirement of § 7 is an ill-adjusted means of dealing with it. In saying this, we are not insensitive to the fact that the public opprobrium and obloquy which may attach to an individual listed with the Attorney General as a member of a Communist-action organization is no less considerable than that with which members of the National Association for the Advancement of Colored People were threatened in N.A.A.C.P. and Bates. But while an angry public opinion, and the evils which it may spawn, are e levant considerations in adjudging, in light of the totality of relevant considerations, the validity of legislation that, in effecting disclosure, may thereby entail some restraints on speech and association, the existence of an ugly public temper does not, as such and without more, incapacitate government to require publicity demanded by rational interests high in the scale of national concern. Where the mask of anonymity which an organization's members were serves the double purpose of protecting them from popular prejudice and of enabling them to cover over a foreign-directed conspiracy, infiltrate into other groups, and enlist the support of persons who would not, if the truth were revealed, lend their support, see § 2(1), (6), (7), it would be a distortion of the First Amendment to hold that it prohibits Congress from removing the mask.
145
These considerations lead us to sustain the registration provisions of § 7, as not repugnant to the First Amendment, insofar as they require Communist action organizations to file a registration statement containing the names and addresses of its present officers and members. The requirement that persons who were officers or members at any time during the year preceding registration must be listed, see § 7(d)(2),(4), is a reasonable means of assuring that the obligation to list present members and officers will not be evaded. For reasons which do not require elaboration, the requirement that a registering organization list the aliases of officers and members, see § 7(d)(5), must also be sustained. Nor do we find that § 7(d)(3), requiring a financial accounting, or § 7(d)(6),42 requiring a listing of all printing presses in the possession or control of the organization or its members violates First Amendment rights. Disclosure both of the financial transactions of a Communist-action organization and of the identity of the organs of publication which it controls might not unreasonably have been regarded by Congress as necessary to the objective which the Act seeks to achieve: to bring foreign-dominated organizations out into the open where the public can evaluate their activities informedly against the revealed background of their character, nature, and connections. Of course, printing presses may not be regulated like guns. That generalization gets us nowhere. On the concrete, specific issue before us, we hold that the obligation to give information identifying presses, without more and as applied to foreign-dominated organizations, does not fetter constitutionally protected free expression. No other kind of regulation is involved here. As to the penalties for failure to register, see § 15(a), which the Party attacks as exorbitant and oppressive, these are not now before us. They have not yet been imposed on the Party and may never be. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508.
146
It is argued that if Congress may constitutionally enact legislation requiring the Communist Party to register, to list its members, to file financial statements, and to identify its printing presses, Congress may impose similar requirements upon any group which pursues unpopular political objectives or which expresses an unpopular political ideology. Nothing which we decide here remotely carries such an implication. The Subversive Activities Control Act applies only to foreign-dominated organizations which work primarily to advance the objectives of a world movement controlled by the government of a foreign country. See §§ 3(3), 2(4). It applies only to organizations directed, dominated, or controlled by a particular foreign country, the leader of a movement which, Congress has found, is 'in its origins, its development, and its present practice, * * * a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups * * *, espionage, sb otage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.' § 2(1). This is the full purported reach of the statute,43 and its fullest effect. There is no attempt here to impose stifling obligations upon the proponents of a particular political creed as such, or even to check the importation of particular political ideas from abroad for propagation here. The Act compels the registration of organized groups which have been made the instruments of a long-continued, systematic, disciplined activity directed by a foreign power and purposing to overthrow existing government in this country. Organizations are subject to it only when shown, after administrative hearing subject to judicial review, to be dominated by the foreign power or its organs and to operate primarily to advance its purposes. That a portion of the evidence upon which such a showing is made may consist in the expression of political views by the organization does not alter the character of the Act or of the incidents to which it attaches. Such expressions are relevant only as probative of foreign control and of the purposes to which the organization's actions are directed. The Board, in the present proceeding, so understood the Act. The registration requirement of § 7, on its face and as here applied, does not violate the First Amendment.
147
C. Self-Incrimination of the Party's Officers. Section 7(a) and (c) requires that organizations determined to be Communist-action organizations by the Subversive Activities Control Board register within thirty days after the Board's registration order becomes final. Registration is to be accompanied by a registration statement, prepared in such manner and form as the Attorney General, by regulations, prescribes. § 7(d). The form which, pursuant to this authority, the Attorney General has prescribed requires that registration statements 'shall be signed by the partners, officers, and directors, including the members of the governing body of the organization.' 28 CFR § 11.200; Dept. Justice Form ISA-1. If the organization fails to register or to file a registration statement, it is the duty of the executive officer, the secretary, the president or chairman, the vice-president or vice-chairman, the treasurer, and the members of the governing board, council, or body, to register the organization by filing a registration statement for it within ten days after the expiration of the thirty-day registration period allowed the organization. See 28 CFR § 11.205, issued pursuant to § 7(h) of the Act. The Party contends that these requirements cannot be imposed and exacted consistently with the Self-Incrimination Clause of the Fifth Amendment. Officers of the Party, it is argued, are compelled, in the very act of filing a signed registration statement, to admit that they are Party officers-an admission which we have held incriminating. Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170; cf. Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964. What is required is said to be not merely the production of documents kept in an official capacity for the Party, see McPhaul v. United States, 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136; United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542; Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, but individual action by the officers which, by establishing a connection between the officers and the documents, in effect convicts the officers out of their own mouths. Cf. Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225.
148
Manifestly, insofar as this contention is directed against the provisions f § 7(h) and 28 CFR § 11.205, requiring that designated officers file registration statements in default of registration by an organization, it is prematurely raised in the present proceeding. The duties imposed by those provisions will not arise until and unless the Party fails to register. At this time their application is wholly contingent and conjectural. Cf. Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725.44
149
We find that the self-incrimination challenge to § 7(a) and (d), as implemented by the Attorney General's regulations and forms, is also premature at this time. The privilege against self-incrimination is one which normally must be claimed by the individual who seeks to avail himself of its protection. United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560; United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; see also Smith v. United States, 337 U.S. 137, 147-148, 69 S.Ct. 1000, 1005-1006, 93 L.Ed. 1264; United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376. We cannot know now that the Party's officers will ever claim the privilege. There is no indication that in the past its highranking officials have sought to conceal their identity, and no reason to believe that in the future they will decline to file a registration statement whose whole effect, in this regard, is further to evidence a fact which, traditionally, has been one of public notice. Within thirty days after the Board's registration order becomes final, the Party's officers may file signed registration statements in the form required by Form ISA-1. Or they may file statements claiming the privilege in lieu of furnishing the required information. If a claim of privilege is made, it may or may not be honored by the Attorney General. We cannot, on the basis of supposition that privilege will be claimed and not honored, proceed now to adjudicate the constitutionality under the Fifth Amendment of the registration provisions. Whatever proceeding may be taken after and if the privilege is claimed will provide an adequate forum for litigation of that issue.
150
The Party contends, however, that under the Subversive Activities Control Act there will be no opportunity for its officers to claim the Fifth Amendment privilege without, at the same time, giving up all the protection which the Fifth Amendment secures them. Persons who come forward to make the claim, it is said, will as much reveal themselves to the Attorney General as officers of the Party as it they had in fact filed a registration statement. But it is always true that one who is required to assert the privilege against self-incrimination may thereby arouse the suspicions of prosecuting authorities. Nevertheless, it is not and has never been the law that the privilege disallows the asking of potentially incriminatory questions or authorizes the person of whom they are asked to evade them without expressly asserting that his answers may tend to incriminate him. State v. Kemp, 126 Conn. 60, 9 A.2d 63; O'Connell v. United States, 2 Cir., 40 F.2d 201; In re Knickerbocker Steamboat Co., D.C.S.D.N.Y., 139 F. 713; In re Groban, 99 Ohio App. 512, 135 N.E.2d 477, affirmed 164 Ohio St. 26, 128 N.E.2d 106 affirmed 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376; Allhusen v. Labouchere, L.R. 3 Q.B.D. 654; Fisher v. Owen, L.R. 8 Ch.D. 645. And see United States v. Hiss, 2 Cir., 185 F.2d 822; Commonwealth v. Granito, 326 Mass. 494, 95 N.E.2d 539. In United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, this Court sustained a conviction for failure to file an income tax return, despite the defendant's objection that answers called for on the return would have incriminated him. Mr. Justice Holmes, for a unanimous Cour, wrote that 'If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. * * * (I)f the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjuror's circle around the whole matter by his own declaration that to write may word upon the government blank would bring him into danger of the law.' Id., 274 U.S. at pages 263-264, 47 S.Ct. 607. This would, of course, be the normal rule. Perhaps Sullivan is distinguishable, however, from the situation of registration under the Subversive Activities Control Act. Tax returns must be filed generally, and answers to tax return questions may involve any of a wide variety of activities, whereas the obligation to file a registration statement compels a few particular individuals to come forward, to identify themselves, and to suggest, at least, their connection with a relatively limited potential sphere of criminal conduct. Then, too, in Sullivan, Mr. Justice Holmes assumed that some, at least, of the answers to the questions on the tax return would not have been incriminating, whereas in the case of the registration statement, any claim of the privilege would involve the withholding of all information; thus, there is, presumably, a greater governmental interest in having the privilege claimed specifically on the form in the tax-return circumstances. To suggest these possible distinctions is to recognize that the applicability of the Sullivan principle here may raise novel and difficult questions as to the reach of the Fifth Amendment-questions which should not be discussed in advance of the necessity of deciding them. See Peters v. Hobby, 349 U.S. 331, 338, 75 S.Ct. 790, 793, 99 L.Ed. 1129. The stage at which that decision will become necessary, if at all, is the stage at which Sullivan itself was decided: when enforcement proceedings for failure to register are instituted against the Party or against its officers. See People v. McCormick, 102 Cal.App.2d Supp. 954, 228 P.2d 349.
151
In arguing that the issue is not now premature, the Party cites Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, for the proposition that, where a statute compelling the production of potentially incriminating information allows the exercise of the Fifth Amendment privilege only under circumstances which effectively nullify the Amendment's protection, the statute may be held 'unconstitutional and void,' not merely unenforceable in cases in which a proper claim of privilege is made. Assuming arguendo that this proposition is correct, the most that can be drawn from it of pertinence to the present case is that, in a prosecution of the Party for failure to register, or in a prosecution of its officers for failure to register the Party, the Court would have to determine whether the Subversive Activities Control Act is a statute which, like the statute in Boyd, unconstitutionally circumscribes the effectual exercise of the privilege. Obviously, such a determination would never have to be made if an enforcement proceeding were never brought-either because Party officials registered pursuant to § 7(a) and (d) without complaint, or because they did choose to assert the privilege in some form in which it could be recognized. The Boyd case involved a statute providing that in proceedings other than criminal arising under the revenue laws, the Government could secure an order of the court requiring the production by an opposing claimant or defendant of any documents under his control which, the Government asserted, might tend to prove any of the Government's allegations. If production were not made, the allegations were to be taken as confessed. On the Government's motion, the District Court had entered such an order, requiring the claimants in a forfeiture proceeding to produce a specified invoc e. Although the claimants objected that the order was improper and the statute unconstitutional in coercing self-incriminatory disclosures and permitting unreasonable searches and seizures, they did, under protest, produce the invoice, which was, again over their constitutional objection, admitted into evidence. This Court held that an such a record a judgment for the United States could not stand, and that the statute was invalid as repugnant to the Fourth and Fifth Amendments. In Boyd, production had been ordered, objected to, and, the Court held, unconstitutionally compelled. There is nothing in the case which justifies advisory adjudication to self-incrimination questions prior to the time when a demand for information has been, at the least, made and resisted.
152
D. Legislative Predetermination of Adjudicative Fact. It is next asserted that the Act offends the Due Process Clause of the Fifth Amendment by predetermining legislatively facts upon which the application of the registration provisions to the Communist Party depends. Two arguments are made in this regard. The first is that although § 3(3), defining a 'Communist-action organization,' purports to require findings that an organization is controlled by 'the foreign government or foreign organization controlling the world Communist movement * * * referred to in section 2 * * *' and operates primarily to advance the objectives 'of such world Communist movement as referred to in section 2 * * *,' the existence of a world Communist movement, its direction by the government of a foreign country, and the nature of its objectives are 'found' by Congress in § 2, and may not be litigated in proceedings before the Board. Thus, an organization is precluded from showing operative facts which would take it out of § 3(3): viz., that there is no world Communist movement, or that, if there is, it is not controlled by a foreign government, or that it does not have the objectives attributed to it by § 2. The second argument is that the Board was in effect foreclosed from finding that the Party was not a Communist-action organization by the declarations, in § 2(9), (12), and (15), that there are in the United States individuals who knowingly and willfully participate in the world Communist movement, that there is a Communist network in the United States, and that the 'Communist movement in the United States is an organization * * *.' Given these 'facts,' it is asserted, nothing is left to the Board but to supply the name of the organization-a name which, the Party contends, is obvious. Further, it is pointed out, Congress in 1954, prior to the Board's final determination in this proceeding, enacted the Communist Control Act, 68 Stat. 775, 50 U.S.C. § 841 et seq., 50 U.S.C.A. § 841 et al., which declares in its second section:
153
'The Congress hereby finds and declares that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States. * * * (T)he policies and programs of the Communist Party are secretly prescribed for it by the foreign leaders of the world Communist movement. * * * (I)ts role as the agency of a hostile foreign power renders its existence a clear present and continuing danger to the security of the United States. * * *'
154
The Board could not, therefore, the Party argues, find that the Communist Party was not a Communist-action organization without contradicting Congress.
155
First: We have held, supra, that the congressional findings that there exists a world Communist movement, that it is directed by the Communist dictatorship of a foreign country, and that it has certain designated objectives, inter alia, the establishment of a Communist totalitarian dictatorship throughout the world through the medium of a world-wide Communist organization, § 2(1), (4), are not open to re-examination by the Board. We find that nothing in this violates due process. Under § 3(3) of the Act, a organization may not be found to be a Communist-action organization unless it is shown to be, first, 'substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 * * *.' The only operative function of § 2 in this respect is to designate what Congress meant by 'world Communist movement,' 'the foreign government,' etc. The characteristics of the movement and the source of its control are not to be established by the Attorney General in proceedings before the Board, nor may they be disproved. But this is because they are merely defining terms whose truth, as such, is irrelevant to the issues in such proceedings. They are referents which identity 'the foreign government' to which § 3(3) adverts. The Board, construing the statute, concluded that that foreign government was the Soviet Union. We affirm that construction. The statute, then, defines a Communist-action organization in terms of substantial direction, domination, or control by the Soviet Union. The Government offered evidence to show that the Soviet Union substantially directed, dominated, or controlled the Communist Party. The Party had an opportunity to rebut this showing, and it attempted to do so. The Board found that the Government's showing was persuasive; it issued a 240-page report so concluding; and the Court of Appeals affirmed. None of the operative facts were 'predetermined,' except in the sense in which any statute, as construed, designates the nature of the facts pertinent to issues which may be litigated under it. If, in future years, in a future world situation, the Soviet Union is no longer the foreign country to which § 2(1) and (4), fairly read in their context, refer-so that substantial domination by the Soviet Union would not bring an organization within the terms of § 3(3)-that, too, will be a matter of statutory construction which no 'findings' in the statute foreclose. The Board or a reviewing court will be able to say that the 'world Communist movement,' as Congress meant the term in 1950 (and whether or not there really existed, in 1950, a movement having all the characteristics described in § 2), no longer exists, or that Country X or Y, not the Soviet Union, now directs it. A similar process of adjudication is required under § 3(3)(a)(ii), the 'objectives' component of the definition of a Communist-action organization. It provides that, in order to be found a Communist-action organization, an organization must be shown to operate 'primarily to advance the objectives of such world Communist movement as referred to in section 2 * * *.' What those objectives are is made clear by the terms of § 2 itself. They are there described in detail. Whether they are in fact the objectives of some 'world Communist movement' which in fact exists may not be litigated, because the question is irrelevant. Whether the particular organization against whom the Attorney General files a petition for a registration order operates primarily to advance those objectives is the pertinent issue under the statute, and this issue may be litigated. That is all that due process requires.
156
The decisions cited by the Party, Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; McFarland v. American Sugar Ref. Co., 241 U.S. 79, 36 S.Ct. 498, 60 L.Ed. 899; Manley v. State of Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575; Western & Atlantic R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884; and see Bailey v. State of Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191, have no application here. These cases involved statutes which, purporting to attach legal consequences to one set of facts, created a rebuttable presumption of the existence of that set of facts which arose upon proof of other facts having, this Court found, no rational relation to the facts upon which the statutory consequences turned. The Subversity Activities Control Act, however, does not define a Communist-c tion organization as one which operates primarily to advance whatever objectives are actually held by the world Communist movement, leaving these objectives as facts to be proved. It finds that the particular objectives set out in § 2 are those of the world Communist movement and requires the registration of certain foreign-dominated organizations which operate primarily to advance those objectives. One, and only one, set of facts is in issue under § 3(3)(a)(ii): whether a particular organization does or does not operate primarily to advance those objectives; and, as to this, the legislation 'predetermines' nothing.
157
Second: We do not find that the congressional assertions in § 2(9), (12) and (15), that there exist in the United States individuals dedicated to communism, a 'Communist network,' a 'Communist movement,' and a Communist 'organization,' deprive the Party of the fair hearing which due process of law requires. Fairly read, these findings neither compel nor suggest the outcome in any particular litigations before the Board. They do not create the impression that there is a single Communist-action organization in the United States, still less that the Communist Party is 'it.' Nor can we hold that the findings of § 2 of the Communist Control Act of 1954 unconstitutionally prejudice the Party. It is not suggested that these were enacted with a purpose to influence the then-pending proceedings in the present case. Rather, they are a portion of legislation deemed necessary by Congress pursuant to its continuing duty to protect the national welfare. Nowhere in the extensive modified reports of the Board nor in the opinions of the Court of Appeals are the 1954 legislative findings considered. While we must, of course, assume that the Board was aware of them, we cannot say that their very annunciation by Congress-in the absence of any showing that the Board took them into account-foreclosed or impaired a fair administrative determination.
158
The other constitutional questions raised by the Party have been carefully considered, but do not call for detailed discussion. And we must decline, or course, or enter into discussion of the wisdom of this legislation. The Constitution does not prohibit the requirement that the Communist Party register with the Attorney General as a Communist action organization pursuant to § 7.
159
The judgment of the Court of Appeals is affirmed.
160
Affirmed.
161
Mr. Chief Justice WARREN, dissenting.
162
When this case was here in 1956, the Court refused to pass upon the constitutional issues raised by the parties, and instead remanded to the Board because of the possibility that the record was tainted by perjured testimony. At that time the Court said: 'This non-constitutional issue must be met at the outset, because the case must be decided on a non-constitutional issue, if the record calls for it, without reaching constitutional problems.' Communist Party of United States v. Subversive Activities Control Board, 351 U.S. 115, 122, 76 S.Ct. 663, 667, 100 L.Ed. 1003. The Court also noted that a remand was required because the 'fastidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted.' Id., 351 U.S. at page 124, 76 S.Ct. at page 668. These statements, applicable in 1956, are even more applicable today, for, in my opinion, the record in this case presents four serious errors of a non-constitutional nature, the proper resolution of which would not only avoid unnecessary constitutional adjudications, but would also be consistent with the requirements of a fair administration of justice.1 To be sure, I, like most of my Brethren, have views on the constitutional questions which are raised by this case. I also recognize that a decision as to these constitutional questions would probably put an end to this already protracted litigation. However, I do not believe that sr ongly felt convictions on constitutional questions or a desire to shorten the course of this litigation justifies the Court in resolving any of the constitutional questions presented so long as the record makes manifest, as I think it does, the existence of non-constitutional questions upon which this phase of the proceedings can and should be adjudicated. After persuasively expounding the reasons which underlie this Court's steadfast reluctance to decide constitutional questions prematurely, 367 U.S. 71-81, 81 S.Ct. 1397-1402, the Court concludes that the resolution of some of the constitutional issues raised by the parties should be left for another day. However, in a surprising turnabout, the Court then proceeds to decide other constitutional questions, and it reaches these questions only by first brushing aside, on the basis of a procedural technicality or a strained analysis, many important non-constitutional issues. I do not think that the Court's action can be justified.
I.
163
One of the Government's leading witnesses at the initial hearing before the Board was Benjamin Gitlow. Prior to his expulsion from the Communist Party in 1929, Gitlow had been a high official in the Party. His testimony before the Board covered over 1,400 pages in the record, and the Board relied heavily upon his testimony in finding that the Communist International controlled petitioner, subsidized it, and supervised it through foreign representatives in this country. In addition, the Board relied upon Gitlow's testimony to corroborate the testimony of government witness Joseph Kornfeder, whose demeanor led the Board 'to examine his testimony with * * * caution.' In 1940, Gitlow turned over to the FBI a large quantity of official documents relating to the Party and its past history. He also prepared and gave to the FBI memoranda which explained and interpreted the documents. During his direct examination at the original hearing before the Board, Gitlow identified many of the original documents and explained their contents and significance. On cross-examination, the petitioner, obviously hoping to impeach Gitlow's damaging testimony, moved for the production of the explanatory memoranda which Gitlow had prepared in 1940. The petitioner's motion was denied by the Board. Although in its first petition in the Court of Appeals to review the order of the Board, the petitioner assigned the Board's denial of the motion for production as error, the court failed to decide the question, presumably because the petitioner had not pressed the point either in its brief or during oral argument. Communist Party of United States v. Subversive Activities Control Board, 102 U.S.App.D.C. 395, 403, 254 F.2d 314, 322. Nor was the issue raised in the petition for certiorari filed in this Court in 1955. However, after this Court remanded the case in 1956, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003, the petitioner again moved the Board to order production of the memoranda. The Board denied the motion, and, on review, the Court of Appeals held that the Board's ruling could not be corrected by a petition to review the Board's order. Relying on Consolidated Edison Co. of New York v. Labor Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126, the court said that the petitioner's failure to make a motion in the Court of Appeals for leave to adduce additional evidence under § 14(a) of the Act2 at the time the Board initially refused to order r oduction of the memoranda constituted a waiver of the objection. After a second remand to the Board by the Court of Appeals, the Party did seek to have the memoranda produced pursuant to § 14(a) of the Act. However, the Court of Appeals denied the motion, later explaining that the petitioner's procedural misstep could not be rectified nunc pro tunc. Communist Party of United States v. Subversive Activities Control Board, 107 U.S.App.D.C. 279. 282, 277 F.2d 78, 81.
164
Today, the Court refuses to reach this important evidentiary question, and it does so by adopting an argument that was unanimously rejected by the Court of Appeals. 102 U.S.App.D.C. at pages 402-403, 254 F.2d at pages 321-322. The Court holds that petitioner may not now challenge the Board's refusal to order the production of the Gitlow memoranda because it failed to raise the question in its 1955 petition for certiorari. With due respect, I must dissent from this holding, which, to the extent that it transforms Rule 23, subd. 1(c) of our Rules of Procedure, 28 U.S.C.A.3 into an immutable rule of abandonment, is both unorthodox and unwise. The Court's position will not bear analysis.
165
It is undoubtedly true that piecemeal appeals should be avoided and that claims not preserved throughout a litigation will not generally be entertained at some subsequent, and perhaps terminal, stage of the proceedings. However, this general rule is not an absolute dogma, and has on numerous occasions yielded to subordinating policy considerations. In fact, the United States Reports are replete with instances wherein the Court decided issues which were never even mentioned in the petition for certiorari. See, e.g., Boynton v. Commonwealth of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206; Mackey v. Mendoza-Martinez, 362 U.S. 384, 80 S.Ct. 875, 4 L.Ed.2d 812; Neese v. Southern R. Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60; Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128; Marshall v. Pletz, 317 U.S. 383, 63 S.Ct. 284, 87 L.Ed. 348; Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. One of the policy considerations which has always led the Court to forsake the general rules of waiver is the admonition that 'we ought not to pass on questions of constitutionality * * * unless such adjudication is unavoidable.' Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101. Thus, in Neese v. Southern R. Co., supra, the Court refused to pass upon the constitutional question which had been tendered by the petition for certiorari, and instead rested its decision upon the adjudication of an evidentiary question which had not been raised in the petition for certiorari. In so doing, the Court said: 'We need not considr respondent's contention that only the jurisdictional question was presented by the petition for certiorari, for in reversing on the above ground we follow the traditional practice of this Court of refusing to decide constitutional questions when the record discloses other grounds of decision, whether or not they have been properly raised before us by the parties.' Id., 350 U.S. at page 78, 76 S.Ct. at page 132. (Emphasis added.) And in Alma Motor Co. v. Timken-Detroit Axle Co., supra, the Court avoided a difficult constitutional adjudication by resting its decision on a non-constitutional ground which, as the Court noted, 'was neither considered nor decided by the court below, nor argued here.' Id., 329 U.S. at page 132, 67 S.Ct. at page 232. Only last Term in Mackey v. Mendoza-Martinez, supra, the Court, in an effort to avoid an unnecessary constitutional decision, remanded the case to the District Court for consideration by that court of a non-constitutional issue which had not been raised by either party in any court, but which this Court, sua sponte, had discovered lurking in the record. This action was taken even though the case had had a lengthy history and had been before this Court on a previous occasion. See also Boynton v. Commonwealth of Virginia, supra. Thus, if the Court, in order to avoid the adjudication of constitutional questions, has in the past rested its decisions on issues not raised by a petition for certiorari, there certainly should be no objection to avoiding a difficult constitutional decision in this case by resolving a non-constitutional issue which was decided by the Court of Appeals, explicitly raised in the instant petition for certiorari, and thoroughly briefed by counsel for both sides.4
166
Since the petitioner should not be deemed to have waived the Gitlow question if a resolution of that question will make it unnecessary for the Court to reach the constitutional issues presented by this case, the next question which must be considered is whether a determination of the Gitlow question, on the merits, would require a reversal of the judgment below. I think it would. As indicated, the Court of Appeals, relying on the Consolidated Edison case, based its decision on the ground that the petitioner waived its objection by the having made a timely motion for leave to adduce additional evidence pursuant to § 14(a) of the Act. However, the lower court's reliance upon Consolidated Edison is misplaced. In that case, an examiner for the Labor Board refused to permit one of the parties to a proceeding to offer the testimony of two witnesses who had not been scheduled to appear. Instead of invoking § 10(e) and (f) of the National Labor Relations Act, 29 U.S.C.A. § 160(e, f) (which is very similar to § 14(a) of the Subversive Activities Control Act) and seeking leave of the Court of Appeals to adduce the testimony of the two witnesses, the offering party objected to the examiner's action in a petition to have the Board's final order set aside. The Court of Appeals rejected the claim. This Court recognized that the examiner's action was arbitrary, but, nevertheless, t held that the party's sole remedy in such a situation was to make a motion for leave to adduce the additional testimony of the proffered witnesses, and that by having failed to pursue that remedy, the party waived its objection.
167
The wisdom of the Court's holding in Consolidated Edison, insofar as the waiver question is concerned, is certainly subject to criticism. Not only did not decision permit a clearly arbitrary ruling of an examiner to stand uncorrected, but it also established a cumbersome procedure whereby resort to the Court of Appeals was required every time the Board excluded evidence which the offering party thought should have been admitted. It is not surprising, therefore, that the Courts of Appeals have consistently sought ways to avoid the impact of this Court's decision in Consolidated Edison. Thus, one Court of Appeals adopted the fiction of treating the petition for review as including, sub silentio, an application by the party for leave to adduce additional evidence. Mississippi Valley Structural Steel Co. v. N.L.R.B., 8 Cir., 145 F.2d 664, 667. On another occasions, the same court limited the Consolidated Edison holding 'to evidence going to the merits of the charge and not to the question of the regularity or fairness of the hearing as conducted by the Board.' Cupples Company Manufacturers v. N.L.R.B., 8 Cir., 103 F.2d 953, 956. In fact, even the Court of Appeals whose judgment we are now reviewing applied the Consolidated Edison rule with great reluctance.5 However, it is not necessary to re-evaluate the holding of Consolidated Edison, for, in my opinion, that holding is not applicable to the type of situation presented by this case. The statute construed in Consolidated Edison, like § 14(a) of this Act, deals only with a situation wherein a party to a proceeding wishes to introduce additional evidence which he has acquired independently and which will bolster his own case. The statute, by its terms, clearly does not apply to a situation in which a party requests the production of documents for the sole purpose of impeaching his opponent's witnesses. The party making such a request is not attempting 'to adduce additional evidence'; he is merely seeking to use documents in the possession of his adversary to impeach testimony which has already been adduced by his adversary. It is thus interesting to note that of all the cases which I have found involving an application of the Consolidated Edison principle, not one has dealt with the production of documents for purposes of impeachment.6 In fact, the most recent decision which involved such a situation properly ignored Consolidated Edison and held, on a petition to enforce the Labor Board's order, that the Board's failure to require the production of a possibly impeaching document required a remand to the Board. This action was taken even though the complaining party had not made a motion in the Court of Appeals for leave to adduce additional evidence. N.L.R.B. v. Adhesive Products Corp., 2 Cir., 258 F.2d 403.7
168
Since the Court of Appeals erred in resting its decision on Consolidated Edison, in next becomes necessary to consider the Government's contention that, even if the Board should have ordered the production of the memoranda, its failure to do so was merely harmless error. In my judgment, the error committed by the Board was anything but harmless. There can be little doubt that the Board should have ordered the production of the Gitlow memoranda. Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103; 18 U.S.C. § 3500, 18 U.S.C.A. § 3500. It is certainly possible that the petitioner, armed with these memoranda, may have been able to impeach significantly the testimony of Gitlow, who, as has already been indicated, was a key witness for the Government, and whose expulsion from the Party in 1929 undoubtedly made him hostile toward the petitioner. It would be contrary to our traditional scrupulous protection of the right to have potentially impeaching documents produced for the Court to say that the Board's failure to order the production of this important witness' prior memoranda was merely harmless error. See Jencks v. United States, supra; Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428. Accordingly, since the Court of Appeals committed reversible error in refusing to remand the case for the production of the Gitlow memoranda, I think the Court should abandon its reliance upon an unorthodox procedural technicality, remand the case to the Board for the production of the memoranda and the further cross-examination of Gitlow, and thereby, consistently with its own admonition, avoid the premature adjudication of complex and difficult constitutional issues.
II.
169
Another of the Government's major witnesses at the hearing before the Board was Louis Budenz. As the Court's opinion indicates, Budenz' testimony filled some 700 pages in the record and was used by the Board to support many of its findings, including the crucial finding that petitioner received financial aid from the Soviet Union after petitioner's disaffiliation from the Communist International. During his direct examination, Budenz made repeated references to the so-called Starobin letter and to the Childs-Weiner conversation. Budenz admitted that he had given reports to the FBI concerning these matters, but, on the Government's objection, the Board erroneously denied the petitioner's motion for the production of all such prior statements. After this Court remanded the case in 1956, the petitioner renewed its motion. On the Government's objection, the motion was again denied by the Board. The Court of Appeals affirmed the Board's action on the ground that the FBI seemingly did not have in its possession any statements made by Budenz concerning the Starobin and Weiner matters.8 However, in response to a petition for rehearing filed by the petitioner in the Court of Appeals, the Government disclosed for the first time that the FBI did have in its possession disc recordings of a five-day interview with Budenz in 1945, and that these discs contained statements pertinent to the Starobin letter and the Childs-Weiner conversation. Accori ngly, the Court of Appeals ordered the Government to produce all statements made by Budenz relating to the matters in question. During the Board proceedings that followed, statements made by Budenz relating to the Starobin letter and the Weiner conversation were excerpted from the recorded interview and the FBI memoranda of later interviews and these extracts were furnished to the petitioner. Based on the apparent inconsistency between the statements produced and the testimony given by Budenz before the Board, the petitioner moved that Budenz be recalled for cross-examination in the light of the produced documents. As it turned out, however, Budenz was severely ill, and, as stipulated by both parties, was unavailable for further examination. The petitioner then moved to have all of Budenz' testimony stricken on the basis of the inconsistencies referred, to, and on the further ground that Budenz' unavailability for cross-examination made it impossible for the petitioner to demonstrate exactly how unreliable all of Budenz' testimony had been. The Board agreed to strike Budenz' testimony on the Starobin and Weiner matters, but it refused to strike any other portion of his testimony. On appeal, the Court of Appeals affirmed the Board's rulings.
170
This Court now affirms the lower court's holding, saying that great weight must be given to those whose primary responsibility it is to consider the credibility or witnesses. However, the problem is not as simple as the Court would have us believe. A distinction must be drawn between those situations in which the unavailability of a witness is due to the fault of neither party, and those situations in which the witness' unavailability is directly attributable to the conduct of one of the parties. The rule to be applied in each of these cases has been succinctly stated by Professor Wigmore:
171
'Where the witness' death or lasting illness would not have intervened to prevent cross-examination but for the voluntary act of the witness himself or the party offering him-as, by a postponement or other interruption brought about immediately after the direct examination, it seems clear that the direct testimony must be struck out. Upon the same principle, the same result should follow where the illnes is but temporary and the offering party might have recalled the witness for cross-examination before the end of the trial.
172
'But, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems harsh measure to strike out all that has been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it to the trial judge to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a material loss.' Wigmore, Evidence (3d ed.), § 1390.
173
Thus, as Professor Wigmore indicates, if neither the petitioner nor the respondent had been responsible for Budenz' unavailability, then the Court would be correct in saying that the Board must be given wide latitude in deciding whether to strike Budenz' testimony, and that the Board will be reversed only if it has abused its discretion. However, if Budenz's unavailability was caused by the Government's conduct, then, as Professor Wigmore states, 'it seems clear that the direct testimony must be struck out.'
174
The record of this case convincingly demonstrates that the Government was directly responsible for creating the situation in which the petitioner found itself in 1958, when it finally obtained Budenz' prior statements but could make no use of them. Not only did the Government, by its objections to the petitioner's original motions for production, prompt the Board to refuse production, but it also prevented the Court of Appeals from rectifying the Board's error by representing to the Court that Budenz had made no statements to the FBI concerning the Starobin and Weiner matters. Then, not until it was too late for Budenz to be called for further cross-examination, was the Court of Appeals apprised of the existence of Budenz' prior statements. I do not mean to imply that the Government deliberately withheld this vital information beyond the time that it could have aided the pettioner. But there can be no doubt that the Government's delay in disclosing the existence of Budenz' prior statements made it impossible for the petitioner to make effective use of those statements. Since the Government's voluntary acts caused the curtailment of Budenz' cross-examination, I think the Court of Appeals should have granted the relief which is normal in this type of situation by ordering the Board to strike all of Budenz' testimony.
175
Nor can the lower court's error be dismissed as harmless. Reference has already been made to the importance of Budenz' testimony to the Government's case. Moreover, as the Court's opinion demonstrates, and as the Court of Appeals admitted, there were marked discrepancies between Budenz' prior statements and his testimony before the Board. Had the petitioner been given Budenz' prior statements, it might have pursued a course of cross-examination which would have thoroughly discredited Budenz and destroyed the Board's apparent faith in his reliability.9 However, the petitioner was never able to conduct such an examination, and the record is therefore clouded by the not unlikely possibility that much of Budenz' testimony was unreliable. This being the case, regard for the elemental rules of fair procedure requires that Budenz' testimony be stricken from the record. Cf. Communist Party of United States v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003; Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1.
III.
176
I think the Court of Appeals also erred in its interpretation and application of § 3(3), one of the most crucial provisions of the Act. That section defines a 'Communist-action organization' as one (1) which is directed or dominated 'by the foreign government or foreign organization controlling the world Communist movement,' and (2) which 'operates primarily to advance the objectives of such world Communist movement as referred to in section 2 of this title.' 64 Stat. 989. Unfortunately, the statute does not, in terms, define the objectives of the world Communist movement which the alleged Communist-action organization must be found to advance. However, to set the framework for its argument, the petitioner suggested that the objectives of the world Communist movement, as contemplated by the Act, should be defined as: (1) the overthrow of all existing capitalist governments by any means necessary, including force and violence and (2) the establishment of a Communist totalitarian dictatorship, which (3) will be subservient to the Soviet Union. The Court of Appeals tentatively accepted the petitioner's definition of the objectives, and concluded that the Board's findings demonstrate that the Party operates to advance all of the suggested objectives. With regard to the first of the three objectives, the court relied upon the Board's finding that the Party 'advocates the overthrow of the Government of the United States by force and violence if necessary.' (Emphasis added.)
177
The petitioner contends that, in the light of our decisions in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; and Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, the objectives component of § 3(3) should be construed in such a way that an organization could not be deemed to be advancing the first of the three cited objectives unless it engages in advocacy directed at prompting forceful overthrow of the Government, as distinguished from advocacy as an abstract doctrine; that the Board did not find that the Party engaged in illegal advocacy, but instead found that the petitioner merely engaged in the advocacy of force 'if necessary,' which is tantamount to the advocacy of forceful overthrow as an abstract doctrine; and that the absence of a finding of unlawful advocacy on the part of the petitioner renders the Board's order unsupportable.
178
In my judgment, the petitioner's argument is eminently correct. In Yates v. United States, supra, the Court made it clear that a distinction had to be drawn 'between advocacy of abstract doctrine and advocacy directed at promoting unlawful action.' Id., 354 U.S. at page 318, 77 S.Ct. at page 1076. It then went on to hold that, while the latter type of advocacy could be prohibited consistently with the dictates of the First Amendment, an attempt to prohibit the former type of advocacy would raise grave constitutional problems. The Court therefore concluded that Congress, well aware of this distinction and of the constitutional problems involved, intended the Smith Act to apply only to advocacy which was aimed at inciting to action. See also Dennis v. United States, supra. There is no reason to assume that when Congress adopted the Subversive Activities Control Act it was any less aware of the constitutional pitfalls involved in attempting to proscribe advocacy as an abstract doctrine than it was when it passed the Smith Act, for, as the Court said in Yates, in construing a congressional enactment, 'we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked.' Id., 354 U.S. at page 319, 77 S.Ct. at page 1077. Therefore, since the construction urged by the petitioner will make the statute more compatible with this Court's prior decisions defining the area of prohibition permissible under the First Amendment, it should be adopted, and the Court should hold that the Board cannot require a group to register as a Communist-action organization unless it first finds that the organization is engaged in advocacy aimed at inciting action.10 Clearly, the Board made no such finding in this case. The Board merely found that the petitioner has engaged in advocating the use of force 'if necessary.' However, this is not the sort of advocacy which incites to action. At most, it is no more than the formulation of an abstract doctrine, which, as the Court indicated in Yates, 'is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis.' Id., 354 U.S. at pages 321-322, 77 S.Ct. at page 1078.
179
The Court brushes aside the petitioner's argument by saying that, because this statute is 'regulatory' and not 'prohibitory,' the Yates and Dennis cases are inapplicable. However, it blinks reality to say that this statute is not prohibitory. There can be little doubt that the registration provisions of the statute and the harsh sanctions which are automatically imposed after an order to register has been issued make this Act as prohibitory as any criminal statute. Therefore, for the reasons which I have stated, I think the Board's order ought to be vacated and the case remanded so that the Board can determine whether the evidence supports a finding that the petitioner is engaging in advocacy aimed at inciting the forceful overthrow of the Government.
IV.
180
Finally, I think the Court of Appeals erred in sustaining an order of the Board which was based, in part, on a finding which the court admitted lacked evidentiary support. Section 13(e) of the Act lists eight criteria which the Board should consider in determining whether a group is a Communist-action organization. The seventh of these criteria is the extent to which 'for the purpose of concealing foreign direction, domination, or control, or of expediting or promoting its objectives,' 64 Stat. 999, an organization engages in certain secret practices or otherwise operates on a secret basis. In its original Report, the Board concluded that the Party engaged in secret practices in order to achieve both of the purposes recited in the Act. The Court of Appeals, in its first opinion, held that the finding of secret practices was proper, but that the Government's evidence failed to demonstrate the purposes for which these practices were pursued. While recognizing this deficiency in the Government's evidence, the Court nevertheless affirmed the Board's order. The two Modified Reports, issued by the Board after the first and second remands, eliminated the original finding that one of the purposes of the secret practices was the concealment of foreign control. However, though no additional evidence was taken regarding secret practices, and even though the Court of Appeals had already expressed its view that the Board's purpose findings were unsupported by the evidence, the two Modified Reports reiterated the finding that the secret practices were engaged in to promote the objectives of the Communist Party. In its third opinion, the Court of Appeals adhered to its ruling that the Board's finding was unsupported by the evidence, but it nevertheless affirmed the order, holding that the finding was merely a subsidiary one and that the whole record supported the Board's conclusion that the petitioner met the definition of a Communist-action organization contained in § 3(3).
181
The Court now adopts the lower court's reasoning, and holds that since the unsupported finding was merely 'subsidiary,' it is not necessary to remand the case to ascertain whether the Board would reach the same ultimate coc lusion in the absence of the unsupported finding. I submit that the Court's action does not square either with the facts, as they appear in the record, or with the prior decisions of this Court. It is unrealistic to characterize the Board's secrecy finding as insignificant and subsidiary. It directly relates to one of the eight enumerated criteria listed in § 13(e). The Board devoted 19 pages to it in the Modified Report. It is also the only one of the § 13(e) standards concerning which there was any substantial amount of evidence of post-Act conduct on the part of the Party.11 In view of these circumstances, and in view of the fact that the Board found it necessary to reassert the finding, even though it knew that the Court of Appeals considered the finding unsupported by the evidence, how can it be said that the finding is unimportant? Surely, if the finding is as unimportant to the Board's conclusion as the Court of Appeals and this Court seem to think it is, the Board would have abandoned the finding altogether rather than retain it and risk another remand either by the Court of Appeals or by this Court. These factors would not seem to indicate that the finding was trivial, but, on the contrary, that it was crucial to the Board's ultimate conclusion. This being the case, it will not do for the Court of Appeals or for this Court to conclude that the Board would have reached the same conclusion without relying upon the unsupported finding. Congress has placed the responsibility for making that determination in the Board and not in the courts. As this Court said in Securities & Exchange Comm. v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626, 'If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.' An agency's 'action must be measured by what (it) did, not by what it might have done.' Id., 318 U.S. at pages 93-94, 63 S.Ct. at page 462. See also N.L.R.B. v. Virginia Elec. & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348. Therefore, because the Board's order is clouded by the fact that it rests upon a finding which is admittedly unsupported by the evidence, I think the Court should strike the secrecy finding and remand the case to the Board for reconsideration.
V.
182
In my view, the Court today strays from the well-trod path of our prior decisions by reaching out to decide constitutional issues prematurely. If the Court would remand on any one of the four errors which I have discussed, and I think each warrants a remand, the resolution of the difficult constitutional issues presented by this case would certainly be postponed, and perhaps made totally unnecessary. For, if further cross-examination of Gitlow based on the memoranda discredited his testimony, or if all of Budenz' testimony were stricken, or if the Board were required to find that the petitioner actually engaged in advocacy aimed at inciting action, or if the secrecy i nding were stricken, the Government's case might be so weakened that it would be impossible for the Board to conclude, on the basis of the present record, that the petitioner is a Communist-action organization, as that term is used in the statutes. Moreover, a remand on the basis of these non-constitutional errors is the only disposition that would be consistent with the 'fastidious regard for the honor of the administration of justice' which the Court found so compelling in 1956.12 351 U.S. at page 124, 76 S.Ct. at page 668.
183
I think it is unwise for the Court to brush aside the non-constitutional errors disclosed by this record. However, since the Court insists upon doing so, I feel constrained to express my views on a dispositive constitutional issue which now confronts us by virtue of the Court's holding on the non-constitutional questions. I agree with MR. JUSTICE BRENNAN that, once having entered the area of constitutional adjudication, the Court must decide now whether the Act violates the Fifth Amendment privilege against self-incrimination by requiring the petitioner's officers to submit a registration statement on behalf of the petitioner. For the reasons set forth in his opinion, which I join, I believe that the Act does constitute a violation of the Fifth Amendment.
184
Mr. Justice BLACK, dissenting.
185
I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish. The first banning of an association because it advocates hated ideas-whether that association be called a political party or not-marks a fateful moment in the history of a free country. That moment seems to have arrived for this country.
186
The Subversive Activities Control Act of 19501 here involved defines 'Communist action' organizations and requires them to register with the Attorney General giving much information of every kind with regard to their property, income, activities and members. The Communist Party has been ordered to register under that Act by the Subversive Activities Control Board and has challenged the validity of that order on the ground, among others, that the Act is unconstitutional in that it amounts to a complete outlawry of the Communist Party. The contention is that this Act, considered as a whole and in its relation to existing laws which affect members of the Party, imposes such overhanging threats of disgrace, humiliation, fines, forfeitures and lengthy imprisonments upon regs tered organizations and their members, most of which burdens become effective automatically upon registration, that it will be impossible for the Party to continue to function if the registration order is upheld.
187
The Court's opinion is devoted chiefly to the task of explaining why it will not decide any of the substantial issues raised by this attack upon the constitutionality of the Act as it is actually written and will actually operate and why it must decide the case just as though none of these other burdens existed and we were dealing with an Act that required nothing more than the registration of an organization. I cannot agree to decide the case on any such hypothetical basis. If registration were the only issue in the case, I would agree at once that Congress has power to require every 'person' acting as an agent of a foreign principal to file registration statements comprehensively showing his agency activities as is required, for example, by the Foreign Agents Registration Act.2 That Act requires the registration of any 'person'-including an individual, partnership, association, corporation, organization, or other combination of individuals-'who acts or agrees to act, within the United States, as * * * a public-relations counsel, publicity agent, information-service employee, servant, agent, representative, or attorney for a foreign principal * * *.'3 Referring to that Act, I said in Viereck v. United States:
188
'Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false, the bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes from a disinterested source. Such legislation implements rather than detracts from the prized freedoms guaranteed by the First Amendment.'4
189
The Act before us now, however, unlike the Foreign Agents Registration Act involved in the Viereck case, is not based on the principle that 'our people, adequately informed, may be trusted to distinguish between the true and the false.' Instead, the present Act, like many other pieces of current legislation, is based on the precisely contrary principle that 'our people (even when) adequately informed, may (not) be trusted to distinguish between the true and the false.' In this regard, the principle upon which Congress acted in passing the Subversive Activities Control Act is identical to that upon which it acted in making membership in the Communist Party a crime in the Smith Act,5 a provision under which the Court has today sustained the conviction and imprisonment for six years of a person for being a mere member of the Communist Party with knowledge of its purposes.6 Statutes based upon such a principle, which really amounts to nothing more than the idea that the Government must act as a paternal guardian to protect American voters from hearing public policies discussed, do not implement 'the prized freedoms guaranteed by the First Amendment'-they are designed to and do directly detract from those freedoms.
190
The difference between the Subversive Activities Control Act and the Foreign Agents Registration Act is strikingly illustrated by the reasons Congress has itself given for the enactment of the statute now before us. When Viereck registered under the earlier and genuine registration statute, he was not thereby branded as being engaged in an evil, despicable undertaking bent on destroying this Nation. But that is precisely the effect of the present Act. Registration as a 'Commui st-action organization' under the Subversive Activities Control Act means, according to the express provisions of the Act, that the Party and its members who register are under the control of a foreign dictatorship,7 that they have devised 'clever and ruthless espionage and sabotage tactics,'8 and that they are a part of a 'world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration * * * terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world.'9 A registrant organization is declared, by a finding of Congress, to be 'an organization numbering thousands of adherents, rigidly and ruthlessly disciplined,' merely awaiting a chance to overthrow this Government by force.10 And the members of such an organization are declared by the Act to have 'repudiate(d) their allegiance to the United States, and in effect transfer(red) their allegiance to the foreign country in which is vested the direction and control of the world Communist movement.'11
191
This difference standing alone would be sufficient to establish the essential dissimilarity of the Subversive Activities Control Act from genuine registration statutes such as the Foreign Agents Registration Act. For the need of Government to provide means by which the people can obtain useful information-the basis of every genuine registration statute-can certainly be accomplished without resort to official legislative pronouncements as to the treasonable nature of those compelled to register. But this difference does not stand alone in the case of the Subversive Activities Control Act-indeed, there are so many other differences of so much greater magnitude that the recitals of the Act branding those who register under it pale almost into insignificance.
192
The plan of the Act is to make it impossible for an organization to continue to function once a registration order is issued against it. To this end, the Act first provides crushing penalties to insure complete compliance with the disclosure requirements of registration. Thus, if the Pat y or its members fail to register within the time required by the Act, or if they fail to make annual reports as required, or to keep records as required, each individual guilty of such failure can be punished by a fine of $10,000, by imprisonment for five years, or both, for each offense12-and each offense means 'each day of failure to register'13 or 'each listing of the name of address of any one individual'14 either by the organization or by an individual. Thus, for a delay of thirty days in filing required reports, a fine of $300,000 and imprisonment for 150 years could be imposed by a trial judge.
193
Having thus made it mandatory that Communist organizations and individual Communists make a full disclosure of their identities and activities, the Act then proceeds to heap burden after burden upon those so exposed. Certain tax deductions allowed to others are denied to a registered organization.15 Mail matter must be stamped before the organization sends it out to show that it was disseminated by a 'Communist action' organization,16 with all the treasonable connotations given that term by the recitals of 'fact' in the Act. Members of a registered organization cannot hold certain jobs with the Government, or any jobs with private businesses engaged in doing certain work for the Government.17 Members cannot use or attempt to use a passport and cannot even make application for a passport without being subject to a penalty of five years in the penitentiary.18 The Act thus makes it extremely difficult for a member of the Communist Party to live in this country and, at the same time, makes it a crime for him to try to get a passport to get out.
194
In addition to these burdens imposed directly by the Act itself, the registration requirement must also be considered in the context of the other laws now existing which affect the Communist Party. The Act requires that the information obtained upon registration be given wide publicity19 thus insuring that those identified as members of the Party will be subjected to all the civil disabilities,20 criminal prosecutions21 and public harassments22 that have become common in recent years. I agree with Mr. Justice DOUGLAS that this aspect of the Act is alone sufficient to establish its invalidity under the self-incrimination provision of the Fifth Amendment. But I think the interrelationship between the present Act and these other laws goes deeper than that, for I think that interrelationship establishes all but conclusively that the present Act cannot be upheld as a mere registration statute. The information elicited by the Act must be considered, not, as in the Viereck case, an aid to the exercise of individual judgment by the people, but rather a part of a pattern of suppression by the Government, for that is certainly the inevitable effect of any system that requires registration on the one hand and imposes pains and penalties upon those registering on the other.
195
All of these enormous burdens, which are necessarily imposed upon the Party and its members by the act of registration, are dismissed by the Court on the basis of an alleged conflict with the Court-created rule that constitutional questions should be avoided whenever possible. Thus, the Court engages in extended discussions as to whether the people involved will ever want to do the things the Act says they cannot do and whether they will ever object to doing the things the Act says they must do, suggesting, among other things, that the members of the Communist Party may never object to providing the evidence needed to send them to prison for violating the Smith Act; that they may never protest because they are forced to give up the tax deductions that other people receive; that they may be willing to stamp all the Party's mail as coming from an evil organization; that they may never want to hold the jobs from which the Act disqualifies them; and that they may never want to get a passport to get out of the country. On the basis of all these 'uncertainties' the Court seems to consider its hands tied because, it says, these are as yet only potential impairments of constitutional rights. In its view, there is no 'justiciable' issue at all between the United States and the Communist Party except the bare requirement of registration.
196
In the context of this case, I can find no justification for the Court's refusal to pass upon the serious constitutional questions raised. The Court of Appeals met its responsibility by deciding the questions. The Government has not asked that the Court refrain from giving a full decision on these important matters. Assuming that the Act is wholly valid aside from registration and that Congress does have power to outlaw groups advocating dangerous ideas, it seems to me unfair to Congress for this Court to refuse to decide whether its Act can be fully enforced. And assuming that the Act is not wholly valid because of some limitation upon that power, it seems to me that we should say so now. By refusing to do so, the Court in effect allows this serious question to be decided by default. For the Party can no more continue to function with all of these tremendous burdens of undetermined constitutional validity overhanging it and its members than it could if the burdens were considered and upheld. The only sense in which the Court has avoided a constitutional issue is by permitting the destruction of a group seeking to raise the issue of the constitutionality of its destruction.23
197
This whole Act, with its pains and penalties, embarks this country, for the first time, on the dangerous adventure of outlawing groups that preach doctrines nearly all Americans detest. When the practice of outlawing parties and various public groups begins, no one can say where it will end. In most countries such a practice once begun ends with a one-party government. There is something of tragic irony in the fact that this Act, expressly designed to protect this Nation from becoming a 'totalitarian dictatorship' with 'a single political party,' has adopted to achieve its laudable purpose the policy of outlawing a party-a policy indispensable to totalitarian dictatorships. I think we should meet and decide this whole question now in the administration of a sound judicial policy that carries out our responsibilities both to Congress and to the American people.
198
In my judgment, the Act here under consideration is unconstitutional on at least three grounds in addition to its direct conflict with the self-incrimination provisions of the Fifth Amendment. It is, in the first instance, a classical bill of attainder which our Constitution in two places prohibits, for it is a legislative Act that inflicts pains, penalties and punishments in a number of ways without a judicial trial.24 The legislative fact-findings as to Communist activities, which the Court-despite the constitutional command for trial of such facts by a court and jury-accepts as facts, supply practically all of the proof needed to bring the Communist Party within the proscriptions of the Act. The Act points unerringly to the members of that Party as guilty people who must be penalized as the Act provides. At the same time, these legislative fact-findings fall little short of being adequate in themselves to justify a finding of guilt against any person who can be identified, however faintly, by any informer, as ever having been a member of the Communist Party. Most of whatever is lacking in the legislative fact-findings is later supplied by administrative fact-findings of an agency which is not a court, which is not manned by independent judges, and which does not have to observe the constitutional right to trial by jury and other trial safeguards unequivocally commanded by the Bill of Rights. Yet, after this agency has made its findings and its conclusions, neither its findings of fact nor the findings of fact of the legislative body can subsequently be challenged in court by any individual who may later be brought up on a charge that he failed to register as required by the Act and the Board. The Act thus not only is a legislative bill of attainder but also violates due process by short-cutting practically all of the Bill of Rights, leaving no hope for anyone entangled in this legislative-administrative web except what has proved in this case to be one of the most truncated judicial reviews that the history of this Court can afford.25
199
I think also that this outlawry of the Communist Party and imprisonment of its members violate the First Amendment. The question under that Amendment is whether Congress has power to outlaw an association, group or party either on the ground ta t it advocates a policy of violent overthrow of the existing Government at some time in the distant future or on the ground that it is ideologically subservient to some foreign country. In my judgment, neither of these factors justifies an invasion of rights protected by the First Amendment. Talk about the desirability of revolution has a long and honorable history, not only in other parts of the world, but also in our own country. This kind of talk, like any other, can be used at the wrong time and for the wrong purpose. But, under our system of Government, the remedy for this danger must be the same remedy that is applied to the danger that comes from any other erroneous talk-education and contrary argument.26 If that remedy is not sufficient, the only meaning of free speech must be that the revolutionary ideas will be allowed to prevail.27
200
This conclusion is not affected by the fact that those advocating a policy of revolution are in sympathy with a foreign government. If there is one thing certain about the First Amendment it is that this Amendment was designed to guarantee the freest interchange of ideas about all public matters and that, of course, means the interchange of all ideas, however such ideas may be viewed in other countries and whatever change in the existing structure of government it may be hoped that these ideas will bring about. Now, when this country is trying to spread the high ideals of democracy all over the world-ideals that are revolutionary in many countries-seems to be a particularly inappropriate time to stifle First Amendment freedoms in this Country. The same arguments that are used to justify the outlawry of Communist ideas here could be used to justify an outlawry of the ideas of democracy in other countries.
201
The freedom to advocate ideas about public matters through associations of the nature of political parties and societies was contemplated and protected by the First Amendment. The existence of such groups is now, and for centuries has been, a necessary part of any effective promulgation of beliefs about governmental policies. And the destruction of such groups is now and always has been one of the first steps totalitarian governments take. Within recent months we have learned of such practices in other countries. Only a few weeks ago an executive edict outlawing all parties, groups and associations all the way down through Rotary Clubs was issued in a country where the government is largely in the hands of a single man. Indeed, our own ancestors were not unfamiliar with this practice. Men and women belonging to dissenting religious, political or social groups in England before the colonization of this country were sometimes imprisoned, mutilated, degraded by humiliating pillories, exiled and even killed for their views.
202
A typical example of the type of legislation under which this sort of persecution was carried on is provided by a statute enacted in 1593 to destroy dissenting religious sects and force all the people of England to become regular attendants at he established church.28 The basic premise upon which its commands rested was not at all unlike that upon which the Act here proceeds:
203
'For the better discovering and avoiding of such traiterous and most dangerous Conspiracies and Attempts, as are daily devised and practised against our most gracious Sovereign Lady the Queen's Majesty and the happy Estate of this common Weal, by sundry wicked and seditious Persons, who terming themselves Catholicks, and being indeed Spies and Intelligencers, not only for her Majesty's foreign Enemies, but also for rebellious and traiterous Subjects born within her Highness Realms and Dominions, and hiding their most detestable and devilish Purposes under a false Pretext of Religion and Conscience, do secretly wander and shift from Place to Place within this Realm, to corrupt and seduce her Majesty's Subjects, and to stir them to Sedition and Rebellion * * *.'
204
These attainted Catholics were not permitted to go 'above five Miles' from their homes. For violation of this command they could be sentenced to prison and have all their goods, lands and other possessions forfeited 'to the Queen's Majesty.' One has only to read this statute to see how thorough going government can be in making life miserable for groups whose beliefs have fallen into disfavor.
205
That statute also has peculiar relevance to the consideration of the Subversive Activities Control Act because it too used disclosure as a lever to secure effective enforcement of its provisions. Thus, one section of the statute provided:
206
'And be it further enacted and ordained by the Authority aforesaid, That if any Person which shall be suspected to be a Jesuit, Seminary or Massing Priest, being examined by any Person having lawful Authority in that Behalf to examine such Person which shall be so suspected, shall refuse to answer directly and truly whether he be a Jesuit, or a Seminary or Massing Priest, as is aforesaid, every such Person so refusing to answer shall, for his Disobedience and Contempt in that Behalf, be committed to Prison by such as shall examine him as is aforesaid, and thereupon shall remain and continue in Prison without Bail or Mainprise, until he shall make direct and true Answer to the said Questions whereupon he shall be so examined.' (Emphasis supplied.)
207
One cannot help but wonder whether this Court, were it called upon to consider the constitutionality of a provision of that kind in this country, would pass it off as involving nothing more than potential impairments of religious freedoms and a right to travel which the attainted persons might never want to exercise.
208
There were many other statutes of this kind passed in England before our Revolutionary War.29 By no means all of them were aimed at the Catholics. Indeed, during the times when the Catholics were themselves in power, almost identical repressive measures were adopted in an attempt to curb the rise of Protestantism.30 And the persecution of Puritans in England, dramatized by some of the most famous writers of the time, is a story that is, I hope, familiar to most Americans.31 It is a matter of history that not one of these laws achieved its purpose. many men died, suffered and were driven from their country. And, in a sense, it might be said that our own country profited from these laws because it was largely founded by refugees from English oppression. But England itself gained little if any profit from its policies of repression. The outlawed groups were not destroyed. Many people have thought that these repressive measures were more effective to bring about revolutions than to stop them. Be that as it may, it cannot be denied that the most tranquil period of English history, from an internal standpoint, has been the period since England abandoned these practices of trying to inculcate belief by oaths and force.
209
Even after the American Revolution, England continued to pass statutes outlawing groups and punishing their members. One that is of particular interest here because of the many similarities between it and the Act involved in this case was passed in 1799 under the title 'An Act for the more effectual Suppression of Societies established for Seditious and Treasonable Purposes; and for better preventing Treasonable and Seditious Practices.'32 The premise upon which this Act was passed was also similar to that used here-'a traitorous Conspiracy has long been carried on, in conjunction with the Persons from Time to Time exercising the Powers of Government in France, to overturn the Laws, Constitution, and Government, and every existing Establishment, Civil and Ecclesiastical, both in Great Britain and Ireland * * *.' The Act broadly provided for the suppression and prohibition 'as unlawful Combinations and Confederacies' of all such societies, 'particularly * * * Societies of United Englishmen, United Scotsmen, United Britons, United Irishmen, and The London Corresponding Society * * *.' This 1799 English Act, like the Subversive Activities Control Act here, comprehensively provided for fines, forfeitures, penalties and imprisonments. It went on to outlaw places where debates could take place or lectures be given or books be gathered and read unless, under very restrictive standards, licenses had been granted by Justices of the Peace. Great emphasis was laid upon the fact that unlicensed gatherings should be treated as nuisances and disorderly houses. Following the course that such repressive measures always must, and indeed precisely the course that is here being followed by our own Government with respect to the Communist Party,33 the English Act placed printing presses, type and everything else useful for publishing discussion of public matters under strict regulations.
210
The parliamentary debates underlying the enactment of this 1799 English statute indicate plainly the close parallel between it and the Act here under consideration. The chief fear of the English rulers that brought on the 1799 Act was that the people of England would be seduced away from their loyalty to their government if societies were left free to discuss public matters and if the common people were left free to read and hear arguments. William Pitt, the Younger, in offering the bill which provided the basis for the Act, expressed his fear that debating societies and other such manifestations of liberty of press and speech might call 'the attention of the lower orders of the people to objects of discussion of the most mischievous tendency, objects which are not calculatd for their understandings, and which are of all others the most liable to be attended with dreadful effects.'34 He thought these 'dreadful effects' could be averted, in large part, by making individual authors sign everything they wrote. But he then went on to urge that 'in order to make the measure effectual, and prevent the press from becoming an engine of corruption and innovation in the hands of factions who are ready to circulate cheap publications, adapted to inflame and pervert the public mind, it will be necessary to keep a general register, not only of the presses used by printers, but of those in the possession of private persons.'35 All of this, Mr. Pitt explained, was necessary in order to render 'more effectual' an Act passed at the previous session of Parliament entitled 'An Act to empower his majesty to secure and detain such persons as his majesty shall suspect are conspiring against his person and government.'36
211
The debates on the English statute also show the true nature of the 'revolutionary' principles advocated by the various societies named which were being used to justify their outlawry. These principles were chiefly parliamentary reform providing for annual sessions of Parliament, universal suffrage and fair parliamentary representation, and repeal of the right of the King to veto measures passed by Parliament.37 It is, of course, true that Congress has no power to outlaw political parties advocating such measures in this country. But I wonder how this Court could ever reach the question in view of its holding today. And if the Court is, as it holds, truly bound by legislative findings as to the nature of political parties and their involvement with foreign powers, how could it strike down the very statute I have just described? For that statute purported to establish, as a matter of fact, that the named societies were a part of a 'traitorous Conspiracy' acting 'in conjunction with the Persons from Time to Time exercising the Powers of Government in France.'
212
At the very time England was going through its era of terror about the 'Jacobins,' a heated political struggle involving many of the same issues was going on in this country between the two chief political parties. One of those parties, the Federalists, wanted to outlaw the party of Jefferson on the ground that they too were 'Jacobins' and therefore a threat to our security. The Jeffersonians quite naturally opposed such outlawry and in fact opposed any measure which would restrict the freedoms of speech, press, petition and assembly. The difference between the two parties was expressed by Jefferson in this way: 'Both of our political parties, at least the honest part of them, agree conscientiously in the same object, the public good * * *.' One fears most the ignorance of the people; the other, the selfishness of rulers independent of them. Which is right, time and experience will prove.'38 This conflict of ideals and policies was temporarily resolved in favor of the Federalists and the result was the infamous era of the Alien and Sedition Acts.39 These laws, passed over vigorous Jeffersonian opposition, declared that it was necessary in order to protect the security of the Nation to give the President the broadest of powers over aliens and to make substantial inroads upon the freedoms of speech, press and assembly.
213
The enforcement of these statutes, particularly the Sedition Act, constitutes one of the greatest blots on our country's record of freedom.40 Publishers were sent to jail for writing their own views and for publishing the views of others. The slightest criticism of Government or policies of government officials was enough to cause biasd federal prosecutors to put the machinery of Government to work to crush and imprison the critic. Rumors which filled the air pointed the finger of suspicion at good men and bad men alike, sometimes causing the social ostracism of people who loved their free country with a deathless devotion.41 Members of the Jeffersonian Party were picked out as special targets so that they could be illustrious examples of what could happen to people who failed to sing paeans of praise for current federal officials and their policies. Matthew Lyon, a Congressman of the Jeffersonian Party, was prosecuted, convicted and forced to serve a prison sentence in a disreputable jailhouse because of criticisms he made of governmental officials and their activities. This was a particularly egregious example of the repressive nature of the Sedition Act for Lyon's conviction could not possibly have been upheld under even the most niggardly interpretation of the First Amendment.42 Lyon was but one of many who had to go to jail, be fined, or otherwise be made to suffer for the expression of his public views. Carpenters, preachers, lawyers, and many others furnished grist for the prosecutor's biased political activities in the 'administration of justice.' Unfortunately, our federal courts did not emerge from this fever of hysteria with the kind of reputations that shed lustre on the business of judging. Although the Founders had provided for federal judges to be appointed for life, thus intending to give them the independence necessary for the higher responsibility they had, some federal judges, even including members of the highest courts, presided over grand juries and trials in a way that is said to be recalled even at this late date.43
214
All the governmental activities set out above designed to suppress the freedom of American citizens to think their own views and speak their own thoughts and read their own selections, and even more, occurred under the 1798 Sedition Act. And all these things happened despite the fact that the promoters of that legislation were unable to make it as strong as their philosophical and political brethren in England had made their Act for the complete suppression of all kinds of societies. But even this comparatively less repressive law and its enforcement were too much of an infringement upon personal liberty to stand the test of public opinion among the plain, sturdy pioneers of America. In the very next election following its enactment, Jefferson was elected President on a platform which contained, as its principal plank, a promise to abandon the Sedition Act and the policy of repression behind it.44 Members of Congress and the Senate were elected to help him carry out his pledge. The pledge was carried out, and in order to try to make amends to those who had suffered under this obnoxious law, Congress was busy for many years indemnifying those who had been prosecuted under its provisions and even their descendants.45 The superior judgment of the people over that of their legislators who passed the Act in the first place was graphically illustrated when Matthew Lyon, who had been sent to jail for refusing to refrain from criticizing Federalist officeholders, was triumphantly re-elected by the people of Vermont while still in jail.
215
I regret exceedingly regret, that I feel impelled to recount this history of the Federalist Sedition Act because, in all truth, it must be pointed out that this law-which has since been almost universally condemned as unconstitutional46-did not go as far in suppressing the First Amendment freedoms of Americans as do the Smith Act and the Subversive Activities Control Act. All the fervor and all the eloquence and all the emotionalism and all the prejudice and all the parades of horrors about letting the people hear arguments for themselves were not sufficient in 1798 to persuade the members of Congress to pass a law which would directly and unequivocally outlaw the party of Jefferson, at which the law was undoubtedly aimed.47 The same arguments were made then about the 'Jacobins,' meaning the Jeffersonians, with regard to their alleged subservience to France, that are made today about the Communists with regard to their subservience to Russia. Even the language of the charges that were hurled was substantially the same as that used in the charges made today. The Jacobins were 'trained, officered, regimented and formed to subordination, in a manner that our militia have never yet equalled'; and 'it is as certain as any future event can be, that they (the Jeffersonians) will take arms against the laws as soon as they dare * * *.'48
216
These charges echoed fears that were expressed time and time again during the congressional debate on the Alien and Sedition Acts. The very same fears are again being voiced today as a justification for curtailing the liberties of the people of America. Thus, § 2(15) of the Subversive Activities Control Act under consideration says that '(t)he Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined' only awaiting 'a moment when * * * overthrow of the Government of the United States by force and violence may seem possible of achievement * * *.'
217
This excuse for repression is, of course, not a distinctively American creation. It is the same excuse that was used for the 1799 English Act described above. Thus, Charles Abbot, a member of Parliament, urged as one of the justifications for outlawing the societies named in that Act: 'The malignancy of their character is distinguishable by the restless spirit which it infuses into the lowest orders of the people, encouraging them to take up arms, and teaching them that they have great and powerful partisans and leaders who are secretly prepared to seize the favorable moment for showing thm selves openly at their head, when they can hope to do so with impunity.'49
218
The truth is that this statutory outlawry of the Communist Party is not at all novel when considered in the perspective of history. Quite the contrary, it represents nothing more than the adoption by this country, in part at least, of one of the two conflicting views that have emerged from a long-standing and widespread dispute among political philosophers as to what kind of Government will best serve the welfare of the people. That view is that Governments should have almost unlimited powers. The other view is that governmental power should be very strictly limited. Both the Smith Act and the Subversive Activities Control Act are based upon the view that officials of the Government should have power to suppress and crush by force critics and criticisms of governmental officials and their policies. The contrary view, which Congress necessarily rejected in passing these laws, is that current public officials should never be granted power to use governmental force to keep people from hearing, speaking or publishing such criticisms of Government or from assembling together to petition their Government to make changes in governmental policies, however basic the majority may deem these policies to be.
219
It is my belief that our Constitution with its Bill of Rights was expressly intended to make our Government one of strictly limited powers. The Founders were intimately familiar with the restrictions upon liberty which inevitably flow from a Government of unlimited powers. By and large, they had found this experience a painful one. Many of them were descended from families that had left England and had come to this country in order to escape laws that could send them to jail or penalize them in various ways for criticizing laws and policies which they thought bore too heavily and unfairly upon them. Others had personally felt the brunt of such repressive measures. Only after they won the Revoluntionary War did these people have an opportunity to set up a Government to their liking. To that end they finally settled upon the Constitution, which very clearly adopted the policy of limiting the powers of the Federal Government. Even then the people of this country were not completely satisfied. They demanded more precise and unequivocal limitations upon the powers of Government and obtained the Bill of Rights, the central provisions of which were the First Amendment guarantees of complete religious and political freedom.50
220
In the very face of the provisions of the First Amendment, however, the Court today upholds laws which ignore the wisdom of the Founders' decision to set up a limited Government and adopt the policy of force to crush views about public matters entertained by a small minority in this country. This, to me, marks a major break in the wall designed by the First Amendment to keep this country free by leaving the people free to talk about any kind of change in basic governmental policies they desire to talk about. I see no possible way to escape the fateful consequences of a return to the era in which all governmental critics had to face the probability of being sent to jail except for this Court to abandon what I consider to be the dangerous constitutional doctrine of 'balancing' to which the Court is at present adhering. That doctrine is not a new one. In fact, history shows that it has been the excuse for practically every repressive meau re that Government has ever seen fit to adopt. Mr. Pitt proved, in 1799, that he was a master of the concept and language of 'balancing' in his speech urging the passage of laws to muzzle the press the England in order to prevent the disemination of the 'revolutionary' ideas that England should have parliamentary reform:
221
'We cannot too highly prize that sacred liberty (of the press) when we consider that it has been instrumental in bringing our constitution to that envied perfection which it possesses. Yet it must also be admitted that when abused, the most fatal consequences have ever resulted from it. It has been the great principle of the constitution that the liberty of the press should flourish, but it is also clear from the nature of the principle itself, and for the security of the press, that the author or publisher of every work should be amenable to the laws of his country.'51
222
And there certainly was no shortage of 'balancers' in our own Congress when the Alien and Sedition Acts of 1798 were passed.52
223
The 'balancing test' of First Amendment freedoms is said to justify laws aimed at the advocacy of overthrow of the Government 'as speedily as circumstances would permit.'53 Thus, the 'test' being used here is identical to the arguments used to justify the Alien and Sedition Acts of 1798 in this country and the 1799 Sedition Act in England. The unprecedented incorporation into our constitutional law of this time-worn justification for tyranny has been used to break down even the minimal protections54 of the First Amendment forged by Mr. Justice Holmes and Mr. Justice Brandeis which would bar prosecution for speech or writings in all cases except those in which the words used 'so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.'55
224
I realize that these laws are aimed only at the Communist Party. No one need console himself, however, that the policy of using governmental force to crush dissident groups upon which they are based can or will be stopped at that point. The weakening of constitutional safeguards in order to suppress one obnoxious group is a technique too easily available for the suppression of other obnoxious groups to expect its abandonment when the next generally hated group appears. Only eleven years ago, this Court upheld a governmental penalty directed at Communists on the ground that 'only a relative handful' would be affected by the penalty involved in that case.56 Today, it upholds statutes which I think totally outlaw that Party, claiming nonetheless that '(n)othing which we decide here remotely carries * * * (the) implication * * * (that) Congress may impose similar requirements upon any group which pursues unpopular political objectives or which expresses an unpopular political ideology.' I am very much afraid that we will see the day when the very implication which the Court now denies is found.
225
I am ready to admit that strong arguments can be made for saying that Governments in general should have power to suppress the freedoms of speech, press, petition and assembly. These arguments are particularly strong in countries where the existing Government does not represent the will of the people because history shows that people have a way of not being willing to bear oppressive grievances without protest. Such protests, when bottomed upon facts, lead almost inevitably to an irresistible popular demand for either a redress of those grievances or a change in the Government. It is plain that there are Governments in the world today that desperately need to suppress such protests for they probably could not survive a week or even a day if they were deprived of the power to use their informers to intimidate, their jails to imprison and their firing squads to shoot their critics. In countries of that kind, repressive measures like the Smith Act and the Subversive Activities Control Act are absolutely necessary to protect the ruling tyrants from the spread of information about their misdeeds. But in a democracy like ours, such laws are not only unnecessary but also constitute a baseless insult to the patriotism of our people.
226
I believe with the Framers of the First Amendment that the internal security of a nation like ours does not and cannot be made to depend upon the use of force by Government to make all the beliefs and opinions of the people fit into a common mold on any single subject. Such enforced conformity of thought would tend only to deprive our people of the bold spirit of adventure and progress which has brought this Nation to its present greatness. The creation of public opinion by groups, organizations, societies, clubs, and parties, has been and is a necessary part of our democratic society. Such groups, like the Sons of Liberty and the American Corresponding Societies, played a large part in creating sentiment in this country that led the people of the Colonies to want a nation of their own. The Father of the Constitution-James Madison-said, in speaking of the Sedition Act aimed at crushing the Jeffersonian Party, that had that law been in effect during the period before the Revolution, the United States might well have continued to be 'miserable colonies, groaning under a foreign yoke'57
227
In my judgment, this country's internal security can better be served by depending upon the affection of the people than by attempting to instill them with fear and dread of the power of Government. The Communist Party has never been more than a small group in this country. And its numbers had been dwindling even before the Government began its campaign to destroy the Party by force of law. This was because a vast majority of the American people were against the Party's policies and overwhelmingly rejected its candidates year after year. That is the true American way of securing this Nation against dangerous ideas. Of course that is not the way to protect the Nation against actions of violence and treason. The Founders drew a distinction in our Constitution which we would be wise to follow. They gave the Government the fullest power to prosecute overt actions in violation of valid laws but withheld any power to punish people for nothing more than advocacy of their views.
228
I am compelled to say in closing that I fear that all the arguments and urgings the Communists and their sympathizers can use in trying to convert Americans to an ideology wholly foreign to our habits and our instincts are far less dangerous to the security of this Nation than laws which embark us upon a policy of repression by the outlawry of minority parties because they advocate radical changes in the structure of Government. This widespread program for punishing ideas on the ground that they might impair the internal security of the Nation not only sadly fails to protect that security but also diverts our energies and thoughts from the many far more important problems that face us as a Nation in this troubled world.
229
I would reverse this case and leave the Communists free to advocate their beliefs in proletarian dictatorship publicly and openly among the people of this country with full confidence that the people will remain loyal to any democratic Government truly dedicated to freedom and justice-the kind of Government which some of us still think of as being 'the last best hope of earth.'
230
Mr. Justice DOUGLAS, dissenting.
I.
231
The Subversive Activities Control Board found, and the Court of Appeals sustained the finding, that petitioner, the Communist Party of the United States, is 'a disciplined organization' operating in this Nation 'under Soviet Union control' to install 'a Soviet style dictatorship in the United States.' Those findings are based, I think, on facts; and I would not disturb them.
232
The other objections made are not of the character of those which led us to reverse and remand for additional hearings five years ago. There we had a record tainted by perjury. Communist Party of United States v. Subversive Activities Control Board, 351 U.S. 115, 124-125, 76 S.Ct. 663, 667-668, 100 L.Ed. 1003. No one-no matter how venal-could suffer penalties under our regime of law where perjury tainted the record. The present errors that are urged are not of that character.
233
Had they appeared in a normal administrative hearing and been timely claimed, they might give us pause. If we had before us the question whether a particular organization was, to use the statutory words, a 'Communist-front organization' (64 Stat. 987, 989, 50 U.S.C. § 782(4), 50 U.S.C.A. § 782(4)) or a 'Communist-infiltrated organization' (68 Stat. 775, 777, 50 U.S.C. § 782(4A), 50 U.S.C.A. § 782(4A)) the errors urged might loom large. For then the decision might turn on intangibles to be closely appraised. The present problem, however, is in a somewhat different posture. We are in a field where Congress has found and declared that the Communist Party is 'in fact an instrumentality of a conspiracy to overthrow the Government of the United States,' that its 'policies and programs' are 'secretly prescribed for it by the foreign leaders of the world Communist movement,' that it is 'the agency of a hostile foreign power.' 68 Stat. 775. These congressioa l findings amount to no more than facts of which some Justices have already taken judicial notice. See, e.g., American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 427 et seq., 70 S.Ct. 674, 698, 94 L.Ed. 925 (opinion of Mr. Justice Jackson). This does not mean that anything goes and that the hearings are pro forma. It does suggest, however, that where, as here, the case does not turn on nice nuances which in closer contests might have to be carefully weighed, we should not prolong the administrative hearings which already have extended a decade. With this as a starting point, I agree with the Court that the Court of Appeals did not err in overruling the objections based on procedural errors.
234
May then the Communist Party, under control of a foreign power, be required to register?
235
The vices of registration may be not unlike those of licensing. Despite Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403, I think licensing is an impermissible form of regulation when it vests discretion in the authorities to grant or withhold the exercise of First Amendment rights or to permit them to be exercised only on condition. Lovell v. City of Griffin, 303 U.S. 444, 451-452, 58 S.Ct. 666, 668-669, 82 L.Ed. 949. Licensing, like a tax payable on the exercise of a First Amendment right (Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292), is therefore unconstitutional. See Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. Yet registration, like licensing, may have aspects of harassment and burden. That is why we said in Thomas v. Collins, supra, 323 U.S. 540, 65 S.Ct. 327:
236
'If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.'
237
Freedom of association is included in the bundle of First Amendment rights. N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488. So if we had only the question whether those who band together to espouse a political, educational, literary, civic, or ideological cause could be made to register, I would protest. The late Zechariah Chafee spoke of the danger in limiting our freedoms under political pressures. 'Universities,' he wrote, 'should not be transformed, as in Nazi Germany, into loud-speakers for the men who wield political power.' The Blessings of Liberty (1956) 241. There have been attempts here to interfere by law in a myriad of ways with the shaping of public opinion through many groups, attacked because they were nonconformists of one kind or another. As we said recently, the identification of members of groups and fear of reprisal 'might deter perfectly peaceful discussions of public matters of importance.' Talley v. State of California, 362 U.S. 60, 65, 80 S.Ct. 536, 539, 4 L.Ed.2d 559. There is, in my view, a disability on the part of government to probe the intimacies of relationships in the myriad of lawful societies and groups in this country. See, for example, United States v. Rumely, 345 U.S. 41, 48, 56-58, 73 S.Ct. 543, 547, 551, 97 L.Ed. 770 (concurring opinion); Bates v. City of Little Rock, 361 U.S. 516, 527, 80 S.Ct. 412, 419, 4 L.Ed.2d 8 0 (concurring opinion); Uphaus v. Wyman, 364 U.S. 388, 401, 405-408, 81 S.Ct. 153, 154, 156-158, 5 L.Ed.2d 148 (dissenting opinion). From those precedents I would hopefully deduce two principles. First, no individual may be required to register before he makes a speech, for the First Amendment rights are not subject to any prior restraint. Second, a group engaged in lawful conduct may not be required to file with the Government a list of its members, no matter how unpopular it may be. For the disclosure of membership lists may cause harassment of members and seriously hamper their exercise of First Amendment rights. The more unpopular the group, the greater the likelihood of harassment. In logic then it might seem that the Communist Party, being at the low tide of popularity, might make out a better case of harassment than almost any other group on the contemporary scene.
238
We have, however, as I have said, findings that the Communist Party of the United States is 'a disciplined organization' operating in this Nation 'under Soviet Union control' with the aim of installing 'a Soviet style dictatorship' here. These findings establish that more than debate, discourse, argumentation, propaganda, and other aspects of free speech and association are involved. An additional element enters, viz., espionage, business activities, or the formation of cells for subversion, as well as the use of speech, press, and association by a foreign power to produce on this continent a Soviet satellite.1
239
Picketing is free speech plus (Bakery and Pastry Drivers and Helpers Local, etc. v. Wohl, 315 U.S. 769, 776-777, 62 S.Ct. 816, 819-820, 86 L.Ed. 1178 (concurring opinion); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 497-503, 69 S.Ct. 684, 688-691, 93 L.Ed. 834) and hence can be restricted in all instances and banned in some. Registration of those who disseminate propaganda of foreign origin (see Viereck v. United States, 318 U.S. 236, 251, 63 S.Ct. 561, 568, 87 L.Ed. 734 (dissenting opinion) (has been thought to fall in the same category as barring speech in places that will create traffic conditions (Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155; Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049) or provoke breaches of the peace. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. Though the activities themselves are under the First Amendment, the manner of their exercise or their collateral aspects fall without it.
240
Like reasons underlie our decisions which sustain laws that require various groups to register before engaging in specified activities. Thus lobbyists who receive fees for attempting to influence the passage or defeat of legislation in Congress may be required to register. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989.2 Criminal sanctions for failure to report and to disclose all contributions made to political parties are permitted. Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484. Publishers of newspapers desiring reduced postal rates have long been required to file with the Postmaster General and with the local post office certi n data concerning ownership and circulation; and those disclosure requirements have been sustained. Lewis Publishing Co. v. Morgan, 229 U.S. 288, 33 S.Ct. 867, 57 L.Ed. 1190. In short, the exercise of First Amendment rights often involves business or commercial implications which Congress in its wisdom may desire to be disclosed, just as it did in strictly financial matters under the Public Utility Holding Company Act of 1935, 15 U.S.C.A. § 79 et seq. See Electric Bond & Share Co. v. Securities & Exchange Comm., 303 U.S. 419, 58 S.Ct. 678, 82 L.Ed. 936.
241
If lobbyists can be required to register, if political parties can be required to make disclosure of the sources of their funds, if the owners of newspapers and periodicals must disclose their affiliates, so may a group operating under the control of a foreign power.
242
The Bill of Rights was designed to give fullest play to the exchange and dissemination of ideas that touch the politics, culture, and other aspects of our life. When an organization is used by a foreign power to make advances here, questions of security are raised beyond the ken of disputation and debate between the people resident here. Espionage, business activities, formation of cells for subversion, as well as the exercise of First Amendment rights, are then used to pry open our society and make intrusion of a foreign power easy. These machinations of a foreign power add additional elements to free speech just as marching up and down adds something to picketing that goes beyond free speech.
243
These are the reasons why, in my view, the bare requirement that the Communist Party register and disclose the names of its officers and directors is in line with the most exacting adjudications touching First Amendment activities.
II.
244
While the Act is pregnant with constitutional questions, I deal now with only one, viz., whether § 7 of the Act is unconstitutional and void as conflicting with the provision against self-incrimination accorded by the Fifth Amendment.
245
The registration statement prepared by the Attorney General pursuant to § 7(a) and (b) of the Act asks in Item 2 the name, address, position, and functions of any individual 'who at any time during the twelve months preceding the execution of the statement was an officer, director, or person performing the functions of an officer or director' of the Communist Party. Item 3 requires a statement of any alias of any person listed in Item 2. Item 11 asks for the name, alias, and address of each individual 'who was a member of the organization at any time during the period' of twelve months prior to the filing of the registration statement. The statement must be signed by the partners, officers, directors, and members of the governing body. 28 CFR, 1960 Supp., § 11.200, Form ISA-1.
246
Those provisions are not conditional. The Government with all the authority it possesses has ordered the Party to register.
247
The duty to disclose the names of the officers, directors, and members is explicit. The duty is to make the disclosure here and now. The individuals who must make the disclosure are definitely described. There is no uncertainty as to what must be done. The question is whether the command made is constitutional under the Fifth Amendment.
248
If the requirement of Form ISA-1 that the statement be signed 'by the partners, officers, and directors' were deleted and the statement was allowed to be filed by 'any agent,' the act of signing that implicates the partner, officer, or director would be eliminated. If the Court, sensitive to the high role performed by the Fifth Amende nt, also deleted the compulsory disclosure of the others whose association with the Party is required to be disclosed without immunity, the problems presented by those disclosures would disappear. But the Court does none of these things. It requires officers and directors to sign; it requires that the names of officers, directors, and members within the 12-month period be disclosed. Thus the question of self-incrimination of each of those individuals is squarely presented.
III.
249
First as to the officers, directors, and others who must sign the registration statement. These individuals, who could be prosecuted as 'active' Communist agents under Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, and Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, cannot, in my view, be compelled to sign a registration statement. A compulsory admission of that ingredient of a crime would plainly violate the Fifth Amendment.
250
If a person who was on the witness stand in a courtroom or appearing before a Congressional Committee were asked whether he was an officer or director of the Communist Party, our decisions in Blau v. United States, 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170, and Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964, would protect him from self-incrimination. Under our system federal officials who desire to establish guilt must use the grand jury to get an indictment and a petit jury to obtain conviction. They cannot require the accused to 'do their job for them.' Chafee, The Blessings of Liberty (1956), p. 207.
251
The clause of the Fifth Amendment with which we are here concerned provides that 'No person * * * shall be compelled in any criminal case to be a witness against himself.' The clause has been hospitably construed. The Court said in Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110:
252
'It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases; but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.'
253
As recently stated by Judge Samuel H. Hofstadter:
254
'The privilege is applicable to civil cases, grand jury proceedings, legislative inquiries, and virtually every other form of official proceeding. It applies whether the witness is a party to the civil or criminal case or merely a witness. And it applies whether the testimony is directly in issue or is collateral. The witness himself is the judge in each case; he may not be compelled to give testimony which he himself in good faith believes might, in any manner whatever, pave the way to possible prosecution. To claim the privilege requires no special combination of words; the clause is liberally construed to protect the right it was intended to secure.' The Fifth Amendment and the Immunity Act of 1954 (Fund for the Republic, 1955), p. 10.
255
How then can the Government ask a person to sign a registration statement which makes admissions that would not survive challenge under the Fifth Amendment if asked orally of the individuals that the disclosure implicates?
256
United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, held that the privilege does not excuse an officer of an organization from producing its records on the grounds that the contents of the records will or may incriminate him. As to the officer or director, it is plain that he incriminates himself not merely by producing records but by signing and filing the registration statement. The preparation of the registration statement and its execution are in the same category as the giving f testimony in the Blau and Quinn cases, if the Fifth Amendment is to have continuing vitality. Part of what is today required is the furnishing of statements and admissions from the pens of men and women whose very signature may start them on the way to prison. We made clear in Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225, that the ruling in the White case was restricted to the production of books and records. We there upheld the custodian's privilege against testifying as to the 'whereabouts of books and records' where that testimony might incriminate him. We said '* * * he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony.' Id., 354 U.S. 124, 77 S.Ct. 1149.
257
It would seem to follow a fortiori that a custodian who need not testify concerning the whereabouts of records, if that testimony would tend to incriminate him, need not put into writing the admission that he is an officer or director of the Communist Party. What more incriminating admission could be compelled? This was the position of Judge Bazelon in the Court of Appeals, Communist Party of United States v. Subversive Activities Control Board, 96 U.S.App.D.C. 66, 114, 223 F.2d 531, 579, and it seems to me unassailable. See also Shapiro v. United States, 335 U.S. 1, 27, 68 S.Ct. 1375, 1389, 92 L.Ed. 1787; Wilson v. United States, 221 U.S. 361, 385, 31 S.Ct. 538, 546, 55 L.Ed. 771.
258
Electric Bond & Share Co. v. Securities & Exchange Comm., supra, is irrelevant to our present problem under the Fifth Amendment. No claim was made in that case that the preparation and filing of a registration statement might implicate an officer or director and that the Fifth Amendment therefore protected him against signing unless immunity was granted. The problem in the present case is quite different. It raises the following kind of question: Can Congress, which has made embezzlement of national bank funds a criminal offense, require embezzlers to register without granting them the full immunity (cf. Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511) to which they are entitled? That is the closest analogy to the present case.
259
The compiling, the signing, and the filing of the registration statement required of officers, directors, and others by the registration form is a form of elicited testimony, not the surrender of pre-existing records. Where, as here, such disclosure will reveal knowledge of and relations with the Communist Party, I do not see how it can be demanded, unless immunity is granted.
260
The Bill of Rights does not go so far as to forbid all interrogation under threat of punishment. It does not prevent the breaking of myriad bonds of secrecy at the command of the Government. It protects only the individual who has himself become the object of the Government's punitive powers. From him it removes the humiliating presence of the questioner. The power of the Government is limited, so that it cannot punish either the silence or the passive hostility of one who claims the privilege, whether he be a criminal or a prophet or merely a bewildered citizen suddenly caught in the sinister web of suspicion.
261
The privilege is often criticized as a shield for wrongdoing. But not every hostile silence which greets official interrogation has its beginning in wrongdoing. In a Nation such as ours the Government must often meet with hostility; we are not constrained to admire its activities; we are free to detest them. That freedom could not long remain if the Government were free to require us to recount all our doings. The Government may still threaten silence with prison, but its power to do so stops short when information sought is incriminating. Even as ardent an advocate of the totalitarian state as Thomas Hobbes respected this core of privacy:
262
'A covenant not to defend myself from force, by force, is always void. For (as I have shown before) no man can transfer or lay o wn his right to save himself from death, wounds, and imprisonment, the avoiding whereof is the only end of laying down any right * * *. A covenant to accuse oneself, without assurance of pardon, is likewise invalid. For in the condition of nature, where every man is judge, there is no place for accusation: and in the civil state the accusation is followed with punishment, which, being force, a man is not obliged not to resist.' Leviathan, 23 Great Books 90.
263
The cases dealing with the duty to keep records3 (see Shapiro v. United States, supra) can be put to one side. Under the Smith Act, 18 U.S.C. § 2385, 18 U.S.C.A. § 2385, the very subject matter under regulation is interwoven with criminal activity. Where individuals compile and sign the registration statement, as they must, it is the very making of the registration statement that will incriminate them, not the underlying documents.
264
Signing as an officer or director of the Communist Party-an ingredient of an offense that results in punishment-must be done under the mandate of law. That is compulsory incrimination of those individuals and, in my view, a plain violation of the Fifth Amendment.
IV.
265
The compulsory disclosure of those who have been officers, directors, or members of the Party during the last 12 months is equally objectionable under the Fifth Amendment. Membership in the Party is, by virtue of federal statutes, the start4 of every prosecution whether it be for active 'membership,' as in Scales v. United States, supra, or for conspiracy to teach the doctrine, as in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. Membership is a 'link in the chain of evidence' needed for such prosecution, as we held in Blau v. United States, supra, 340 U.S. 161, 71 S.Ct. 224; Quinn v. United States, supra. It is therefore in the class of disclosure which we have held since the time of Chief Justice Marshall5 (see United States v. Burr, 25 Fed.Cas. page 38, No. 14,692e) could not be demanded by reason of the Fifth Amendment. The compulsory disclosure of membership in the Communist Party, which the Blau and Quinn cases have put within the protection of the Fifth Amendment, is the necessary and immediate effect of filing as a public record the registration statement required by § 7. As in case of officers and directors who must sign the registration statement, this is, in my view, compulsory incrimination of the members and a plain violation of the Fifth Amendment.
266
If Congress can through use of the registration device compel disclosure of people's activities that violate federal laws, the Fifth Amendment would be cast into limbo.
267
As I have said, each person required to be listed in the registration statement, were he to be brought before his interrogators, could not be compelled to admit what the statute here requires petitioner to set forth at length. The only difference that exists between compelling each member and officer and between compelling petitioner is the thin 'veil' of petitioner's fictitious juridical personality.
268
Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652, held that a corporation could not claim a privilege against self-incrimination. That case and others-such as Wilson v. United States, supra, and United States v. White, supra, which I have mentioned-have implemented a constitutional policy of publicity for associational activities which would be abhorrent if required of individuals and in matters that were less clearly within the realm of day-to-day administrative regulation.
269
The present requirement for the disclosure of membership lists is not a regulatory provision, but a device for trapping those who are involved in an activity which, under federal statutes, is interwoven with criminality. The primary effect of the required registration is not disclosure to the public but criminal prosecution. I do not see how the Government that has branded an organization as criminal through its judiciary,6 its legislature,7 and its executive,8 can demand that it submit the names of all its members-unless it grants immunity for the disclosure.
270
Prior to today,9 the nearest the Court ever came to allowing the registration device to be used as a mechanism for compulsory disclosure of criminal activities was United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. See also Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475. Gamblers were required to register with the Collector of Internal Revenue and to pay an occupational tax. The defense of the Fifth Amendment was rejected on grounds that seemed to some of us at the time to be specious. Registration could be required, the Court held, because it pertained only to 'the business of wagering in the future.' United States v. Kahriger, supra, 345 U.S. 33, 73 S.Ct. 516. The Fifth Amendment, the Court said, 'has relation only to past acts, not to future acts that may or may not be committed.' Id., 345 U.S. 32, 73 S.Ct. 515. The sluice gates, opened a hair's width by that case, are now flung wide. I remain in agreement with what Mr. Justice Black said in United States v. Kahriger, supra, 345 U.S. 37, 73 S.Ct. 519: '(W)e have a Bill of Rights that condemns coerced confessions, however refined or legalistic may be the technique of extortion.'
V.
271
It is said that the Party has no standing to assert the rights of its officers, directors or members.
272
The privilege against self-incrimination is a personal one. It must be claimed; it may be waived. In ordinary circumstances, there is no Fifth Amendment privilege against incriminating another. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344. And see Hale v. Henkel, supra, 201 U.S. 69-70, 26 S.Ct. 376-377; United States v. White, supra, 322 U.S. 704, 64 S.Ct. 1254. On the other hand, the intimate connection between associations and their members has long been recognized. In Beauharnais v. People of State of Illinois, 343 U.S. 250, 262, 72 S.Ct. 725, 733, 96 L.Ed. 919, Mr. Justice Frankfurter writing for the Court said:
273
'Long ago this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs.' The case cited was American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, where the right of a union to speak for its members was recognized. In N.A.A.C.P. v. State of Alabama, supra, the Association was allowed to assert its members' constitutional rights:
274
'If petitioner's rank-and-file members are constitutionally entitled to withhold their connection with the Association despite the production order, it is manifest that this right is properly assertable by the Association. To require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion. Petitioner is the appropriate party to assert these rights, because it and its members are in every practical sense identical.' Id., 357 U.S. 459, 78 S.Ct. 1170.
275
We dealt there with a Negro group asserting the First Amendment rights of its members. The members, it was argued, would be harassed if their names were disclosed and that harassment would abridge their First Amendment rights. We agreed with that view, id., 357 U.S. 460-462, 78 S.Ct. 1170-1172, and held that N.A.A.C.P. could not be forced to disclose to Alabama its membership lists. We did not, I assume, write a rule good for that day only. Nor did I think we wrote only for Negro groups.
276
Nor did I think we restricted the assertion by a group of the rights of its members to those asserting First Amendment rights. In Joint Anti-Fascist Refugee Committee v. McGrath, supra, three groups, under circumstances somewhat similar to the present case, claimed the right to invoke their members' rights under both the First and the Fifth Amendments. They had been designated as 'communist' by the Attorney General; and the impact of that classification on the status of the members as federal employees was striking and immediate. Could that classification be constitutionally made without a hearing? The consensus of opinion among those who reached the issue seemed clear-that the groups could raise objections that involved the constitutional rights of their members. The view was forcefully asserted by Mr. Justice Jackson. Id., 341 U.S. 186, 71 S.Ct. 656. As Mr. Justice Frankfurter stated:
277
'Designation works an immediate substantial harm to the reputations of petitioners. The threat which it carries for those members who are, or propose to become, federal employees makes it not a finicky or tenuous claim to object to the interference with their opportunities to retain or secure such eml oyees as members.' Id., 341 U.S. 159, 71 S.Ct. 642.
278
That was my own view then, id., 341 U.S. 174-175, 71 S.Ct. 650, and now.
279
This analysis has support in a long line of cases where the Court has allowed A to assert B's constitutional right in seeking redress or prevention of harm to himself. The root of this doctrine is found in equity. In Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, an injunction had been sought by an employee who was an alien, seeking to restrain enforcement of an Arizona statute. The right invoked was the employee's own right under the Fourteenth Amendment. But the statute imposed no penalty on the alien for working. It penalized his employer for hiring him. Nevertheless, the injunction issued. In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, the proprietors of a private school, to protect their monetary interest in preserving the school, were allowed to assert rights of parents in the education of their children. Similarly, a white vendor was allowed to assert his Negro vendee's rights in enforcing a contract to sell real property, subject to a restrictive city ordinance, in Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149. See also International Harvester Co. v. Wisconsin Department of Taxation, 322 U.S. 435, 64 S.Ct. 1060, 88 L.Ed. 1373; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586; Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480.
280
People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184, which sustained a state law requiring the Ku Klux Klan to file its membership lists with state officials was explained in N.A.A.C.P. v. State of Alabama, supra, 357 U.S. 465, 78 S.Ct. 1173, as a case involving an organization whose acts were 'unlawful intimidation and violence,' not First Amendment activities. That explanation was adequate for that case as only First Amendment rights were being considered in N.A.A.C.P. v. State of Alabama, supra. No fifth Amendment question10 was, however, raised in People of State of New York ex rel. Bryant v. Zimmerman, supra.
281
Petitioner, the Communist Party, seeks in this case to assert that the statute under which it is ordered to register is unconstitutional, because it will have the necessary effect of depriving members of their privilege against being compelled to reveal their connection with the Party. This is not a case, as the majority opinion admits, like United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, where a taxpayer, because he claimed the privilege against self-incrimination with respect to the source of some of his income, argued that he was wholly excused from filing a tax return. Nor is this a case where 'one who is required to assert the privilege against self-incrimination may thereby arouse the suspicions of prosecuting authorities.' For here, if an individual were to attempt to claim the privilege against filing for the Party, he would admit an ingredient of a crime, namely, his connection with the Party.
282
Clearly, this is a situation in which only the Party can effectively assert the privilege of its officers, directors, and members. This is the teaching of N.A.A.C.P. v. State of Alabama, supra, and of the opinions of Mr. Justice Jackson, Mr. Justice Frankfurter and myself in Joint Anti-Fascist Refugee Committee v. McGrath, supra, and of the other cases discussed above. When we reject those precedents, we create a special rule for this day only.
283
The Party is the proper party to raise the objection, because no one else can ras e it effectively. The community of interest between the Party and its members is indeed closely analogous to the community of interest between a corporation and its stockholders. See Stevens, Corporations (1949), pp. 788-789. Since the command to register cannot be separated from the means of registration, an attack is properly made on the incriminating features of the statute by petitioner who is commanded to register. See The Employers' Liability Cases (Howard v. Illinois Central R. Co.), 207 U.S. 463, 500-502, 28 S.Ct. 141, 146-147, 52 L.Ed. 297; United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563. Cf. Electric Bond & Share Co. v. Securities & Exchange Comm., supra.
284
In Boyd v. United States, 116 U.S. 616, 638, 6 S.Ct. 524, 536, 29 L.Ed. 746, a court order to produce an invoice, claimed to be privilege under the Fifth Amendment, was held to be unconstitutional and void. One need not, I have assumed, obey an unconstitutional command and raised his constitutional objection only on compliance. Of course, defiance of a governmental command because it is unconstitutional is deep in our traditions. Thomas v. Collins, supra; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302. Yet heretofore a person claiming that a disclosure would violate his Fifth Amendment rights need not first tender the information claimed to be privileged. A person asked whether he is a member of the Communist Party can invoke the Fifth Amendment and refuse to reply since under existing federal laws the answer would tend to incriminate him. Quinn v. United States, supra, 349 U.S. 162, 75 S.Ct. 673; Blau v. United States, supra, 340 U.S. 161, 71 S.Ct. 224. The answers now demanded by the registration form and the regulations require precisely the kind of answers we held protected against self-incrimination in the Quinn and Blau cases.
VI.
285
The fact that there may be other times when the issue may be raised-as for example if a registration statement is not filed and officers or members are prosecuted for that default under § 15 of the Act-seems immaterial. This case is not in the category of those challenges of a law made before it is known how and in what manner it will be enforced and applied. Cf. Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725. A final order to register under the Act has been issued. The disclosure requirements are clear and specific. Now is the time to raise Fifth Amendment questions. To relegate the parties to another time and place in order to raise those constitutional objections is to fashion an extremely harsh rule to fit the Communist Party but no one else. Default means the risk of criminal prosecution. No person, I think, should be forced to wait until his default to raise his constitutional objection. The great injustice in what we do today lies in compelling the officials of the Party to violate this law before their constitutional claims can be heard and determined. Never before, I believe, have we forced that choice on a litigant. See Terrace v. Thompson, 263 U.S. 197, 216, 44 S.Ct. 15, 68 L.Ed. 255. The modern trend has indeed been to protect a person against prosecutions that may involve infringements of his constitutional rights. At times even equity has stepped in. See Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570. The prevention of peril and insecurity, involved in the sanctions of some laws, has led to a generous use of the declaratory judgment procedure so that a person need not run the gantlet of a criminal prosecution to get an adjudication of his rights. See Railway Mail Ass'n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 91-94, 67 S.Ct. 556, 565-567, 91 L.Ed. 754. Cf. McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173. The order requiring registration requires disclosure; the constitutionality of that disclosure requirement is before us here and now. This case presents the only effective opportunity to secure the benefits of the Fifth Amendment guarantee. Indeed, if the question were not raised now, the strict rule of Rogers v. United States, supra, might mean that the question had been waived.
VII.
286
My conclusion is that while the Communist Party can be compelled to register, no one acting for it can be compelled to sign a statement that he is an officer or director nor to disclose the names of its officers, directors, or members-unless the required immunity is granted. Why then, one may ask, do we have a registration law? Congress (past or present) is attempting to have its cake and eat it too. In my view Congress can require full disclosure of all the paraphernalia through which a foreign dominated and controlled organization spreads propaganda, engages in agitation, or promotes politics in this country. But the Fifth Amendment bars Congress from requiring full disclosure by one Act and by another Act making the facts admitted or disclosed under compulsion the ingredients of a crime.
287
There is a giving of evidence by the filing of a registration. Its filing is the equivalent of officials testifying in investigations conducted by the Executive or Legislative Branch. It is compulsory disclosure of evidence which links officers, directors, and members of the group with a crime. Force and compulsion are outlawed techniques for federal law enforcement. Coerced confessions are taboo because of the long bitter experience of minorities in trying to maintain their freedom under hostile regimes. Our Constitution protects all minorities, no matter how despised they are.
288
Accordingly, I dissent.
289
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE joins, dissenting in part.
290
I agree with the Court and with Mr. Justice DOUGLAS that the order requiring that the Party register and disclose its officers and members is not constitutionally invalid as an invasion of the rights of freedom of advocacy and association guaranteed by the First Amendment to Communists as well as to all others.
291
I also share the Court's view that we are not called upon in this case to decide the constitutionality of the various duties and sanctions attaching to the Party, and to individual members, once orders to register become final. We are required by this case to decide only the validity of the order requiring the petitioner to register in accordance with § 7 of the Act as implemented by the regulations and Form ISA-1 of the Attorney General. We should properly reach at this time only such constitutional questions as necessarily relate to the requirements governing registration.
292
The questions in addition to those under the First Amendment which seem to me most nearly within the sphere of permissible constitutional adjudication in this proceeding arise from the interaction of the registration requirements with the criminal statutes under which Communist Party membership is implicated. This interplay poses the question whether the registration requirements violate the Fifth Amendment privilege against self-incrimination.
293
I do not believe that all of the self-incrimination questions raised by the registration provisions are properly adjudicable now. Some may be better left for subsequent adjudication as the necessity arises. For example, we need not decide now, I think, the constitutionality of the provision of § 8 for the self-registration of individual members. That provision becomes operative only upon the failure of the petitioner, or its officials, to list members in effecting its registration, pursuant to a final order; the Government's brief observes that the criminal sanction against a member arising from nonregistration must be preceded by a final order of the Subversive Activities Control Board directing him to register. § 15(a)(2). We cannot know at this time the posture in which the case will appear when a member comes under an enforceable duty to registr , if he ever does. I also lay aside the requirements of § 7(h), and its implementing regulation, 28 CFR § 11.205, that Party officials effect the registration of the organization if the organization fails to register itself within 30 days of a final order. That duty, enforceable by criminal sanctions against the officials, arises only in the contingency of nonregistration by petitioner in accordance with the present order. Here again the situation may not arise. I assume that the opportunity of the officials to raise the same objections is not irrevocably lost if we do not consider them now. Nor, finally, do I now concern myself with whether the Party may interpose the constitutional privilege of its members because of the nature of the information about them required to be supplied to complete the registration statement as described in the Attorney General's Form ISA-1. Section 7(d) requires that the registration statement accompanying the registration shall provide such information as the names and addresses of members, and their past and present aliases, as well as information about the officers and activities of the organization. The Attorney General's regulations and Form ISA-1 implement this requirement.
294
But I do think we must reach one issue of self-incrimination, namely, whether the requirements of § 7(d) as spelled out in the Attorney General's regulations and Form ISA-1 are void as necessarily conflicting with the Fifth Amendment privilege of the Party officials who are charged with the duties necessary to complete the Party's registration. The statute, the regulations and the Form together clearly require that the registration statement shall be completed, signed and filed by designated officials. These officials are the 'partners, officers and directors, including the members of the governing body of the organization'; they are explicitly required by the Form to sign the completed statement and vouchsafe their familiarity with, and the accuracy of, its contents. Whether these officials, consistently with the Fifth Amendment privilege, can be required to complete, sign and file the statement is a serious constitutional question. These requirements are in effect an inquiry into the status of officership and knowledge of Party activities of the signatories. Under today's decision in Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, the answers to such an inquiry might well implicate the officials in criminality in violation of several federal statutes.
295
I believe that the constitutional validity of the inquiry that I find implicit in these requirements is ripe for adjudication now. I read the Court's opinion as saying that there is no fatal bar to adjudicability of the question merely in the fact that the organization, and not an individual official of the organization, is asserting the privilege in this proceeding. The requirement of 'standing'-that a litigant must show that he himself is affected by the operation of the action he challenges as it affects another-is involved here. But as the cases cited by my Brother DOUGLAS show, and the Court seems to concede, a party has been allowed to assert the constitutional rights of another person not before the Court as a named party in a variety of situations where the effect of the challenged state action on himself is derivative from the impact on the other person. Of course, this Court has indicated on a number of occasions that the privilege is a personal right which must normally be claimed by the individual seeking its protection. See, e.g., United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560; United States v. Murdock, 284 U.S. 141, 148, 52 S.Ct. 63, 64, 76 L.Ed. 210; Rogers v. United States, 340 U.S. 367, 371, 71 S.Ct. 438, 440, 95 L.Ed. 344; Smith v. United States, 337 U.S. 137, 147-148, 69 S.Ct. 1000, 1005, 1006, 93 L.Ed. 1264. These statements were made in the context of an issue of waiver-whether a later claim of privilege should be honored where it was contended that the party had an earlier opportunity to make the claim and had failed to do so. The present case presents quite the opposite situation-not whether the privilege is being claimed too late but too early, not waiver but premature assertion.
296
The issue of justiciability which confronts us is therefore not whether the petitioner may raise the Fifth Amendment question at all but whether it may do so now. I agree with the Court that the cases which have upheld standing in the first sense are not decisive of our problem. The following considerations, in my view, justify our adjudication now: (a) the order imposes a presently enforceable duty on the organization to complete and file Form ISA-1 and creates an incentive for both organization and officials to make the disclosures implicit in the completion, signing and filing of that Form; (b) the inquiry eliciting these disclosures of officership and knowledge is specific and not open to possibly varying answers; (c) the incriminating character of the information thus disclosed is plain; and (d) finally, if the question is not decided now, the officials must run the risk of not being able to make an acceptable claim of privilege at a later time. There thus inheres in putting off decision the substantial possibility of erosion of the privilege. We may and should avoid that undesirable result by deciding the question now.
297
I think the reasons advanced by the Court in support of the contrary conclusion are overborne by the considerations I have suggested. The Court says that the officials may sign the statement and comply with the requirements, or may claim the privilege in such a form that it will be honored and thus avoid incrimination, and that in any event, a claim of privilege cannot be evaluated at this time because of the varying and presently unknowable circumstances which may determine whether it would have to be honored. The possibility of 'voluntary' compliance by the officials should not be a bar to a decision now. Given the structure of the statute, compliance cannot indisputably be assumed to be a voluntary waiver of the privilege. The organization is under a duty by virtue of the order now before us to file a statement in accordance with the Attorney General's requirements, on penalty of prosecution for not filing a registration statement; the failure of the officials to complete, sign or file Form ISA-1 might subject it to such prosecution. And if the organization should not register within the 30-day period specified in § 7(c), the officials are duty-bound under § 7(h) to effect its registration, also on penalty of criminal sanctions. Plainly enough, then, the order generates pressure on the officials to complete, sign and file to avoid the possibility of prosecution either of the organization or themselves. This pressure may be increased by the uncertainties which attend efforts to make an acceptable claim of the privilege. If we pass the opportunity for decision now, officials may well comply out of fear that a later effort to make an acceptable claim of privilege will fail.
298
A claim of privilege on the registration form which names the official would be self-defeating. For if the admission of officership in the Communist Party is incriminating, then a claim of privilege by name would amount to the very same admission-the claimant would be asserting that he could not complete, sign or file the form because the admission of his officership would incriminate him. The Court suggests that a claim of the privilege is potentially always incriminating in that it may arouse the suspicions of the interrogators. However, this registration requirement seems to present a different case in important respects. Claiming the privilege here does more than attract suspicion to the claimant; it admits an element of his possible criminality. Moreover, registration is unique because of the initial burden it puts on the potential defendant to o me forward and claim the privilege. He may thereby arouse suspicions that previously had not even existed and, indeed, virtually establish a prima facie case against himself. The usual situation in which the privilege is invoked is a judicial, legislative, or administrative proceeding in which the person claiming it appears because there is already some reason to think that he has information on the subject matter of the inquiry. His invocation of the privilege in such circumstances may confirm the suspicions of his interrogators, but is less likely to arouse them initially than in the case of a registration regulation which calls on all persons everywhere, known or unknown, who fall within a prescribed category, to come forward and identify themselves. At least in governmentally initiated inquiries, there are likely to be certain checks on self-accusation, either the explicit requirement of probable cause governing the maintenance of a criminal prosecution or institutional limitations on the exercise of the power of inquiry. Here there is no such initial burden on government, no requirement, for example, that it identify officials in a proceeding for that purpose and then seek to elicit the desired information as to other officials and members from them. I think, therefore, that if the privilege does protect an official from disclosure of his officership and knowledge when an inquiry explicitly in those terms is made, it would also protect him from disclosure in the kind of 'indirect' inquiry and response that seems to me implicit in the suggestion that a claim of the privilege by name may be an adequate alternative.
299
There remains consideration of the possibility that an anonymous claim of the privilege may be made and honored by the Attorney General. The organization might simply file a statement in which it asserted the privilege on behalf of its officials, listing their titles but not their names. However, on the Court's own reasoning the right to have a claim of privilege honored may depend on a variety of circumstances, including such factors as already existing public knowledge of the information which the claimant seeks to conceal, and it is difficult to see how following this course would advance the attempt of the claimant to have his privilege honored. In a subsequent enforcement proceeding against the organization for failure to register in accordance with the regulations, or against officials for failing to register the organization, the defense of privilege could be met with the same objection that the Court raises here-that the privilege claim could not be evaluated unless the identity of the claimant were known. The possibility that the Attorney General might honor even an anonymous claim of the privilege would simply mean abandonment of one of the requirements in the Form. But I do not see how we can view this case as if that requirement did not exist, since the order under review is to register in accordance with the Attorney General's requirements as they now are. Certainly an official might be sufficiently dubious as to the efficacy of an anonymous claim of the privilege by the organization on his behalf that he would choose one of the alternatives of complying, claiming the privilege by name, or not making any claim, all dangerous courses for him. Therefore, I cannot believe that the Court's suggestion that a claim may be made in a form in which it could be honored presents an official of petitioner with a sufficiently realistic choice to require us to defer consideration of this question until it arises at some time after a choice among these alternatives is made.
300
I do not read United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, and other cases which the Court cites, e.g., In re Groban, 99 Ohio App. 512, 135 N.E.2d 477, affirmed 164 Ohio St. 26, 128 N.E.2d 106, affirmed 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 375; O'Connell v. United States, 2 Cir., 40 F.2d 201, as indicating a different result here. Thosec ases seem to me to hold that an individual cannot thwart a legitimate inquiry by refusing to answer any questions at all on the ground that some incriminating questions might be asked; they require that he must at least respond to the inquiry and make his claims of privilege as the incriminating questions are asked. In Sullivan the questions were neutral on their face and were asked pursuant to an inquiry in furtherance of the collection of the revenue; a claim of self-incrimination as to all such questions was meaningless in terms of the traditional requirement that the tribunal before which the claim is made have the opportunity to decide whether the claim shall be allowed. See United States v. Burr, 25 Fed.Cas. page 38, No. 14,692; United States ex rel. Vajtauer v. Commissioner of Immigration, supra, 273 U.S. at page 113, 47 S.Ct. at page 306.
301
Moreover, in Sullivan a claim of privilege as to individual questions might have aroused suspicions but would not have pinpointed the taxpayer's criminal activities. No such wholesale immunity for the petitioner's officials would be involved in a conclusion that their claim of privilege should be adjudicated without a requirement that they first make it on the registration form specifically, with the attendant risks I have previously considered. The inquiry implicit in the requirements of completing, signing and filing here is precise; it demands disclosure on matters of officership in, and knowledge of, the Communist Party. The incriminating nature of that inquiry seems plain on its face, since an admission of officership and knowledge would be not merely a possible link in the chain needed to convict under the Smith Act but would establish a main ingredient of the crime proscribed in the membership clause of the Act as this Court construes it today in Scales v. United States. Cf. In re Dewar, 102 Vt. 340, 148 A. 489. Mr. Justice Holmes wrote in Sullivan that the taxpayer 'could not draw a conjurer's circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law.' 274 U.S. at page 264, 47 S.Ct. at page 608. Petitioner seeks to draw no such 'conjurer's circle' for its officials in an essentially noncriminal area of inquiry, but to assert their privilege against replying to an inquiry in a regulatory area permeated with criminal statutes in circumstances where any word upon the paper responsive to the inquiry would involve them in the admission of one of the major elements of a crime, and where the effect of even claiming the privilege is not merely to arouse suspicions of illegality but to admit the same element of the crime.
302
Nor am I persuaded that this Fifth Amendment claim should not be adjudicated now because some of the officials may not be entitled to the privilege if the fact of their officership is already known. Even on the assumption that public notoriety or prior admission in these or other proceedings would make the privilege inapplicable to such officials, there is nothing in the record to indicate how many officials fall into this category. The Government contends that since the record does not establish that any officials are not publicly known as such, we should refrain from adjudicating the privilege claim now because no one may actually be entitled to invoke it. But since the record also leaves open the possibility that there may be officials entitled to assert the privilege, and since I see such difficulty in the way of effective assertion of the privilege now or later without disclosure of the information sought to be protected, I do not believe that these persons should be subjected to the risks and uncertainties of deciding on a course of conduct with a view to litigating this question in a subsequent proceeding. Where the danger of compulsory incrimination in violation of the Fifth Amendment thus appears on the face of the requirements it seems to me improper to force any who are affected to hazard the loss of their protection because some, or even all, have no protection at all. Cf. People v. McCormick, 102 Cal.App.2d Supp. 954, 963, 228 P.2d 349, 354-355.
303
I do not regard this position on adjudicability as calling for the impermissible decision of a phypothetical case. Nor does it open the way to the invalidation of the requirements on their face despite valid applications simply because they might be invalidly applied in other circumstances. See United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. If the requirements violate the Fifth Amendment, they do so for all subject to them because they require incrimination without an effective protection of the privilege. And it is because I discern no adequate procedural protection for the privilege that I believe the Court should adjudicate this particular question now.
304
As to the merits of the Fifth Amendment claim, I believe that officials cannot be compelled to complete, sign and file the registration statement without abridging their privilege against self-incrimination. I do not think that the doctrine of United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, applies to an inquiry directed to the fact of officership, qua officership, and knowledge, qua knowledge, as opposed to the production of organizational records by an officer who is their custodian. It is the individual official's own status and knowledge that is the subject of the inquiry I find implicit in the requirement that an official complete, sign and file the statement. The principle that a custodian of organizational records may be required to produce them, even if their contents would incriminate him personally, is a recognition that an organization acts only through people, and that to recognize the privilege in the custodian of its records might be to immunize the organization's past acts. But these officials are not directed to produce records of their organization as its custodians, but to complete, sign and file as its officials, and thus to identify themselves as possible participants in a criminal conspiracy and as persons presumptively exhibiting the degree of knowledge and activity necessary for a conviction under the membership clause of the Smith Act. Nor are they called on, in fact, to produce records at all, but rather to complete, sign and file a statement which may or may not incorporate the records of the organization. And more than the incorporation of existing records is required in any event. All the information on Form ISA-1 must be supplied whether or not in existing records. In addition, the requirement of signatures does not involve mere authentication or identification of records, cf. Curcio v. United States, 354 U.S. 118, 125, 77 S.Ct. 1145, 1150, 1 L.Ed.2d 1225, because the officials are required to vouchsafe completeness and accuracy of the information supplied in the Form. Thus the requirements go far beyond the compulsory production approved in White. If the admission both of officership status and knowledge of Party activities cannot be compelled in oral testimony in a criminal proceeding, I do not see how compulsion in writing in a registration statement makes a difference for constitutional purposes. Cf. People ex rel. Ferguson v. Reardon, 197 N.Y. 236, 243-244, 90 N.E. 829, 832, 27 L.R.A.,N.S., 141. Since the immunity granted under § 4(f) of the statute is not complete, I do not think that the official's compliance with the requirements can be exacted consistently with the Fifth Amendment. And if the officials cannot be required to complete, sign and file Form ISA-1, I do not see how the present order can be upheld. The requirements patently do not contemplate the effectuation of registration by any except Party officials in the precise manner specified by the requirements. I would therefore hold the order invalid insofar as it directs the petitioner to register in accordance with the requirements.
1
By the Communist Control Act of 1954, 68 Stat. 775, the Subversive Activities Control Board is given jurisdiction to determine, in proper proceedings, whether any organization is a Communist-
infiltrated organization, defined as (A) an organization substantially directed, dominated, or controlled by an individual or individuals who are, or who within three years have been actively engaged in, giving aid or support to a Communist-action organization, a Communist foreign government, or the world Communist movement, (B) which organization is serving or within three years has served as a means for giving aid or support to any such organization, government or movement, or for the impairment of the military strength of the United States or its industrial capacity to furnish logistical or other material support required by its armed forces. Evidentiary matters relevant to this determination are prescribed for the consideration of the Board. Communist-infiltrated organizations are not required to register with the Attorney General, but are required to label their publications mailed or transmitted through instrumentalities of interstate or foreign commerce, and their comu nications broadcasts, and are deprived of federal income-tax exemption, of certain benefits under the National Labor Relations Act as amended, etc.
Under § 13A(h), added to the Subversive Activities Control Act of 1950 by the Communist Control Act of 1954, 68 Stat. 775, 779, the provisions depriving labor organizations of National Labor Relations Act labor-union benefits apply to labor organizations determined by the Board to be Communist-action or Communist-front, as well as Communist-infiltrated, organizations. 50 U.S.C. § 792a(h), 50 U.S.C.A. § 792a(h).
2
Under § 5(b) the Secretary of Defense is authorized and directed to designate and proclaim a list of facilities with respect to the operation of which he finds that the security of the United States requires the application of the controls prescribed by the Act.
3
The proviso respecting alien members of Communist fronts is:
'* * * unless such aliens establish that they did not have knowledge or reason to believe at the time they became members of or affiliated with such an organization (and did not thereafter and prior to the date upon which such organization was so registered or so required to be registered have such knowledge or reason to believe) that such organization was a Communist organization.'
The provisions of § 212(a)(29)(C) of the Immigration and Nationality Act, 66 Stat. 163, 186, 8 U.S.C. § 1182(a)(29)(C), 8 U.S.C.A. § 1182(a)(29)(C), also exclude aliens who the consular officer or the Attorney General knows or has reasonable ground to believe probably would, after entry, join, affiliate with, or participate in the activities of an organization registered or required to be registered.
4
Section 25 of the Subversive Activities Control Act of 1950 provided: 'If a person who shall have been naturalized after January 1, 1951,' etc. 64 Stat. 1014.
5
During the course of proceedings before the Board, the Party had again instituted suit in the District Court to enjoin continuation of the hearings because of alleged bias of the hearing panel and because of the Senate's failure before adjournment to confirm the nomination of one member of the Board, who consequently withdrew from the panel. This second injunction suit was dismissed on motion of the Board on February 15, 1952.
6
S.Doc. No. 41, 83d Cong., 1st Sess.
7
Section 14(a) provides: '* * * If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material, the court may order such additional evidence to be taken before the Board and to be adduced upon the proceeding in such manner and upon such terms and conditions as to the court may seem proper. The Board may modify its findings as to the facts, by reason of the additional evidence so taken, and it shall file such modified or new findings * * *.'
8
A totally different situation was presented in Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181, in which it was held that a litigant who had been a party respondent in a case previously here on certiorari had not lost his right to complain of error in the selection of a jury by failing to argue the error as an independent ground for sustaining the first decision of the Court of Appeals, holding in his favor on other grounds.
Reference is also made to cases in which this Court has exercised its power to control the course of litigation immediately bf ore it-a power which finds an appropriate exercise in the avoidance of premature constitutional adjudication. But the rule which petitioner urges, which would permit saving for a possible later stage in the proceedings errors available but not raised in this Court on review of administrative action, far from enhancing the Court's ability to give effect to the policy of deferring unnecessary constitutional decision, would impede that policy. For it would allow the agencies and lower courts, after our remand, to consider potentially dispositive contentions which, had they been brought to our attention, might have derailed issues on which decision turned.
The reason for demanding that all available issues be raised in the orderly course of administrative review proceedings is made particularly evident by the circumstances of this case. This was a litigation already five years old when it first came here. Unusually extensive hearings and argument had been had before the Board and exhaustive briefing and argument before the Court of Appeals. The petition for certiorari, a document of ninety-three pages plus appendices, presented ten major questions and innumerable subsidiary points. Yet the matter of the Gitlow memoranda, which it is now argued looms so large in the context of this extraordinarily lengthy and complex proceeding, was not raised, and not raised by highly experienced lawyers who vigorously contended every step of the litigation. We remanded on other grounds and now-after five more years have passed, after the Board and the Court of Appeals have each twice more reconsidered this steadily growing record-we are asked to reverse on a ground which the Party had every opportunity to bring here but which it abandoned. To ignore the abandonment would be a most artificial, decision- shrinking abuse of the wise rule of putting off decisions of constitutional scope. Avoidance of such decisions, however compelling a policy within the limitations of ordered judicial regularity, ought not to be countenanced by grafting an ad hoc exception onto a generally applicable rule of appellate procedure and permitting particular litigants to avail themselves of otherwise uncognizable points. No decision of this Court can be found which in similar circumstances authorizes disregard of all that has transpired over ten years of litigation so as to allow petitioner to make waste the half of it by resuscitating a long-stale claim.
9
'Q. Did you give (the Starobin letter incident) to * * * the FBI. A. I am satisfied I gave it to the FBI. I couldn't say definitely, but the FBI question me about everything I write and say, and also about many other things. They question me, and I answer their questions.
'Q. Were your answers reduced in writing? A. As a matter of fact, I do know now, since you mention it, that I did give this to the FBI.
'Q. In writing? A. No, not in writing.
'Q. Was it taken down by a stenographer? A. No, not by a stenographer. They never do that, except in rare cases.
'Q. Was a report written up and then shown to you afterwards? A. No. That never happens.
'Q. So all you did was simply have an oral conversation about this incident? A. Yes, that is all.
'Q. Was it recorded? A. I judge so. It was taken down.
'Q. It was taken down? A. Yes. I mean, it wasn't by a stenographer, but by an FBI agent.
'Q. It was taken down by an agent? A. Right.
'Q. Was it taken down in shorthand or longhand, or what? A. Longhand.
'Q. When? A. That I don't know. The reason I recall it, counselor, if I may say so, is because in connection with my book, everything that was in my book was gone over by the FBI, either before or after its publication * * *.
'When I say 'gone over,' I mean the information was given to them.'
10
The Party did move, at the original Board hearing, for the production of certain reports by particular government witnesses which, it may be, would be comprehended among those sought by its 1959 motion for 'All statements * * * which were made by witnesses who testified for the Attorney General at the administrative hearing and which relate to the subject matters of their testimony.' As in the case of the Gitlow memoranda, the question of the Board's denials of these motions was not raised in the petition for certiorari here in 1955, and has thus been waived. We note that one such motion was adverted to in a footnote in the Party's brief in this Court at that time, in connection with its argument that the Board erred in relying on the testimony of Scarletto; this and a similar footnote reference to denial of the Party's motion for production of statements of Budenz concerning the Starobin letter were the only mentions in the Party's 224-page brief of motions for production denied by the Board. These were plainly insufficient to raise the issue here. Supreme Court Rules 23, subd. 1(c), 40, subd. 1(d)(2), 28 U.S.C.A.
Nor can we agree that the Party was excused from the necessity of making appropriate motions before the Board respecting documents which it wanted produced, because similar motions with respect to other documents had previously been denied. Especially in administrative proceedings of this length and complexity, it is important that a party bring his particular requests explicity to the attention of the agency and the reviewing courts.
11
A Committee Report pertinent to that Act, H.R.Rep. No. 2582, 76th Cong., 3d Sess. 1, described the organizations at which it was directed as those 'substantially controlled or directed by a foreign power * * *.'
12
Among these were the League of Nations; the Russo-Finnish War, 1939; Hitler-Stalin non-aggression pact, 1939; attitude toward World War II before and after the German attack on the Soviet Union; dissolution of the Communist International, 1943; West Germany; the Italian election of 1948; North Atlantic Pact; control of atomic energy; election of Yugoslavia to the United Nations Security Council, 1949; Cardinal Mindszenty case, 1949; United Nations action in Korea; Communist China's intervention in Korea, 1950; seating of Communist China in the United Nations; Peace Treaty with Japan, 1951; peace in Korea.
13
The Party points out that with respect to a major portion of the paired sets of exhibits put in through Dr. Mosely, the documents demonstrating the Communist Party's position bear earlier dates than those demonstrating the Soviet Union's position. These exhibits were offered only as illustrative of the views which Dr. Mosely testified-his expert opinion being based on a far wider selection of readings-were those taken approximately contemporaneously by the Soviet and the Party in each instance. The Government expressly disclaimed any attempt to establish chronological sequence between the announced positions of the two.
14
The committee reports and other authoritative legislative history pertinent to § 13(e)(2) are unilluminating in this connectio. It is significant that on the occasion of a proposed House amendment which would have deleted the similar non-deviation consideration now found in § 13(f)(4) of the Act (pertaining to Communist-front organizations), Mr. Nixon, who had been a leading proponent of the legislation in its several forms, argued that 'if this particular standard is stricken out, it would be virtually impossible in many cases to get sufficient evidence before the Subversive Activities Control Board to justify a finding that an organization was a Communist front.' 96 Cong.Rec. 13764. The implication is that Mr. Nixon, and presumably other proponents of the enactment, regarded the § 13(e) and (f) evidentiary considerations as expanding the scope of evidentiary matters of which the Board might take account in determining whether organizations met the definitions of § 3(3), and (4). The proposed amendment was defeated after debate in the course of which all Congressmen seemed tacitly to assume that non-deviation involved a question of identity of policies, not of causal connection between policies. Id., at 13765-13768. And see id., at 14531-14533, 15194.
15
E.g., 'The article denounces the Japanese invasion of Manchuria as a clear and unprovoked act of aggression against China, does it not? * * * Was (that) * * * not the opinion of every right-thinking person at that time?' 'Is it not the universal opinion of every informed observer that the Greek monarchy is a reactionary, fascist and corrupt regime?' 'Is it not true that virtually every Commentator on an analysis of the Italian elections in 1948 has expressed the opinion that there was widespread American intervention and interference in these elections? * * * Was there not widespread interference on the part of the United States in that election?' 'Was not this United States intervention in Formosa a violation of the Cairo Agreement on Formosa?' 'Did not this policy (sending American troops beyond the 38th parallel in Korea) prove to be disastrous both militarily and politically? * * * And was it not paid for in thousands of United States lives?'
16
E.g., concerning Attorney General's Exhibit No. 284, a thirteen-page editorial:
'Q. Petitioner's Exhibit 284 is an article * * * entitled, 'Wall Street's War Against the Korean People,' * * * is that not correct? A. Yes, it is the subtitle of an editorial article.
'Q. Now, I call your attention to page 11. Does not the author there say that broad democratic reforms were introduced in North Korea including universal sufferage (sic) the secret ballot, and equal status for women, and that the land was distributed to the peasants and that industry was nationalized and that the 8 hour day and social insurance were introduced, and child labor abolished and a system of public education introduced? * * * Are these not correct statements of fact?'
17
This question was put in a number of forms. The most typical is the following:
'In your opinion, could an informed American observer basing his views on what is the best interest of the American people reasonably and sincerely conclude, one, that Mr. Malik's proposal was a great service to the cause of peace and in the best interests of the American people as well as all of the people of the world; two, that the representatives of the American government attempted to frustrate Mr. Malik's proposal but were forced into truce negotiations by the overwhelming desire of the people; and three, that American representatives by provocative conduct and various pretexts attempted to cause the breakdown of armistice negotiations in Korea?'
18
E.g., 'Professor, is it not a fact that many non-communist commentators and observers have expressed the view that the American proposals for international control of atomic energy were designed to make it impossible for the Soviet Union to accept them and that the American plan had no real chance of adoption?' 'Would it not be accurate to state, Professor, that there was a very large and broad measure of agreement among the people and many of the leaders of both the Soviet Union and the United States on the need for the prompt establishment of a second front in Europe?'
19
E.g., 'Is it not a fact, Professor, that the Federation of American Atomic Scientists urged that the United States abandon its proposal for the international ownership of atomic raw materials in the bulletin published by that organization in March 1950?'
20
One name appears in connection with six issues, writers in the New York Herald Tribune in connection with seven, President Franklin Roosevelt and George Bernard Shaw three each, etc. Instances in which the New York Times and the New York Herald Tribune are referred to merely as sources for the printed texts of speeches or statements by statesmen, officials, etc., are not included in this count.
21
It expressly declined to find a purpose to conceal foreign control.
22
For example, before an individual may be subjected to the penalties of §§ 8 and 15(a)(2), the Party must have failed to register, or failed to list him as a member, and he must subsequently have failed, within the allotted time, to register himself.
23
It was evident that the prohibitions of § 4(a) were so comprehensive that, as pointed out in the brief for the holding companies, 'it (was) * * * quite impossible for holding companies to continue in business, unregistered, in the face of these prohibitions.' Nor could the companies cease to be holding companies, since § 4(a) made unlawful, under penalty up to $200,000, the distribution or public offering of utility securities by unregistered holding companies through the mails or instrumentalities of interstate commerce, or the sale of securities by such companies with reason to believe that those securities would be distributed or made the subject of public offering through the mails or instrumentalities of interstate commerce. No doubt for this reason the Court regarded § 4(a) as a 'penalty' for failure to register, rather than as an independent regulatory scheme for unregistered holding companies. See 303 U.S. at pages 439, 442, 443, 58 S.Ct. at pages 685, 686, 687. A decree requiring the holding companies to comply with §§ 4(a) and 5 was, in effect, a decree compelling it to register.
24
Section 3 of the Act authorized the Commission to exempt from any provision or provisions of the Act certain described classes of holding companies. It was evident from the nature of Electric Bond and Share, as developed in that litigation, that it did not come within any of these categories, and the Court did not mention § 3 in its opinion.
25
The decree was without prejudice to any rights which the companies might have at law or in equity after registration, and left the companies free to challenge the validity of any provisions of the Act other than §§ 4(a) and 5. In the present proceeding, of course, the Board's order does not operate to foreclose the Communist Party, or any other person adversely affected by provisions of the Subversive Activities Control Act, from subsequently challenging in appropriate proceedings other of the Act's provisions than those requiring the registration of Communist-action organizations.
26
See North American Co. v. Securities & Exchange Comm., 327 U.S. 686, 66 S.Ct. 785, 90 L.Ed. 945.
27
See S.Rep. No. 2369, 81st Cong., 2d Sess. 4; H.R.Rep. No. 2980, 81st Cong., 2d Sess. 3, U.S.Code Cong.Service 1950, p. 3886; H.R.Rep. No. 1844, 80th Cong., 2d Sess. 2, 5; see also 96 Cong.Rec. 14174, 14237, 14256-14257, 14297, 14598.
28
See also Columbia Broada sting System, Inc., v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563; Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254.
29
S.Rep. No. 2369, 81st Cong., 2d Sess. 4. See note 27, supra.
30
See H.R. 1884, 80th Cong., 1st Sess. (prohibiting Party members from filing as candidates for elective office); H.R. 2122, 80th Cong., 1st Sess. (making Party membership unlawful); H.R. 4422, 80th Cong., 1st Sess. (requiring registration of Party members as agents of a foreign principal); H.R. 4482, 80th Cong., 1st Sess. (disqualifying political parties affiliated with the Communist Party from the ballot); H.R. 5852, 80th Cong., 2d Sess. (requiring the registration of 'Communist-front' organizations; defining 'Communist-front' as including the Communist Party).
31
H.R.Rep. No. 2980, 81st Cong., 2d Sess. 5; H.R.Rep. No. 1844, 80th Cong., 2d Sess. 6; S.Rep. No. 1358, 81st Cong., 2d Sess. 9.
32
See H.R.Rep. No. 2980, 81st Cong., 2d Sess. 1-2; S.Rep. No. 1358, 81st Cong., 2d Sess. 5; cf. H.R.Rep. No. 1844, 80th Cong., 2d Sess. 1; 96 Cong.Rec. 13765, 14233, 14585.
33
See, e.g., S.Rep. No. 1358, 81st Cong., 2d Sess. 9:
'The committee gave serious consideration to the many well-intentioned proposals which were before it which attempted to meet the problems by outlawing the Communist Party. Proponents of this approach differed as to what they desired. Some wanted to bar the Communist Party from the ballot in the elections. Others would have made membership in the Communist Party illegal per se.
'The committee believes that there are several compelling arguments against the outlawing approach. There are grave constitutional questions involved in attempting to interfere with the rights of the States to declare what parties and individuals may qualify for appearance on the ballot. To make membership in a specifically designated existing organization illegal per se would run the risk of being held unconstitutional on the grounds that such an action was legislative fiat.
'Among other policy considerations which militate against this type of approach are the following:
'(1) Illegalization of the party might drive the Communist movement further underground, whereas exposure of its activities is the primary need.
'(2) Illegalization has not proved effective in Canada and other countries which have tried it.
'(3) If the present Communist Party severs the puppet strings by which it is manipulated from abroad, if it gives up its undercover methods, there is no reason for denying it the privilege of openly advocating its beliefs in the way in which true political parties advocate theirs. In politics as well as sports, there are certain rules of the game which must be obeyed. Daggers are out of order on the American playing field. Undercover methods and foreign direction cannot be tolerated on the political field.
'This legislation does not constitute, therefore, a fiat. The Communist Party of the United States is not made guilty of any offense by reason of the enactment of the provisions of this act. If, however, the Communist Party of the United States or any other party now in existence or to be formed operates in such a way that it comes within the definitions and performs activities which are proscribed under the act, then the legislation will apply to it. * * * If such a a rty changes its characteristics, then the objective sought by the committee will have been accomplished.'
34
We need not consider now the decisions in which this Court has struck down regulations requiring not merely registration but the securing of a license, issued either at the arbitrary discretion of licensing officials or by the application of licensing standards so broad or uncertain as to permit arbitrary action by officials, as prerequisite to the right to speak. E.g., Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Superior Films, Inc., v. Department of Education, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329; Gelling v. State of Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359; Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267; Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Largent v. State of Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949. The present has no such licensing provision.
35
After the speech, Thomas had also solicited one individual, by name, to join the union. The Court declined to decide whether such a solicitation, apart from the speech, might constitutionally have been made the basis of punishment for contempt. 323 U.S. at page 541, 65 S.Ct. at page 327.
The state court's order adjudging Thomas in contempt imposed a single sentence for both 'solicitations,' and the Court therefore regarded the statute, in this application, as restraining and punishing Thomas 'for uttering, in the course of his address, the general as well as the specific invitation.' Id., 323 U.S. at page 529, 65 S.Ct. at page 322.
36
This is clear from the Court's reliance on De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278.
37
Among the Committee reports, see the following: Investigation of Communist Propaganda, H.R.Rep. No. 2290, 71st Cong., 3d Sess.; Investigation of Nazi and Other Propaganda, H.R.Rep. No. 153, 74th Cong., 1st Sess.; Investigation of Un-American Activities and Propaganda, H.R.Rep. No. 2, 76th Cong., 1st Sess.; Investigation of Un-American Propaganda Activities in the United States, H.R.Rep. No. 1476, 76th Cong., 3d Sess.; Investigation of Un-American Propaganda Activities in the United States, H.R.Rep. No. 1, 77th Cong., 1st Sess.; Special Report on Subversive Activities Aimed at Destroying Our Representative Form of Government, H.R.Rep. No. 2748, 77th Cong., 2d Sess.; Sources of Financial Aid for Subversive and Un-American Propaganda, H.R.Rep. No. 1996, 79th Cong., 2d Sess.; Investigation of Un-American Activities and Propaganda, H.R.Rep. No. 2233, 79th Cong., 2d Sess.; Investigation of Un-American Activities and Propaganda, H.R.Rep. No. 2742, 79th Cong., 2d Sess.; The Communist Party of the United States as an Agent of a Foreign Power, H.R.Rep. No. 209, 80th Cong., 1st Sess.; Report on the Communist Party of the United States as an Advocate of Overthrow of Government by Force and Violence, H.R.Comm.Print, 80th Cong., 2d Sess.; Report of the Committee on Un-American Activities to the United States House of Representatives, Eightieth Congress, H.R.Comm.Print, 80th Cong., 2d Sess.; Soviet Espionage Within the United States Government (second report), H.R.Comm.Print, 80th Cong., 2d Sess.; The Strategy and Tactics of World Communism, H.R.Doc. No. 619, 80th Cong., 2d Sess., and (Country Studies), H.R.Doc. No. 154, 81st Cong., 1st Sess.; Annual Report of the Committee on Un-American Activities For the Year 1949, H.R.Rep. No. 1950, 81st Cong., 2d Sess.; Report on Atomic Espionage, R.H.Rep. No. 1952, 81st Cong., 2d Sess. For a bibliography of published committee hearings during this period, see Internal Security Manual, S.Doc. No. 47, 83d Cong., 1st Sess. 216-223.
38
See the Foreign Agents Registration Act, 52 Stat. 631, as amended, 22 U.S.C. §§ 611-621, 22 U.S.C.A. §§ 611-621.
39
Compare 18 U.S.C. § 612, 18 U.S.C.A. § 612 (prohibiting the publication or distribution of written statements concerning candidates for designated national elective offices unless such statements contain the names of the persons or associations responsible for the publication or distribution and in the case of associations, the names of their officers); 37 Stat. 553, as amended, 39 U.S.C. §§ 233-234, 39 U.S.C.A. §§ 233, 234 (prescribing the withdrawal of second-class mailing privileges from publications which do not file with the Postmaster General, and publish in the second issue of the publication printed after filing, a statement setting forth the names of the publication's editors, publishers, managers and owners, and, if the owners are corporations, the names of stockholders and other security holders; and prohibiting the printing, by publications enjoying second-class privileges, of paid advertisements not market as such), sustained against First Amendment challenge in Lewis Publishing Co. v. Morgan, 229 U.S. 288, 33 S.Ct. 867, 57 L.Ed. 1190; Communications Act of 1934, § 317, 48 Stat. 1089, 47 U.S.C. § 317, 47 U.S.C.A. § 317 (requiring, in the case of all matter broadcast by radio for which a valuable consideration is paid by any person, an announcement that the matter has been paid for by such person).
40
H.R.Rep. No. 2980, 81st Cong., 2d Sess. 2; H.R.Rep. No. 1844, 80th Cong., 2d Sess. 5.
41
One aspect of the constitutional attack on the New York statute in the Bryant case was that the 'liberty' protected by the Due Process Clause comprehended freedom to form harmless associations and engage in non-violent associational activity.
42
Added by an Act of July 29, 1954, 68 Stat. 586.
43
See S.Rep. No. 2369, 81st Cong., 2d Sess. 4; H.R.Rep. No. 2980, 81st Cong., 2d Sess. 3; S.Rep. No. 1358, 81st Cong., 2d Sess. 3, 5, 8; H.R.Rep. No. 1844, 80th Cong., 2d Sess. 2; 96 Cong.Rec. 13731, 14171-14173.
44
A fortiori we do not reach at this time the question of the validity of § 8 of the Act. See note 22 supra.
1
On remand from this Court, the Board expunged the entire testimony of the alleged perjurers Crouch, Matusow, and Johnson. Although the Board concluded, and the Court of Appeals agreed, that the remaining evidence was sufficient to support an order compelling the petitioner to register, there can be no doubt that the Government's case was weakened by the deletion of the testimony of three important witnesses, and it is therefore on the basis of this already abbreviated record that the non-constitutional errors alleged by the petitioner must be considered.
2
The relevant portion of § 14(a) reads as follows:
'If either party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material, the court may order such additional evidence to be taken before the Board and to be adduced upon the proceeding in such manner and upon such terms and conditions as to the court may seem proper. The Board may modify its findings as to the facts, by reason of the additional evidence so taken, and it shall file such modified or new findings, which, if supported by the preponderance of the evidence shall be conclusive, and its recommendations if any, with respect to action in the matter under consideration.' 64 Stat.1001-1002.
3
Rule 23, subd. 1(c) provides:
'The petition for writ of certiorari shall contain * * *
'(c) The questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. Only the questions set forth in the petition or fairly comprised therein will be considered by the court.' (Emphasis added.)
4
In view of the Court's justified concern over the lengthy history of this litigation, it is noteworthy, I think, that many of the cases to which I have referred also involved protracted litigations, which were lengthened even further by the Court's refusal to adjudicate the constitutional issues argued by the parties. However, what was said in the Alma Motor case is equally applicable here: 'We agree that much time has been wasted by the earlier failure of the parties to indicate, or the Circuit Court of Appeals or this Court to see, the course which should have been followed. This, however, is no reason to continue now on the wrong course. The principle of avoiding constitutional questions is one which was conceived out of considerations of sound judicial administration. It is a traditional policy of our courts.' 329 U.S. at page 142, 67 S.Ct. at pages 236.
5
After discussing the different ways in which other courts have attempted to avoid applying the Consolidated Edison rule, the Court of Appeals said: 'There is much force to these various suggestions, and perhaps we misconstrue the opinion of the Supreme Court. But we are bound by the opinion as we read it.' 102 U.S.App.D.C. at page 404, 254 F.2d at page 323.
6
See N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217, 221, 69 S.Ct. 960, 93 L.Ed. 1320; Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 155, 61 S.Ct. 908, 85 L.Ed. 1251; Coca-Cola Bottling Co. of St. Louis v. N.L.R.B., 8 Cir., 195 F.2d 955, 956; N.L.R.B. v. Fairchild Engine & Airplane Corp., 4 Cir., 145 F.2d 214, 215; N.L.R.B. v. National Laundry Co., 78 U.S.App.D.C. 184, 185, 138 F.2d 589, 590; California Lumbermen's Council v. Federal Trade Comm., 9 Cir., 115 F.2d 178, 183; Swift & Co. v. N.L.R.B., 10 Cir., 106 F.2d 87, 91; Wilson & Co. v. N.L.R.B., 8 Cir., 103 F.2d 243, 245.
7
Even the court below has not followed its conception of the Consolidated Edison rule consistently. Thus, on April 11, 1958, after the case had been remanded to the Board, the court ordered the Government to produce prior statements made by witness Budenz, even though the petitioner had not made a motion pursuant to § 14(a) for leave to adduce additional evidence when the Board initially denied a motion for production of the Budenz statements. It is difficult to understand why the court did not follow the same procedure with regard to the Gitlow memoranda, especially in view of the fact that petitioner did make a motion for production, pursuant to § 14(a), the second time that the case was remanded to the Board. Since the case was being remanded in any event, the court's refusal to grant the § 14(a) motion seems unreasonable.
8
The court's conclusion resulted from the Government's representation that Budenz had made no statements to the FBI concerning the Starobin and Weiner matters. However, in view of the following extract from the record, it would seem that the court should have pressed the inquiry further:
Q. 'Prior to your appearance before the Un-American Activities Committee, did you tell the FBI about the Starobin letter? A. That, I wouldn't recall.
'Q. You don't recall that. You spent 100 hours with the FBI, or more, you said, before you went there? A. Yes, but the FBI asked me a very great number of questions, and I answered their questions.
'Q. But the Manuilsky business and the Starobin letter-A. I may have told them, counselor. I say I do not recall. The thing is that-
'Q. May I complete my question, please? A. Yes.
'Q. The Starobin letter and the Manuilsky incident were supposed to be quite important in this setup that you got up against the Communist Party, was it not? You now say you don't recall whether you gave it to the FBI? A. I don't recall the time. The FBI asked me a great number of questions. Undoubtedly if it were in my book, I must have given it to the FBI. The point of the matter is that the FBI particularly at the period, and as a matter of fact this has been the general practice, asked me questions. I do not rush out and volunteer a lot of information, as a rule.
'Q. But didn't you regard it as an important incident? A. Oh, sure it was important.
'Q. As a matter of fact, you described it in your book, 'This is My Story,' as-and I quote your language-'the most sensational by-product of the San Francisco conference.' Did you not so describe it? A. That, I think, was correct.' (Emphasis added.)
9
In this connection, it should be noted that in three additional places in its Report the Board found it necessary to explain seeming inconsistencies in Budenz' testimony. If the petitioner could have discredited Budenz' testimony on the basis of his prior statements, it is possible that the Board would have resolved these other discrepancies against Budenz and the Government.
10
The expansive lengths to which the Court has on occasion gone in construing a statute in a manner designed to avoid constitutional challenges is demonstrated by the decision in Scales v. United States, decided this day, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782. Certainly, the interpretation of this Act suggested by the petitioner would require far less legislative redrafting than the Court undertook to accomplish in Scales.
11
At this point, it should be observed that the vast bulk of the evidence introduced by the Government at the hearing before the Board related to the Party's activities prior to its disaffiliation from the Communist International in 1940. In order to link this stale evidence to the Party's current activities, which which the Act is concerned, the Board indulged in a presumption of continuity, whereby it reasoned that since the Party was under Soviet control prior to 1940, and since the Party still adheres to the principles of Soviet Communism, it must be presumed that the Party is still controlled by the Soviet Union. The validity of such a presumption is certainly dubious. However, if the Board is to be permitted to rely upon this presumption, the least to which the Party is entitled is that the record be free from serious procedural errors and that the findings upon which the Board rests its order be supported by some evidence.
12
I cannot agree with the theory of MR. JUSTICE DOUGLAS that the non-constitutional errors herein discussed are less important than the mere possibility of perjury which clouded the record in 1956 and which prompted the Court to remand the case to the Board at that time. For all we know, a cross-examination of Gitlow based on his prior memoranda, or a full cross-examination of Budenz based on his prior statements to the FBI and his testimony inconsistent therewith, might have disclosed further possibilities of perjury. Nor can I agree with the suggestion that since Congress, in the Communist Control Act of 1954, branded the Communist Party as 'an instrumentality of a conspiracy to overthrow the Government of the United States,' 68 Stat. 775, 50 U.S.C.A. § 841 et seq., the Board's hearings and findings are merely superfluous, and the non-constitutional errors committed by the Board and the Court of Appeals are therefore unimportant. In the first place, this theory did not dissuade the Court from remanding to the Board in 1956 because of defects in the record. Moreover, there is nothing in the language or legislative history of the Communist Control Act of 1954 to indicate that Congress intended to repeal those provisions of the Subversive Activities Control Act which carefully delineate the Board's functions and describe the procedural mechanism by which the Board is to apply the Act.
1
64 Stat. 987, as amended, 50 U.S.C. §§ 781-798, 50 U.S.C.A. §§ 781-798.
2
52 Stat. 631, as amended, 22 U.S.C. §§ 611-621, 22 U.S.C.A. §§ 611-621.
3
32 U.S.C. § 611, 22 U.S.C.A. § 611.
4
318 U.S. 236, 251, 63 S.Ct. 561, 568, 87 L.Ed. 734 (dissenting opinion).
5
18 U.S.C. § 2385, 18 U.S.C.A. § 2385.
6
Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782.
7
See Communist Control Act of 1954, § 2, 68 Stat. 775, 50 U.S.C. § 841, 50 U.S.C.A. § 841.
8
50 U.S.C. § 781(11), 50 U.S.C.A. § 781(11). 'The agents of communism have devised clever and ruthless espionage and sabotage tactics which are carried out in many instances in form or manner successfully evasive of existing law.'
9
50 U.S.C. § 781(1), 50 U.S.C.A. § 781(1). 'There exists a world Communist movement which, in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to established a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.'
10
50 U.S.C. § 781(15), 50 U.S.C.A. § 781(15). 'The communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination * * *.'
11
50 U.S.C. § 781(9), 50 U.S.C.A. § 781(9). 'In the United States those individuals who knowingly and willfully participate in the world Communist movement, when they so participate, in effect repudiate their allegiance to the United States, and in effect transfer their allegiance to the foreign country in which is vested the direction and control of the world Communist movement.'
12
50 U.S.C. § 794(a)(2), 50 U.S.C.A. § 794(a)(2).
13
50 U.S.C. § 794(a), 50 U.S.C.A. § 794(a).
14
50 U.S.C. § 794(b)(2), 50 U.S.C.A. § 794(b)(2).
15
50 U.S.C. § 790, 50 U.S.C.A. § 790.
16
50 U.S.C. § 789(1), 50 U.S.C.A. § 789(1).
17
50 U.S.C. § 784, 50 U.S.C.A. § 784.
18
50 U.S.C. § 785, 50 U.S.C.A. § 785.
19
50 U.S.C. § 788, 50 U.S.C.A. § 788.
20
There seems to be little doubt that a registered member of the Communist Party would find it almost impossible to get or retain employment in this country. See, e.g., American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Barsky v. Board of Regents, 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829; Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423; Beilan v. Board of Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414; Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494; Konigsberg v. State Bar of California, 366 U.S. 36, 81 S.Ct. 997, 6 L.Ed.2d 105; In re Anastaplo, 366 U.S.8 2, 81 S.Ct. 978, 6 L.Ed.2d 135. Cf. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231.
21
See, e.g., Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1068, 17 L.Ed.2d 1356; Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782; Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836.
22
See, e.g., Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653.
23
In this regard, I think the present case is identical to Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. There the Court reached and decided the constitutional question tendered, saying: 'It may therefore be said that when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rg hts.' Id. 209 U.S. at page 147, 28 S.Ct. at page 449.
24
Cummings v. State of Missouri, 4 Wall. 277, 323, 18 L.Ed. 356. And see United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252.
25
This provides yet another difference between the Act under consideration here and the Act under which the prosecution involved in the Viereck case was brought. Before Viereck could be convicted for having failed to register or report as a foreign agent, he was entitled to have all the facts upon which his guilt depended determined by a jury under an indictment returned by a grand jury and during the course of a judicial proceeding in which he was accorded the protection of all the forms and procedures designed through the years to protect defendants charged with the commission of a criminal offense.
26
Cf. Whitney v. People of State of California, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095: '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 and assembly.' (Brandeis, J., concurring.)
27
Cf. Gitlow v. People of State of New York, 268 U.S. 652, 673, 45 S.Ct. 625, 632, 69 L.Ed. 1138: 'If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.' (Holmes, J., dissenting.)
28
35 Elizabeth, cc. I and II, entitled 'An Act to retain the Queen's Majesty's Subjects in their due Obedience' and 'An Actf or Restraining Popish Recusants to some certain Places of Abode.'
29
A brief history of some of these statutes is set out in my dissenting opinion in American communications Ass'n v. Douds, 339 U.S. 382, 447-448, notes 3 and 4, 70 S.Ct. 674, 708-709, 94 L.Ed. 925.
30
See ral examples of the persecution inflicted upon Protestants by Catholics were set out in the Appendix to my concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 146-149, 71 S.Ct. 624, 635-636, 95 L.Ed. 817.
31
See, e.g., Bunyan, The Pilgrims Progress; Milton, Areopagitica.
32
39 George III, c. 79.
33
Section 7(d)(6) of the Act, 50 U.S.C. § 786(d)(6), 50 U.S.C.A. § 786(d) (6), requires the 'listing, in such form and detail as the Attorney General shall by regulation prescribe, of all printing presses and machines including but not limited to rotary presses, flatbed cylinder presses, platen presses, lithographs, offsets, photo-offsets, mimeograph machines, multigraph machines, multilith machines, duplicating machines, ditto machines, linotype machines, intertype machines, monotype machines, and all other types of printing presses, typesetting machines or any mechanical devices used or intended to be used, or capable of being used to produce or publish printed matter or material, which are in the possession, custody, ownership, or control of the Communist-action or Communist-front organization or its officers, members, affiliates, associates, group, or groups in which the Communist-action or Communist-front organization, its officers or members have an interest.'
34
Parliamentary Debates, Hansard, 1st Series, 34 at 987.
35
Id., at 988.
36
Ibid.
37
Id., at 984-998.
38
4 Memoir of Jefferson 28.
39
The so-called Alien and Sedition Acts comprised three different statutes enacted in 1798: 1 Stat. 570; 1 Stat. 577; and 1 Stat. 596.
40
For a graphic discussion of the period of the Alien and Sedition Acts, see Bowers, Jefferson and Hamilton, 1925, c. XVI, 'Hysterics,' and c. XVII, 'The Reign of Terror.'
41
Much of this sort of misdirected persecution was doubtless due to the attitude and public statements of the influential Federalist Secretary of State, Timothy Pickering. See Miller, Crisis in Freedom, 89-90 (1951): 'By Pickering and his followers, it was held that since honest men who valued the national welfare would not cavil at the Sedition Act, it could be presumed that those who criticized it were no better than Jacobin fellow-travelers. It was laid down as a sound principle that 'when a man is heard to inveigh against this law, set him
down as a man who would submit to no restraint which is calculated for the peace of society. He deserves to be suspected.' Thus, Jacobin Sympathizers were to be known by their attitude toward the Sedition Act; a critical or skeptical frame of mind was prima facie evidence of guilt. The Secretary of State looked darkly upon such troublemakers: 'Those who complain of legal provisions for punishing intentional defamation and lies, as bridling the liberty of speech and of the press,' he said, 'may, with equal properiety, complain against laws made for punishing assault and murder, as restraints upon the freedom of men's actions." In such an atmosphere, it is small wonder, as Miller observes, that 'it became impossible for the Federalists to distinguish between a genuine, freedom-loving American democrat and a French Jacobin bent upon overturning religion, morality and the State.' Id., at 90.
42
The indictment against Lyon alleged two counts of libel against President Adams. The first count alleged that Lyon had made and published the following statement: 'As to the Executive, when I shall see the effects of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that Executive shall have my zealous and uniform support. But whenever I shall, on the part of our Executive, see every consideration of public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice-when I shall behold men of real merit daily turned out (of) office for no other cause than independency of sentiment-when I shall see men of firmness, merit, years, abilities, and experience, discarded in their applications for office, for fear they possess that independence, and men of meanness preferred for the ease with
which they can take up and advocate opinions, the consequence of which they know but little of-when I shall see the sacred name of religion employed as a State engine to make mankind hate and persecute each other, I shall not be their humble advocate$' The second count of the indictment alleged that Lyon had caused the publication of the following letter from a person in France: 'The misunderstanding between the two Governments has become extremely alarming; confidence is completely destroyed; mistrusts, jealousies, and a disposition to a wrong attribution of motives, are so apparent as to require the utmost caution in every word and action that are to come from your Executive-I mean if your object is to avoid hostilities. Had this truth been understood with you before the recall of Monroe-before the coming and second coming of Pinckney; had it guided the pens that wrote the bullying speech of your President, and stupid answer of your Senate, at the opening of Congress in November last, I should probably have had no occasion to address you this letter. But when we found him borrowing the language of Edmund Burke, and telling the world that, although he should succeed in treating with the French, there was no dependence to be placed in any of their engagements, that their religion and morality were at an end, and they had turned pirates and plunderers, and that it would be necessary to be perpetually armed against them, though you are at peace; we wondered that the answer of both Houses had not been an order to send him to the mad-house. Instead of this, the Senate have echoed the speech with more servility than ever George the Third experienced from either House of Parliament.' Cong.Globe, 26th Cong., 1st Sess. 411 (1840).
43
The Part played by federal judges in the creation of the atmosphere of hysteria which characterized the period is discussed in Bowers, Jefferson and Hamilton, 398-402. See also Miller, Crisis in Freedom, 135-142.
44
The significance of the issue of political freedom in the election of 1800 is shown by the fact that Jefferson devoted a large part of his inaugural address to that subject. It was at that timet hat he gave new emphasis to the creed of political freedom by which this country lived and prospered for so long: 'If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.' The part of Jefferson's First Inaugural Address dealing with political freedom is reprinted in Jones, Primer of Intellectual Freedom, 142 (Harvard University Press, 1949).
45
In 1840, for example, President Van Buren signed a bill that indemnified the descendants of Matthew Lyon for the persecution he had suffered under the Sedition Act. See Cong.Globe 26th Cong., 1st Sess. 410-414, 478 (1840). Appropriately, this act of official denouncement of the Sedition Law was accomplished on July 4 of that year. 6 Stat. 802.
46
Perhaps the strongest denunciation of the Sedition Act as unconstitutional has come from Congress itself. The report of the Committee of the House of Representatives which presented the bill passed in 1840 to refund the fine imposed under that Act upon Matthew Lyon stated: 'The committee do not deem it necessary to discuss at length the character of that law, or to assign all the reasons, however demonstrative, that have induced the conviction of its unconstitutionality. No question connected with the liberty of the press ever excited a more universal and intense interest-ever received so acute, able, long-continued, and elaborate investigation-was ever more generally understood, or so conclusively settled by the concurring opinions of all parties, after the heated political contests of the day had passed away. All that now remains to be done by the Representatives of the people who condemned this act of their agents as unauthorized, and transcending their grant of power, to place beyond question, doubt, or cavil, that mandate of the Constitution prohibiting Congress from abridging the liberty of the press, and to discharge an honest, just, moral, and honorable obligation, is to refund from the Treasury the fine thus illegally and wrongfully obtained from one of their citizens: for which purpose the committee herewith report a bill.' Cong.Globe, 26th Cong., 1st Sess. 411 (1840). Cf. Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173: 'I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 * * *,b y repaying fines that it imposed.' (Holmes, J., dissenting.)
47
The real aim of the Sedition Act emerges with indisputable clarity from the debates surrounding its enactment. Thus John Allen, one of the supporters of the Act in the House of Representatives, urged the necessity of the Act in the following terms: 'I hope this bill will not be rejected. If ever there was a nation which required a law of this kind, it is this. Let gentlemen look at certain papers printed in this city and elsewhere, and ask themselves whether an unwarrantable and dangerous combination does not exist to overturn and ruin the Government by publishing the most shameless falsehoods against the Representatives of the people of all denominations, that they are hostile to free Governments and genuine liberty, and of course to the welfare of this country; that they ought, therefore, to be displaced, and that the people ought to raise an insurrection against the Government. * * * I say, sir, this paper (the Aurora, a paper which supported the Jeffersonian party) must necessarily, in the nature of things, be supported by a powerful party; I do not say of whom that party is composed. The anonymous pieces and paragraphs it contains, evince the talents and industry employed to give it currency; and it is perfectly well understood, by all parties and persons, to contain the opinions of certain great men, and certain gentlemen in this House. This inflammatory address to the Irishmen, is, therefore, understood by them to come clothed with high authority. This is the work of a party; this paper is devoted to party; it is assiduously disseminated through the country by a party; to that party is all the credit due; to that party it owes its existence; if they loved the peace of our Zion, if they sought the repose of our country, it would cease to emit its filth; it has flourished by their smiles; it would perish at their frowns.' 8 Annals of Cong. 2093-2100. It is of course, true that some Congressmen who favored the Sedition Act did so on broader grounds. 'Harrison Gray Otis would have employed the Sedition Act against all associations, including the Masons: 'The spirit of association,' he warned, 'is a dangerous thing in a free government, and ought carefully to be watched." Miller, Crisis in Freedom, 187.
48
These charges were made by Fisher Ames in writings published in April 1799. See Ames, Laocoon, reprinted in II Works of Fisher Ames, 109, at 115, 116. Similar sentiments were expressed by Mr. Justice Peters of this Court in a letter, dated August 24, 1798, to Secretary of State Pickering. Mr. Justice Peters apparently thought it necessary, for the good of the country, 'to get rid of a Set of Villains who are ready to Strike when they think the Crisis arrives.' See Miller, Crisis in Freedom, 137.
49
Parliamentary Debates, Hansard, 1st Series, 34, at 1073. (Emphasis supplied.) Cf. Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 867, 95 L.Ed. 1137, in which this Court upheld convictions for advocacy of overthrow of the Government 'as speedily as circumstances would permit.'
50
See Konigsberg v. State Bar of California, 366 U.S. 36, 56, 81 S.Ct. 997, 1010, 6 L.Ed.2d 105 (dissenting opinion); Feldman v. United States, 322 U.S. 487, 501-502, 64 S.Ct. 1082, 1088-1089, 88 L.Ed. 1408 (dissenting opinion).
51
Parliamentary Debates, Hansard, 1st Series, 34 at 987.
52
See, e.g., the argument of Representative Harper on the floor of the house in favor of the passage of the Sedition Act: 'He had often heard in this place, and elsewhere, harangues on the liberty of the press, as if it were to swallow up all other liberties; as if all law and reason, and every right, human and divine, was to fall prostrate before the liberty of the Press; whereas, the true meaning of it is no more than that a man shall be at liberty to print what he pleases, provided he does not offend against the laws, and not that no law shall be passed to regulate this liberty of the press. He admitted that a law which should say a man shall not slander his neighbor would be unnecessary; but it is perfectly within the Constitution to say, that a man shall not do this, or the other, which shall be injurious to the well being of society; in the same way that Congress had a right to make laws to restrain the personal liberty of man, when that liberty is abused by acts of violence on his neighbor.' 8 Annals of Cong. 2102.
53
Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. See also Yates v. United States, 354 U.S. 298, 77 S.Ct. 1068, 1 L.Ed.2d 1356; Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782; Noto v. United States, 367 U.S. 290, 81 S.Ct. 1517, 6 L.Ed.2d 836.
54
As the Court said in Bridges v. State of California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192: 'What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech, or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.'
55
Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (Holmes, J., dissenting). I have recently expressed my belief that the 'balancing test' can derive no support whatever from the 'clear and present danger' test used by Mr. Justice Holmes and Mr. Justice Brandeis. See Konigsberg v. State Bar of California, 366 U.S. 36, 56, 81 S.Ct. 997, 1010, 6 L.Ed.2d 105 (dissenting opinion).
56
American Communications Ass'n v. Douds, 339 U.S. 382, 404, 70 S.Ct. 674, 686, 94 L.Ed. 925.
57
Miller, Crisis in Freedom, 84.
1
For accounts of the attempts of Communists to infiltrate American trade unions see S.Doc. No.89, 82d Cong., 1st Sess.; Taft, The Structure and Government of Labor Unions (1954), pp. 19 et seq.; Murray, American Labor and the Threat of Communism (1951), 274 Annals Am.Acad.Pol. & Soc.Sci. 125; Paschell and Theodore, Anti-Communist Provisions in Union Constitutions (1954), 77 Monthly Lab.Rev. 1097.
Eric Sevareid writing in the Washington Post for January 15, 1961, said:
'Americans get too hysterical about the Marxists in their midst. Americans do, considering that there are so few. But I notice that it is the hard core of Marxists who now threaten to split Belgium in two; that it was the hard core of Marxists who drove the British Labor Party down the official policy line of neutralism.'
2
The dissents in that case were on grounds not material to the bare issue of registration now before us. The concealment of the main interests behind legislative proposals has been conspicuous. The example of the American Fair Trade League-controlled by manufacturers but purporting to represent retailers only-is told in Federal Trade Commission, Report on Resale Price Maintenance (1945), pp. 43-48.
3
See Meltzer, Required Records, The McCarran Act, and the Privilege Against Self-Incrimination, 18 U. of Chi.L.Rev. 687, 719-728.
4
It is also the starting point for certain other quasi-penal disabilities, including the roundup of those who may be put in detention camps by virtue of 50 U.S.C. §§ 812-814, 50 U.S.C.A. §§ 812-814.
5
In answering a claim of the prosecution that a witness cannot refuse to answer unless the answer, unconnected with other testimony, would be sufficient to convict him of a crime, Chief Justice Marshall said:
'This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible but a probable case that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this descripi on.
'What testimony may be possessed, or is attainable, against any individual the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws.' 25 Fed.Cas. at page 40.
6
See Barenblatt v. United States, 360 U.S. 109, 128, 79 S.Ct. 1081, 1093, 3 L.Ed.2d 1115.
7
See Communist Control Act of 1954, § 2, 68 Stat. 775, 50 U. S. C. § 841.
8
See List of Organizations, App. A, 5 CFR, part 210 (1949 ed.); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 124-129, 71 S.Ct. 624, 625-627, 95 L.Ed. 817.
9
Section 6 of the Mann Act (36 Stat. 825, 827, 18 U.S.C. § 2424, 18 U.S.C.A. § 2424) provides that anyone harboring an alien woman in a house of prostitution must register. There is no required form-merely a statement in writing giving the following information: the name of the woman, the place where she is kept, all of the facts as to the date of her entry into the United States, the port of entry, her age, nationality, parentage, and all facts concerning her procurato n to come to this country within the knowledge of the person required to furnish the statement. One who files is immune from prosecution by the United States for anything reported in the registration statement. See United States v. Mack, 2 Cir., 112 F.2d 290, 292. But this provision was held in violation of the Fifth Amendment in United States v. Lombardo, D.C., 228 F. 980, affirmed on other grounds, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897, because the immunity extended only to federal, not state prosecutions.
10
The Court had held years earlier in Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, that the Fifth Amendment was not applicable to the States. And see Jack v. State of Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234, holding that if immunity from state prosecution were granted, the defense that it offered no immunity from federal prosecution would have been of no avail.
| 23
|
366 U.S. 761
81 S.Ct. 1670
6 L.Ed.2d 853
Harry Joseph PAYNE, petitioner,v.Paul J. MADIGAN, Warden. Thomas E. YOUNG, petitioner, v. UNITED STATES.
Nos. 180, 184.
Supreme Court of the United States
June 5, 1961
Rehearing Denied Oct. 9, 1961.
See 82 S.Ct. 22, 23.
Mr. Frederick M. Rowe, Washington, D. C., for petitioners in both cases.
Mr. Harold H. Greene, Washington, D. C., for respondents in both cases.
On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit.
On Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit.
PER CURIAM.
1
The judgments are affirmed by an equally divided Court.
2
Mr. Justice FRANKFURTER took no part in the consideration or decision of these cases.
| 01
|
367 U.S. 290
81 S.Ct. 1517
6 L.Ed.2d 836
John Francis NOTO, Petitioner,v.UNITED STATES.
No. 9.
Argued Oct. 10 and 11, 1960.
Decided June 5, 1961.
Mr. John J. Abt, New York City, for petitioner.
Mr. Kevin T. Maroney, Washington, D.C., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
This case, like Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, was brought here to test the validity of a conviction under the membership clause of the Smith Act, 18 U.S.C.A. § 2385. 361 U.S. 813, 80 S.Ct. 90, 4 L.Ed.2d 60. The case comes to us from the Court of Appeals for the Second Circuit which affirmed petitioner's conviction in the District Court for the Western District of New York, after a jury trial. 262 F.2d 501.
2
The only one of petitioner's points we need consider is his attack on the sufficiency of the evidence, since his statutory and constitutional challenges to the conviction are disposed of by our opinion in Scales; and consideration of his other contentions is rendered unnecessary by the view we take of his evidentiary challenge.
3
In considering that challenge we start from the premise that Smith Act offenses require rigorous standards of proof. Scales, 367 U.S. at page 230, 81 S.Ct. at page 1487. We find that the record in this case, which was tried before our opinion issued in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, bears much of the infirmity that we found in the Yates record, and requires us to conclude that the evidence of illegal Party advocacy was insufficient to support this conviction.
4
A large part of the evidence adduced by the Government on that issue came from the witness Lautner, and the reading of copious excerpts from the 'communist classics.' This evidence, to be sure, plentifully shows the Party's teaching of abstract doctrine that revolution is an inevitable product of the 'proletarian' effort to achieve communism in a capitalist society, but testimony as to happenings which might have lent that evidence to an inference of 'advocacy of action' to accomplish that end during the period of the indictment, 1946—1954, or itself supported such an inference, is sparse indeed. Moreover, such testimony as there is of that nature was not broadly based, but was limited almost exclusively to Party doings in western New York, more especially in the cities of Rochester and Buffalo, the scene of petitioner's principal Party activities. Further, the showing of illegal Party advocacy lacked the compelling quality which in Scales, ante, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, was supplied by the petitioner's own utterances and systematic course of conduct as a high Party official. We proceed to a summary of this testimony.
5
The witness Dietch described mainly episodes from his indoctrination as a member of the Rochester Young Communist League during the years 1935—1938. In that time he knew petitioner, with whom he had gone to high school, and testified that petitioner, then a youth, was an active and convinced member of the League. Apart from those early years, Dietch's testimony as to the Party and the petitioner referred to one other possibly relevant episode, when, in 1951, he obtained for the Party at petitioner's request two pieces of special printing equipment for which petitioner paid $100 and $200. However, this episode is deprived of significance when it appears from the witness' testimony that petitioner explained to him at the time that pressure brought to bear on the Party had made it difficult for it to get its printing done by conventional commercial means.
6
The witness Geraldine Hicks had joined the Party in 1943 at the request of the F.B.I. and continued to be involved with it until 1953. She knew petitioner in connection with his work as Chairman of the Erie County Communist Party from 1946 until 1950. Her testimony related to classes and meetings which she atended in the Buffalo area, where the 'communist classics' were used for teaching purposes. Extensive passages from these works were read into evidence. She also testified as to the importance attributed by the local Party to its 'industrial concentration' work and to its recruitment of workers in those industries as well as to the importance attributed to the recruitment of Negroes.
7
The witness Chatley, who was a bus driver during the period of his Communist Party membership from 1949 onwards, testified to his contacts with petitioner and other Party members in the Buffalo area. He testified to Party teachings as to the importance of receiving solid support from the labor unions. He was given various items of literature such as the History of the Russian Revolution and The Proletarian Revolution and the Renegade Kautsky, which latter dealt with an early Communist who had been singled out for condemnation because of his views that communism could be achieved ultimately by peaceful means. He was told by petitioner that 'if I would re-read the book(s), most of my questions would be answered. He said if there were any points I did not understand he would be happy to clear them up at a later visit.' Perhaps the most significant item of Chatley's testimony dealt with an interview with petitioner, at which Chatley was requested to hide out a Party member who was fleeing the F.B.I. in connection with 'what the newspapers called this Atom Spy Ring business.' So far as the record reveals, the plans never progressed beyond this request. The petitioner had also told Chatley that the Federal Government was building concentration camps:
8
'* * * He said they are not building them for ornamental purposes. He said 'They are going to fill them with our people, starting with the leaders.' * * * He said that he expected when they were ready he would be one of the first people to go. He said the Federal Government would continue with these camps and fill them with a lot of people, but the time would come when there would be a show-down, working people will stand just so much. It might take several years, it will result in bad times, but in the end it will result in a turn in the country to Marxism and Leninism. He said then his part might be in it, he was willing to suffer anything to bring it to that glorious end.'
9
Certainly the most damaging testimony came from the witness Regan, who as a government agent and Party member from 1947 in the Buffalo-Rochester area gathered considerable information on the Party's 'industrial concentration' program in that area. Regan, at the request of petitioner, attended a Party meeting in New York City on creating a Party commission in the United Auto Workers. The conference concerned the penetration of the United Auto Workers, and plans were made for getting people into various shops in automobile plants in the State, who could later assume positions of leadership in the union. At a later date petitioner also discussed the penetration of an automobile plant in the area by Party members sent up from New York City. Regan also received a pamphlet, but not from the petitioner, dealing with the concentration program in the steel industry. The pamphlet stated at one point:
10
'1. Three basic industries, steel, railroad, and mining. These are basis (sic) to the National economy, that is if any one or all three are shut down by strike our economy is paralyzed. It is necessary for a Marxist revolutionary party to be rooted in these industries.'
11
In 1949 Regan attended a conference in Rochester at which the petitioner spoke: 'He discussed concentration work, and he said the task of the Party was to build the Party within the shop in Buffalo * * * he specifically mentioned both steel and Westinghouse Electric.' Another speaker said that 'steel industry was a basic industry, by basic industry he said the entire section of industry within the country depended on steel.' Regan also attended a conference in New York Ct y at which petitioner spoke:
12
'* * * He said a Lenin method of work within the shop was to decide upon the particular dependent within the shop, that the shop as a rule depended upon, to suspend production, it was the job of every communist to know the people, executives and product of the company, if possible to direct his attention on the key department, better still, to get a job in the key department.'
13
Several other passages in Regan's testimony should be adverted to for their bearing on the tone of the record before us. Speaking of the war in Korea, Regan testified that the petitioner had said at the conference of the Upstate District of the Party in 1950:
14
'* * * the war * * * was caused by an agressive action of the United States, American troops would follow Wall Street policy. He said it is possible for this to break out in other parts of the world. He mentioned the near East.
15
'Q. Is that all?
16
'A. Yes.'
17
No effort was made to link up this conference with particularly trusted Party members, but it does appear that it was at this conference that plans were laid for building a Communist Party club 'on the railroad.'
18
Regan also testified to a remark made at another Party conference by a lecturer that a 'social democrat was an evolutionist who waited for socialism where the Communist Party would achieve socialism through revolutions.' At this same meeting the lecturer recounted an incident that had occurred at a class she had once taught in New Rochelle, New York, at an unspecified time:
19
'* * * She said a person at this class, they were discussing the Soviet Union, asked her would it be possible for him to own twenty pairs of shoes in the Soviet Union. She made the statement he was the kind of a guy they hoped to shoot some day.'
20
The witness recalled a similar intemperate remark by the petitioner during a meeting in 1947:
21
'Lumpkin (a Party member) was talking about a visit to his home by a local newspaper reporter. He said the reporter came to his home. They let him in and answered a lot of questions. * * *'
22
'John Noto said Lumpkin should never let the reporter into the house. Should not have answered any questions. He said 'Sometime I will see the time we can stand a person like this S.O.B. against the wall and shoot him."
23
The witness Greenberg testified largely about the Party program in the upstate area as to setting up printing and mimeographing equipment in case commercial channels were cut off or the Party was forced underground; and three other witnesses testified briefly to the effect that they had known petitioner when he had moved to Newark, New Jersey, and obtained a job under an assumed name as a helper or stockkeeper in the Goodyear Rubber Products Corporation factory, in connection with which he used a false Social Security number.
24
Finally, there was testimony through the witness Lautner as to the Party's underground organization in northern New York, including petitioner's participation therein as one of the three Party members in charge.
25
We must consider this evidence in the light most favorable to the Government to see whether it would support the conclusion that the Party engaged in the advocacy 'not of * * * mere abstract doctrine of forcible overthrow, but of action to that end, by the use of language reasonably and ordinarily calculated to incite persons to * * * action' immediately or in the future. Yates v. United States, supra, 354 U.S. at page 316, 77 S.Ct. at page 1075. In that case we said:
26
'* * * The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to 'action for the accomplishment' of forcible overthrow, to violence as 'a rule or principle of action,' and employing 'language of incitement' * * * is not constitutionally protected * * *. This is quite a different thing from the view of the District Court here that mere doctrinal justificatio of forcible overthrow, if engaged in with the intent to accomplish overthrow, is punishable per se under the Smith Act. That sort of advocacy, even though uttered with the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination preparatory to action which was condemned in Dennis (Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137). As one of the concurring opinions in Dennis put it: 'Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken." Id., 354 U.S. at pages 321—322, 77 S.Ct. at page 1078.
27
The great bulk of the evidence in this record seems to us to come within the purview of the first of the contrasted alternatives elaborated in the concurring opinion in Dennis v. United States, 341 U.S. 494, 545, 71 S.Ct. 857, 885, 95 L.Ed. 1137, and referred to in the passage just quoted. We held in Yates, and we reiterate now, that the mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it.
28
Surely the offhand remarks that certain individuals hostile to the Party would one day be shot cannot demonstrate more than the venomous or spiteful attitude of the Party towards its enemies, and might indicate what could be expected from the Party if it should ever succeed to power. The 'industrial concentration' program, as to which the witness Regan testified in some detail, does indeed come closer to the kind of concrete and particular program on which a criminal conviction in this sort of case must be based. But in examining that evidence it appears to us that, in the context of this record, this too fails to establish that the Communist Party was an organization which presently advocated violent overthrow of the Government now or in the future, for that is what must be proven. The most that can be said is that the evidence as to that program might justify an inference that the leadership of the Party was preparing the way for a situation in which future acts of sabotage might be facilitated, but there is no evidence that such acts of sabotage were presently advocated; and it is present advocacy, and not an intent to advocate in the future or a conspiracy to advocate in the future once a groundwork has been laid, which is an element of the crime under the membership clause. To permit an inference of present advocacy from evidence showing at best only a purpose or conspiracy to advocate in the future would be to allow the jury to blur the lines of distinction between the various offenses punishable under the Smith Act.
29
The kind of evidence which we found in Scales sufficient to support the jury's verdict of present illegal Party advocacy is lacking here in any adequately substantial degree. It need hardly be said that it is upon the particular evidence in a particular record that a particular defendant must be judged, and not upon the evidence in some other record or upon what may be supposed to be the tenets of the Communist Party. See Yates, supra, 354 U.S. at page 330, 77 S.Ct. at page 1082.
30
Although our conclusion renders unnecessary consideration of the evidence as to petitioner's personal criminal purpose to bring about the overthrow of the Government by force and violence, a further word may be desirable. While evidence of the industrial concentration program, in which petitioner was active, does not alone justify an inference of the Party's present advocacy of violent overthrow, it may very well tend to show the quite different element of the petitioner's own purpose. Even though it is not enough to sustain a conviction that the Party has engaged in 'mere doctrinal justification of forcible overthrow * * * (even) with the intent to accomplish overthrow,' Yates, supra, 354 U.S. at page 321, 77 S.Ct. at page 1078, it would seem that such a showing might be of weight in meeting the requirement that the particular defendant in a membership clause prosecution had the requisite criminal intent. But it should also be said that this element of the membership crime, like its others, must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the ligitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share.
31
In view of our conclusion as to the insufficiency of the evidence as to illegal Party advocacy, the judgment of the Court of Appeals must be reversed.
32
Reversed.
33
Mr. Justice BRENNAN and THE CHIEF JUSTICE would remand to the District Court with direction to that court to dismiss the indictment. For the reasons expressed in Mr. Justice BRENNAN'S dissent in Scales v. United States, 367 U.S. at page 278, 81 S.Ct. at page 1511, they believe that this prosecution was barred by § 4(f) of the Internal Security Act, 50 U.S.C.A. § 783(f). They also believe that the dismissal is required because of the insufficiency of the evidence.
34
Mr. Justice BLACK, concurring.
35
In 1799, the English Parliament passed a law outlawing certain named societies on the ground that they were engaged in 'a traitorous Conspiracy * * * in conjunction with the Persons from Time to Time exercising the Powers of Government in France * * *.'1 One of the many strong arguments made by those who opposed the enactment of this law was stated by a member of that body, Mr. Tierney:
36
'The remedy proposed goes to the putting an end to all these societies together. I object to the system, of which this is only a branch; for the right hon. gentleman has told us he intends to propose laws from time to time upon this subject, as cases may arise to require them. I say these attempts lead to consequences of the most horrible kind. I see that government are acting thus. Those whom they cannot prove to be guilty, they will punish for their suspicion. To support this system, we must have a swarm of spies and informers. They are the very pillars of such a system of government.'2
37
The decision in this case, in my judgment, dramatically illustrates the continuing vitality of this observation.
38
The conviction of the petitioner here is being revere d because the Government has failed to produce evidence the Court believes sufficient to prove that the Communist Party presently advocates the overthrow of the Government by force. The Government is being told, in effect, that if it wishes to get convictions under the Smith Act, it must maintain a permanent staff of informers who are prepared to give up-to-date information with respect to the present policies of the Communist Party. Given the fact that such prosecutions are to be permitted at all, I do not disagree with the wisdom of the Court's decision to compel the Government to come forward with evidence to prove its charges in each particular case. But I think that it is also important to realize the overriding pre-eminence that such a system of laws gives to the perpetuation and encouragement of the practice of informing—a practice which, I think it is fair to say, has not always been considered the sort of system to which a wise government would entrust the security of a Nation. I have always thought, as I still do think, that this Government was built upon a foundation strong enough to assure its endurance without resort to practices which most of us think of as being associated only with totalitarian governments.
39
I cannot join an opinion which implies that the existence of liberty is dependent upon the efficiency of the Government's informers. I prefer to rest my concurrence in the judgment reversing petitioner's conviction on what I regard as the more solid ground that the First Amendment forbids the Government to abridge the rights of freedom of speech, press and assembly.
40
Mr. Justice DOUGLAS, concurring.
41
The utterances, attitudes, and associations in this case, like those in Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 are in my view wholly protected by the First Amendment and not subject to inquiry, examination, or prosecution by the Federal Government.
42
For that reason, as well as for the one mentioned by Mr. Justice BRENNAN, I would remand the case to the District Court with directions to dismiss the indictment.
1
39 George III, c. 79. For a more complete discussion of the provisions of this law and the arguments surrounding its enactment, see my dissenting opinion in Communist Party of U.S. v. Subversive Activities Control Board, 367 U.S. 1, at pages 151—154, 162, 81 S.Ct. 1357, at pages 1439—1441, 1445, 6 L.Ed.2d 625.
2
See Parliamentary Debates, Hansard, 1st Series, 34, at 991. Cf. De Jonge v. State of Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278: 'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.'
| 23
|
367 U.S. 421
81 S.Ct. 1563
6 L.Ed.2d 940
H. A. LOTT et al., Petitioners,v.UNITED STATES.
No. 238.
Argued April 18, 1961.
Decided June 12, 1961.
Mr. C. W. Wellen, Houston, Tex., for petitioners.
Mr. Bruce J. Terris, Washington, D.C., for respondent.
Mr. Justice WHITTAKER delivered the opinion of the Court.
1
This case is concerned with the timeliness of an appeal from a judgment of conviction and sentence in a criminal case under Rule 37(a)(2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.1
2
These three petitioners, having been jointly indicted, with two others, on five counts in the United States District Court for the Southern District of Texas for willfully attempting and conspiring to evade the federal income taxes of their corporate employer,2 entered, and the court accepted, pleas of nolo contendere on March 17, 1959. But the court decided that pronouncement of its judgment should await conclusion of the impending jury trial of the other two defendants.3 Soon after the conclusion of that rather protracted trial, the court, on June 19, 1959, orally pronounced its judgment convicting petitioners and sentencing them to imprisonment.4 Three days later, on June 22, formal judgment was prepared, signed by the judge and filed with the clerk. The next day, June 23, petitioners filed their separate 'motion(s) in arrest of judgment.'5 Those motions were denied on July 13. Two days later, on July 15, petitioners filed their separate notices of appeal from the judgment to the United States Court of Appeals for the Fifth Circuit.6
3
On the Government's motion, that court dismissed the appeals as untimely under Rule 37(a)(2). 280 F.2d 24. It held, in effect, that, although there is no such express limitation in the Rules, the provisions of Rule 377 impliedly modify and limit the provisions of Rule 37(a)(2). And it concluded that, although 'motion(s) * * * in arrest of judgment' had, in fact, 'been made within the 10-day period' after entry of the judgment appealed from (Rule 37(a) (2)), it cannot be so regarded under these Rules because the tender by petitioners and acceptance by the court of the pleas of nolo contendere on March 17 constituted the 'determination of (their) guilt,' and, inasmuch as the motions in arrest were not made 'within 5 days after (that) determination of guilt' as required by Rule 34, it followed that, to be timely under Rule 37(a) (2), the appeals had to 'be taken within 10 days after entry of the judgment or order appealed from' (Rule 37(a)(2)), or by June 30 or July 2—depending upon whether it was the oral pronouncement of June 19 or the formal entry of June 22 that constituted the judgment—and not 'within 10 days after entry of the order denying the motion.' Rule 37(a)(2). 280 F.2d at pages 27 28. Because of a conflict between the circuits upon the question presented8 and of its importance to the proper administration of the criminal Rules, we granted certiorari. 364 U.S. 813, 81 S.Ct. 63, 5 L.Ed.2d 45.
4
Buttressed by Lujan v. United States, 10 Cir., 204 F.2d 171, and Smith v. United States, 10 Cir., 273 F.2d 462, holding, on similar facts, that Rule 37(a)(2) alone and unaffected by any other Rule prescribes the time within which an appeal must be taken to a Court of Appeals in a criminal case, and further buttressed by their belief that this Court, too, so held, even if sub silentio, in exercising jurisdiction, under facts virtually identical to those here, in Sullivan v. United States, 348 U.S. 170, 75 S.Ct. 182, 99 L.Ed. 210, petitioners point to the facts that Rule 37(a)(2) is captioned 'Time for Taking Appeal'; that it is the only Rule that purports to deal with the subject; that it does not speak of motions filed within five days, nor after 'verdict or finding of guilty' (Rule 33), nor after 'determination of guilt' (Rule 34)— whatever that term may mean—and makes no reference to timeliness, under any other Rule, of the motions of which it speaks, but that it simply says in plain and unmistakable language that 'An appeal by a defendant may be tk en within 10 days after entry of the judgment or order appealed from, but if a motion * * * 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.' Then, after pointing to the admitted fact that their motions in arrest were 'made within the 10-day period'—actually within three days—after entry of the judgment appealed from, and that they appealed on the second day after their motions were denied, petitioners strenuously insist that their appeals were timely. They contend that to hold their appeals to have been untimely, in these circumstances, would be to mutilate that plain language of Rule 37(a)(2) and to make of it a trap even for the wary—including their experienced and competent counsel who were doing their best to protect petitioners' rights of appeal. And they insist that such a snare should not be permitted to deprive one of the valuable right of an appeal upon which his liberty, or even his life, may well depend.
5
Though we are impressed by this demonstration and argument, as also by the legalisms of the Government's countervailing argument, and although recognizing, as we do, the obscurity, if not inconsistency, in these Rules that has been exposed by this case, we need not here decide whether Rules 33 and 34 modify Rule 37(a)(2) so as to limit the time which it specifies for the taking of an appeal—but may and should leave that problem and its kindred ones, brought to the fore in this case, for resolution by the rule-making process,9 United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259—for we have concluded that it was the judgment of conviction and sentence, not the tender and acceptance of the pleas of nolo contendere, that constituted the 'determination of guilt' within the meaning of Rule 34. And, inasmuch as the motions in arrest were 'made within 5 days after (that) determination of guilt,' as required by Rule 34, and thus, in any view, were also 'made within the 10-day period' after entry of the judgment appealed from, as required by Rule 37(a)(2), the appeal, taken 'within 10 days after entry of the order denying the motion,' was timely.
6
Although it is said that a plea of nolo contendere means literally 'I do not contest it,' Piassick v. United States, 5 Cir., 253 F.2d 658, 661, and 'is a mere statement of unwillingness to contest and no more,' Mickler v. Fahs, 5 Cir., 243 F.2d 515, 517, it does admit 'every essential element of the offense (that is) well pleaded in the charge.' United States v. Lair, 8 Cir., 195 F. 47, 52. Cf. United States v. Frankfort Distilleries, 324 U.S. 293, 296, 65 S.Ct. 661, 89 L.Ed. 951. Hence, it is tantamount to 'an admission of guilt for the purposes of the case,' Hudson v. United States, 272 U.S. 451, 455, 47 S.Ct. 127, 129, 71 L.Ed. 347, and 'nothing is left but to render judgment, for the obvious reason that in the face of the plea no issue of fact exists, and none can be made while the plea remains of record,' United States v. Norris, 281 U.S. 619, 623, 50 S.Ct. 424, 425, 74 L.Ed. 1076. Yet the plea itself does not constitute a conviction nor hence a 'determination of guilt.' It is only a confession of the well-pleaded facts in the charge. It does not dispose of the case. It is still up to the court 'to render judgment' thereon. United States v. Norris, supra, 281 U.S. at page 623, 50 S.Ct. at page 425. At any time before sentence is imposed—i.e., before the pronouncement of judgment—the plea may be withdrawn, with the consent of the court. Rul 32(d), Fed.Rules Crim.Proc. Necessarily, then, it is the judgment of the court—not the plea—that constitutes the 'determination of guilt.' Apart from the opinion below, we have not been cited to any case, and have found none, that holds or even intimates the contrary.
7
In view of this disposition of the jurisdictional question, we need not decide petitioners' alternative contentions that their motions in arrest should be treated as motions under Rule 12(b)(2) of the Federal Rules of Criminal Procedure (see Finn v. United States, 4 Cir., 256 F.2d 304; 306; Hotch v. United States, 9 Cir., 208 F.2d 244, 250; United States v. Holmes, D.C.S.D.Tex., 110 F.Supp. 233, 234), or as motions to vacate sentences under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255 (see Marteney v. United States, 10 Cir., 216 F.2d 760; Finn v. United States, supra).
8
The judgment is reversed and the cause is remanded to the Court of Appeals for further proceedings not inconsistent with this opinion.
9
Reversed and remanded.
10
Mr. Justice CLARK, with whom Mr. Justice FRANKFURTER, Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
11
The Court characterizes 'determination of guilt,' as used in Rule 34,1 by the significant phrase, 'whatever that term may mean.' It then finds that the acceptance of a nolo contendere plea is not such a determination. I submit that this Court has held that acceptance of such a plea is a 'determination of guilt,' and that today's decision is not only contrary to prior cases, but is also out of tune with the long-accepted practice of both federal and state courts. Believing that it will result in such confusion as to the requirements of our Rules that the administration of criminal justice will be adversely affected, I must respectfully dissent.
12
At the time petitioners Blocker and Frazier offered their pleas (March 17), the Government objected to their acceptance by the court, as it did when Lott offered his (March 20). The court heard counsel and warned the parties of the seriousness of the charge, i.e., that the charge was willful tax avoidance, that the plea was voluntarily made without promises, and that the sentence might be five years' confinement in addition to a large fine. After being assured by each of the parties that he wished to enter his plea, the court accepted them. Orders were entered in the minutes of the court as to each defendant, accepting the pleas and directing that a 'pre-sentence investigation' be undertaken 'for sentence at conclusion of entire case.' The delay as to sentence was occasioned by the awaited trial of two additional defendants who had pleaded not guilty. The record shows that on June 19, after that trial was concluded (one defendant being acquitted and the other having a hung jury), petitioners appeared in court 'on the criminal action docket for sentence * * *.' (Emphasis added.) The court in addressing the parties, said, '(a)ll three of you have entered a plea of nolo contendere, and that is equivalent to a plea of guilty.' (Emphasis added.) Neither counsel nor the parties made any comment on this characterization of their pleas. Thereafter, petitioners and their counsel made statements in mitigation, after which sentence was pronounced. At no time were any motions made for permission to withdraw the pleas. On June 22, the formal judgments and commitments on the sentences were entered and each petitioner filed a motion in arrest of judgment on the next day. It is these motions that the Court of Appeals held should have been filed within five days of the acceptance of the pleas of nolo contendere in March. The Court, however, holds that the crucial date on which the 'determination of guilt' was made was the day of the judgment of conviction and sentence.2 Since the motions in arrest came wih in five days thereafter, the Court says they were timely under Rule 34, as were the appeals that followed, under Rule 37(a)(2).3
13
Rule II(2) of the Criminal Appeals Rules, 292 U.S. 661, 662, 54 S.Ct. XXXVII, the predecessor of present Rule 34, stated that 'motions in arrest of judgment * * * shall be made within three (3) days after verdict or finding of guilt.' Certainly 'verdict' referred to a jury verdict of guilt. A plea of guilty has always been considered the equivalent of a jury finding of guilty. See United States v. Norris, 1930, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076; United States v. Bradford, 2 Cir., 194 F.2d 197. The same is true of a plea of nolo contendere. Our cases have long and consistently held that, 'like the plea of guilty, it is an admission of guilt for the purposes of the case.' Hudson v. United States, 1926, 272 U.S. 451, 455, 47 S.Ct. 127, 129, 71 L.Ed. 347. As this Court said in United States v. Norris, supra, after its entry, 'the plea of nolo contendere, upon that question (of guilt or innocence) and for that case, was as conclusive as a plea of guilty would have been. * * * The court was no longer concerned with the question of guilt, but only with the character and extent of the punishment. * * * The remedy of the accused * * * was to withdraw, by leave of court, the plea of nolo contendere * * *.' At page 623 of 281 U.S., at page 425 of 50 S.Ct. (Emphasis added.)
14
Rule 34, the successor to Rule II(2), is likewise clear and unambiguous—it says the motion must be filed within five days of 'determination of guilt,' not the time of judgment or sentence. The Court today, however, rewrites the Rule by holding that the judgment date is the controlling one. '(I)t is the judgment of the court * * * that constitutes the 'determination of guilt." 367 U.S. at page 427, 81 S.Ct. at page 1567. It has, however, long been recognized that determination of guilt and entry of judgment are disparate. United States v. Norris, supra; Fed.Rules Crim.Proc. 32(b). If the framers of the Rules had intended to have the time for filing the motion in arrest run from the date of judgment, they would have said so. Instead they said that Rule 34 'continues existing law except that it enlarges the time for making motions in arrest of judgment from 3 days to 5 days. See Rule II(2) of Criminal Appeals Rules, 292 U.S. 661.'4 (Emphasis added.) 'Existing law' did not allow motions in arrest unless made within three days of 'verdict or finding of guilt.'
15
The majority notes petitioners' argument that Sullivan v. United States, 1954, 348 U.S. 170, 75 S.Ct. 182, 99 L.Ed. 210, supports today's decision 'even if sub silentio.' With due deference, I say it does not. No question of jurisdiction was raised or considered in that case, either in the Court of Appeals or in this Court.5 The case dealt solely with the merits of motions to dismiss and to withdraw a plea of nolo contendere under Rule 32d ) after sentence.
16
The Court attempts to bolster its decision by noting that a nolo contendere plea 'does not constitute a conviction,' that it 'does not dispose of the case' and that '(i)t is still up to the court 'to render judgment' thereon.' However, these statements are just as true when a guilty plea is accepted or the jury returns a verdict of guilty. They certainly were equally true under former Rule II(2). The judgment sentencing and committing the defendant in each of these instances would still have to be entered. In actual practice, then, nothing more is left to be done by the court after accepting a nolo contendere plea than is necessary after accepting a guilty plea or after a jury returns a verdict of guilty. In each of the three situations, guilt has been determined upon the acceptance by the court of the respective pleas or of the verdict of the jury. In each case, motions to withdraw the pleas or to set aside the verdict may be made, and might be granted, but their availability does not alter the fact that, until any such motion is granted, there has been a determination of guilt.
17
It appears rather unseemly to me for the Court to enlarge, through judicial decision, the time for filing motions in arrest and, in consequence, that for taking an appeal. Only last Term, we said in United States v. Robinson, 1960, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259, that this should be effected 'through the rule-making process * * *.' As was pointed out there, Rule 45(b) specifically provides that '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.' The Court has, by today's opinion, enlarged the time provided in these Rules, contrary to their express provision, contrary to our prior cases, and contrary to the long-established practice at the Bar. In so doing, it places these Rules in a state of utter confusion, and must thereby surely drive the Bar and the trial courts to procedural distraction. I would affirm.
1
'Rule 37. Taking Appeal; and Petition for Writ of Certiorari.
'(a) Taking Appeal to a Court of Appeals.
'(2) 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 * * *.'
2
The corporate employer and taxpayer was Farnsworth & Chambers Co., Inc. Petitioners were employee-officers of that corporation, and collectively owned approximately 7 percent of its issued and outstanding capital stock. The first four counts of the indictment charged willful attempt to evade the corporation's income taxes for the years 1951, 1952, 1953 and 1954, respectively, and the fifth count charged a conspiracy to commit the four substantive offenses charged.
3
The two codefendants who stood trial were Richard A. Farnsworth, Sr., and his son. They owned a major part of the corporation's capital stock. Their trial, which began on Apri 6, 1959, and continued through June 9, resulted in a verdict of acquittal of the son on all counts, and a failure of the jury to agree on any of the counts as to the father.
4
Petitioners were sentenced to imprisonment—Blocker for three years, Lott and Frazier for two years, on each count, the sentences to run concurrently, and each was fined $20,000.
5
Each of the motions in arrest prayed, inter alia, 'that the judgment and sentence * * * be arrested and set aside, that the indictment * * * be dismissed, and that (there) be granted such other relief as justice may demand.'
6
Actually, only Lott appealed on July 15. Blocker and Frazier appealed two days later, on July 17.
7
'Rule 34. Arrest of Judgment.
'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.'
8
In accord with the decision below is United States v. Bertone, 3 Cir., 249 F.2d 156. And see O'Neal v. United States, 5 Cir., 264 F.2d 809; Drown v. United States, 9 Cir., 198 F.2d 999; Godwin v. United States, 8 Cir., 185 F.2d 411. To the contrary are Lujan v. United States, 10 Cir., 204 F.2d 171; Smith v. United States, 10 Cir., 273 F.2d 462; and see Sullivan v. United States, 10 Cir., 212 F.2d 125, affirmed 348 U.S. 170, 75 S.Ct. 182, 99 L.Ed. 210.
9
In light of the confusion that has arisen under these Rules, as exposed by this case, it is hoped that those who advise the Court with respect to the exercise of its rule-making powers more particularly of course the Judicial Conference of the United States (28 U.S.C. § 331, 28 U.S.C.A. § 331) and the Advisory Committee on Federal Rules of Criminal Procedure—will give these problems their early attention.
1
Rule 34 states in pertinent part that '(t)he 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.'
2
Whether this date is June 19, when the court orally pronounced sentence, or June 22, when the court formally entered judgments and commitments, is not made clear for, under the Court's rationale, these appeals would be timely if either date were considered that of the 'determination of guilt.'
3
While the Court does not place its decision solely on the language of Rule 37(a)(2), it is well to note that under that Rule an appeal must be taken 'within ten days after entry of the judgment.' If, however, a motion 'in arrest of judgment has been made within the 10-day period,' the appeal period is tolled until the motion is overruled. Petitioners argue that since their motions in arrest were filed within the '10-day period' subsequent to judgment and were not overruled until July 13, their appeals (filed July 17) are timely. I assume that the Court considers this contention—making Rule 34 mere surplusage—entirely untenable since it specifically refuses to pass upon it.
4
Notes of Advisory Committee on Rules, 18 U.S.C. (1958 ed.), at p. 3428.
5
Petitioner's plea of nolo contendere was entered on April 8 and immediately accepted by the court. His motion in arrest of judgment was filed on May 29 and denied on June 23. The District Court gave no reason for its denial. The appeal was filed June 23.
| 01
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367 U.S. 389
81 S.Ct. 1465
6 L.Ed.2d 919
COMMUNIST PARTY, . S.A., et al., Petitioners,v.Martin P. CATHERWOOD, as Industrial Commissioner.
No. 495.
Argued May 4, 1961.
Decided June 12, 1961.
Mr. John J. Abt, New York City, for petitioners.
Mr. Julius L. Sackman, Albany, N.Y., for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
We here review the upholding by the New York Court of Appeals of the action of the New York State Industrial Commissioner terminating petitioners' registration and liability to state taxation as employers under the New York State Unemployment Insurance Law. N.Y. Labor Law, §§ 511, 512, 517, 518, 570, 577, 581. This determination was effected under what was conceived to be the compulsion of a federal statute, the Communist Control Act of 1954, 68 Stat. 775, 50 U.S.C. §§ 841—844, 50 U.S.C.A. §§ 841—844, which provides, in pertinent part:
2
'Section 2. The Congress (hereby) finds and declares that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States * * *. Therefore the Communist Party should be outlawed.
3
'Section 3. The Communist Party of the Unied States, or any successors of such party regardless of the assumed name, whose object or purpose is to overthrow the Government of the United States, or the government of any State, Territory, District, or possession thereof, or the government of any political subdivision therein by force and violence, are not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof; and whatever rights, privileges, and immunities which have heretofore been granted to said party or any subsidiary organization by reason of the laws of the United States or any political subdivision thereof, are hereby terminated: Provided, however, That nothing in this section shall be construed as amending the Internal Security Act of 1950, as amended.' (Emphasis supplied.)
4
New York has an 'experience rating' scheme whereby employers with consistent records of high employment levels are taxed at a lower rate than would otherwise obtain. Under the Federal Unemployment Tax Act, 26 U.S.C. §§ 3301—3308, 26 U.S.C.A. §§ 3301—3308, an employer is entitled to a federal tax credit for the amount paid in state unemployment taxes. If the state taxing structure allows for a reduction in tax rate to employers with good employment records under a federally certified 'experience rating' system, the federal tax is nevertheless reduced by the highest rate imposed by the State, so that the employer retains the full benefit of his experience rating reduction. Thus, before the termination of their New York registration the combined federal and state tax rate of the petitioner, Communist Party, U.S.A., was 1%, and that the of the petitioner, Communist Party of New York State, was, according to its representations, 1.1%. The effect of the registration termination as to both was to increase the rate to 3%, the rate provided in the federal statute.1
5
We granted certiorari, 364 U.S. 918, 81 S.Ct. 284, 5 L.Ed.2d 259, to consider the petitioners' claims that New York has mistakenly construed the Communist Control Act of 1954 to require termination of their status as employers under the New York statute, and, contrariwise, that both § 3 of the Communist Control Act, so construed, and New York's termination of registration infringed the Constitution of the United States.2
6
We must reject at the outset respondent's contention that the Court of Appeals' decision rested on a determination, based on judicial notice which was not displaced by any proof, that petitioners were not employers within the meaning of § 512 of the New York Labor Law, but a criminal conspiracy. It is entirely clear that the Industrial Commissioner and the Unemployment Insurance Referee,3 the Unemployment Insurance Appeal Board,4 and the Court of Appeals5 all based their determination squarely on what they conceived to be the compulsion of the Communist Control Act. The Court of Appeals' amended remittitur, which states that the questions of the construction and constitutionality of the Communist Control Act 'were presented and necessarily passed upon,' puts the matter beyond doubt.6
7
Following the familiar rule that decision of Constitutional questions should be avoided wherever fairly possible, we turn at once to the federal statute which this Court has not heretofore had occasion to construe. Apart from unrevealing random remarks during the course of debate in the two Houses, there is no legislative history which in any way serves to give content to the vague terminology of § 3 of the Communist Control Act. The statute contains no definition, and neither committee reports nor authoritative spokesmen attempt to give any definition, of the clause 'rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the United States or any political subdivision thereof.' Respondent would have us construe this language to mean that wherever a situation advantageous to the petitioners occurs by reference to the statutory or common law of a State or any other government in the United States, this is to be considered a 'right,' 'privilege,' or 'immunity,' and must be deemed to be withheld by the Act. On this basis New York has reasoned that liability to taxation as an employer, though not a privilege in the ordinary sense of the term, is nonetheless a recognition of the common-law contractual capacity to employ, and as such is advantageous to petitioners; and further, that an employer whose employees are unable to benefit from state and federal unemployment insurance programs will be disadvantaged in finding and keeping employees. Therefore it was thought that the Communist Control Act required termination of the registration of petitioners as employers.
8
This interpretation, raising as it does novel constitutional questions, the answers to which are not necessarily controlled by decisions of this Court in connection with other legislation dealing with the Coomunist Party, must, we think, be rejected. Not only does the languageo f the statute fall far short of compelling such an interpretation, but there are good indications that the particular result of barring petitioners as employers under state and federal unemployment insurance systems was not within the contemplation of this Act. The Internal Revenue Service has continued to collect taxes from petitioners under the Federal Unemployment Tax Act,7 and Congress in 1956 has dealt in terms with a like matter, excluding from federal old-age, survivors and disability benefits, 42 U.S.C., c. 7, subchapter II, 42 U.S.C.A. c. 7, subchapter II, employment with any organization required to register by the Subversive Activities Control Board and removing from the coverage of the Federal Insurance Contributions Act, 26 U.S.C., c. 21, 26 U.S.C.A. c. 21, any such organization,8 thus tying the exclusion to the administrative fact findings and determinations required by the Internal Security Act of 1950, 64 Stat. 987; 50 U.S.C.A. § 781 et seq.; see Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625.
9
In face of these considerations we should hesitate long before attributing to Congress a purpose to effectuate the similar exclusion in this instance by legislative fiat. Our reluctance to accept a state interpretation which would have that effect is fortified both by the difficult constitutional questions that would result and by the undesirability of having conflicting state and federal administrative interpretations of a federal statute establishing this 'coordinated and * * * dual system' (Buckstaff Bath House Co. v. McKinley, 308 U.S. 358, 364, 60 S.Ct. 279, 282, 84 L.Ed. 322) of employment insurance.
10
We hold that the Communist Control Act of 1954 does not require exclusion of the petitioners from New York's unemployment compensation system. Since the New York Court of Appeals' decision unmistakably rested on the contrary premise, its judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered.
11
Judgement reversed and case remanded.
12
Mr. Justice BLACK concurs in the result.
1
The basic federal rate was increased to 3.1% by Public Law 86—778, § 523(c), 74 Stat. 924, 982, effective 1961. 26 U.S.C. § 3301, 26 U.S.C.A. § 3301.
2
Petitioners argue that the Act on its face and as applied violates the Due Process Clause of the Fifth Amendment and Art. I, § 9, cl. 3 of the Federal Constitution, which provides that 'no Bill of Attainder or ex post fat o Law shall be passed.' Petitioners also contingently assert a Fourteenth Amendment claim, see note 6, infra.
3
The Referee, in reviewing the administrative action of the Commissioner, stated that 'the Commissioner's representatives * * * urge that Congress has effectively outlawed the Communist Party and thus, by force of law, the Referee is bound to find that * * * there could not have been any valid employment * * *.' (R. 5.) This contention the Referee accepted, holding that 'Congress effectively terminated the right of the Parties to enter into contracts of employment * * *.' (R. 7.)
4
The Board affirmed the Referee's conclusions of law. (R. 2.)
5
See 8 N.Y.2d 77, at page 83, 202 N.Y.S.2d 5, at page 8, 168 N.E.2d 242, at page 243, for the opinion of Chief Judge Desmond, with whom Judge Dye concurred, and 8 N.Y.2d at pages 90 91, 202 N.Y.S.2d at pages 14—15, 168 N.E.2d at pages 248—249, for the opinion of Judge Van Voorhis, with whom Judge Burke concurred. Two judges of the court dissented, and one judge did not participate.
6
Petitioners also argue that if the administrative action rested upon some state procedural ground, as respondent contends, then that action violated the Due Process Clause of the Fourteenth Amendment. We do not reach this contention
7
The Solicitor General, in a letter to the Clerk of this Court responding to a certification by the Court to the Attorney General of the United States that the constitutionality of a federal statute had been drawn into question in this case, stated that '(t)here is no need to file a brief describing the practice of federal agencies in interpreting the statute (The Communist Control Act of 1954), for this information is already set forth in the opinion of Judge Fuld in the New York Court of Appeals.' The dissenting opinion of Judge Fuld states that 'the federal authorities, admittedly aware of the Industrial Commissioner's position, have taken one diametrically opposed and continue to recognize the Communist Party as an employer subject to the Federal act.'
8
42 U.S.C. § 410(a)(17), 42 U.S.C.A. § 410(a)(17) and 26 U.S.C. § 3121(b) (17), 26 U.S.C.A. § 3121(b)(17), Act of August 1, 1956, § 121(c) and (d), 70 Stat. 839. No similar exclusion, however, has been made from the coverage of the Federal Unemployment Tax Act, 26 U.S.C., c. 23, 26 U.S.C.A. c. 23, which imposes the federal tax against which the state taxes involved in this case are credited. See 367 U.S. at page 391, 81 S.Ct. at page 1467, supra.
| 23
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367 U.S. 486
81 S.Ct. 1679
6 L.Ed.2d 1241
Leslie L. CONNERv.A. J. SIMILER.
No. 685.
Supreme Court of the United States
June 12, 1961
Peyton Ford, for petitioner.
John B. Ogden, for respondent.
On Petition for Rehearing.
PER CURIAM.
1
The petition for rehearing is granted. The order entered March 20, 1961, denying the petition for writ of certiorari is vacated and the petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit is granted. The Judgment is vacated and the case is remanded to the Court of Appeals for reconsideration in the light of Southard v. MacDonald, Okl., 360 P.2d 940.
2
THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS dissent from vacation of the Court of Appeals judgment which held that the respondent Simler was entitled to have the facts of his case in the United States District Court determined by a jury as we believe is required by Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.C.A., our prior decisions and the Seventh Amendment to the Constitution of the United States.
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367 U.S. 374
81 S.Ct. 1554
6 L.Ed.2d 908
UNITED STATES, Petitioner,v.George E. SHIMER.
No. 392.
Argued April 27, 1961.
Decided June 12, 1961.
Mr. Wayne G. Barnett, Washington, D.C., for petitioner.
Mr. Edward Davis, Philadelphia, Pa., submitted on brief, for respondent.
Mr. Justice HARLAN delivered the opinion of the Court.
1
The United States brought this action in the Eastern District of Pennsylvania to recover from Shimer, on theories of subrogation and indemnity, an amount of $4,000 which the Veterans' Administration, as guarantor of a loan made to him by Excelsior Saving Fund and Loan Association, had paid to that institution.
2
The relevant facts, as stipulated by the parties, are these: In 1948 Shimer, a World War II veteran, borrowed $13,000 from Excelsior secured by a mortgage upon residential realty which Shimer purchased with the proceeds. At Shimer's request the Veterans' Administration, pursuant to Title III of the Servicemen's Readjustment Act of 1944, as amended in 1945,1 granted a maximum guarantee of the loan—that is, the lesser of $4,000 or 4/13 of the indebtedness outstanding at any particular time.2 Both the 'Home (now 38 U.S.C.A. § 1801 et seq.). Administration certificate of guaranty, specified that the rights of the parties would be governed by Regulations of the Administration in effect at the date of the loan and guaranty. Shimer defaulted in 1948, and in 1949 Excelsior, as mortgagee, notified the Veterans' Administration of his default and obtained a Pennsylvania judgment foreclosing the mortgage which then secured a debt in excess of $13,000.3 After the property was purchased by Excelsior at a sheriff's sale for $250, the Veterans' Administration paid it the entire guaranty of $4,000 and brought the present action against Shimer.
3
In the Court of Appeals, the United States chose to rely exclusively on the Administration's alleged right of indemnity against Shimer, and accordingly does not press its claim here upon a theory of subrogation. The Court of Appeals held that the United States was not entitled to recover, reaching this result by applying a well-established principle of surety law which both parties agree was recognized by Congress when it passed Title III: The Veterans' Administration, as guarantor, could not recover from its principal, Shimer, any amount it was not obligated to pay the mortgagee, Excelsior, on his behalf. Turning to state law to determine the extent of the Administration's obligation to Excelsior, the court below considered that under Pennsylvania law both Shimer and the Veterans' Administration had been released from any further liability to Excelsior at the time the Administration paid its $4,000 guarantee, that is, after the foreclosure sale. 276 F.2d 792. Under the Pennsylvania Deficiency Judgment Act4 a mortgagee who purchases the mortgaged property in execution proceedings cannot recover a deficiency judgment unless and until the mortgagee obtains a court determination of the fair market value of the mortgaged property and credits that amount to the unsatisfied liability. When, as eventuated in this case, the mortgagee fails to bring a proceeding for this purpose within six months after the foreclosure sale, the debtor and guarantor are permanently discharged.
4
We granted certiorari, 364 U.S. 889, 81 S.Ct. 221, 5 L.Ed.2d 186, to pass upon the contentions of the United States that: (1) the application of state law to determine the Administration's obligation to Excelsior is inconsistent with the Regulations prescribed by the agency charged with administering the Servicemen's Readjustment Act; (2) these Regulations are authorized by the federal enactment; and (3) a right of indemnity under federal law arises in favor of the Veterans' Administration upon proper payment of its obligations as guarantor.
I.
5
The Regulations promulgated by the Veterans' Administration make clear that they were intended to create a uniform system for determining the Administration's obligation as guarantor, which in its operation would displace state law. Section 36.4321, 12 Fed.Reg. 8344, in subsection (a)5 implements the 'pro rata' requirements of § 500(b) of the statute, Note 2, supra, and establishes the procedure for computing the amount of the guaranty which the mortgagee can, under § 506 of the statute, demand to have applied against his unpaid claim on the date of default.6 In this instance it is agreed that such amount is $4,000. However, we are informed by the Solicitor General that the mortgagee is both allowed and encouraged to delay collecting on the guaranty until after all events which may lead to a government offset have taken place. The Administration's potential right as subrogee to some portion of the proceeds of a foreclosure sale is such a possible offset. Accordingly, Excelsior waited until after the foreclosure sale to collect on the guaranty. This brought Excelsior within subsection (b) of § 36.4321 which provides that 'Credits accruing from the proceeds of a sale * * * of the security subsequent to the date of computation (pursuant to subsection (a) supra), and prior to the submission of the (guaranty) claim' shall be applied in reduction of the outstanding debt and 'the amount payable on the claim shall in no event exceed the remaining balance of the indebtedness.' It was at this point that the Court of Appeals applied the Pennsylvania Deficiency Judgment Act to determine the 'Credits accruing from the proceeds of * * * (the foreclosure) sale.' However, the method of determining these credits is also specified in the Regulations, indeed spelled out in § 36.4320, 13 Fed.Reg. 7739—7741, in such great detail that there can be little doubt of an administrative intent that such method should provide the exclusive procedure.7 In substance, that section provides that in every case at least the amount realized at the foreclosure sale is to be credited. It also specifies the way in which the Veterans' Administration can require the mortgagee to credit more than the amount received at the foreclosure sale and thereby protect itself against the very risk the Pennsylvania Deficiency Judgment Act was designed to alleviate—the risk of having to make good its guaranty simply because the mortgaged property is sold for an inadequate price at a judicial sale. The Administrator is authorized to 'specify in advance of such sale the minimum amount which shall be credited to the indebtedness of the borrower on account of the value of the security to be sold.' The mortgagee must then reduce the balance of the unpaid debt by at least this minimum amount before collecting on the guaranty. The mortgagee has the option, however, of selling any property it purchased at or below this minimum amount to the Veterans' Administration for the specified minimum amount. If, as in the present case, the Administrator does not specify a minimum amount 'the holder (mortgagee) shall credit against the indebtedness the net proceeds of the sale * * *.'
6
In effect, then, the scheme set up by the Regulations provides the Veterans' Administration with a measure of assurance that there shall be credited against the unpaid debt at least what the Administrator regards as the fair value of the mortgaged property. In terms of the present case: With an unpaid balance of indebtedness of $13,000, the Veterans' Administration should not have to pay its full guaranty of $4,000 unless the property which Excelsior may retain is worth less than $9,000. If Excelsior purchased property worth $10,000 for $250 at the foreclosure sale, the Administration should not have to pay more than $3,000 on its $4,000 guaranty, or, to state the matter more precisely, the Administration should realize a $1,000 credit as set off against its $4,000 guaranty which Excelsior could have claimed at the time of default. Accordingly, if the Administrator regarded the mortgaged property as worth $10,000 he could have specified (which he did not) a minimum credit (or 'upset price') of that amount which Excelsior would then have had to credit against the $13,000 unpaid debt. If Excelsior had purchased the property for $10,000 or less, it would have had an option to reconvey the property at a valuation of $10,000 to the Veterans' Administration.
7
This scheme of protection, while intended to remedy the same abuses at which the Pennsylvania Deficiency Judgment Act is directed, is, of course, inconsistent with the Pennsylvania procedures which provide for a judicial determination of the amount to be credited against an outstanding debt and do not obligate the guarantor to purchase the mortgaged property at its judicially determined value. We have no doubt that this regulatory scheme, complete as it is in every detail, was intended to provide the whole and exclusive source of protection of the interests of the Veterans' Administration as guarantor and was, to this extent, meant to displace inconsistent state law.8
II.
8
We think that the Servicemen's Readjustment Act authorized the Veterans' Administrator to displace state law by establishing these exclusive procedures.9 In this regard it is important to recall the scope of our review in a case such as this. More than a half-century ago this Court declared that 'where Congress has committed to the head of a department certain duties requiring the exercise of judgment and discretion, his action thereon, whether it involve questions of law or fact, will not be reviewed by the courts unless he has exceeded his authority or this court should be of opinion that his action was clearly wrong.' Bates & Guild Co. v. Payne, 194 U.S. 106, 108—109, 24 S.Ct. 595, 597, 48 L.Ed. 894. This admonition has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344; National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170; Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; Securities & Exchange Comm. v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995; National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377.
9
In the present case we need only consider the statutory authorization for § 36.4320(a)(4) which provides that 'If a minimum amount (the upset price) has not been specified by the Administrator * * * the holder shall credit against the indebtedness the net proceeds of the sale * * *.' It would, of course, have been possible for the Administrator to have promulgated regulations consistent with much of the present scheme which would have, in addition, accepted the benefits of local law which tended further to reduce a guarantor's risk of loss from sale of the mortgaged property at an inadequate price. Thus, with specific reference to the Pennsylvania Deficiency Judgment Act, there would have been nothing inherently illogical about administrative regulations providing for an 'upset price' device and then adding that, in situations where the 'upset price' technique was not used by the Administrator, the Veterans' Administration was to be entitled to the benefits of the state judicial assessment of the value of property purchased by the mortgagee. However, the Veterans' Administrator has chosen not to take advantage of laws like that of Pennsylvania. If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.
10
It is doubtless true that the policy of the Act is, broadly stated, to enable veterans to obtain loans and to obtain them with the least risk of loss upon foreclosure, to both veteran and the Veterans' Administration as guarantor of the veteran's indebtedness, and it is equally clear that had the Regulations adopted or included the provisions of the Pennsylvania Deficiency Judgment Act this would have furthered at least the second of these purposes. However, there are also ample indications both in the Act and in its legislative history that Congress intended the guaranty provisions to operate as the substantial equivalent of a down payment in the same amount by the veteran on the purchase price, in order to induce prospective mortgagee-creditors to provide 100% financing for a veteran's home.10 The Regulations which the Administrator has adopted provide what the agency could allowable view as a more effective reconciliation of these twofold ends than might be accomplished by a complete or partial adoption of the law of a State such as Pennsylvania.
11
The Regulations assure a Pennsylvania mortgagee-creditor that he will be able either to recover the fulla mount of the guaranty or to sell the mortgaged property to the United States and recover the amount of its loss after such sale. For example, in the present situation Excelsior knew that it could either recover $4,000 from the Veterans' Administration and keep the mortgaged property, or that it could sell the mortgaged property to the United States, recovering on its guaranty the amount by which the unpaid debt exceeded the price which the United States had paid. The only risk of loss with which Excelsior would have been faced was the risk of having on its hands a property worth less than $9,000 to secure a residual debt of $9,000 (after the United States had paid $4,000 of the total debt of $13,000). This is precisely the risk which Excelsior would have had to assume had it insisted upon a $4,000 down payment by the veteran and lent $9,000 on the property. Presumably therefore it was willing to accept a $4,000 guarantee under the Administrator's Regulations in exchange for a $4,000 down payment.
12
In contrast, a mortgagee whose federal guaranty was subject to the law of a State such as Pennsylvania would be subjected both to an additional cost and to an additional risk, neither of which is present when there is an equivalent down payment. The additional cost is that required in every case to litigate the value of the mortgaged property. The additional risk is that, if it was judicially determined that the property was worth more than the amount for which the mortgagee could in fact sell it, the mortgagee would have to absorb the cost of the judicial error and could recover on its guaranty only the difference between the unpaid debt and the amount of the judicial estimate of the value of the property. Thus if the value of the mortgaged property in the present case had been judicially assessed at $10,000, Excelsior, after payment of the resulting $3,000 on the guaranty, would have been left with the mortgaged property in place of an unrequited $10,000 loan, whereas had it insisted on a $4,000 down payment from the veteran it would have had the mortgaged property to stand for a $9,000 loan.11
13
We cannot say that a Pennsylvania lender would not prefer a down payment to a guaranteed loan in the same amount if the Pennsylvania Deficiency Judgment Act were applicable. Nor can we say that the Administrator has unreasonably sacrificed either the Government's or the veteran's protection in relying exclusively on the 'upset price' device in order to preserve the interchangeability of a guaranty with a down payment. The Veterans' Administration can and does protect itself from a sale at an inadequate price by specifying the minimum credit which the mortgagee must subtract from the unpaid debt. In protecting itself it also places its own financial resources behind the debtor-veteran who may be forced to reimburse the Administrator only if the Administrator considers that the property has been sold at a fair price, and who retains all the benefits of state law as against the mortgagee.
14
We consider the Regulations to be a reasonable accommodation of the statutory ends, first, of making a federal guaranty the substantial equivalent of a down payment, and, second, of protecting both the Veterans' Administration and the veteran from unnecessary loss on a foreclosure sale. And since we find nothing in the statute or the legislative history antagonistic to this accommodation, we hold the Regulations to be a valid exercise of the authority granted the Administrator in § 504 of the Servicemen's Readjustment Act (note 9, supra).
III.
15
Respondent's final contention is that even though the Veterans' Administration was obligated on its guaranty to Excelsior, the Administration nevertheless had no right t indemnity from him. It is argued, first, that under the Act the Administration, in circumstances like these, can recover over against the veteran only on a theory of subrogation to the mortgagee's rights. The Administrator having proceeded in this instance simply on a theory of indemnity, it is claimed that there is no statutory authorization for the present suit.
16
Prior to the amendment of the Act in 1945 it was assumed that the ordinary concomitants of a guaranty relationship would follow upon the mere authorization of Government guaranteed loans and that these included the guarantor's right of indemnity. Restatement of the Law of Security, § 104; Decisions of the Administrator of Veterans' Affairs, No. 625, Vol. 1, p. 1154. The 1945 amendments made explicit that payment of the guaranty would be due on the veteran's default and that thereupon the Administrator 'shall be subrogated to the rights of the holder of the obligation to the extent of the amount paid on the guaranty.'
17
It is argued that this amendment, by negative implication, overruled or rejected what the Administrator had previously regarded as his independent right to indemnity, but surely this is carrying a negative implication too far. We cannot agree that Congress, without any statutory reference to the problem and without any discussion of it, intended to relieve the veteran of direct liability for amounts properly paid on his behalf by the Veterans' Administration. Not only might such a waiver of a guarantor's normal rights require a more burdensome route to recovery over from the principal, but it would deprive the guarantor of any recovery on occasions when the mortgagee's rights were limited as against the debtor by state law, yet were protected against the Administrator by state or federal law. Relief from liability in these circumstances would convert a guaranty into a grant of aid. But the entire history of the 'home loan' provisions of the statute is inconsistent with an intent to make outright grants, rather than loans of cash (S. 1767, 78th Cong., 2d Sess.) or credit, to returning servicemen.
18
Moreover, the recognition of a loss to the guarantor merely because of a failure of the lender's rights against the principal is incompatible with the background of general surety law against which the statute was drawn. See, e.g., Leslie v. Compton, 103 Kan. 92, 172 P. 1015, L.R.A.1918F, 706. Indeed, at the time of the 1945 amendments to the Act the Administrator had already ruled that there was a right to recover over against the veteran on a theory of indemnity in situations where recovery by way of subrogation was barred by state law. Decisions of the Administrator of Veterans' Affairs, No. 625, Vol. 1, p. 1154.
19
For these reasons, we are constrained to agree with the uniform construction of the lower courts, including that of the two courts below, that the statute affords an independent right of indemnity to the Veterans' Administration. See United States v. Shimer, 3 Cir., 276 F.2d 792; McKnight v. United States, 9 Cir., 259 F.2d 540; United States v. Jones, D.C., 155 F.Supp. 52; United States v. Gallardo, D.C., 154 F.Supp. 373; United States v. Henderson, D.C., 121 F.Supp. 343.
20
Finally, we find untenable respondent's argument that the applicable Regulation does not support recovery because there was no debt due from the veteran at the time of payment on the guaranty. Section 36.4323(e), 11 Fed.Reg. 2123, provided: 'Any amounts paid by the Administrator on account of the liabilities of any veteran guaranteed or insured under the provisions of the act shall constitute a debt owing to the United States by such veteran.' The Regulation is merely declaratory of a surety's customary right of indemnity for amounts paid pursuant to an obligation of the guarantor assumed with the consent of the principal. Restatement of the Law of Security, § 104. This right is in general unaffected by defenses of the principal which are not available to the guarantor.12 simpson,S uretyship, at p. 227; Stearns, Law of Suretyship, § 284. The Regulation certainly indicates no purpose to depart from the general rule in the case of guaranties by the Veterans' Administration.13
21
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
22
It is so ordered.
23
Judgment of Court of Appeals reversed and case remanded.
24
Mr. Justice BLACK and Mr. Justice DOUGLAS would affirm the judgment for the reasons stated by the Court of Appeals, 276 F.2d 792.
1
58 Stat. 291, as amended by 59 Stat. 626 (now) 38 U.S.C.A. § 1801 et seq.).
2
'Sec. 500. (a) Any person who shall have served in the active military or naval service of the United States at any time on or after September 16, 1940, and prior to the termination of the present war * * * shall be eligible for the benefits of this title. Any loan made by such veteran within ten years after the termination of the war for any of the purposes, and in compliance with the provisions, specified in this title, is automatically guaranteed by the Government by this title in an amount not exceeding fifty per centum of the loan: Provided, That the aggregate amount guaranteed shall not exceed * * * $4,000 in the case of real-estate loans * * *.
'(b) Loans guaranteed under this title shall be payable under such terms and conditions as may be agreed upon by the parties thereto, subject to the conditions and limitations of this title and the regulations issued pursuant to section 504: Provided, That the liability under the guaranty within the limitations of this title shall decrease or increase pro rata with any decrease or increase of the amount of the unpaid portion of the obligation * * *.'
3
The computation of the amount of the unpaid debt and the amount consequently owing on the guaranty will be open for further consideration by the District Court on the remand which will result from this opinion.
4
Purdon's Pa.Stat., Tit. 12, §§ 2621.1—2621.11.
5
Section 36.4321(a) provides in relevant part:
'Computation of guaranty claims; subsequent accountings. (a) Subject to the limitation that the total amounts payable shall in no event exceed the amount originally guaranteed, the amount payable on a claim for the guaranty shall be the percentage of the loan originally guaranteed applied to the indebtedness computed as of the date of claim but not later than (1) the date of judgment or of decree of foreclosure * * *.'
6
Section 506 of the Act (now 38 U.S.C.A. §§ 1816, 1817) provides: 'In the event of default in the payment of any loan guaranteed under this title, the holder of the obligation shall notify the Administrator who shall thereupon pay to such holder the guaranty not in excess of the pro rata portion of the amount originally guaranteed, and shall be subrogated to the rights of the holder of the obligation to the exent of the amount paid on the guaranty * * *.'
7
Section 36.4320 (whose length and intricacy is such as to make impracticable its spreading in this opinion) was amended in particulars not here relevant and was generally clarified between the dates of the loan and guarantee and the dates of foreclosure and sale. We consider applicable the later wording in light of § 36.4300 of the Regulations which was in effect at the date of the loan and which provided:
Applicability. The regulations in this part and amendments thereto shall be applicable to each loan entitled to an automatic guaranty, or otherwise guaranteed or insured, on or after the date of publication thereof in the Federal Register, and shall be applicable to such loan previously quaranteed or insured to the extent that no legal rights vested thereunder are impaired.' (Emphasis added.) 12 Fed.Reg. 8342.
8
This conclusion is fortified by § 36.4320(d) which specifically excludes and waives one type of state protection of guarantors and lenders which otherwise would have seemed to fit the other provisions of the section. Subdivision (d) provides:
'If a minimum bid is required under applicable State law, or decree of foreclosure or order of sale, or other lawful order or decree, the holder may bid an amount not exceeding such amount legally required. If an amount has been specified by the Administrator and the holder is the successful bidder for an amount not exceeding the amount legally required, such specified amount shall govern for the purposes of this section and for the purpose of computing the ultimate loss under the guaranty or insurance. In the event no amount is specified and the holder is the successful bidder for an amount not exceeding the amount legally required, the amount paid or payable by the Administrator under the guaranty shall not be subject to any adjustment by reason of such bid.'
9
Section 504 of the Act (now 38 U.S.C.A. §§ 212(a), 1804) provides: 'The Administrator is authorized to promulgate such rules and regulations not inconsistent with this title, as amended, as are necessary and appropriate for carrying out the provisions of this title, and may delegate to subordinate employees authority to issue certificates, or other evidence, of guaranty of loans guaranteed under the provisions of this title, and to exercise other administrative functions hereunder.'
10
See, e.g., H.R.Rep. No. 1418, 78th Cong., 2d Sess., pp. 3, 9; Hearings before Subcommittee of the Senate Committee on Finance on H.R. 3749, 79th Cong., 1st Sess., pp. 31—33 (General Omar Bradley).
11
Pennsylvania law does not require a mortgagee who purchases the mortgaged property at a foreclosure sale for an amount less than the unpaid debt to return any portion of the down payment pursuant to a judicial assessment of the value of the property.
12
Moreover, at the time the Veterans' Administration became liable on its guaranty (i.e., on the veteran's default and prior to the foreclosure sale, see notes 5 and 6, supra) the administration and the respondent veteran had no defenses to payment either under state law or under the Regulations of the Administrator.
13
This is made particularly clear by the form of the Regulation which was the predecessor of 11 Fed.Reg. 2123. The earlier Regulation, 9 Fed.Reg. 12655, provided:
'(a) Any amounts paid to the creditor by the Administrator pursuant to the guaranty shall constitute a debt due to the United States by the veteran on whose application the guaranty was made * * *.'
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367 U.S. 396
81 S.Ct. 1529
6 L.Ed.2d 924
POWER REACTOR DEVELOPMENT CO., Petitioner,v.INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, et al. UNITED STATES et al., Petitioner, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, et al.
Nos. 315, 454.
Argued April 26, 27, 1961.
Decided June 12, 1961.
[Syllabus from pages 396-397 intentionally omitted]
Mr. W. Graham Claytor, Jr., Washington, D.C., for petitioner in No. 315.
Mr. Sol. Gen. Archibald Cox, Washington, D.C., for petitioners in No. 454.
Mr. Benjamin C. Sigal, Washington, D.C., for respondents in both cases.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
This case is the first contested licensing proceeding to be decided by the Atomic Energy Commission under the Atomic Energy Act of 1954, 68 Stat. 919, 42 U.S.C. § 2011 et seq., 42 U.S.C.A. § 2011 et seq. It presents the question whether the Commission erred in continuing in effect a provisional construction permit which authorizes the petitioner Power Reactor Development Company to construct, but not to operate, a fast-neutron breeder reactor for the generation of electric power. The Court of Appeals for the District of Columbia Circuit set that order aside. 1960, 108 U.S.App.D.C. 97, 280 F.2d 645. We granted certiorari, 1960, 364 U.S. 889, 81 S.Ct. 221, 5 L.Ed.2d 186, on petitions of the United States and of Power Reactor Development Company (hereafter PRDC), to decide an important question of the scope of the Commission's power under the Atomic Energy Act of 1954.
2
Stated more precisely, the question before us is whether the Commission, in issuing a permit for the construction of a facility which will utilize nuclear materials, such as the power reactor presently involved, must make the same definitive finding of safety of operation as it admittedly will have to make before it licenses actual operation of the facility. The Court of Appeals said: 'It is undisputed that the Commission must make such a finding when it authorizes operation. The question is whether it must make such a finding when it authorizes construction. In our opinion it must.' 108 U.S.App.D.C. at page 100, 280 F.2d at page 648. Petitioners agree that some finding directed to safety of operation must be made at the construction-permit stage of the proceeding, but argue that the Court of Appeals erred in holding that the Commission must have the same degree of certitude at this preliminary point as when it licenses operation. In order to understand how the controversy arises and what is involved in its resolution, it will be necessary to state the proceedings in the case at some length, and then describe in detail the government statute and administrative regulations. For the decision of this case ultimately turns on a comparison of what the Commission found with what the statute and regulations require.
3
The case began on January 7, 1956, when PRDC filed with the Commission (hereafter sometimes referred to as the AEC) an application to construct and operate a developmental power reactor of a relatively new type. This device has two characteristics which distinguish it from other nuclear reactors. First, the neutrons which fly about inside the reactor (to use crude but graphic layman's terminology) and split atoms of fissionable Uranium—235—thus releasing new neutrons and energy in the form of heat—are 'fast' neutrons. That is, they travel at a velocity of about 10, 000 miles per second, much faster than neutrons in ordinary reactors. Second, this reactor is a 'breeder': it has the property of being able to produce about 1.2 times as much fis ionable material as it consumes. This result comes about through a sort of modern alchemy; when the neutrons fly outside the inner core of the reactor, which is composed of fissionable U—235, they enter a blanket of nonfissionable U—238. Atoms in this blanket are changed, when struck by a neutron, into Plutonium, itself a fissionable fuel which can be removed from the reactor and be put to possible use in other installations. Thus, the reactor 'breeds' Plutonium faster than it uses up U—235. It not only generates energy to produce electric power, it also creates new reactor fuel. This 'breeder' effect is attainable because of the use of fast neutrons. Two boron control rods inserted into the reactor are a means designed to reduce its power level at any time. And in addition to these rods, eight more boron rods are suspended by an electromagnet over the reactor; in case the reactivity rises to a dangerously high level, these safety rods are intended to drop into the reactor automatically and shut it down immediately. The whole machine is housed in a series of thick concrete, graphite, and steel layers, all underground. Over this entire complex is placed a football-shaped building, enclosed in a two-inch steel shield capable of containing an explosion equal in force to 1,000 pounds of TNT, which is greater than any explosion which any of the experts who testified in this case believes is at all likely to result from an accident in the operation of the reactor. The application, after describing the reactor in much greater detail than this rudimentary summary, went on to provide that the reactor would be located at Lagoona Beach, Mich., on the shores of Lake Erie, about 35 miles from the center of Detroit, Mich., and about 30 miles from the center of Toledo, Ohio.
4
The Commission took the case under advisement and, on August 4, 1956, despite a report of its Advisory Committee on Reactor Safeguards which was at best noncommittal about the probable safety of the proposed reactor in operation, issued a provisional construction permit without having held public hearings as the law at that time permitted it to do. This permit was subject to the following condition:
5
'The conversion of this permit to a license is subject to submittal by PRDC to the Commission (by amendment of the application) of the complete, final Hazards Summary Report (portions of which may be submitted and evaluated from time to time). The final Hazards Summary Report must show that the final design provides reasonable assurance * * * that the health and safety of the public will not be endangered by operation of the reactor * * *.'
6
On August 31, 1956, in accordance with the Commission's then existing rules of practice, the respondents in this Court, International Union of Electrical, Radio, and Machine Workers, United Automobile, Aircraft, and Agricultural Implement Workers of America, and United Papermakers and Paperworkers, petitioned the Commission for permission to intervene and oppose continuation in effect of PRDC's provisional construction permit. The AEC granted permission to intervene on October 8, 1956, and set the case down for a hearing before one of its hearing examiners. Extensive hearings were held between January 8, 1957, and August 7, 1957, and on November 22, 1957, in accordance with the AEC's order setting the case for hearing before him, the examiner, instead of issuing an initial decision and opinion of his own, transferred and certified the record of the hearings to the full Commission for its consideration. Oral argument was had before the Commission on May 29, 1958. On December 10, 1958, the Commission rendered its 'Opinion and Initial Decision' continuing PRDC's permit in effect, subject to the same condition recited above. To its opinion were appended extensive findings of fact, including Finding 22, which is of central importance to the decision of this case. That finding reads as follows:
7
'22. The Commission finds reasonable assurance in the record that a utilization facility of the general type proposed in the PRDC application and amendments thereto can be constructed and will be able to be operated at the location proposed without undue risk to the health and safety of the public.'
8
Commissioners Vance and Floberg joined in the opinion. Commissioner Graham filed a short concurring opinion agreeing with the Commission's basic safety findings, just quoted, but doing so in much shorter compass than the majority. Commissioners Libby and McCone (the chairman) took no part in the decision. The result of this initial opinion was an order continuing PRDC's provisional construction permit in effect, but containing the same condition which the original permit, issued on August 4, 1956, had contained.
9
The intervening unions, as was their right, filed detailed exceptions to this initial decision. The Commission fully reconsidered all the contentions and reviewed the evidence presented at the lengthy hearings, with particular attention to the testimony of the scientific experts, several of them members of the Advisory Committee on Reactor Safeguards, who had testified. On May 26, 1959, the Commission issued its 'Opinion and Final Decision,' dealing with all questions presented in even greater detail and reaffirming its initial decision. The Commission emphasized that 'public safety is the first, last, and a permanent consideration in any decision on the issuance of a construction permit or a license to operate a nuclear facility.' Even after operation of the reactor is licensed—if it ever is—the Commission, it said, will retain jurisdiction over PRDC's activities to ensure that the highest safety standards are maintained. The opinion went on to examine the suitability of the proposed site, noted that it was near a great population center, and nevertheless concluded that at the present stage there was reasonable assurance that the general type of reactor proposed by PRDC would be safe enough at that location. The Commission pointed out, however, that its action in allowing PRDC to proceed with construction was by its nature tentative and preliminary, and that it was by no means committed to the issuance of an operating license. 'PRDC has been on notice since before the first shovel of dirt was moved,' it said, 'that its construction permit is provisional upon further demonstration of many technological and financial facts, including the complete safety of the reactor.' A more severe safety test would have to be passed when the reactor was completed, the opinion said, since '(t)he degree of 'reasonable assurance' * * * that satisfies us * * * for purposes of the provisional construction permit would not be the same as we would require in considering the issuance of the operating license.' The Commission then made new findings of fact, including the following counterpart of its initial Finding 22:
10
'22. The Commission finds reasonable assurance in the record, for the purposes of this provisional construction permit, that a utilization facility of the general type proposed in the PRDC Application and amendments thereto can be constructed and operated at the location without undue risk to the health and safety of the public.'
11
All three of the Commissioners who took part in the case joined in this final decision, and the Commission entered its final order continuing in effect the PRDC provisional construction permit, but again subject to the condition that a more extensive safety investigation, and a definitive safety finding, would have to be made before operation was permitted.
12
The intervening unions, respondents in this Court, then petitioned the Court of Appeals for the District of Columbia Circuit to review and set aside this order of the Commission. Only the final order continuing the permit in effect was drawn in question. No complaint was made of the original ex parte grant of the permit in 1956. PRDC intervened in the Court of Appeals in support of the AEC. On June 10, 1960, by a divided vot, a three-judge panel of the Court of Appeals set aside the AEC's order and remanded the case to the Commission. A petition for rehearing en banc was denied, two judges dissenting, and we brought the case here.
13
We turn now to an examination of the statutes and regulations pursuant to which the Commission purported to continue in effect PRDC's construction permit. The basic provision is § 104, subd. b of the Atomic Energy Act of 1954, 42 U.S.C. § 2134(b), 42 U.S.C.A. § 2134(b), which authorizes the AEC to 'issue licenses to persons applying therefor for utilization and production facilities involved in the conduct of research and development activities * * *. In issuing licenses under this subsection, the Commission shall impose the minimum amount of such regulations and terms of license as will permit the Commission to fulfill its obligations under this chapter to promote the common defense and security and to protect the health and safety of the public * * *.' Two things about this section should be emphasized. First, there is no doubt that the term 'licenses' as used therein includes the provisional construction permit which PRDC has received. The last sentence of § 185, 42 U.S.C. § 2235, 42 U.S.C.A. § 2235, expressly so provides, as we shall soon see. And second, there is also no doubt that construction permits, like all other licenses, can be issued only consistently with the health and safety of the public. But the responsibility for safeguarding that health and safety belongs under the statute to the Commission. And § 104, subd. b, especially when read in connection with the general rule-making power conferred by § 161, subd. i(3), 42 U.S.C. § 2201(i)(3), 42 U.S.C.A. § 2201(i)(3) clearly contemplates that the Commission shall by regulation set forth what the public safety requires as a prerequisite to the issuance of any license or permit under the Act.
14
The issuance of construction permits is subject to § 185, 42 U.S.C. § 2235, 42 U.S.C.A. § 2235. That section provides that
15
'All applicants for licenses to construct or modify production or utilization facilities shall, if the application is otherwise acceptable to the Commission, be initially granted a construction permit. The construction permit shall state the earliest and latest dates for the completion of the construction or modification. Unless the construction or modification of the facility is completed by the completion date, the construction permit shall expire, and all rights thereunder be forfeited, unless upon good cause shown, the Commission extends the completion date. Upon the completion of the construction or modification of the facility, upon the filing of any additional information needed to bring the original application up to date, and upon finding that the facility authorized has been constructed and will operate in conformity with the application as amended and in conformity with the provisions of this chapter and of the rules and regulations of the Commission, and in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of this chapter, the Commission shall thereupon issue a license to the applicant. For all other purposes of this chapter, a construction permit is deemed to be a 'license."
16
It is clear from the face of this statute—and all parties agree—that Congress contemplated a step-by-step procedure. First an applicant would have to get a construction permit, then he would have to construct his facility, and then he would have to ask the Commission to grant him a license to operate the facility. This procedure is described in its general outlines in Marks and Trowbridge, Framework for Atomic Industry, 76—77 (1955). See also Green, The Law of Reactor Safety, 12 Vand.L.Rev. 112, 121—127 (1958). The second step of the procedure, the application for and granting of an operating license, is governed by § 182, subd. a, 42 U.S.C. § 2232(a), 42 U.S.C.A. § 2232(a). That provision reas , in pertinent part:
17
'In connection with applications for licenses to operate production or utilization facilities, the applicant shall state such technical specifications * * * and such other information as the Commission may, by rule or regulation, deem necessary in order to enable it to find that the utilization or production of special nuclear material will be in accord with the common defense and security and will provide adequate protection to the health and safety of the public.'
18
It is clear from this provision that before licensing the operation of PRDC's reactor, the AEC will have to make a positive finding that operation of the facility will 'provide adequate protection to the health and safety of the public.' What is not clear, and what is at the center of the controversy in this case, is whether the Commission must also have made such a finding when it issued PRDC's construction permit. There is nothing on the face of either § 182 or § 185 which tells us what safety findings must be made before this preliminary step is taken. We know, however, from § 104, subd. b that some such finding must be made. For enlightenment on the nature of this finding, both parties urge us to examine the Commission's regulations, and accordingly we proceed to do so.
19
The crucial regulation for our purposes is the Commission's regulation 50.35, 10 CFR § 50.35:
20
's 50.35 Extended time for providing technical information. Where, because of the nature of a proposed project, an applicant is not in a position to supply initially all of the technical information otherwise required to complete the application, he shall indicate the reason, the items or kinds of information omitted, and the approximate times when such data will be produced. If the Commission is satisfied that it has information sufficient to provide reasonable assurance that a facility of the general type proposed can be constructed and operated at the proposed location without undue risk to the health and safety of the public and that the omitted information will be supplied, it may process the application and issue a construction permit on a provisional basis without the omitted information subject to its later production and an evaluation by the Commission that the final design provides reasonable assurance that the health and safety of the public will not be endangered.'
21
This regulation, obviously, elaborates upon and describes in fuller detail the step-by-step licensing procedure contemplated by §§ 182 and 185. It states, pursuant to the authority conferred by §§ 104, subd. b and 161, subd. i(3), what safety findings shall be required at each stage of the proceeding. There is general agreement that the second safety finding referred to, 'that the final design provides reasonable assurance that the health and safety of the public will not be endangered,' comports with the requirements of § 182 concerning the issuance of a license to operate. There is also agreement that the regulation's first required safety finding, 'that (the AEC) has information sufficient to provide reasonable assurance that a facility of the general type proposed can be constructed and operated at the proposed location without undue risk to the health and safety of the public,' is a valid exercise of the rule-making power conferred upon the AEC by statute, and requires that some finding as to safety of operation be made even before a provisional construction permit is granted. The question is whether that first finding must be backed up with as much conviction as to the safety of the final design of the specific reactor in operation as the second, final finding must be.
22
We think the great weight of the argument supports the position taken by PRDC and by the Commission, that Reg. 50.35 permits the Commission to defer a definitive safety finding until operation is actually licensed. The words of the regulation themselves certainly lean strongly in that direction. The first finding is to be made, by definition,o n the basis of incomplete information, and concerns only the 'general type' of reactor proposed. The second finding is phrased unequivocally in terms of 'reasonable assurance,' while the first speaks more tentatively of 'information sufficient to provide reasonable assurance.' The Commission, furthermore, had good reason to make this distinction. For nuclear reactors are fast-developing and fast-changing. What is up to date now may not, probably will not, be as acceptable tomorrow. Problems which seem insuperable now may be solved tomorrow, perhaps in the very process of construction itself. We see no reason why we should not accord to the Commission's interpretation of its own regulation and governing statute that respect which is customarily given to a practical administrative construction of a disputed provision. Particularly is this respect due when the administrative practice at stake 'involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new.' Norwegian Nitrogen Products Co. v. United States, 1933, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796. And finally, and perhaps demanding particular weight, this construction has time and again been brought to the attention of the Joint Committee of Congress on Atomic Energy, which under § 202 of the Act, 42 U.S.C. § 2252, 42 U.S.C.A. § 2252, has a special duty during each session of Congress 'to conduct hearings in either open or executive session for the purpose of receiving information concerning the development, growth, and state of the atomic energy industry,' and to oversee the operations of the AEC. See, e.g., Hearings on Development, Growth, and State of the Atomic Energy Industry, 84th Cong., 2d Sess., p. 106 (1956); Hearings on Development, etc., 85th Cong., 2d Sess., pp. 119—121 (1958); Hearings on Development, etc., 86th Cong., 2d Sess., pp. 103—109, 677—678 (1960); Hearings on Development, etc., 87th Cong., 1st Sess., pp. 29—32 (1961); Hearings on Governmental Indemnity for Private Licensees and AEC Contractors Against Reactor Hazards, 84th Cong., 2d Sess., pp. 62—65 (1956); A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities, 85th Cong., 1st Sess., pp. 11—14, 100—108 (Joint Comm. Print 1957). No change in this procedure has ever been suggested by the Committee, although it has on occasion been critical of other aspects of the PRDC proceedings not before us. It may often be shaky business to attribute significance to the inaction of Congress, but under these circumstances, and considering especially the peculiar responsibility and place of the Joint Committee on Atomic Energy in the statutory scheme, we think it fair to read this history as a de facto acquiescence in and ratification of the Commission's licensing procedure by Congress. Cf., e.g., Ivanhoe Irr. Dist. v. McCracken, 1958, 357 U.S. 275, 292—294, 78 S.Ct. 1174, 1184—1185, 2 L.Ed.2d 1313; Brooks v. Dewar, 1914, 313 U.S. 354, 360—361, 61 S.Ct. 979, 981 982, 85 L.Ed. 1399. This same procedure has been used in each of the nine instances in which the Commission has granted a provisional construction permit for a developmental nuclear power reactor, e.g., Yankee Atomic Elec. Co., CPPR—5 (AEC 1957), and we hold that it was properly used in this case.
23
It is plain that the statute and regulations, as so construed and applied, were complied with fully. The Commission did not, as respondents' argument seems at times to suggest, find merely that the construction of the reactor would present no safety problem. The Commission's opinion and findings clearly were deeply concerned about the prospective safety of operation of the proposed reactor. Admitting that on the basis of the facts before it it was unable to make a definitive finding of safety, the Commission nevertheless found—and respondents do not deny that the finding was supported by substantia evidence—that it had information sufficient to provide reasonable assurance that the general type of reactor proposed could be operated without undue risk to the health and safety of the public. Its Finding 22, which we have quoted, was in the very words of Reg. 50.35, except for the insertion of the phrase, 'for the purposes of this provisional construction permit.' This phrase was merely declaratory of the nature of the proceeding before the Commission, and in no way denigrated the finding as to safety of operation.
24
Respondents contend nevertheless that their construction of the statute is compelled by the legislative history. Since the Court of Appeals relied heavily on this history, we have studied it carefully. Two incidents are cited in particular. First, the Joint Committee stated in its report on the bill which became the Atomic Energy Act of 1954, and which when reported contained §§ 182 and 185 in substantially their present shape, that '(s)ection 185 * * * requires the issuance of a license if the construction is carried out in accordance with the terms of the construction permit.' S.Rep.No. 1699, 83d Cong., 2d Sess., p. 28 (1954); H.R.Rep.No. 2181, 83d Cong., 2d Sess., p. 28 (1954) U.S.Code Congressional and Administrative News 1954, p. 3456. The best we can say about this statement, with all deference, is that it must have been inadvertent. Witnesses who appeared before the Joint Committee at the hearings on the bill had made the very complaint that under the words of the bill as proposed a company might invest large sums in construction of a reactor, and then be denied the right to operate it. This situation, they claimed, was unfair, and would substantially discourage the private investment in the field of atomic power which it was one of the bill's major purposes to stimulate. See Hearings before the Joint Committee on Atomic Energy on the Bill to Amend the Atomic Energy Act of 1946, 83d Cong., 2d Sess., Pt. I., pp. 113, 119 (statement of Paul W. McQuillen. representing the Dow Chemical-Detroit Edison and Associates atomic power development project, predecessors of PRDC); pp. 226—227 (statement of E. H. Dixon, chairman of the Committee on Atomic Power of the Edison Electric Institute and president of Middle-South Utilities, Inc.); p. 417 (statement of the Special Committee on Atomic Energy of the Association of the Bar of the City of New York). In spite of these pleas, however, the bill was unchanged. Industry spokesmen renewed the argument the next year when they sought unsuccess-fully to have § 185 amended. Hearings on Development, etc., 84th Cong., 1st Sess., pp. 258, 261 (1955). Even a glance at § 185 suffices to show that issuance of a construction permit does not make automatic the later issuance of a license to operate. For that section sets forth three conditions, in addition to the completion of the construction, which must be met before an operating license is granted: (1) filing of any additional information necessary to bring the application up to date information which will necessarily in this case include detailed safety data concerning the final design of petitioner's reactor; (2) a finding that the reactor will operate in accordance with the act and regulations—i.e., that the safety and health of the public will be adequately protected—and with the construction permit itself, which is expressly conditioned upon a full investigation and finding of safety before operation is permitted; and (3) the absence of any good cause why the granting of a license to operate would not be in accordance with the Act—e.g., a showing by respondent unions, who will have full rights to appear and contest the issuance of an operating license, that the reactor may not be reasonably safe.
25
Respondents rely more heavily on another event during the debates on this bill on the floor of the Senate. Senator Humphrey, an opponent of the bill, expressed a desire that it be made clear that 'the construction permit is eu ivalent to a license,' and that 'the revised section 182 on license application * * * appl(ies) directly to construction permits.' 100 Cong.Rec. 12014 (July 26, 1954). Senator Hickenlooper, floor manager of the bill and the ranking Senate member of the Joint Committee on Atomic Energy, indicated that he agreed with this construction of §§ 182 and 185. Senator Humphrey wanted these matters made clear because he feared that otherwise a construction permit could be easily obtained and substantial investment made in construction, and then the Commission would feel obliged, perhaps under pressure, to issue an operating license in order that this investment should not go to waste. The language used in the exchange between Senators Humphrey and Hickenlooper is susceptible, if read broadly and out of context, of the construction which respondents attribute to it, namely, that no § 185 construction permit may be issued unless the Commission has made the same safety-of-operation finding which it must make under § 182, subd. a before allowing actual operation. But the context of the exchange makes it clear that no such implication was intended by the participants. Senator Humphrey's statements were made during the consideration of an amendment which he had himself proposed on July 16. This amendment would have added the following clause to the end of § 185:
26
'and no construction permit shall be issued by the Commission until after the completion of the procedures established by section 182 for the consideration of applications for licenses under this act.'
27
Upon being assured by Senator Hickenlooper that an earlier amendment which Senator Hickenlooper himself had offered to § 189 took care of the problem, Senator Humpohrey withdrew his proposal. This amendment to s 189, which was adopted, was concerned solely with hearings and judicial review. Plainly Senator Humphrey's concern was not with the substantive safety findings necessary to the issuance of a construction permit, but rather with the procedural safeguards with which that issuance should, in his opinion, be surrounded. The reference to the application of § 182 to construction permits was made not with § 182, subd. a in mind—that subsection sets out the substantive safety standard for the issuance of an operating license—but rather with a view to the application of § 182, subd. b, about which Senator Humphrey particularly asked Senator Hickenlooper during the exchange on the floor referred to, and which merely provides that notice of a license application must be published and given to any appropriate regulatory agencies, a procedural requirement which was fully satisfied in this case. This interpretation of the meaning of Senator Humphrey's remarks is borne out by a statement of Representative Holifield, who, together with Representative Price, had dissented from the favorable report of the Joint Committee, precisely because, inter alia, under the bill as reported a construction permit did not have to be preceded by the same procedures as an operating license. See S.Rep.No. 1699, 83d Cong., 2d Sess., p. 123 (1954); H.R.Rep.No. 2181, 83d Cong., 2d Sess., p. 123 (1954). Representative Price wanted the same amendment added to § 185 which Senator Humphrey proposed, and he characterized this amendment as necessary to ensure 'that the same procedural safeguards in the case of licenses be applied to construction permits.' 100 Cong.Rec. 10959 (July 19, 1954). We think, therefore, that Senator Humphrey's statement referred only to procedural prerequisites of construction permits, and had nothing to do with the substantive safety considerations which this case involves. If there were any doubt about this matter, the consistent administrative practice, made known to Congress many times and never disturbed by it, would dictate this conclusion.
28
The Court of Appeals put forward as an alternative basis for its decision the holding that under the law the Commission may not authorize the construction of a reaco r near a large population center without 'compelling reasons' for doing so, 108 U.S.App.D.C. at pages 103—104, 280 F.2d at pages 651—652, and that no such reasons had been found by the AEC in this case. It is not clear whether respondents have abandoned that contention in this Court, and it is likewise uncertain whether they ever presented it to the Commission, a step which would ordinarily be a prerequisite to its consideration by the Court of Appeals. In any event, the position is without merit. The statute and regulations say nothing about 'compelling reasons.' Of course Congress (and the Commission, too, for that matter) had the problem of safety uppermost in mind, and of course that problem is most acute when a reactor, potentially dangerous, is located near a large city. But the Commission found reasonable assurance, for present purposes, that the reactor could be safely operated at the proposed location, and that is enough to satisfy the requirements of law. The Commission recognized that the site and all its properties are among the most important ingredients of a finding of safety vel non. It considered the site along with all the other relevant data. There is no warrant in the statute for setting aside the Commission's conclusion.
29
We hold, therefore, that the Court of Appeals erred in setting aside the order of AEC continuing PRDC's provisional construction permit in effect. We deem it appropriate to add a few words concerning the fears of nuclear disaster which respondents so urgently place before us. The respondents' argument is tantamount to an insistence that the Commission cannot be counted on, when the time comes to make a definitive safety finding, wholly to exclude the consideration that PRDC will have made an enormous investment. The petitioners concede that the Commission is absolutely denied any authority to consider this investment when acting upon an application for a license for operation. PRDC has been on notice long since that it proceeds with construction at its own risk, and that all its funds may go for naught. With its eyes open, PRDC has willingly accepted that risk, however great. No license to operate may be issued to PRDC until a full hazards report has been filed, until the AEC's Advisory Committee on Reactor Safeguards makes a full investigation and public report on safety to the Commission, until the Commission itself, after notice and hearings at which respondents, if they desire, may be heard, has made the safety-of-operation finding required by § 182, subd. a and Reg. 50.35, and until the other requirements of § 185 have been met. It may be that an operating license will never be issued. If one is, that will not be the end of the matter. The respondents may have judicial review. Moreover, the Commission's responsibility for supervision of PRDC continues. For, under Reg. 50.57, 10 CFR § 50.57, operation at full power (100,000 electric kilowatts) will not be permitted until several steps of gradually increasing operation have been successfully mastered, with a full public hearing at each step, and no further advance permitted without the AEC's being fully satisfied that a step-up will meet the high safety standards imposed by law. This is the multi-step scheme which Congress and the Commission have devised to protect the public health and safety. We hold that the actions of the Commission up to now have been within the Congressional authorization. We cannot assume that the Commission will exceed its powers, or that these many safeguards to protect the public interest will not be fully effective.
30
Accordingly, the judgment is reversed and the causes are remanded to the Court of Appeals for further proceedings consistent with this opinion.
31
Reversed and remanded.
32
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
33
The only requirement in the Act for a finding that the facilities involved here 'will provide adequate protection to the health and safety of the public' is found in § 182 h ich is headed 'License Applications.'1 By the terms of § 185 a construction permit is, apart from the requirements of § 185, 'deemed to be a 'license."2 Section 185 governs applications for construction permits. It has no separate or independent standards for safety, no specific requirement for a finding on 'safety.' If the facility is finished and will operate 'in conformity with' the Act, the license issues 'in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of' the Act. As the Committee Report stated, 'Section 185 * * * requires the issuance of a license if the construction is carried out in accordance with the terms of the construction permit.'3 In other words, the finding on 'safety,' if it is to be made (as it assuredly must be), must be made at the time the construction permit is issued or not at all.
34
While in the present case the Commission 'finds reasonable assurance in the record, for the purposes of this provisional construction permit,' that the facility can be operated 'without undue risk to the health and safety of the public,' it also finds that 'It has not been positively established' that a facility of this character 'can be operated without a credible possibility of releasing significant quantities of fission products to the environment.' The Commission added that there was 'reasonable assurance' before the date when the facility went into operation that research and investigation would definitely establish 'whether or not the reactor proposed by Applicant can be so operated.'
35
Plainly these are not findings that the 'safety' standards have been met. They presuppose—contrary to the premise of the Act that 'safety' findings can be made after construction is finished. But when that point is reached, when millions have been invested, the momentum is on the side of the applicant, not on the side of the public. The momentum is not only generated by the desire to salvage an investment. No agency wants to be the architect of a 'white elephant.' Congress could design an Act that would give a completed structure that momentum. But it is clear to me it did not do so.
36
When this measure was before the Senate, Senator Humphrey proposed an amendment that read, 'no construction permits shall be issued by the Commission until after the completion of the procedures established by section 182 for the consideration of applications for licenses under this act.'4 That amendment would plainly have made the present findings inadequate for they leave the issue of 'safety' wholly in conjecture and unresolved.
37
Senator Humphrey explained his amendment as follows:5
38
'The purpose of the amendment when it was prepared was to make sure that the construction of a facility was not permitted prior to the authorization of a license, because had that been done what it would have amounted to would be getting an investment of a substantial amount of capital, which surely would have been prejudicial in terms of the Commission issuing the license. In other words, if the Commission had granted the construction permit for some form of nuclear reactor, and then the question of a license was not fully resolved, surely there would have been considerable pressure, and justifiably so, for the Commission to have authorized the license once it had authorized the permit for construction.
39
'The chairman of the committee tells me he has modified certain sections by the committee amendments to the bill, of which at that time I was not aware. The chairman indicates to me that under the terms of the bill, as amended, the construction permit is equivalent to a license. In other words, as I understand, under the bill a construction permit cannot be interpreted in any other way than being equal to r a part of the licensing procedure. Is that correct?'.
40
His question was answered by Senator Hickenlooper, who was in charge of the bill:6
41
'A license and a construction permit are equivalent. They are the same thing, and one cannot operate until the other is granted.
42
'The same is true with reference to hearings. Therefore, we believe, and we assure the Senator, that the amendment is not essential to the problem which he is attempting to reach.'
43
Senator Humphrey then asked if § 182 applied 'directly to construction permits.'7 Senator Hickenlooper replied 'Yes.'8 Senator Humphrey accordingly withdrew his amendment.9
44
This legislative history makes clear that the time when the issue of 'safety' must be resolved is before the Commission issues a construction permit. The construction given the Act by the Commission (and today approved) is, with all deference, a light-hearted approach to the most awesome, the most deadly, the most dangerous process that man has ever conceived.10
Appendix to Opinion of Mr. Justice DOUGLAS
45
Section 182, subd. a, provides in relevant part:
46
'License applications.—
47
'a. Each application for a license hereunder shall be in writing and shall specifically state such information as the Commission, by rule or regulation, may determine to be necessary to decide such of the technical and financial qualifications of the applicant, the character of the applicant, the citizenship of the applicant, or any other qualifications of the applicant as the Commission may deem appropriate for the license. In connection with applications for licenses to operate production or ultilization facilities, the applicant shall state such technical specifications, including information of the amount, kind, and source of special nuclear material required, the place of the use, the specific characteristics of the facility, and such other information as the Commission may, by rule or regulation, deem necessary in order to enable it to find that the utilization or production of special nuclear material will be in accord with the common defense and security and will provide adequate protection to the health and safety of the public. Such technical specifications shall be a part of any license issued.'
Section 185 provides:
48
'Construction Permits.—All applicants for licenses to construct or modify production or ultilization facilities shall, if the application is otherwise acceptable to the Commission, be initially granted a construction permit. The construction permit shall state the earliest and latest dates for the completion of the construction or modification. Unless the construction or modification of the facility is completed by the completion date, the construction permit shall expire, and all rights thereunder be forfeited, unless upon good cause, the Commission extends the completion date. Upon the completion of the construction or modification of the facility, upon the filing of any additional information needed to bring the original application up to date, and upon finding that the facility authorized has been constructed and will operate in conformity with the application as amended and in conformity with the provisions of this Act and of the rules and regulations of the Commission, and in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of this Act, the Commission shall thereupon issue a license to the applia nt. For all other purposes of this Act, a construction permit is deemed to be a 'license'.'
1
See Appendix to this opinion, 367 U.S. at page 419, 81 S.Ct. at page 1541.
2
Ibid.
3
1 Leg.Hist. 1024. (Emphasis added.)
4
3 Leg.Hist. 3759.
5
Ibid.
6
Ibid.
7
Ibid.
8
Ibid.
9
Ibid.
10
See Biological and Environmental Effects of Nuclear War, Summary-Analysis of Hearings, June 22—26, 1959, Joint Committee on Atomic Energy, 86th Cong., 1st Sess.; Fallout From Nuclear Weapons Tests, Summary-Analysis of Hearings, May 5—8, 1959, Joint Committee on Atomic Energy, 86th Cong., 1st Sess. For an analysis of the administrative law techniques used by the Commission in this case, see Jalet, A Study in Administrative Law, 47 Georgetown L.J. 47 (1958).
| 78
|
367 U.S. 303
81 S.Ct. 1579
6 L.Ed.2d 859
John T. JARECKI, Former Collector of Internal Revenue, et al., Petitioners,v.G. D. SEARLE & CO. POLAROID CORPORATION, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 151, 169.
Argued March 21, 22, 1961.
Decided June 12, 1961.
No. 151:
Mr. Wayne G. Barnett, Washington, D.C., for petitioners.
Mr. Walter J. Cummings, Jr., Chicago, Ill., for respondent.
No. 169:
Mr. Isaac M. Barnett, New York City, for petitioner.
Mr. Wayne G. Barnett, Chicago, Ill., for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
These cases present problems in the interpretation of § 456(a) of the Internal Revenue Code of 1939, a section of the Excess Profits Tax Act of 1950, 64 Stat. 1137, 26 U.S.C.A. Excess Profits Taxes, § 456(a). The Act, which is intended to tax at high rates unusually high profits earned during the Korean War, imposes a tax on profits in excess of an amount deemed to represent the taxpayer's normal profits.1 Recognizing, however, that some profits otherwise subject to tax under this scheme might stem from causes other than the inflated wartime economy, Congress enacted § 456. This section grants relief in certain cases of 'abnormal income' as defined in § 456(a)2 by allocating some of this income to years other than those in which it was received for purposes of computing the tax.
2
The dispute in these cases is whether income from the sales of certain new products falls within the statutory definition of 'abnormal income.' Taxpayers claim that the income from the sales of their products is income resl ting from 'discovery.' They claim it is therefore 'abnormal income' within the class defined by § 456(a)(2)(B) as
3
'Income resulting from exploration, discovery, or prospecting, or any combination of the foregoing, extending over a period of more than 12 months.'
4
Taxpayer in No. 151 is a corporation engaged in the manufacture and marketing of drugs. As a result of research extending for more than 12 months, it produced two new drugs, 'Banthine,' used in the treatment of peptic ulcers, and 'Dramamine,' for relief from motion sickness. Taxpayer received patents on both drugs, and it asserts that both were new products and not merely improvements on pre-existing compounds. Taxpayer received income from the sale of 'Banthine' and 'Dramamine' in the years 1950 through 1952. It paid its tax without claiming relief under § 456, and then claimed a refund. On denial of its claim, taxpayer filed a complaint in the District Court for the Northern District of illinois. The District Court dismissed the complaint, but the Court of Appeals for the Seventh Circuit reversed. It held that 'discovery' might include the preparation of new products and that the case must be remanded for a trial on the issue of whether taxpayer's drugs 'were actually discoveries.' 274 F.2d 129, 131.
5
Taxpayer in No. 169 is the inventor and producer of the 'Polaroid Land Process,' a camera and film which produce a photograph in 60 seconds, and the 'Polaroid 3—D Synthetic Polarizer,' a device incorporated in the 'viewers' through which audiences watched the three dimensional motion pictures in vogue some years ago. These inventions, each the product of more than 12 months' research, are novel, according to taxpayer, and each has been patented. The Polaroid Land equipment was the subject of 238 patents by the end of 1958, and taxpayer characterizes this invention as 'revolutionary.' Its production was a new departure in the business of taxpayer, which had hitherto been engaged primarily in manufacturing and selling such optical products as polarizing sunglasses, visors and camera filters. In its returns for 1951 through 1953 taxpayer utilized the provisions of § 456 in computing its tax on income from the sales of its photographic equipment and 3—D polarizers. The Commissioner determined that § 456 was not applicable, and the Tax Court upheld his determination of a deficiency. The Court of Appeals for the First Circuit affirmed, holding that taxpayer's inventions were not 'discoveries' and its income from their sale not 'abnormal income.' 278 F.2d 148.
6
We grant certiorari in each case to resolve the conflict between the decisions of the First and Seventh Circuits. 364 U.S. 812, 813, 81 S.Ct. 50, 53, 5 L.Ed.2d 45.
I.
7
For present purposes we accept, as did the First Circuit, taxpayers' assertions of the novelty of their products. But we also agree with that court that taxpayers' inventions are not 'discoveries' as that word is used in § 456(a)(2)(B) and that income from sales of the new products may not receive the special treatment provided by § 456.
8
We look first to the face of the statute. 'Discovery' is a word usable in many contexts and with various shades of meaning. Here, however, it does not stand alone, but gathers meaning from the words around it. These words strongly suggest that a precise and narrow application was intended in § 456. The three words in conjunction, 'exploration,' 'discovery' and 'prospecting,' all describe income-producing activity in the oil and gas and mining industries, but it is difficult to conceive of any other industry to which they all apply. Certainly the development and manufacturer of drugs and cameras are not such industries. The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress. See, e.g., Neal v. Clark, 95 U.S. 704, 708—709, 24 L.Ed. 586 The application of the maxim here leads to the conclusion that 'discovery' in § 456 means only the discovery of mineral resources.
9
When we examine further the construction of § 456(a)(2) and compare subparagraphs (B) and (C), it becomes unmistakably clear that 'discovery' was not meant to include the development of patentable products. If 'discovery' were so wide in scope, there would be no need for the provision in subparagraph (C) for 'Income from the sale of patents, formulae, or processes.' All of this income, under taxpayers' reading of 'discovery,' would also be income 'resulting from * * * discovery' within subparagraph (B). To borrow the homely metaphor of Judge Aldrich in the First Circuit, 'If there is a big hole in the fence for the big cat, need there be a small hole for the small one?' (278 F.2d 153). The statute admits a reasonable construction which gives effect to all of its provisions. In these circumstances we will not adopt a strained reading which renders one part a mere redundancy. See, e.g., United States v. Menasche, 348 U.S. 528, 538—539, 75 S.Ct. 513, 519—520, 99 L.Ed. 615.
10
Taxpayers assert that it is the 'ordinary meaning' of 'discovery' which must govern. We find ample evidence both on the face of the statute and, as we shall show, in its legislative history that a technical usage was intended. But even if we were without such evidence we should find it difficult to believe that Congress intended to apply the layman's meaning of 'discovery' to describe the products of research. To do so would lead to the necessity of drawing a line between things found and things made, for in ordinary present-day usage things revealed are discoveries, but new fabrications are inventions.3 It would appear senseless for Congress to adopt this usage, to provide relief for income from discoveries and yet make no provision for income from inventions. Perhaps in the patent law 'discovery' has the uncommonly wide meaning taxpayers suggest, but the fields of patents and taxation are each lores unto themselves, and the usage in the patent law (which is by no means entirely in taxpayers' favor)4 is unpersuasive here. All the evidence is to the effect that Congress did not intend to introduce the difficult distinction between inventions and discoveries into the excess profits tax law.
11
The relevant legislative history fortifies the conclusions to which the words of the statute lead us. The word 'discovery' has been used for many years in the tax laws, and has always been used with the limited meaning of the finding of mineral deposits. In the Revenue Act of 1918, enacting one of the earliest excess profits tax laws, a limit was placed on the excess profits tax on income from 'a bona fide sale of mines, oil or gas wells, or any interest therein, where the principal value of the proprety has been demonstrated by prospecting or exploration and discovery work done by the taxpayer.' Revenue Act of 1918, § 337, 40 Stat. 1096.5 An identical limitation was imposed on the income tax levied under that Act,6 and the same usage of 'discovery' obtained in the allowance of depletion deductions.7 The limitation on the income tax on the proceeds of the sale of mineral deposits was re-enacted without significant change in the Revenue Acts of 1921, 1924, 1926, 1928, 1932, 1936 and 1938.8 It remains in the income tax provisions of the Internal Revenue Code of 1939 as § 105, 26 U.S.C.A. § 105, and has been carried forward as § 632 of the 1954 Code, 26 U.S.C.A. § 632. In each re-enactment 'discovery' is linked with 'exploration' and 'prospecting,' and in each the word is restrictively applied to extractive industries. A correspondingly narrow use of 'discovery' has continued since 1918 in the depletion allowance sections9 and appears in § 114(b)(2) of the 1939 Code, 26 U.S.C.A. § 114(b)(2). In the more than 30 years preceding the enactment of the section here at issue, during which time 'discovery' was used and re-used in successive taxing statutes, the word developed into a term of art of precise and limited meaning.
12
The Excess Profits Tax Act of 1940, 54 Stat. 975, made specific mention of more types of 'abnormal income' qualifying for relief than did the earlier excess profits tax statutes, but there is no indication that it worked any transformation in the meaning of 'discovery.' Section 721, 54 Stat. 986, as amended, 55 Stat. 21, classified six types of 'abnormal income.' Among them was the following, at § 721(a)(2)(C):
13
'Income resulting from exploration, discovery, prospecting, research, or development of tangible property, patents, formulae, or processes, or any combination of the foregoing, extending over a period of more than 12 months.'
14
This was the first time specific provision was made for income from invention, relief in cases of such income having previously been obtainable, if at all, only under the 'general relief' provisions of the earlier Acts.10 It is instructive that the formula 'exploration, discovery, or prospecting' was not considered broad enough to cover invention and that the words 'research' and 'development' were added to cover that source of income. plainly, 'discovery' retained in the World War II excess profits Act the limited meaning which it had had in the previous Acts and which it continued to have in the income tax provisions of the then-current code.11
15
The relief provisions of the Excess Profits Tax Act of 1950, which we here construe, were modeled in part on § 721 of the World War II Act, but were different in significant respects. In the classifications of income in the new § 456, Congress gave separate treatment to income from discovery of minerals and income from invention. It provided relief in subparagraph (B) for 'Income resulting from exploration, discovery, or prospecting,' but provided in subparagraph (C) only for 'Income from the sale of patents, formulae, or processes.' (Emphasis added.) Subparagraph (C) does not encompass all income from inventions. It does not cover income from the sale of products made under a new patent, the sort of income at issue here. Taxpayer assert that the income from their inventions is, realistically pseaking, as 'abnormal' in their businesses as the discovery of a new mine would be in the business of a prospector. Their income is within the spirit of § 456, they say, and should be held to be within the letter of subparagraph (B). It is clear, however, that Congress, while it may have recognized the abnormal nature of this sort of income, chose deliberately to deny relief for it and to limit relief in cases of research and development to that provided in subparagraph (C).
16
The relief provisions of the World War II Act had been intended to provide 'flexible rules,'12 and their application had often been an uncertain affair. In administering § 721 the Commissioner often faced the difficult task of separating income which was the product of 'research, or development' from that resulting merely from improved management or sales efforts. The difficulty of distinction led the Tax Court to hold that the distinction must be made 'by exercising common sense and judgment,' and that 'It is entirely possible that the allocation made by one person would never match that made by another.' Ramsey Accessories Mfg. Corp. v. Commissioner, 10 T.C. 482, 489. Congress in 1950 recognized the delay and uncertainty caused by the element of administrative discretion in this and other13 sections and set about drafting an excess profits tax law on the principle that 'subjective judgments * * * should be avoided in the new law.' H.R.Rep. No. 3142, 81st Cong., 2d Sess. 20. This principle was expressly followed in the drafting of § 456. The Senate Committee reported on § 456 as follows:
17
'The equivalent provision in the World War II law (sec. 721) also permitted adjustments with reference to certain other types of income, particularly that resulting from the sale of tangible property arising out of research and development which extended over a period of more than 12 months. This provision in the old law was a potential loophole of major dimensions. Because there appeared to be no means of restricting such an adjustment to truly meritorious cases other than by the introduction of a large degree of administrative discretion of the type required by the general relief clause of the World WarI I law (sec. 722), and because the need for a reallocation of such income seemed to be materially less than for the other classes of income described above, the bill omits this item from the list of abnormal types of income for which a reallocation can be made.' S.Rep. No. 2679, 81st Cong., 2d Sess. 14.
18
The House Committee Report was virtually identical. H.R.Rep. No. 3142, 81st Cong., 2d Sess. 13.
19
Taxpayers recognize, as they must, that Congress intended its change in language to limit the kinds of income eligible for relief. They say, however, that not all income from research and development was excluded. That which comes from inventions not merely patentable but also sufficiently revoluntionary to be called 'genuine discoveries' is still within the protection of § 456. We find it impossible to believe that an amendment designed to eliminate uncertainty and administrative discretion would introduce into the law—without a congressional word of warning or explanation—a distinction as vague, as dependent upon nuances of scientific opinion, and as unprecedented as that urged by taxpayers.
II.
20
Taxpayers have another argument, which the First Circuit rejected and which the Seventh Circuit did not reach. Paragraph (1) of § 456(a) defines 'abnormal income' as 'income of any class described in paragraph (2)' which meets certain requirements. Paragraph (2) lists four classes of income and provides in its concluding sentence:
21
'The classification of income of any class not described in subparagraphs (A) to (D), inclusive, shall be subject to regulations prescribed by the Secretary.'
22
Taxpayers argue that even if the income here at issue was not provided for under any of the subparagraphs of paragraph (2), it is nevertheless included within this final sentence and is hence eligible for relief.
23
We need not decide the precise effect of the sentence relief on. In light of the clear purpose of Congress in enacting § 456 to cut down not only the amount of administrative discretion which had prevailed under the predecessor section but also the scope of available relief, the power of the Secretary to extend relief far beyond the four corners of the statute may be doubted.14 It is sufficient to note that, unlike its predecessor (which made relief available for all 'abnormal income,' whether or not specified in a particular class),15 § 456 applies only to those classes specified in § 456(a)(2). Section 456 does not apply in terms to all abnormal income and contains no indication that the Secretary should create administrative classifications embracing all such income. And even if the sentence relied on gives the Secretary power to expand the classes of abnormal income somewhat beyond the four enumerated in the statute, he has clearly not done so here. The regulations16 specifically provide that 'Income from the sale of tangible property arising out of research and development which extended over a period of more than 12 months is not included in the list of abnormal types of income to which section 456 is applicable, and such income may not constitute a class of income for purposes of that section.' This specific exclusion is clearly in furtherance of the purpose of Congress in deleting 'research' and 'development' income from its classification of abnormal income. The Commissioner, effecting the will of Congress, has barred relief for the type of income here at issue.
24
The last sentence of the regulation, on which taxpayers also rely, does not aid them. It provides merely that 'research' and 'development' income is eligible for relief if it is properly includible in a class of income to which § 456 otherwise applies. As we have held, however, taxpayers' income does not fall within any such class.
25
Therefore, the judgment of the Court of Appeals for the Seventh Circuit must be reversed and the judgment of the Court of Appeals for the First Circuit affirmed.
26
It is so ordered.
27
Judgment of Court of Appeals for Seventh Circuit reversed; judgment of Court of Appeals for First Circuit affirmed
1
See H.R.Rep. No. 3142, 81st Cong., 2d Sess. 2; S.Rep. No. 2679, 81st Cong., 2d Sess. 2.
2
Section 456(a) provides in part:
'(a) Definitions.—For the purposes of this section—
'(1) Abnormal income.—The term 'abnormal income' means income of any class described in paragraph (2) includible in the gross income of the taxpayer for any taxable year under this subchapter if it is abnormal for the taxpayer to derive income of such class, or, if the taxpayer normally derives income of such class but the amount of such income of such class includible in the gross income of the taxable year is in excess of 115 per centum of the average amount of the gross income of the same class for the four previous taxable years, or, if the taxpayer was not in existence for four previous taxable years, the taxable years during which the taxpayer was in existence.
'(2) Separate classes of income.—Each of the following subparagraphs shall be held to describe a separate class of income:
'(A) Income arising out of a claim, award, judgment, or decree, or interest on any of the foregoing; or
'(B) Income resulting from exploration, discovery, or prospecting, or any combination of the foregoing, extending over a period of more than 12 months; or
'(C) Income from the sale of patents, formulae, or processes, or any combination of the foregoing developed over a period of more than 12 months; or
'(D) Income includible in gross income for the taxable year rather than for a different taxable year by reason of a change in the taxpayer's method of accounting.
'All the income which is classifiable in more than one of such subparagraphs shall be classified under the one which the taxpayer irrevocably elects. The classification of income of any class not described in subparagraphs (A) to (D), inclusive, shall be subject to regulations prescribed by the Secretary.'
3
In lay terms, Polaroid's photographic equipment and Searle's drugs are probably better called inventions than discoveries. Webster's New International Dictionary, Unabridged (2d ed.) p. 745, makes this distinction: 'One DISCOVERS what existed before, but had remained unknown; one INVENTS by forming combinations which are either entirely new, or which attain their end by means unknown before; as, Columbus discovered America; Newton discovered the law of gravitation; Edison invented the phonograph * * *.'
4
The United States Constitution, Art. I, § 8, cl. 8 gives Congress the power to secure to 'Inventors the exclusive Right to their * * * Discoveries.' While the terms 'discover' and 'discovery' are used throughout the patent statutes, they seem generally to appear with 'invent' and 'invention' as if the terms have separate meanings. See, e.g., 35 U.S.C. § 101, 35 U.S.C.A. § 101: 'Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter * * * may obtain a patent therefor * * *.' And see Dolbear v. American Bell Telephone Co. (Telephone Cases), 126 U.S. 1, 532—533, 8 S.Ct. 778, 780—781, 31 L.Ed. 863.
5
This section was re-enacted by the Revenue Act of 1921, § 337, 42 Stat. 277.
6
Revenue Act of 1918, § 211(b), 40 Stat. 1064.
7
Revenue Act of 1918, §§ 214(a)(10), 234(a)(9), 40 Stat. 1067, 1078, providing 'That in the case of mines, oil and gas wells, discovered by the taxpayer * * * where the fair market value of the property is materially disproportionate to the cost, the depletion allowance shall be based upon the fair market value of the property at the date of the discovery * * *.'
8
Revenue Act of 1921, § 211(b), 42 Stat. 237; Revenue Act of 1924, § 211(b), 43 Stat. 267; Revenue Act of 1926, § 211(b), 44 Stat. 23; Revenue Act of 1928, § 102(a), 45 Stat. 812; Revenue Act of 1932, § 102(a), 47 Stat. 192; Revenue Act of 1936, § 105, 49 Stat. 1678; Revenue Act of 1938, § 105, 52 Stat. 484.
9
Revenue Act of 1921, §§ 214(a)(10), 234(a)(9), 42 Stat. 241, 256; Revenue Act of 1924, § 204(c), 43 Stat. 260; Revenue Act of 1926, § 204(c)(1), 44 Stat. 16; Revenue Act of 1928, § 114(b)(2), 45 Stat. 821; Revenue Act of 1932, § 114(b)(2), 47 Stat. 202; Revenue Act of 1934, § 114(b)(2), 48 Stat. 710; Revenue Act of 1936, § 114(b)(2), 49 Stat. 1686; Revenue Act of 1938, § 114(b) (2), 52 Stat. 495.
10
Section 327(d) of the Revenue Act of 1918, 40 Stat. 1093, gave the Commissioner power to grant relief in any case in which 'the tax * * * would, owing to abnormal conditions affecting the capital or income of the corpoa tion, work upon the corporation an exceptional hardship * * *.' Section 721 of the World War II law classified specific types of abnormal income for purposes of computing the tax, and, while it provided relief for all abnormal income of whatever class, was not considered a 'general relief' section.
11
I.R.C. of 1939, §§ 105, 114(b)(2), 26 U.S.C.A. §§ 105, 114(b)(2). It was expressly provided by § 728 of the World War II excess profits tax statute, 54 Stat. 989, that the words used in that statute should have the same meaning as when used in the income tax chapter of the Code.
12
H.R.Rep. No. 146, 77th Cong., 1st Sess. 2.
13
The 'general relief' section of the World War II Act, § 722, 54 Stat. 986, as amended, 55 Stat. 23, 701, 56 Stat. 914, 57 Stat. 56, 601, 58 Stat. 55, provided for adjustments in the computation of base period income if the taxpayer established, among other things, 'what would be a fair and just amount representing normal earnings' during the base period.
14
In fact, the Committee reports state that 'Adjustments * * * (under § 456) are limited to income arising out of' the four classes specified in subparagraphs (A) through (D). H.R.Rep. No. 3142, 81st Cong., 2d Sess. 13; S.Rep. No. 2679, 81st Cong., 2d Sess. 14.
15
Excess Profits Tax Act of 1940, § 721, 54 Stat. 986, as amended, 55 Stat. 21. Section 721(a)(1) defines 'abnormal income' as 'income of any class includible in the gross income of the taxpayer * * *.'
16
Treas.Reg. 130, § 40.456—2(b) (1951), as amended, T.D. 6026, 1953—2 Cum.Bull. 235: 'Other incom, not within a class described in subparagraphs (A)—(D) of section 456(a)(2), to which section 456 is applicable may be grouped by the taxpayer, subject to approval by the Commissioner on the examination of the taxpayer's return, in such classes similar to those specified in subparagraphs (A)—(D) of section 456(a)(2) as are reasonable in a business of the type which the taxpayer conducts, and as are appropriate in the light of the taxpayer's business experience and accounting practice. Income from the sale of tangible property arising out of research and development which extended over a period of more than 12 months is not included in the list of abnormal types of income to which section 456 is applicable, and such income may not constitute a class of income for purposes of that section. However, section 456 is applicable to such income if the income is otherwise properly includible within a class of income to which such section is applicable for example, the class described in section 456(a)(2)(D).'
| 1112
|
367 U.S. 456
81 S.Ct. 1587
6 L.Ed.2d 963
Bernhard DEUTCH, Petitioner,v.UNITED STATES.
No. 233.
Argued March 22, 23, 1961.
Decided June 12, 1961.
Mr. Henry W. Sawyer, III, Philadelphia, Pa., for petitioner.
Mr. Kevin T. Maroney, Washington, D.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
Once again we are called upon to review a criminal conviction for refusal to answer questions before a subcommittee of the Committee on Un-American Activities of the House of Representatives.1 See Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964; Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997; Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653. The petitioner was brought to trial in the District Court for the District of Columbia upon an indictment which charged that he had violated 2 U.S.C. § 192, 2 U.S.C.A. § 192, by refusing to answer five questions 'which were pertinent to the question then under inquiry' by the subcommittee. He waived a jury and was convicted upon four of the five counts of the indictment. The judgment was affirmed by the Court of Appeals, 108 U.S.App.D.C. 143, 280 F.2d 691, and we brought the case here because of doubt as to the validity of the conviction in the light of our previous decisions.2 364 U.S. 812, 81 S.Ct. 62, 5 L.Ed.2d 44. A careful review of the trial record convinces us that the District Court should have ordered an acquittal.
2
At the trial the Government's case consisted largely of documentary evidence. That evidence showed that a subcommittee of the House Committee on Un-American Activities conducted hearings in Albany, New York, in July of 1953, and again in early April of 1954. The petitioner was not present on either occasion. He was subpoenaed to appear before the subcommittee in Albany on April 9, 1954, but, at the request of his counsel, it was agreed that he should appear instead before the subcommittee three days later in the Old House Office Building in Washington, D.C.
3
He appeared there on the appointed day, accompanied by counsel, and without further ado his interrogation began. The petitioner freely answered all preliminary questions, revealing that he was then twenty-four years old and a graduate student at the University of Pennsylvania. He stated that his early education had been in the public schools of Brooklyn, New York, from where he had gone to Cornell University in 1947 for four years as an undergraduate and two additional years as a graduate student.
4
The subcommittee's counsel then made the following statement:
5
'Mr. Deutch, during hearings at Albany last week, the committee heard testimony regarding the existence of a Communist Party group or cell operating among undergraduates at Cornell University, among certain graduates at Cornell and in the city of Ithaca.
6
'In connection with that testimony, the committee was informed that you were a member of one or more of those groups. If so, I would like to ask you certain matters relating to your activity there.
7
'Were you a member of a group of the Communist Party at Cornell?'
8
The petitioner answered, 'under protest,' that he had indeed been a member of the Communist Party while at Cornell.3 He then testified freely and without further objection as to his own activities and associations. He stated that 'from the age of 13 or 14 I had read many books on Marxism and at that time was very much impressed with trying to solve certain of the injustices we have nowadays.' He said that when he got to college 'I felt if I had ideas I shouldn't be half pregnant about them, so when I came to college I was approached and joined.' He stated that the approach to join the Party had been made by a student.
9
As to the general nature of his Communist Party activities at Cornell, he said 'about all that happened were bull sessions on Marxism, and some activities like giving out a leaflet or two. The people I met didn't advocate the overthrowing of the Government by force and violence, and if they had I wouldn't have allowed it.' He testified that he had known one faculty member at Cornell who was a Communist, but that this person had quit the Party. He stated that he had once received from 'a personal friend,' who was not connected with the Cornell faculty, a $100 contribution to give to the Party. He stated that he had been the only graduate student at Con ell who was a Communist, and that, as the 'head' (and lone member) of the 'graduate group,' he had attended meetings in a private house where a 'maximum of 4 or 5' people were present. Many of his answers indicated a lack of awareness of the details of Communist activities at Cornell.4 The petitioner testified that as of the time of the hearings he was no longer a member of the Communist Party, but he volunteered the information that '(t)o a great extent it is only fair to say I am a Marxist today—I don't want to deny that.'
10
While the petitioner's answers to the many questions put to him about his own activities and conduct were thus fully responsive, he refused to answer five questions he was asked concerning other people. He declined to give the names of the faculty member who had been a Communist, of the friend who had made the $100 contribution, of the student who had originally approached him about joining the Communist Party, and of the owners of the house where the meetings had been held. He also declined to say whether he was acquainted with one Homer Owen. For his refusal to answer these questions he was indicted, tried, and convicted.5
11
The reason which the petitioner gave the subcommittee for his refusal to answer these questions can best be put in his own words:
12
'Sir, I am perfectly willing to tell about my own activities, but do you feel I should trade my moral scruples by informing on someone else? * * * I can only say that whereas I do not want to be in contempt of the committee, I do not believe I can answer questions about other people, but only about myself. * * * I happen to have been a graduate student—the only one there, and the organization is completely defunct, and the individual you are interested in wasn't even a professor. The magnitude of this is really beyond reason.'
13
The chairman of the subcommittee ruled that it was the petitioner's duty nevertheless to answer the questions:
14
'That decision does not rest with you as to whether or not the scope of this inquiry—as to whether or not certain individuals are important now or not. That is the responsibility of we Representatives to determine. That determination cannot rest with you. It may be very true that the individual to whom you have referred is no longer a member of the Communist Party. However, that is a supposition on your part—and a supposition which the committee cannot accept. * * * I think that it is only fair to advise the witness—again advise the witness—that any scruples he may have due to a desire to protect friends and acquaintances, is not a legal reason for declining to answer the questions which are now being put to you, and which will be put to you by counsel.'
15
In an effort to prove the pertinence of the questions which the petitioner had refused to answer, the Government offered at the trial the transcripts of the opening statements of Subcommittee Chairman Kearney at the Albany hearings in 1953 and 1954 and of Subcommittee Chairman Velde at a hearing in Chicago in 1954, as well as an additional portion of the transcript of the 1954 Albany hearing. One witness, the counsel for the Committee on Un-American Activities, testified. A review of this evidence convinces us that the Government failed to prove the charge in the indictment that the questions which the petitioner refused to answer were 'pertinent to the question then under inquiry' by the subcommittee before which he appeared.
16
The Chairman's opening statement at the Albany hearing in 1953 consisted largely of a paraphrase of the Committee's authorizing resolution and a general summary of the Committee's past activities.6 The only statement of a specific purpose was as follows:
17
'The committee, in its course of investigation, came into possession of reliable information indicating Communist Party activities within the Albany area. The committee decided that this information was of such a character as to merit an investigation to determine its nature, extent, character, and objects.' At the opening of the Albany hearings in 1954 the Chairman stated that the subcommittee would 'resume this morning the investigation of Communist Party activities within the capital area.' He made clear that the hearings were 'a continuation of the open hearings which were conducted in Albany' in 1953. He pointed out that testimony at the 1953 hearings had 'related to the efforts of the Communist Party to infiltrate industry and other segments of society in the capital area.' 'This committee,' he said, '* * * is investigating communism within the field of labor where it has substantial evidence that it exists.'
18
The opening statement of the Chairman of the subcommittee which held hearings in Chicago in 1954 is the same statement that was before this Court in Watkins v. United States, 354 U.S. 178, 210, 77 S.Ct. 1173, 1191, 1 L.Ed.2d 1273. As was pointed out in the Watkins opinion, Mr. Velde 'did no more than paraphrase the authorizing resolution and give a very general sketch of the past efforts of the Committee.'7 Moreover, the statement indicated that that subcommittee hearing was directed primarily towards investigation of activities in the Chicago area: 'We are here in Chicago, Ill., realizing that this is the center of the great midwestern area of the United States. It cannot be said that subversive infiltration has had a greater, nor a lesser success in infiltrating this important area. The hearings today are the culmination of an investigation that has been conducted by the committee's competent staff and is a part of the committee's intention for holding hearings in various parts of the country.'
19
The transcripts of part of the testimony of two witnesses at the 1954 Albany hearings, John Marqusee and Emmanuel Richardson, were also introduced at the petitioner's trial. These transcripts showe that Marqusee's testimony had related primarily to Communist infiltration of a labor union in Schenectady for which he had worked during a summer vacation in 1948.8 At that time he had been a student in the New York State School of Industrial and Labor Relations, which, he had testified, was a part of Cornell University. He had told the subcommittee that he had never had any contact with the Communist Party before taking the labor union job. The transcripts showed that he had explained that he had taken the job in accordance with the school's requirement 'that every student should put forth his efforts in securing a job during the summer, during the intervening summers of his 4-year program, 1 summer with a labor union, 1 with a management group, if possible, and 1 summer with a neutral agency, such as a mediation agency or arbitration service.' There was no mention of the Cornell Graduate School, nor of the petitioner, in the transcript of Marqusee's testimony.
20
The transcript of Richardson's testimony showed that he had testified that as a student at the Cornell Law School in 1950 he had joined the Communist Party at the request of the Federal Bureau of Investigation. He had named several people he had known as Communists on the Cornell campus, including the petitioner and Homer Owen. He had stated that the petitioner had known a member of the Cornell faculty who was a Communist Party member, and that he had once received through the petitioner a contribution to the Party from someone else of 'one hundred and some dollars.' The transcript showed that Richardson had also testified at length concerning Communist infiltration into a labor union in a plant in Syracuse where he had worked during the summers of 1951 and 1952.
21
After these transcripts had been introduced at the petitioner's trial, the Government called its only witness, Frank S. Tavenner, Jr., who had been the 'interrogating attorney' at the Albany hearings and at the petitioner's hearing before the subcommittee in Washington.9 Mr. Tavenner emphasized that the hearing in Washington was a continuation of the Albany hearings, which he characterized as 'a general investigation of Communist Party activities in what was referred to as the 'Capital Area." Under interrogation of government counsel, the witness expressly disclaimed that the purpose of the Washington hearing had been to investigate Communist activities in educational institutions.10 He was asked what 'connection was there between (the subject of the petitioner's testimony) and the investigations entitled 'Albany, New York'?' This question was never answered.
22
On this record the District Court found the subject under inquiry to be 'the infiltration of Communism into educational and labor fields.' 147 F.Supp. at page 91. The Court of Appeals never stated what it thought the subject under inquiry by the subcommittee was.
23
As our cases make clear, two quite different issues regarding pertinency may be involved in a prosecution under 2 U.S.C. § 192, 2 U.S.C.A. § 192. One issue reflects the requirement of the Due Process Clause of the Fifth Amendment that the pertinency of the interrogation to the topic under the congressional committee's inquiry must be brought home to the witness at the time the questions are put to him. 'Unless the subject matte has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto.' Watkins v. United States, 354 U.S. at pages 214—215, 77 S.Ct. at page 1193. See Barenblatt v. United States, 360 U.S. at pages 123—124, 79 S.Ct. 1081, 3 L.Ed.2d 1115. The other and different pertinency issue stems from the prosecution's duty at the trial to prove that the questions propounded by the congressional committee were in fact 'pertinent to the question under inquiry' by the committee. 'Undeniably a conviction for contempt under 2 U.S.C. § 192, 2 U.S.C.A. § 192, cannot stand unless the questions asked are pertinent to the subject matter of the investigation.' Barenblatt, supra, 360 U.S. at page 123, 79 S.Ct. at page 1091. '(T)he statute defines the crime as refusal to answer 'any question pertinent to the question under inquiry.' Part of the standard of criminality, therefore, is the pertinency of the questions propounded to the witness.' Watkins, supra, 354 U.S. at page 208, 77 S.Ct. at page 1190. See Wilkinson v. United States, 365 U.S. at pages 407—409, 413, 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. at pages 433, 435—436, 81 S.Ct. 584, 5 L.Ed.2d 653; Sacher v. United States, 356 U.S. 576, 577, 78 S.Ct. 842, 2 L.Ed.2d 987; Sinclair v. United States, 279 U.S. 263, 296—297, 49 S.Ct. 268, 73 L.Ed. 692. These two basically different issues must not be blurred by treating them as a single question of 'pertinency.'
24
With regard to the first issue, it is evident that the petitioner was not made aware at the time he was questioned of the question then under inquiry nor of how the questions which were asked related to such a subject. The chairman made no opening statement, and the petitioner heard no other witnesses testify. The resolution creating the subcommittee revealed nothing. It was merely a general resolution authorizing the creation of a subcommittee to act for the Committee. Committee counsel simply advised the petitioner that the committee had previously heard evidence regarding Communist activity at Cornell, and that he proposed to ask the petitioner 'certain matters relating to your activity there.' As to his own activity there the petitioner freely testified. When the petitioner declined to give the names of other people, no clear explanation of the topic under inquiry was forthcoming.
25
It is also evident, however, that the thoughts which the petitioner voiced in refusing to answer the questions about other people can hardly be considered as the equivalent of an objection upon the grounds of pertinency. Although he did indicate doubt as to the importance of the questions, the petitioner's main concern was clearly his own conscientious unwillingness to act as an informer. It can hardly be considered, therefore, that the objections which the petitioner made at the time were 'adequate, within the meaning of what was said in Watkins, supra, 354 U.S. at pages 214—215, 77 S.Ct. at pages 1193—1194, to trigger what would have been the Subcommittee's reciprocal obligation had it been faced with a pertinency objection.' Barenblatt, supra, 360 U.S. at page 124, 79 S.Ct. at page 1091.
26
We need not pursue the matter, however, because, in any event, it is clear that the Government at the trial failed to carry its burden of proving the pertinence of the questions. See Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447, 452. The first step in proving that component of the offense was to show the subject of the subcommittee's inquiry. Wilkinson v. United States, 365 U.S. at page 407, 81 S.Ct. 567, 5 L.Ed.2d 633. As related above, the Government offered documentary evidence of statements made by the chairman of the subcommittees at two hearings in Albany which tended to show that those subcommittees were investigating Communist infiltration in the Albany or 'capital' area, particularly in the field of labor.11 The Government presented one witness who testified that the petitioner's hearing was a continuation of the Albany hearings, and that the subject of those hearings was Communist infiltration in the Albany area. He disavowed any implication that the topic under inquiry was Communism either at Cornell or in educational institutions generally.
27
Yet the questions which the petitioner was convicted of refusing to answer obviously had nothing to do with the Albany area or with Communist infiltration into labor unions. It can hardly be seriously contended that Cornell University is in the Albany area. Indeed, we may take judicial notice of the fact that Ithaca is more than one hundred and sixty-five miles from Albany, and in an entirely different economic and geographic area of New York. The petitioner was asked nothing about Albany or the Albany area. So far as the record shows, he knew nothing about that subject. He was asked nothing about labor or labor unions. So far as the record shows, he knew nothing about them. He was asked nothing about any possible connection between Cornell or its graduate school and Communist infiltration in Albany. Yet the petitioner was basically a cooperative witness, and there is nothing in the record to indicate that, except for giving the names of others, he would not have freely answered any inquiry the subcommittee wished to pursue with respect to these subjects. It is true that the transcript of the testimony of two witnesses at the Albany hearings established that, in addition to testifying about Communist infiltration into labor unions in the Albany area, they had been willingly led into some testimony about Communist activities by the petitioner and others at Cornell. But that excursion can hardly justify a disregard of the Government's careful proof at the petitioner's trial of what the subject under inquiry actually was. The pertinence of the interrogation of those two witnesses is not before us. The pertinence of the petitioner's interrogation is.
28
In enacting 2 U.S.C. § 192, 2 U.S.C.A. § 192, the Congress invoked the aid of the federal judicial system to protect itself from contumacious conduct. Watkins, supra, 354 U.S. at page 207, 77 S.Ct. 1173. 'In fulfillment of their obligation under this statute, the courts must accord to the defendants every right which is guaranteed to defendants in all other criminal cases.' Id., 354 U.S. at page 208, 77 S.Ct. at page 1189. 'One of the rightful boasts of Western civilization is that the (prosecution) has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure.' Irvin v. Dowd, 366 U.S. 717, 729, 81 S.Ct. 1639, 1646, 6 L.Ed.2d 751 (concurring opinion). Among these is the presumption of the defendant's innocence. Sinclair v. United States, 279 U.S. at page 296—297, 49 S.Ct. 268, 73 L.Ed. 692; Flaxer v. United States, 358 U.S. at page 151, 79 S.Ct. 191, 3 L.Ed.2d 183. It was incumbent upon the prosecution in this case to prove that the petitioner had committed the offense for which he was indicted. One element of that offense was the pertinence to the subject matter under inquiry of the questions the petitioner refused to answer.12 We hold, as a matter of law, that there was a failure of such proof in this case. Sacher v. United States, 356 U.S. 576, 78 S.Ct. 842, 2 L.Ed.2d 987; see Sinclair v. United States, 279 U.S. at pages 298—299; Braden v. United States, 365 U.S. at pages 436—437, 81 S.Ct. 584, 5 L.Ed.2d 653.
29
We do not decide today any question respecting the power or legislative purpose of this subcommittee of the Hos e Un-American Activities Committee. Nor do we reach the large issues stirred by the petitioner's First Amendment claims. Our decision is made within the conventional framework of the federal criminal law, and in accord with its traditional concepts. In a word, we hold only that the Government failed to prove its case.13
30
Reversed.
31
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins, dissenting.
32
There is, of course, no doubt that a showing of 'pertinency' is an essential part of the Government's burden in a prosecution under 2 U.S.C. § 192, 2 U.S.C.A. § 192. But the nature of this burden may differ, dependent upon what transpired at the Congressional inquiry giving rise to the prosecution.
33
In a case where the prosecution involves the defendant's refusal to answer a question whose pertinency was explained to him by the Congressional Committee before which he appeared as a witness—following his appropriate objection that the question was not pertinent to the matter 'under inquiry,' see Barenblatt v. United States, 360 U.S. 109, 123—124, 79 S.Ct. 1081—the Government must stand or fall upon that explanation. For it would be obviously unfair to allow the Government at trial to prove pertinency on a different theory than was given to the defendant at the time he testified, and on the basis of which he presumably determined that he need not answer the question put.
34
Where, however, the defendant made no 'pertinency' objection as a witness before the Congressional Committee, the Government at trial is left free to satisfy the requirement of pertinency in any way it may choose. The present case is such a one, for, as the Court's opinion recognizes, the petitioner here made no adequate pertinency objection before the House Un-American Activities Subcommittee.
35
I dissent because in my opinion the Court's holding that the Government failed to establish 'pertinency' rests on a too niggardly view of both the issue and the record. Pertinency, which in the context of an investigatory proceeding is of course a term of wider import than 'relevancy' in the context of a trial, is to be judged not in terms of the immediate probative significance of a particular question to the matter under authorized inquiry, but in light of its tendency to elicit information which might be a useful link in the investigatory chain. See Carroll v. United States, 2 Cir., 16 F.2d 951, 953. An investigation must proceed 'step by step.' Ibid.
36
Pertinency is found lacking here because (1) inquiry as to affairs relating to petitioner's student days at Cornell University, situated at Ithaca, N.Y., it is said, was not germane to the Subcommittee's investigation as to Communist activities in 'the Albany area'; and (2) in any event, such investigation, the Court finds, related only to alleged Communist infiltration into labor unions and not as well to infiltration 'at Cornell or in educational institutions generally.' I can agree with neither facet of this holding.
37
It is quite true, as the Court says, that Ih aca is some 165 miles away from Albany, but it seems to me much too refined to say, as a matter of law, that the trial court could not reasonably determine that Ithaca was within the Subcommittee's terms of reference. Indeed, I think it fair to suggest that in common usage, at least among New Yorkers, 'Albany area' would be regarded as aptly descriptive of 'upstate' New York. In relation to 'pertinency' the matter should not be judged as if it were one of technical jurisdiction or venue.
38
The other aspect of the Court's holding seems to me equally infirm. Accepting, as I shall, the Court's view that the trial record shows that the Subcommittee, at the relevant time, was investigating only alleged Communist 'labor union,' and not 'educational,' infiltration, it seems to me abundantly clear that the lower courts were justified in concluding that all of the questions with respect to which the petitioner was convicted* were pertinent to that matter.
39
Only shortly before it examined petitioner, the Subcommittee had interrogated two witnesses, Marqusee and Richardson, with respect to their Communist affiliations, their summer work with two labor unions in Schenectady and in Syracuse, and Communist infiltration into such unions, all while they were both students at Cornell. One of these witnesses, Richardson, had testified that during this period he had known the petitioner, and one Homer Owen (Count Four of the indictment), as Communists on the Cornell campus. I do not see why it should now be deemed either that the Subcommittee's interest in petitioner's testimony was confined to 'educational infiltration,' or that its preliminary questioning of him might not have led to developing information bearing on 'labor union infiltration,' possibly stemming from student Communist activity on the Cornell campus, had further inquiry not been blocked by petitioner's refusal to answer.
40
I cannot agree that the decision of this case has been made 'within the conventional framework of the federal criminal law.' For surely in judging the pertinency of a question put in the course of an otherwise valid Congressional inquiry, as this one is recognized to have been, we should not insist that the inquiring committee follow stricter rules than the courts themselves apply in determining, for example, the sufficiency of a plea of self-incrimination under the 'link in the chain' rule, see, e.g., Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 224, 95 L.Ed. 170, or in judging 'materiality' in a perjury case, see, e.g., Carroll v. United States, supra. In reversing this conviction, I think the Court has strayed from the even course of decision.
41
I would affirm.
42
Mr. Justice WHITTAKER, whom Mr. Justice CLARK joins, dissenting.
43
I must say, with all respect, that I think the Court has grossly misread this record. For, after studying and analyzing it, it seems entirely clear to me that not only did petitioner fail to complain of any uncertainty about the subject under inquiry, or object that the questions put to him were not pertinent to the inquiry, but, moreover, at least three of the questions he refused to answer were, on their face, clearly pertinent to the inquiry as a matter of law. Demonstration of these facts can be made only by carefully setting forth in detail the undisputed relevant facts in the record. I now turn to that task.
44
Acting under the statutory command of Congress to investigate and report to it on the extent, character and objects of 'un-American propaganda activities,' the 'diffusion * * * of subversive * * * propaganda,' and 'all other questions in relation thereto that would aid Congress in any necessary remedial legislation,'1 a Subcommittee of the House Committee on Un-American Activities conducted investigatory hearings at Albany, New York on April 7, 8 and 9, 1954, relative to Communist subversive activities. At those hearings evidence was adduced, principally by the testimony of a former graduate student of the School of Industrial and Labor Relations of Cornell University, one Marqusee, and by one Richardson, a former student in the Cornell Law School, that a Communist cell existed in that University from 1947 through 1953. Those witnesses testified that they were members of that cell, and, in addition to holding frequent secret meetings and occasionally passing out hand-bills at strike scenes, the members of the cell formulated and carried out a plan of using the prestige and innocent aid of the university's placement service in getting summer jobs with labor unions in upper New York particularly Ithaca, Schenectady and Syracuse—where, by fellow Communists, they were put in contact with the leaders of Communist cells in the unions and there further carried on their Communist activities. Richardson—who was in fact an employee of, and regularly reported to, the Federal Bureau of Investigation testified that there were at least six members of the Cornell cell and that one of the most active members of it was petitioner, Deutch, and that another was one Homer Owen. Richardson further testified that, in 1952 and 1953, Deutch was the liaison between an undisclosed member of the Cornell faculty and that cell; that, in that period, Deutch collected for and turned over to the cell various contributions, including one for $100, but declined to name the donor.
45
Having this and other similar information the Subcommittee determined to interrogate Deutch, and, locating him in the graduate school of the University of Pennsylvania in Philadelphia, it caused him to be subpoenaed to appear before the Subcommittee at Albany on Friday, April 9, 1954. But, at the request of petitioner's counsel, and for petitioner's convenience, the Subcommittee agreed to take petitioner's testimony in executive session at Washington, D.C., on Monday, April 12, instead of at Albany on Friday, April 9.
46
At the appointed time, petitioner, accompanied by his counsel, appeared before the Subcommittee in Washington and was sworn and interrogated. After asking and obtaining his name, place and date of birth, and his educational background, the committee advised petitioner that the particular aspect of Communist infiltration into the educational and labor fields to be inquired into in his interrogation was the existence and nature of '* * * a Communist Party group or cell operating among undergraduates * * * (and) graduates at Cornell * * *.' Specifically, counsel for the committee stated:
47
'Mr. Deutch, during hearings at Albany last week, the committee heard testimony regarding the existence of a Communist Party group or cell operating among undergraduates at Cornell University, among certain grauates at Cornell and in the city of Ithaca.
48
'In connection with that testimony, the committee was informed that you were a member of one or more of those groups. If so, I would like to ask you (about) certain matters relating to your activity there.'
49
The subject under inquiry, so stated, would appear to have been thus made quite plain. It appears to have been entirely plain to petitioner and his counsel, as neither of them then, or at any time during the hearing, manifested any want of understanding of the subject or asked for any further explanation of it.
50
Thereupon the following immediately occurred:
51
'(Mr. Tavenner—counsel for the Committee): Were you a member of a group of the Communist Party at Cornell?
52
'Mr. Deutch: I will answer that question, but only under protest.
53
'I wish to register a challenge as to the jurisdiction of this committee under Public Law 601, which is the committee's enabling legislation. This quesi on, or any similar question, involving my associations, past or future, I am answering, but only under protest as to its constitutionality. But, under your jurisdiction as stated, I answer yes, I was a member of the Communist Party.
54
'Mr. Tavenner: The committee was advised that a witness by the name of Ross Richardson has stated that you acted as liaison between a Communist Party group on the campus and a member of the faculty at Cornell, and that you knew the name of the member of that faculty, who was a member of the Communist Party.
55
'Will you tell us who that member of the faculty was?
56
'Mr. Deutch: Sir, I am perfectly willing to tell about my own activities, but do you feel I should trade my moral scruples by informing on someone else?
57
'Mr. Jackson (the acting chairman of the Subcommittee): That is entirely beside the point. You have been asked a question and we must insist that you answer the question or decline to answer it, and your declination must consist of something more than your moral scruples.
58
'Mr. Deutch: As to details of that, I think the whole question has been magnified more than it should have.
59
'Mr. Jackson: There is a question pending and the Chair must insist that you answer the question that has been asked.
60
'Mr. Deutch: I can only say that whereas I do not want to be in contempt of the committee, I do not believe I can answer questions about other people, but only about myself.
61
'Mr. Jackson: You therefore refuse to answer the question that is pending, is that correct?
62
'Mr. Deutch: Yes, sir. * * *'
63
Petitioner's refusal to answer that question resulted in Count One of his subsequent indictment.
64
A colloquy then ensued between petitioner and the acting chairman and another member of the Subcommittee, at the conclusion of which petitioner stated: 'The only thing I am saying, sir, my challenge is, is it constitutional under Public Law 601?'
Thereupon the following occurred:
65
'Mr. Tavenner: The committee received testimony from Ross Richardson to the effect that you collected certain donations for the benefit of the Communist Party, and that on one occasion you delivered to him the sum of $100, without designating to him the source of it. Will you tell the committee, please, the source of that $100 contribution, if it was made?
66
'Mr. Deutch: No; this contribution was made—I believe I gave you the reason why I decline to answer regarding names, and this was from a personal friend.' In reply to the acting chairman's direction to answer the question, petitioner stated:
67
'Mr. Deutch: I feel like I can't answer that question. I realize there are many problems facing me, and it wasn't an easy decision to make.
68
'Mr. Jackson: The Chair directs again that you answer.
69
'Mr. Deutch: I am unable to.
70
'Mr. Tavenner: * * * I want to know if you refuse to answer the question.
71
'Mr. Deutch: Yes, sir.'
72
Petitioner's refusal to answer that question resulted in Count Two of his subsequent indictment.
73
The background of the question, and the question, that resulted in Count Three of the indictment are omitted, because the District Court dismissed that Count, and it is not before us.
74
Petitioner then refused, though directed by the acting chairman, to answer the question: 'Were you acquainted with Homer Owen?' And that refusal resulted in Count Four of his subsequent indictment.
75
Then, after saying '* * * so when I came to college I was approached and joined (the Communist Party),' petitioner was asked and answered as follows:
76
'Mr. Tavenner: By whom were you approached?
77
'Mr. Deutch: I was approached by a student. I don't wish to give his name.
78
'Mr. Jackson: The witness is directed to give the name of the person by whom he was approached.
79
'Mr. Deutch: I decline to give the name.'
80
Petitioner's refusal to answer that question resulted in Count Five of his indictment.
81
This, I submit, is a fair statement of the undisputed relevant facts, and it sets forth literally every contention,o bjection and reason given by petitioner at the hearing for his refusal to answer these questions. Apart from the formal testimony of Mr. Tavenner and some documentary exhibits offered by the Government, this was the evidence that was offered and received at petitioner's contempt trial in the District Court.
82
I think this record provides an ample basis to support the District Court's finding that, in general, 'The Committee was investigating the infiltration of Communism into educational and labor fields,' 147 F.Supp. at page 91, but whether or not that was the general and announced subject of the hearings is immaterial to this case, because here petitioner was told, near the beginning of his interrogation and before the relevant questions were propounded, that the subject about which the committee wished to interrogate him was 'the existence of a Communist Party group or cell operating among (students) at Cornell University * * * (and) matters relating to (his) activity there.' Like the Court of Appeals, I think these 'quoted statements made to (petitioner) by the committee counsel and a committee member clearly indicated the object of the inquiry' of petitioner—i.e., the nature and extent of Communist infiltration at Cornell—'and the pertinency of the questions (to that subject).' 108 U.S.App.D.C. at page 148, 280 F.2d at page 696.
83
Likewise, it seems entirely clear to me, as it did to the Court of Appeals, that not only did petitioner fail to object to any question on the ground of pertinency but 'Never once did he indicate unawareness of the purpose of the hearing, or doubt as to the pertinency of the questions.' 108 U.S.App.D.C. at page 146, 280 F.2d at page 694. It also seems plain to me, as it did to the Court of Appeals, that petitioner 'declined to answer the questions, not on the ground of pertinency (but rather on the ground) that it was against his 'moral scruples' to answer questions about other people.' 108 U.S.App.D.C. at page 147, 280 F.2d at page 695. 'Nor,' as said by the Court of Appeals, 'did he claim that he did not understand how the questions related to the subject under inquiry, or what that subject was. On the contrary, it is quite obvious that he recognized that the questions were pertinent to the subject under inquiry, and he based his refusal to answer solely and simply on the fact that he did not wish to give the names of other persons * * * (and) (n)ot until the trial in the District Court, in what appears to be afterthought, did appellant raise the questions of pertinency and unawareness of the subject matter of the inquiry.' 108 U.S.App.D.C. at pages 147—148, 280 F.2d at pages 695—696. It thus seems clear to me, as it did to the Court of Appeals, that 'the Government has proved beyond a reasonable doubt that the subject under inquiry and the pertinency of the questions were made to appear at the committee hearing with 'indisputable clarity." 108 U.S.App.D.C. at page 147, 280 F.2d at page 695.
84
Yet this Court now reverses the findings and judgments of the two courts below upon the sole ground 'that the Government at the trial failed to carry its burden of proving the pertinence of the questions.' I am compelled by the evidence, respectfully, to disagree.
85
Here, whether or not petitioner was told or knew that the general subject of the inquiry was 'infiltration of Communism into educational and labor fields,' he was specifically told that the committee had information that he had recently been a member of a Communist cell at Cornell, had acted as the liaison between an undisclosed member of the faculty and that cell, had collected and turned over to the cell monies from donors whom he refused to identify; and, then, coming specifically to the particular subject about which the committee desired to interrogate him, petitioner was told that the committee wished to interrogate him about 'a Communist Party group or cell operating among undergraduates * * * (and) * * * graduates at Cornell and in the city of Ithaca' n d 'matters relating to (his) activity there.' In the second place, the subject under inquiry, thus stated, was not only crystal clear but appears to have been entirely plain to petitioner and his counsel, as neither of them then, or at any time during the hearing, manifested any want of understanding of the subject or asked for any further explanation of it. In the third place, neither petitioner nor his counsel made any objection, or even hinted any objection, to any question put to petitioner at the hearing on the ground of pertinency. Instead, petitioner said: 'The only thing I am saying, sir, my challenge is, is it constitutional under Public Law 601?' And, finally, at the trial the Government proved this specific committee purpose by introducing into evidence not only the record made at the hearing but also the testimony of the Committee's counsel as to these matters. It is, therefore, passing strange that the Court is unable to find any proof of pertinency of the questions.
86
In Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273, the witness had expressly 'objected to the questions on the grounds of lack of pertinency' (id., 354 U.S. at page 214, 77 S.Ct. at page 1193), and the committee failed to clarify that matter. Hence, we said: 'Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto.' Id., 354 U.S. at page 214—215, 77 S.Ct. at page 1193. (Emphasis added.) Here, as stated, not only was pertinency made to appear with 'undisputable clarity,' but moreover petitioner and his counsel gave every indication to the committee that they were aware of the subject under inquiry and made no objection whatever on the ground of pertinency.
87
In Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 1091, 3 L.Ed.2d 1115, the witness had said at the hearing, 'I might wish to * * * challenge the pertinency of the question to the investigation,' and at another point, in a lengthy written statement, he quoted from this Court's opinion in Jones v. Securities & Exchange Comm., 298 U.S. 1, 56 S.Ct. 654, 80 L.Ed. 1015, language relating to a witness' right to be informed of the pertinency of questions asked him by an administrative agency, and then contended in this Court that his conviction for contempt of Congress should be reversed because the subject of the inquiry and the relevancy of the questions thereto were not made clear. In rejecting that claim, and in contrasting that situation from the one existing in the Watkins case, we said: 'These statements cannot, however, be accepted as the equivalent of a pertinency objection. At best they constituted but a contemplated objection to questions still unasked, and buried as they were in the context of petitioner's general challenge to the power of the Subcommittee they can hardly be considered adequate, within the meaning of what was said in Watkins, supra, 354 U.S. at pages 214—215 (77 S.Ct. at pages 1193—1194,), to trigger what would have been the Subcommittee's reciprocal obligation had it been faced with a pertinency objection.' 360 U.S. at pages 123—124, 79 S.Ct. at page 1091.
88
I also think that this Court's decision in United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884, is highly relevant to this question. For it is as true here, as it was there, that if petitioner did not understand the subject under inquiry or believed that the questions put to him were not relevant to that subject, 'a decent respect for the House of Representatives, by whose authority (he was being questioned), would have required that (he) state (his) reasons for (refusing answers to the questions).' Id., 339 U.S. at page 332, 70 S.Ct. at page 731. Such an objection would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by a further and even more detailed explanation of the subject under inquiry and the manner in which the propounded questions were pertinent thereto. 'To deny the Committee the opportunity to consider (such an) objection or remedy it is in itself a contempt of its authority and an obstruction of its processes. See Bevan v. Kreiger, 289 U.S. 459, 464—465, 53 S.Ct. 661, 77 L.Ed. 1316 (1933).' 339 U.S. at page 333, 70 S.Ct. at page 731. Petitioner's failure to make any such objection at the hearing, but raising it, for the first time, at his contempt trial, was patently an attempted 'evasion of the duty of one summoned * * * before a congressional committee (, and) cannot be condoned.' Id., 339 U.S. at page 333, 70 S.Ct. at page 731. And see McPhaul v. United States, 364 U.S. 372, 379, 81 S.Ct. 138, 5 L.Ed.2d 136.
89
This alone should be, and is for me, a complete answer to petitioner's claim, and to the Court's holding, 'that the Government at the trial failed to carry its burden of proving the pertinence of the questions.'
90
But, in addition, at least the questions involved in Counts One, Two and Five of the indictment were, on their face, clearly pertinent to the inquiry as a matter of law.2 Petitioner had been specifically told that the particular subject upon which he was to be interrogated was 'the existence of a Communist Party group or cell operating among undergraduates * * * (and) graduates at Cornell and in the city of Ithaca,' and 'matters relating to (his) activity there.' Surely the questions involved in Counts One, Two and Five of the Indictment were, on their face, clearly pertinent to that subject. One cannot profitably elaborate a truth so plain. Barenblatt v. United States, 360 U.S. 109 123—125, 79 S.Ct. 1081, 3 L.Ed.2d 1115. And see McPhaul v. United States, 364 U.S. 372, 380—381, 81 S.Ct. 138, 5 L.Ed.2d 136.
91
For these reasons, I am bound to think that the two courts below were right, and that the judgment should be affirmed.
1
'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one monh nor more than twelve months.' 2 U.S.C. § 192, 2 U.S.C.A. § 192.
2
See, in addition to the cases cited in the text, supra: Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884; United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770; Sacher v. United States, 356 U.S. 576, 78 S.Ct. 842, 2 L.Ed.2d 987. Flaxer v. United States, 358 U.S. 147, 79 S.Ct. 191, 3 L.Ed.2d 183. See also McPhaul v. United States, 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136.
3
'I will answer that question, but only under protest.
'I wish to register a challenge as to the jurisdiction of this committee under Public Law 601, which is the committee's enabling legislation. This question, or any similar questions involving my associations, past or future, I am answering, but only under protest as to its constitutionality. But, under your jurisdiction as stated, I answer yes, I was a member of the Communist Party.'
4
The following colloquies are typical:
'Mr. Doyle: Who published the leaflets?
'Mr. Deutch: I believe the Communist Party published them.
'Mr. Doyle: What Communist Party? Where did you get the leaflets? From the national headquarters?
'Mr. Deutch: I don't believe so. It was a local branch.
Mr. Doyle: Where was the office of the local branch from which you got these leaflets?
'Mr. Deutch: I didn't know where it was. I was just asked to distribute them.
'Mr. Tavenner: Were you ever a member of the Downtown Club of the Communist Party in Ithaca?
'Mr. Deutch: I don't believe so.
'Mr. Tavenner: Did you attend meetings of that group?
'Mr. Deutch: No. That is, I don't believe so. The reason I wonder is because that organization became defunct so that there was really no organization. Downtown was uptown, and there were so few people that I just want to qualify that statement.
'Mr. Scherer: Let me ask you this question. You knew where the meetings were held?
'Mr. Deutch: I don't believe I know exactly where they were. This is because—since Mr. Richardson drove me there.' (Mr. Richardson was a law student at Cornell who had joined the Communist Party at the behest of the Federal Bureau of Investigation. See 367 U.S. 466, 81 S.Ct. 1593, infra.)
5
The questions, as set out in the five counts of the indictment, were as follows:
'Count One
'The committee was advised that a witness by the name of Ross Richardson has stated that you acted as liaison between a Communist Party group on the campus and a member of the faculty at Cornell, and that you knew the name of the member of that faculty, who was a member of the Communist Party. Will you tell us who that member of the faculty was?
'Count Two
'Will you tell the committee, please, the source of that $100 contribution, if it was made?
'Count Three
'Where were these meetings held?
'Count Four
'Were you acquainted with Homer Owen?
'Count Five
'The witness is directed to give the name of the person by whom he was approached.'
The petitioner was convicted on all but Count Three.
6
'The committee is charged by the Congress of the United States with the responsibility of investigating the extent, character and objects of un-American propaganda activities in the United States, the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries, or of a domestic origin, and attacks the principles of the form of government as guaranteed by our Constitution and all other questions in relation thereto that will aid Congress in any necessary remedial legislation.
'It has been fully established by testimony before this and other congressional committees and before the courts of our land that the Communist Party of the United States is part of an international conspiracy, which is being used as a tool or a weapon by a foreign power to promote its own foreign policy and which has for its objective the overthrow of the governments of all non-Communist countries, resorting to the use of force and violence if necessary. This organization cannot live and expand within the United States except by the promulgation and diffusion of subversive and un-American propaganda designed to win adherence to its cause.
'The first witness in this hearing will testify regarding certain aspects of the worldwide Communist conspiracy, which should demonstrate what a serious matter it is to permit individuals who are subject to the directives and discipline of the Communist Party to be placed in positions of leadership in any functional organization.
'The committee, in its course of investigation, came into possession of reliable information indicating Communist Party activities within the Albany area. The committee decided that this information was
of such a character as to merit an investigation to determine its nature, extent, character, and objects.
'Many witnesses have appeared before this committee, sitting in various places throughout the United States, and have revealed their experiences as former Communist Party members. Such testimony has added immeasurably to the sum total of the knowledge, character, extent, and objects of Communist activities in this country.
'Witnesses from Hollywo d, labor unions, the legal profession, medical profession, and other groups have made a great contribution to the defense of our country by disclosing to this committee facts within their knowledge.
'In the view of this committee, such testimony should not be held against an individual where it has that character of trustworthiness which convinces one that the witness has completely and finally terminated Communist Party membership and that such testimony has been given in all good faith.
'The committee is not concerned with the political beliefs or opinions of any witness who has been called before it. It is concerned only with the facts showing the extent, character, and objects of the Communist Party activities.
'In keeping with the long-standing policy of this committee, any individual or organization whose name is mentioned during the course of the hearings in such a manner as to adversely affect them shall have an opportunity to appear before the committee for the purpose of making a denial or explanation of any adverse references.
'I would also like at this time, before the beginning of these hearings, to make this announcement to the public: We are here at the discretion of the Congress of the United States, trying to discharge a duty and obligation that has been placed upon us. The public is here by permission of the committee and not by any compulsion. Any attempt or effort on the part of anyone to make a demonstration or audible comment in this hearing room, either favorably or unfavorably, toward the committee's undertaking, or to what any witness may have to say, will not be countenanced by the committee. If such conduct should occur, the officers on duty will be requested to eject the offenders from the hearing room.'
7
The entire statement of Mr. Velde is set out at 354 U.S. 210—211, note 49, 77 S.Ct. 1173.
8
Schenectady is sixteen miles from Albany.
9
The subcommittee before which the petitioner appeared, 'for the purpose of taking this testimony this morning,' consisted of Representative Jackson, Acting Chairman, and Representatives Scherer and Doyle. The subcommittee which had conducted the hearings at Albany a few days earlier was composed of Representative Kearney, Chairman, and Representatives Scherer an Walter.
10
'Q. How does it happen that Mr. Deutch's testimony appears in 'Education—8' if it was a part actually of 'Albany'? A. Well, the staff in the releasing of this testimony at a later date placed it for convenience under the heading of Education.'
11
We disregard the evidence indicating that the subject under inquiry was Communist activities in the Chicago area.
12
This was hardly a matter within the peculiar knowledge of the petitioner. Cf. McPhaul v. United States, 364 U.S. 372, 379, 81 S.Ct. 138, 5 L.Ed.2d 136.
13
For a Court opinion specifically to join issue with what is written in dissent is a practice ordinarily to be avoided. One of the dissenting opinions in this case, however, is largely based upon what are asserted to be 'the undisputed relevant facts in the record.' Since every litigant is entitled to have his case reviewed on the facts in the record, it is appropriate to state explicitly that:
(1) The record affirmatively shows that neither Marqusee nor Richardson testified, directly or indirectly, to 'passing out handbills at strike scenes' or to any 'plan of using the prestige and innocent aid of the university's placement service in getting summer jobs with labor unions in upper New York,' or anywhere else.
(2) The record affirmatively shows that at no time did the subcommittee, or anyone on its behalf, 'advise' the petitioner, or anyone else, that the subcommittee was investigating the infiltration of communism into the 'educational and labor fields.'
*
Counts One, Two, Four, and Five of the indictment, set forth in note 5 of the Court's opinion. 367 U.S. at page 461, 81 S.Ct. at page 1590.
1
Legislative Reorganization Act of 1946, 60 Stat. 812, 828. Rule XI(1)(q) (2), Rules of the House of Representatives H. Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15. And see pp. 18, 24.
2
Inasmuch as a general sentence was imposed on the four counts of no more than the law allows to be imposed on any one count, it follows that if any one of the four counts was adequately proved by the Government the judgment must be affirmed. Barenblatt v. United States, supra, 360 U.S. at page 126, note 25, 79 S.Ct. 1081.
| 23
|
367 U.S. 316
81 S.Ct. 1611
6 L.Ed.2d 869
CIVIL AERONAUTICS BOARD, Petitioner,v.DELTA AIR LINES, INC. LAKE CENTRAL AIRLINES, INC., Petitioner, v. DELTA AIR LINES, INC.
Nos. 492 and 493.
Argued April 27, 1961.
Decided June 12, 1961.
Mr. John F. Davis, Washington, D.C., for petitioner in No. 492.
Mr. Albert F. Grisard, Washington, D.C., for petitioner in No. 493.
Mr. Richard S. Maurer, Atlanta, Ga., for respondent in each case.
Mr. Chief Justice WARREN delivered the opinion of the Court.
1
This case concerns the power of the Civil Aeronautics Board to alter a certificate of public convenience and necessity, granted to respondent Delta Air Lines, after that certificate had become effective under § 401(f) of the Federal Aviation Act of 1958. 72 Stat. 731, 755, 49 U.S.C. § 1371(f), 49 U.S.C.A. § 1371(f).1 The administrative proceedings from which the present dispute arises date back to May 1955, and involve consideration by the Board of a number of applications for new service between cities located in an area extending from the Great Lakes to Florida. The Board divided the proceedings into two general categories, consolidating the applications for long-haul service in the Great Lakes-Southeast Service Case and those for short-haul flights in the Great Lakes Local Service Investigation Case. In order to protect fully the interests of local service carriers, the Board allowed these carriers, including petitioner Lake Central Airlines, to intervene in the hearings on the long-haul applications.
2
At the conclusion of the Great Lakes-Southeast Service Case a number of awards were made, including one permitting Delta to extend an existing route northwest so as to provide service from Miami to Detroit and to add Indianapolis and Louisville as intermediate points on its existing Chicago-to-Miami route. Certain restrictions for the protection of local carriers were imposed on many of the awards, these restrictions generally providing that flights between specified intermediate cities had to originate at or beyond given distant points. The stated purpose of these restrictions was to prevent the long-haul carrier from duplicating so-called 'turn-around' service already provided by existn g local carriers. One such restriction was applied to Delta's run between Detroit and various locations in Ohio but, by and large, Delta's award was free of protective limitations.
3
The Board's order issued on September 30, 1958, and it specified that Delta's certificate was to become effective on November 29, 1958, unless postponed by the Board prior to that date. Shortly thereafter, within time limits set by the Board,2 numerous petitions for reconsideration were filed, including one by Lake Central protecting the breadth of Delta's certificate. Lake Central requested that, if the Board should be unable to decide its petition for reconsideration before November 29, the effective date of the certificate be put off. On November 28, one day before Delta's certificate was to become effective, the Board issued a lengthy memorandum and order, which stated in substance that the requests for stays, with one immaterial exception, were denied, but that judgment on the merits of the petitions for reconsideration would be reserved. The Board explained that the parties had not made a sufficient showing of error to justify postponements and that, in view of the advent of the peak winter season, further delay would be particularly inappropriate; the Board then said:
4
'To the extent that we have considered the petitions for reconsideration in the present order we have done so only for the purposes of assessing the probability of error in our original decision. We feel that such action is necessary to a fair consideration of the stay requests, and is in no way prejudicial to the legal rights of those parties seeking reconsideration. Nothing in the present order forecloses the Board from full and complete consideration of the pending petitions for reconsideration on their merits.' For reasons not presently pertinent, Delta's certificate became effective on December 5,3 rather than November 29, 1958, and Delta commenced its newly authorized operations shortly thereafter. On May 7, 1959, the Board issued a new order disposing of the still-pending petitions for reconsideration. By this order, the Board amended Delta's certificate in response to the restrictions proposed by Lake Central. Specifically, the Board barred Delta's operations between ten pairs of intermediate cities unless the flights initiated at Atlanta or points farther south; the effect of this order was to bar certain flights Delta was then operating. Even then, the Board's action was not final; the Board reserved the power to lift these restrictions pending the outcome of the Great Lakes Local Service Case.4 The Board's disposition of the petitions was taken summarily, without formal notice to the parties or the opportunity for a hearing prior to decision.
5
Delta sought review of this order before the Board, challenging the Board's power to change the terms of its certificate after the effective date thereof without notice or hearing. The Board overruled Delta's objection, stating that: '(W)e believe we have such power, and we have exercised it in the past. Moreover, there is no showing, and we are unable to conclude, that any significant adverse effect will result to either Delta or the public from observance of the conditions here involved.' On review in the Court of Appeals for the Second Circuit, however, the Board's order was overturned, the court reasoning that Congress had made notice and hearing a prerequisite to the exercise of the Board's power to change an existing certificate. Delta Air Lines, Inc., v. Civil Aeronautics Board, 280 F.2d 43.
6
The issue in this case is narrow and can be stated briefly: Has Congress authorized the Board to alter, without formal notice or hearing, a certificate of public convenience and necessity once that certificate has gone into effect? If not, should it make any difference that the Board has purported to reserve jurisdiction prior to certification to make summary modifications pursuant to petitions for reconsideration? We think that both these questions must be answered in the negative.
7
Whenever a question concerning administrative, or judicial, reconsideration arises, two opposing policies immediately demand recognition: the desirability of finality, on the one hand, and the public interest in reaching that, ultimately, appears to be the right result on the other.5 Since these policies are in tension, it is necessary to reach a compromise in each case and petitioners have argued at length that the Board's present procedure is a happy resolution of conflicting interests. However, the fact is that the Board is entirely a creature of Congress and the determinative question is not what the Board thinks it should do but what Congress has said it can do. See United States v. Seatrain Lines, 329 U.S. 424, 433, 67 S.Ct. 435, 439, 91 L.Ed. 396. Cf. Delta Air Lines v. Summerfield, 347 U.S. 74, 79—80, 74 S.Ct. 350, 353—354, 98 L.Ed. 513. This proposition becomes clear beyond question when it is noted that Congress has been anything but inattentive to this issue in the acts governing the various administrative agencies. A review of these statutes reveals a wide variety of detailed provisions concerning reconsideration, each one enacted in an attempt to tailor the agency's discretion to the particular problems in the area.6 In this respect, the Federal Aviation Act is no exception since, in § 401(f) and (g) of the Act, Congress has stated the limits of the Board's power to reconsider in unequivocal terms. Section 401(f) provides that 'Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereinafter provided.' The phrase 'as hereinafter provided' refers to § 401(g), which states:
8
'Authority to Modify, Suspend, or Revoke
9
'(g) The Board upon petition or complaint or upon its own initiative, after notice and hearings, may alter, amend, modify, or suspend any such certificate, in whole or in part, if the public convenience and necessity so require, or may revoke any such certificate, in whole or in part, for intentional failure to comply with any provision of this title or any order, rule, or regulation issued hereunder or any term, condition, or limitation of such certificate: Provided, That no such certificate shall be revoked unless the holder thereof fails to comply, within a reasonable time to be fixed by the Board, with an order of the Board commanding obedience to the provision, or to the order (other than an order issued in accordance with this proviso), rule, regulation, term, condition, or limitation found by the Board to have been violated. Any interested person may file with the Board a protest or memorandum in support of or in opposition to the alteration, amendment, modification, suspension, or revocation of the certificate.' (Emphasis added.)
10
This language represents to us an attempt by Congress to give the Board comprehensive instructions to meet all contingencies and the Board's duty is to follow these instructions,7 particularly in light of the fact that obedience thereto raises no substantial obstacles. It is true, of course, that statutory language necessarily derives much of its meaning from the surrounding circumstances. However, we think that, while there is no legislative history directly on point, the background of the Aviation Act strongly supports what we believe to be the plain meaning of § 401(f) and (g). It is clear from the statements of the supporters of the predecessor of the Aviation Act—the Civil Aeronautics Act of 1938—that Congress was vitally concerned with what has been called 'security of route'—i.e., providing assurance to the carrier that its investment in operations would be protected insofar as reasonably possible.8 And there is no other explanation but that Congress delimited the Board's power to reconsider its awards with precisely this factor in mind; hence the language that a certificate 'shall be effective * * * until suspended or revoked as hereinafter provided' (emphasis supplied), language which is absent from several of the Acts to wi ch reference has been made. Thus, the structure of the statute, when considered in light of the factor persuading Congress, indicates to us that the critical date in the mind of Congress was the date on which the carrier commenced operations, with the concomitant investment in facilities and personnel, not the date that abstract legal analysis might indicate as the 'final' date. In other words, it seems clear to us that Congress was relatively indifferent to the fluctuations an award might undergo prior to the time it affected practical relationships, but that Congress was vitally concerned with its security after the wheels had been set in motion. In light of this, we think the result we reach follows naturally: to the extent there are uncertainties over the Board's power to alter effective certificates, there is an identifiable congressional intent that these uncertainties be resolved in favor of the certificated carrier and that the specific instructions set out in the statute should not be modified by resort to such generalities as 'administrative flexibility' and 'implied powers.' We do not quarrel with those who would grant the Board great discretion to conjure with certificates prior to effectuation. But, we feel that we would be paying less than adequate deference to the intent of Congress were we not to hold that, after a certificate has gone into effect, the instructions set out in the statute are to be followed scrupulously.
11
However, petitioners argue that there is an implied exception to the statutory mandate when the Board, pursuant to a petition for reconsideration field before the certificate's effective date, makes a statement that the certificate is subject to later amendment after further deliberation upon the petition. Petitioners admit that there is no express statutory authority for the Board to entertain petitions for reconsideration even prior to the effective date of the certificate, but they assert, and we assume arguendo they are correct, that the Boar has implied power to accept such petitions. This being the case, petitioners claim that the existence of an outstanding petition for reconsideration gives a double meaning to the term 'effective' as used in the Act: certificates are 'effective on the date specified therein for the purpose of allowing the certificated carrier to commence operations, but they are not 'effective' as the term is used in § 401(f) so as to preclude modification outside the procedures specified in § 401(g).
12
The appeal of this argument comes, in the main, from the general notion that an administrative order is not 'final,' for the purposes of judicial review, until outstanding petitions for reconsideration have been disposed of. See, e.g., Outland v. Civil Aeronautics Board, 109 U.S.App.D.C. 90, 284 F.2d 224; Braniff Airways Inc., v. Civil Aeronautics Board, 79 U.S.App.D.C. 341, 147 F.2d 152. Once it is established that the certificate is not 'final' for one purpose, the argument runs, then it is logical to assume that the certificate lacks 'finality' for another. The difficulties with this line of reasoning, however, are many. First, insofar as it is bottomed on cases such as Outland and Braniff, the argument relies on holdings that were never made. The Courts of Appeals in these cases decided only that petitions for review were timely if filed in time from the date on which the Board disposed of pending petitions for reconsideration; the question whether the Board's action on the petitions for reconsideration should have been taken after notice and hearing did not arise. Furthermore, petitioners' argument skips an important logical step; it assumes, without explanation, that questions of administrative finality present the same problems, and therefore deserve the same solutions, as questions concerning the timeliness of an appeal. In point of fact, this assertion is not only unsupported but erroneous. The pertinent statutory language is not similar in the two instances9 and the other points under analysis are different. Thus, a court considering the timeliness of a litigant's appeal is concerned with the wisdom of exercising its own power to act, and the result depends on such factors as fairness to the appellant and the intent of Congress in passing a general statute—s 10(c) of the Administrative Procedure Act—which applies equally to almost all administrative agencies. There is no call, as Outland and similar cases illustrate by their omissions, for considering either the sections of a particular act which are not concerned with appellate review or the problem—which at that point is of historical interest only—whether the petition for reconsideration should have been decided summarily or after notice and hearing. One might argue, of course, that the question is similar in both instances because, if the Board's action on the petition for reconsideration is too late, then an appeal which is timely only from the Board's action on reconsideration is also too late. However, this line of reasoning overlooks the confines of the result we are reaching in this case. We are not saying that the Board cannot entertain petitions for reconsideration after effective certification, nor are we holding that such petitions cannot be denied summarily; all we hold is that the petitions cannot be granted and the certificated carrier's operations curtailed without notice or hearing. Therefore, since the cases such as Outland concerned the denial of a petition for reconsideration, there is no conflict, express or implied, between those decisions and this one.10 In this connection, the statement of a leading commentator seems particularly pertinent:
13
'The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has, and should have precisely the same scope in all of them runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.' Cook, The Logical and Legal Bases of the Conflict of Laws, 159.11
14
Thirdly, were we to adopt the position urged by petitioners, we would have to hold that, in the words of a former chairman of the Board, the power to reconsider a case may be the lever for 'nullify(ing) an express provision of the Act.' Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J.Air L. & Comm. 377, 384. As Commissioner Ryan indicated, the power the Board asks for in this case seems nothing more or less than the power to do indirectly what it cannot do directly. Parenthetically, it should be noted that, for purposes of this dispute, it is difficult to draw a distinction between a petition for reconsideration filed by a party and one initiated by the Board sua sponte. Sprague v. Woll, 7 Cir., 122 F.2d 128. This being the case, it is all the more significant that the Court in United States v. Seatrain Lines, 329 U.S. 424, 67 S.Ct. 435, 436, 91 L.Ed. 396, while overruling the Interstate Commerce Commission's contention that it had inherent power to reconsider effective certificates, paid no attention to the fact that the Commission had made the original certificate effective, subject 'to such terms, conditions, and limitations as are now or may hereafter be, attached to the exercise of such authority by the Commission.'
15
Although we feel that the language and background of the statute are sufficiently clear so that affirmance can rest solely on that basis, it seems appropriate, in light of petitioners' vigorous assertion that policy reasons compel their result, to discuss some of the ramifications of our decision. In the first place, it bears repetition that we are not deciding that the Board is barred from reconsidering its initial decision. All we hold is that, if the Board wishes to do so, it must proceed in the manner authorized by statute. Thus, for example, the Board may reconsider an effective certificate at any time if it affords the certificated carrier notice and hearing prior to decision; or, if it feels uncertain about the decision prior to its effective date, it may postpone the effective date until all differences have been resolved; and, if neither of these procedures seem practical in a given case, the Board may issue a temporary certificate set to expire on the date the Board prescribes for re-examination.12 Indeed, with all these weapons at its command, it is difficult to follow the argument that the Board should be allowed to improvise on the powers granted by Congress in order to preserve administrative flexibility.
16
Furthermore, it would seem that any realistic appraisal of the relative hardships involved in this case cuts in favor of the respondent. To be sure, the Board may be able to act quicker under the rule it espouses and, by eliminating the necessity of a new hearing, Lake Central will be spared the expense of preparing a new record. However, were the Board correct, respondent would be subjected to the loss of valuable routes, routes it had already begun to operate after considerable initial investment, without being heard in opposition. The Board points out that respondent had notice that the Board had reserved the right to amend the certificate. But it is not clear what comfort respondent could take from such notice; respondent could not hedge, since § 401(f) of the Act provides that a certificated carrier may lose the right to conduct any service it does not initiate within 90 days of certification. Concededly, the fact of notice gives considerable surface appeal to petitioners' assertions; they can and do argue that respondent knew what it was getting into and should not be heard to complain when the gamble turns out unfavorable. However, it must be remembered that the problem is not presented to us in the abstract; we are dealing with it in the context of this particular statute. And, as stated above, a major purpose behind the enactment of the Aviation Act was to eliminate the element of risk from a carrier's operations. With Congress on record as affirmatively desiring to eliminate the necessity of gambling, we do not feel that the 'assumption of the risk' argument carries much weight. The Board also argues that respondent 'in substance' enjoyed the hearing contemplated by § 401(g) because the matters impelling the Board to change its mind were matters that had been thrashed out during the hearings on the original certificate. However, this contention assumes a fact that we do not have before us—that a hearing would not have disclosed any further evidence or, perhaps more importantly, any post-certification events weighty enough to alter the Board's thinking.13
17
In short, our conclusion is that Congress wanted certificated carriers to enjoy 'security of route' so that they might invest the considerable sums required to support their operations; and, to this end, Congress provided certain minimum protections before a certificated operation could be cancelled. We do not think it too much to ask that the Board furnish these minimum protections as a matter of course, whether or not the Board in a given case might think them meaningless. It might be added that some authorities have felt strongly enough about the practical significance of these protections to suggest that their presence may be required by the Fifth Amendment. See Seatrain Lines v. United States, D.C., 64 F.Supp. 156, 161; Handlon v. Town of Belleville, 4 N.J. 99, 71 A.2d 624, 16 A.L.R.2d 1118; see also 63 Harv.L.Rev. 1437, 1439.
18
Petitioners' final argument is that their position is supported by consistent administrative construction and analogous case authority. The administrative construction argument appears less than substantial in light of the fact that, on the last and, it appears, only occasion when the present question was expressly considered, the Board said in dictum that it had 'grave doubts' about proceeding in the manner followed in this case. Kansas City-Memphis-Florida Case, 9 C.A.B. 401;14 cf. Smith Bros., Revocation of Certificate, 33 M.C.C. 465. See generally Ryan, supra, where Commissioner Ryan went to great lengths to expose what he felt were the fallacies in the contentions now advanced by petitioners. With respect to prior cases, petitioners again are unable to cite any holdings on point. Petitioners rely heavily on Frontier Airlines, Inc. v. Civil Aeronautics Board, 104 U.S.App.D.C. 78, 259 F.2d 808, 810, but the dispute here involved was not raised in that case. The closest analogy in Frontier is to the argument put forward by a party whose petition for reconsideration had been denied; and the Court of Appeals reported this argument and the reasons for overruling it as follows:
19
'(T)he order on reconsideration is a nullity because it was rendered after the petition for judicial review had been filed and after the certificates previously issued had become effective; and, if that order is a nullity, the basic order is also a nullity because it fails to cover certain points.
20
'We do not find the order denying reconsideration invalid because rendered after this petition was filed. No harm was done. Had the Board been of a mind to grant reconsideration, it could have so indicated and a motion to remand would have been in order.'
21
Perhaps more favorable to petitioners is this Court's decision in United States v. Rock Island Motor Transport Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391, where it was held that the Interstate Commerce Commission could modify a motor carrier's effective certificate pursuant to a reservation in the initial order. However, two important distinctions between that case and this are apparent: (1) the Motor Carrier Act makes express provision for summary modifications after certification, 49 U.S.C. § 308, 49 U.S.C.A. § 308, and (2) the Court in Rock Island was never carefl to limit its holding to the particular modification made in that case. Finally, the decision which is analytically most relevant to this case, United States v. Seatrain Lines, supra, furnishes support for respondent, rather than petitioners. While Seatrain may be distinguishable on its facts,15 the Court spoke in general terms of the rule that supervising agencies desiring to change existing certificates must follow the procedures 'specifically authorized' by Congress and cannot rely on their own notions of implied powers in the enabling act. In short, we do not find that prior authority clearly favors either side; however, to the extent that a broad observation is permissible, we think that both administrative and judicial feelings have been opposed to the proposition that the agencies may expand their powers of reconsideration without a solid foundation in the language of the statute. Therefore, since the language and background of the statute are against, rather than for, the Board, the judgment of the Court of Appeals must be affirmed.
22
Affirmed.
23
Mr. Justice WHITTAKER, with whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, dissenting.
24
This is an airline route proceeding brought before the Civil Aeronautics Board. The case involves the effect upon the proceeding, and hence upon a certificate of convenience and necessity ordered to be issued therein, of a timely motion for reconsideration.
25
Specifically, the question presented is whether, in the light of the provisions of § 401(f) and 401(g) of the Federal Aviation Act,1 the Board, by allowing its certificate to become 'effective,' notwithstanding a timely filed and unruled motion for reconsideration, lost all power to grant the motion and accordingly to modify its order and the resulting certificate.
26
This case is but a facet of a multiparty, highly complex and protracted route proceeding, known as the 'Great Lakes-Southeast Service Case,' commenced before the Civil Aeronautics Board in May 1955. It involved, 'predominantly,' the 'long-haul' service needs of an area extending roughly between the Great Lakes and Florida. Numerous trunkline carriers sought new or additional operating rights in that area. The Board was also confronted with a number of petitions by local carriers for authority to provide new or improved short-haul service between certain intermediate cities in that area. In an effort to keep the proceeding within manageable bounds, the Board declined to consolidate those short-haul petitions with this case, and, instead, directed the institution of a separate proceeding (Great Lakes Local Service Investigation) for their resolution, but it did announce that, to make sure that this separation would not deprive them of an opportunity to be heard in protection of their rights, the local service carriers would be permitted to intervene in this case.
27
As one of the many contending trunkline carriers, respondent, Delta Air Lines, Inc., petitioned for authority (1) to extend an existing route northwesterly to provide service from Miami to Detroit, and (2) to add Indianapolis and Louisville as intermediate points on its existing Chicago-to-Miami route. Petitioner, Lake Central Airlines, Inc., a local or short-haul carrier operating a line between Chicago and Indianapolis, and also serving Louisville, intervened to object to the Delta petition unless its proposed new service to Indianapolis and Louisville be restricted to northbound flights originating, and to southbound flights terminating, at or south of Atlantia. Upon this issue, Lake Central offered evidence that it would suffer injury and damage, through diversion of its local traffic, by the proposed new Delta service unless it be so restricted.
28
On September 30, 1958, the Board filed its opinion and order in which, among other things, it authorized Delta to add Indianapolis and Louisville as intermediate points on its Chicago-to-Miami route, without imposing the restrictions that Lake Central had asked. Consistently with its custom, the Board stated in its order that the certificate thereby authorized to Delta would become effective on the 60th day after entry of the order (November 29).
29
Within the 30 days allowed by the Board's rule for the filing of a motion for reconsideration,2 Lake Central filed with the Board on October 31, 1958, its motion for reconsideration, elaborating the grounds it had asserted and supported with evidence, in opposition to Delta's petition. It also asked in that motion that the effective date of the Delta certificate be stayed pending decision by the Board of the motion for reconsideration.
30
On November 28, 1958, one day prior to the date upon which, as stated in the Board's order of September 30, the Delta certificate would become effective, the Board filed a lengthy memorandum and order in which it denied Lake Central's request (and also—with one exception not material here—the similar requests of others) for a stay of the effective date of the Delta certificate until after the Board had decided Lake Central's motion for reconsideration. In that order, the Board expressed its view that 'the parties (had) not made a sufficient showing of probable legal error or abuse of discretion' to warrant the issuance of a stay, and that, in view of the approaching peak winter season, the 'new services to Florida (were) immediately required.'
31
Then, turning to the motions for reconsideration, the Board said in that order that, 'because of the detailed matters raised in the petitions for reconsideration, it (would) not be possible to finally dispose of them until after November 29,' but the Board promptly would 'address itself to the merits of the petitions for reconsideragion, and (its) order dealing with (those) matters (would) issue at a later date.' It thus and otherwise made clear that its denial of the stays was not intended to be '(in any) way prejudicial to the legal rights of those parties seeking reconsideration.' It concluded: 'Nothing in the present order forecloses the Board from full and complete consideration of the pending petitions for reconsideration on their merits.'
32
Thereafter, on May 7, 1959, the Board granted Lake Central's petition for reconsideration and accordingly entered its final order restricting Delta's service of Indianapolis and Louisville to northbound flights originating, and to southbound flights terminating, at or south of Atlanta; but the Board did say in that order that 'If, after deciding the issues presented in the Great Lakes Local Service case, we conclude that the longhaul restrictions are not required, we will have full freedom to remove them at that time.' It is this order that gives rise to the present controversy.
33
On Delta's appeal from that order, the United States Court of Appeals for the Second Circuit reversed. 280 F.2d 43, 48. It held that, notwithstanding the timely filed and unruled motion for reconsideration, 'once (the Board allowed the) certificate (to) become effective,' it lost all power thereafter to grant the motion and accordingly to modify its order and the resulting certificate, and that 'it is only in a (separate and plenary) proceeding satisfying the requirements of Section 401(g) that an effective certificate authorizing unrestricted service may be modified by subsequently imposed restrictions.' 280 F.2d at page 48. Because of the importance of the question involved to the proper administration of the Act, we brought the case here. 364 U.S. 917, 918, 81 S.Ct. 283, 5 L.Ed.2d 258.
34
The Court now affirms that judgment. It does so upon grounds which, I am bound to say, with all respect, seem to me to be spurious and legally indefensible, as I shall endeavor to show.
35
Although the Federal Aviation Act does not expressly provide for motions for reconsideration by the Board of its orders, it is clear, and indeed it is agreed by the parties, that the Board has power to provide for, and to entertain, such motions, for '(t)he power to reconsider is inherent in the power to decide.' Albertson v. Federal Communications Comm., 87 U.S.App.D.C. 39, 41, 182 F.2d 397, 399. See also Braniff Airways v. Civil Aeronautics Board, 79 U.S.App.D.C. 341, 147 F.2d 152.
36
Pursuant to that power, the Board adopted its Rule of Practice prescribing, in pertinent part, that 'a petition for reconsideration, rehearing or reargument may be filed b any party to a proceeding within thirty (30) days after the date of service of a final order by the Board in such proceeding * * *.'3 It is admitted that Lake Central filed its motion for reconsideration within the 30 days allowed by that rule.
37
Under every relevant reported decision, save one to be later noted, a timely motion for reconsideration, being an authorized and appropriate step in the proceeding, 'operate(s) to retain the Board's authority over the (original) order,' Waterman S.S. Corp. v. Civil Aeronautics Board, 5 Cir., 159 F.2d 828, 829, 'reopen(s) the case,' Black River Valley Broadcasts v. McNinch, 69 App.D.C. 311, 316, 101 F.2d 235, 240, and prevents the 'proposed decision'—which, at that stage, is all it is (Waterman case, supra, 159 F.2d at page 828)—from becoming 'final.' Outland v. Civil Aeronautics Board, 109 U.S.App.D.C. 90, 284 F.2d 224, 227. The proceeding being thus held open by the motion, and the Board having both the power and the duty to decide it, it would seem to be fundamental that the Board has power to decide it either way including, of course, the 'power to grant (it),' Enterprise Co. v. Federal Communications Comm., 97 U.S.App.D.C. 374, 378, 231 F.2d 708, 712, as it did here.
38
It seems necessarily true, and is well settled by the cases, that 'Where a motion for rehearing is in fact filed there is no final action until the rehearing is denied * * * (for) there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary,' Outland v. Civil Aeronautics Board, 109 U.S.App.D.C. at page 93, 284 F.2d at page 227, and 'although the (motion) did not * * * supersede or suspend the order, (it did operate) to retain the Board's authority over the order, so that the order overruling the motion should be taken as the final (order) intended by the statute to start the running of the sixty-day period for judicial review.' Waterman S.S. Corp. v. Civil Aeronautics Board, supra, 159 F.2d at page 829. It necessarily follows that, if a timely motion for reconsideration is pending before the Board, its 'proposed decision' (id., at page 828) has 'not become final in the sense that it (is) no longer subject to change upon reconsideration,' Enterprise Co. v. Federal Communications Comm., 97 U.S.App.D.C. at page 378, 231 F.2d at page 712, and 'jurisdiction over (that) order remains with the (Board) until the time for appeal has expired, and that time is tolled by an application for rehearing.' (Ibid.) Hence, 'no (final) rights accrued to (Delta) as a result of the order originally granting (its) permit,' Black River Valley Broadcasts v. McNinch, 69 App.D.C. at page 316, 101 F.2d at page 240. See also, e.g., Braniff Airways v. Civil Aeronautics Board, supra; Albertson v. Federal Communications Comm., supra; Western Air Lines v. Civil Aeronautics Board, 9 Cir., 194 F.2d 211; and Butterfield Theatres v. Federal Communications Comm., 99 U.S.App.D.C. 71, 237 F.2d 552.
39
'There is no doubt under the decisions and practice in this court that where a motion for a new trial in a court of law, or a petition for a rehearing in a court of equity, is duly and seasonably filed, it suspends the running of the time for taking * * * an appeal, and that the time within which (a) proceeding to review must be initiated begins from the date of the denial of * * * the motion * * *,' Morse v. United States, 270 U.S. 151, 153 154, 46 S.Ct. 241, 242, 70 L.Ed. 518, and '(t)his is also true in administrative proceedings,' Black River Valley Broadcasts v. McNinch, 69 App.D.C. at page 316, 101 F.2d at page 240.4
40
The only reported decision to the contrary is Consolidated Flowers Shipments, Inc., Bay Area v. Civil Aeronautics Board, 9 Cir., 205 F.2d 449, 451. It was there held that the time within which a petition for review must be filed runs from the date of the Board's decision, not from the date on which it overruled a timely motion for reconsideration; and, inasmuch as the petition for review had not been filed within the former period, the court dismissed the petition as untimely. Recognizing that this result was contrary to its prior decisions,5 the Court thought it was required to so hold because of the last sentence of § 10(c) of the Administrative Procedure Act, 5 U.S.C. § 1009(c), 5 U.S.C.A. § 1009(c), saying that, for the purposes of appeal, 'agency action otherwise final shall be final for the purposes of this subsection whether or not there has been presented or determined any application, * * * for any form of reconsideration, * * *.' (Emphasis added.) The fallacy of that reasoning was completely exposed and soundly rejected in Outland v. Civil Aeronautics Board, supra.6 And on May 1, 1961, the ninth circuit itself specifically overruled that case. Samuel B. Franklin & Co. v. Securities Exchange Comm., 290 F.2d 719.
41
There is only one reported decision, involving procedures before the Civil Aeronautics Board, that has presented the precise question we have here. It is Frontier Airlines, Inc., v. Civil Aeronautics Board, 104 U.S.App.D.C. 78, 259 F.2d 808. There, just as here, after a Board certificate had been permitted to become 'effective,' the Board granted an earlier and timely filed motion for reconsideration and revised the certificate accordingly. It was contended that the revision of the order and, e nce, also of the certificate, so made, was 'a nullity because it was rendered * * * after the certificate * * * had become effective.' Id., 104 U.S.App.D.C. at page 80, 259 F.2d at page 810. That contention was there soundly rejected.
42
It therefore seems quite clear to me that, under historic legal procedures and all, save one, of the numerous relevant decisions, the timely filing of the motion for reconsideration being a legally authorized step in the proceeding—kept the proceeding open and continuing; that having the power, as well as the duty, to decide that motion, the Board had power to grant it, as it did, and thus, necessarily, accordingly to revise its earlier decision—which, until then, was only 'a proposed decision' (Waterman case, supra, 159 F.2d at page 828)—and that, inasmuch as the Board sustained that motion, the earlier 'proposed decision' never did become the final decision in the proceeding.
43
Inasmuch as all of the reported cases, save the discredited and now overruled Consolidated Flowers case, supra, are against it, Delta is compelled to rely almost entirely on its claim that the 'plain language' of § 401(f) deprives the Board of power, once it has allowed a certificate to become 'effective,' to revise its initial decision and the resulting certificate in pursuance of an earlier and timely filed motion for reconsideration; and that, once it has been so permitted to become 'effective,' the certificate may be modified or altered only by a separate and independent plenary proceeding under § 401(g).
44
The obvious defects in that argument are that (1) under § 401(f), the 'proposed decision' (Waterman case, supra, 159 F.2d at page 228) remained subject to revision by the Board in response to the timely filed motion for reconsideration, and (2) the argument ignores the fact that § 401(g) applies only to proceedings to alter, amend, suspend or revoke a certificate in existence after the authorization proceeding has been fully concluded and finally ended—i.e., after all timely filed motions for reconsideration have been denied, and the time for appeal has expired without an appeal being taken or, if an appeal was taken, the Board's decision has been finally affirmed.
45
Surely it cannot be doubted that, if the Board, instead of granting it, had denied the motion for reconsideration, the Court of Appeals, on judicial review, or this Court on certiorari, could reverse the Board's decision and remand the case to the Board with directions to grant the motion for reconsideration. It is certain that such a judgment would operate not only on the Board's decision but, as well, on its 'effective' certificate. If the Board has power, when thus directed by the judgment of a reviewing court, to revise, modify or vacate its erroneous decision and its resulting certificate, even though 'effective,' why should the result be different if the Board, without such judicial direction, notes its error, grants the timely filed and pending motion for reconsideration, and accordingly revises its decision and the resulting certificate?
46
Apart from the discredited and now overruled Ninth Circuit case of Consolidated Flowers Shipments, Inc., Bay Area v. Civil Aeronautics Board, supra, Delta cites no case that involves the effect upon a Board decision of a timely filed motion for reconsideration, or of a Board-revised order made in pursuance of such a motion, or that in any way supports it. Its claim of support by United States v. Seatrain Lines, 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396; Watson Bros. Transportation Co. v. United States, D.C., 132 F.Supp. 905; and Smith Bros. Revocation of Certificate, 33 M.C.C. 465, is wholly unfounded. None of those cases involved or dealt with the question we have here. None of them involved or dealt with any question respecting the effect of a timely filed motion for reconsideration upon an administrative order. To the contrary, in each of them the administrative proceeding had long since finally ended—i.e., all timely fild motions for reconsideration had been denied, the time for judicial review had expired, and the proceeding was in all respects closed.
47
The only relevant statement in the Seatrain case, supra, is squarely opposed to Delta's position, namely, 'The certificate, when finally granted and the time fixed for rehearing it has passed, is not subject to revocation in whole or in part except as specifically authorized by Congress (i.e., in an independent plenary proceeding).' 329 U.S. at pages 432, 433, 67 S.Ct. at pages 439. (Emphasis added.) Here, 'the time fixed for rehearing (had not) passed,' but, instead, an appropriate motion for reconsideration had been timely filed and was pending. Surely, the Board not only had power, but also a duty, to rule on that motion and, if it found it meritorious, to sustain it, and accordingly to revise its decision and resulting certificate.
48
The Watson case, supra, has no relevance whatever to this one. In the Smith case, supra, the Commission was careful to point out that '* * * the certificate marks the end of the proceedings, just as the entry of a final judgment or decree marks the end of a court proceeding. * * *' 33 M.C.C., at 472. (Emphasis added.) It is certain that 'a proposed decision' (Waterman case, supra, 159 F.2d at page 228) of a court does not, while a timely filed motion for new trial, rehearing or reconsideration is pending, end the proceeding, but it is the denial of the motion, and expiration of the time to appeal, that 'marks the end of a court proceeding'; and '(t)his is also true in administrative proceedings.' Black River Valley Broadcasts v. McNinch, 69 App.D.C. at page 316, 101 F.2d at page 240.
49
Section 401(f) contemplates that the Board may issue a certificate of convenience and necessity 'for a limited period of time under subsection (d)(2) of (that) section.' Althaough the Board did not expressly say, in its order of September 30, 1958, that the certificate thereby authorized to Delta would continue only 'for a limited period of time,' it did expressly point out in its order of November 28, 1958, denying Lake Central's motion for a stay and permitting the Delta certificate to become effective, that Lake Central's motion for reconsideration was still pending undetermined, and that it promptly would 'address itself to the merits of (that) petition forreconsideration, and (that its) order dealing with (that) matter (would) issue at a later date.' Hence, the Delta certificate, though thus allowed to become 'effective,' was, in the law's regard, as surely 'issued for (the) limited period of time' expiring with the date of the possible grant of Lake Central's motion for reconsideration, as if that limitation had been expressed in the Board's authorizing order and certificate.
50
Here, as in Western Air Lines v. Civil Aeronautics Board, 9 Cir., 194 F.2d 211, 214, Delta 'acted with its eyes open and at its own risk. It was aware that the proceedings before the Board had not become final, and would not until the expiration of the period of 30 days within which petitions for reconsideration might be filed.'
51
Surely Lake Central's timely filed motion for reconsideration kept the whole proceeding open, including the Board's order and resulting certificate, until that motion was denied. It was not denied. Instead, it was granted, as surely the Board had power to do. Therefore, the Board's originally 'proposed decision' never did become the final decision in the proceeding. And when that 'proposed decision' thus fell, the certificate which it authorized, and which had been permitted to become temporarily 'effective,' necessarily fell with it, as it was always subject to the results of that motion.
52
It is not to be gainsaid that the practice, sometimes, as here, followed by the Board, of permitting route certificates to become 'effective' while nonfrivolous motions for rehearing or reconsideration are pending undetermined,7 is perilous business and only rarely, if ever, is justified. But it does not follow that, once having permitted a route certificate to become 'effective,' the Board has lost all power to decide a pending motion for reconsideration, and, if found meritorious, to grant it, and thus itself to rectify the errors in its 'proposed decision' and in the route certificate that was thereby erroneously authorized.
53
For these reasons, I think the Court has fallen into clear error in affirming the judgment of the court below, which, in my view, is contrary to the settled law and should be reversed.
1
This section provides:
'Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereinafter provided, or until the Board shall certify that operation thereunder has ceased, or, if issued for a limited period of time under subsection (d)(2) of this section, shall continue in effect until the expiration thereof, unless, prior to the date of expiration, such certificate shall be suspended or revoked as provided herein, or the Board shall certify that operations thereunder have ceased: Provided, That is any service authorized by a certificate is not inaugurated within such period, not less than ninety days, after the date of the authorization as shall be fixed by the Board, or if, for a period of ninety days or such other period as may be designated by the Board any such service is not operated, the Board may by order, entered after notice and hearing, direct that such certificate shall thereupon cease to be effective to the extent of such service.'
2
The Board's regulations concerning petitions for reconsideration 14 CFR § 302.37, provide in part that:
'Petition for reconsideration—(a) Time for filing. A petition for reconsideration, rehearing or reargument may be filed by any party to a proceeding within thirty (30) days after the date of service of a final order by the Board in such proceeding unless the time is shortened or enlarged by the Board, except that such petition may not be filed with respect to an initial decision which has become final through failure to file exceptions thereto. However, neither the filing nor the granting of such a petition shall operate as a stay of such final order unless specifically so ordered by the Board. After the expiration of the period of filing a petition, a motion for leave to file such petition may be filed; but no such motion shall be granted except on a showing of unusual and exceptional circumstances, constituting good cause for failure to make timely filing. Within ten (10) days after a petition for reconsideration, rehearing, or reargument is filed, any party to the proceeding may file an answer in support of or in opposition to the petition.'
3
A temporary stay was granted from November 29 to December 5 to enable the Court of Appeals to consider a request by Eastern Air Lines for a judicial stay of certain awards made in the original proceeding. Eastern did not get its stay nor was its challenge on the merits upheld. Eastern Air Lines v. Civil Aeronautics Board, 2 Cir., 271 F.2d 752.
4
We are informed that this case has now been completed but no further action has been taken on Delta's restrictions.
5
See Tobias, Administrative Reconsideration: Some Recent Developments in New York, 28 N.Y.U.L.Rev. 1262, where the author observed:
'Re-examination and reconsideration are among the normal processes of intelligent living. Admittedly no warranty of correctness or fitness attaches to a decision or an action simply because it is a thing of the past. Every-day experience teaches the contrary: while the choice first made may well remain the course ultimately followed, often enough it is found on further consideration to require revision. On the other hand, constant re-examination and endles vacillation may become ludicrous, self-defeating, and even oppressive. Whether for better or for worse so far as the merits of the chosen course are concerned, a point may be reached at which the die needs to be cast with some 'finality.' An opposition may thus develop between the right result and the final one.'
See also the statement of the Board in its original opinion in this case, denying a motion to reopen the record:
'Our general policy with respect to motions to reopen the record for receipt of data on the most recent operating experience has consistently reflected the requirement of the public interest that the record in major route cases be brought to a close as expeditiously as possible, consistent with the requirements of full hearings, so that final decision may be rendered promptly. Institution of needed new services could be endlessly delayed were we to permit the record to be reopened in the final procedural stages of a case for the submission of more recent operating data (and the attendant cross-examination and exchange of rebuttal evidence). Only in the cases where the situation under consideration has changed radically would such a course of action be justified.'
6
Generally speaking, the less interested Congress has been in what has been called 'security of certificate,' the wider the scope of reconsideration Congress has allowed to the supervising agency. See generally Davis, Res Judicata in Administrative Law, 25 Texas L.Rev. 199. It cannot be doubted that Congress was powerfully interested in 'security of certificate' when it passed the Aviation Act. See 83 Cong.Rec. 6407.
7
No one contends that the changes made upon reconsideration constituted the correction of inadvertent errors. See American Trucking Ass'ns Inc., v. Frisco Transportation Co., 358 U.S. 133, 79 S.Ct. 170, 3 L.Ed.2d 172.
8
Speaking on behalf of the bill which became the predecessor of the Federal Aviation Act—the Civil Aeronautics Act of 1938—Congressman Lea, Chairman of the Committee on Interstate and Foreign Commerce which reported the bill, said:
'One hundred and twenty million dollars has already been invested in commercial aviation in the United States. It is the information of the committee that $60,000,000 of this sum has been wiped out. The fact that so much money has been put into commercial aviation shows the faith, the genius, and the courage of the American people in that they are willing to invest as they have in aviation up to this date. However, in the absence of legislation such as we have now before us these lines are going to find it very difficult if not impossible to finance their operations because of the lack of stability and assurance in their operations. You would not want to invest $200 or $2,000 a mile in a line that has no assurance of security of its route and no protection against cutthroat competition.
'Part of the proposal here is that the regulatory body created by the bill will have authority to issue certificates of convenience and necessity to the operators. This will give assurance of security of route. The authority will also exercise rate control, requiring that rates be reasonable and giving power to protect against cutthroat competition. In my judgment, those two things are the fundamental and essential needs of aviation at this time, security and stability in the route and protection against cutthroat competition.
'These are the two economic fundamentals presented and it is this necessity that the bill seeks to meet. We want to give financial stability to these companies so they can finance their operations and finance them to advantage.' 83 Cong.Rec. 6406—6407.
9
The 'finality' of an order for purposes of judicial review depends on § 10(c) of the Administrative Procedure Act, 60 Stat. 243, 5 U.S.C. § 1009(c), 5 U.S.C.A. § 1009(c). See 6 Stan.L.Rev. 531.
10
In addition to the reasons mentioned in the text, those cases involving orders, rather than certificates—see Western Air Lines v. Civl Aeronautics Board, 9 Cir., 194 F.2d 211—are distinguishable for the reasons stated in Seatrain, supra, 329 U.S. at page 432, 67 S.Ct. at page 439. Similarly, the cases involving certificates under the Federal Communications Act are distinguishable for the reasons stated by Commissioner Ryan. See Ryan, The Revocation of an Airline Certificate of Public Convenience and Necessity, 15 J.Air L. & Comm. 377, 384—385.
11
See also Hancock, Fallacy of the Transplanted Category, 37 Can.B.Rev. 535. One might argue, of course, that judicial review and administrative reconsideration are the same since both threaten a reversal of the prior award. However, Congress has shown no intent to preclude reconsideration, either judicial or administrative, after notice and hearing.
12
Although the Board did not purport to issue a temporary certificate as prescribed in § 401(d)(2), petitioners now argue that the Board's action was 'equivalent' to a temporary certification. However, we do not find this proposition persuasive. As stated in the text, supra, we think that the Board must bow to the statutory procedue and cannot take short cuts. See note 15, infra. Moreover, the most natural reading of § 401(d)(2)—which says that temporary certificates may be issued for 'limited periods'—is that Congress was authorizing the Board to issue certificates running until a specified date. One reasons for this construction is obvious; if a temporary certificate had unlimited duration, only subject to immediate revocation when the Board got around to considering various objections, it might play havoc with the ability of the carrier to accept advance reservations. Just such a contention was made by Delta before the Board in its petition for a stay of the Board's May 7, 1959, order on reconsideration. Delta pointed out:
'It is a fact that schedules for May and June, and timetables showing this early morning Chicago-Indianapolis-Evansville and Evansville-Indianapolis-Chicago service, have been released to the public and many reservations have been booked for these months. Furthermore, pilot bidding procedures and problems involving equipment rotation prohibit the immediate cancellation of this flight on short notice.'
13
It appears clear, and the Board does not disagree, that the 'hearing' specified in § 401(g) means a 'hearing' prior to decision. And, the Board does not contend that this requirement could have been satisfied by the allowance of a hearing after the decision on reconsideration was handed down. This course of action seems wise since (1) it is generally accepted on both principle and authority that a hearing after decision, although permissible in special circumstances, is not the equivalent of a predetermination hearing, see, e.g., Gelhorn and Byse, Administrative Law, 774; (2) it is not entirely clear that Delta could have procured a hearing after the Board's decision. Delta sought a stay of the Board's May 7 order until after the Great Lakes Local Service Investigation Case was decided, presumably witha view to introducing further evidence on the present point in that case; the request for a stay was denied.
14
Since Kansas City, the Board has reconsidered considered an effective award on three occasions. United Western, Acquisition of Air Carrier Property, 11 C.A.B. 701; Service to Phoenix Case, Order E—12039 (1957); South Central Area Local Service Case, Order E—14219 (1959). United Western did not involve a certificate of public convenience and necessity and, thus, has no relevance. See note 10, supra. Service to Phoenix involved a denial of reconsideration except on one point, which might arguably be termed the correction of inadvertent error. See note 7, supra. South Central did involve the alteration of a certificated carrier's rights. As stated, the present point was not raised in any of these three cases.
15
The potentially distinguishing feature about Seatrain is that the Court's holding may rest on an alternate ground—viz.: that the Commission had no power to impose the conditions it did in the first instance. However, Seatrain cannot be distinguished on the grounds that the Court said 'the certificate, when finally granted, and the time fixed for rehearing has passed, is not subject to revocation in whole or in part except as specifically authorized * * *.' The point is that, under the Water Carrier Act, the Commission had express authority to entertain petitions for reconsideration at any time. See 49 U.S.C. § 916(a), 49 U.S.C.A. § 916(a), incorporating 49 U.S.C. § 17(6) and (7), 49 U.S.C.A. § 17(6, 7). Therefore, it is clear that the Commission in Seatrain could have reached with impunity the result it wanted to reach by following the procedures set out by Congress. The force of the Seatrain decision is, then, that the commissions and boards must follow scrupulously the statutory procedures before they can alter existing operations and that arguments to the effect that 'this is just another way of doing it' will not prevail.
1
Section 401(f) of the Federal Aviation Act (72 Stat. 755 756, 49 U.S.C. § 1371(f), 49 U.S.C.A. § 1371(f) provides, in relevant part, as follows:
'(f) Each certificate shall be effective from the date specified therein, and shall continue in effect until suspended or revoked as hereafter provided, or until the Board shall certify that operation thereunder has ceased or, if issued for a limited period of time under subsection (d)(2) of this section, shall continue in effect until the expiration thereof, unless, prior to the date of expiration, such certificate shall be suspended or revoked as provided herein, or the Board shall certify that operations thereunder have ceased * * *.'
Section 401(g) of the Act (72 Stat. 756, 49 U.S.C. § 1371(g), 49 U.S.C.A. § 1371(g) provides, in relevant part, as follows:
'(g) The Board upon petition or complaint or upon its own initiative, after notice and hearings, may alter, amend, modify, or suspend any such certificate, in whole or in part, if the public convenience and necessity so require, or may revoke n y such certificate, in whole or in part, for intentional failure to comply with any provision of this title or any order, rule, or regulation issued hereunder or any term, condition or limitation of such certificate * * *.'
2
Section 302.37(a) of the Rules of Practice of the Civil Aeronautics Board, 14 CFR § 302.37(a) (1956 Rev. ed.), provides, in relevant part, as follows:
'Petition for reconsideration—(a) Time for filing. A petition for reconsideration, rehearing or reargument may be filed by any party to a proceeding within thirty (30) days after the date of service of a final order by the Board in such proceeding unless the time is shortened or enlarged by the Board, except that such petition may not be filed with respect to an initial decision which has become final through failure to file exceptions thereto. However, neither the filing nor the granting of such a petition shall operate as a stay of such final order unless specifically so ordered by the Board. * * *'
In a recent revision of its Rules, the Board has reduced the time within which a petition for reconsideration may be filed from 30 to 20 days. See 14 CFR § 302.37 (1960 Supp.).
49 U.S.C. § 1486(a), 49 U.S.C.A. § 1486(a) provides that decisions of the Board shall be subject to review by the Courts of Appeals upon petition 'filed within sixty days after the entry of such order,' by any person having a substantial interest in the order.
3
See note 2.
4
See Saginaw Broadcasting Co. v. Federal Communications Comm., 68 U.S.App.D.C. 282, 287, 96 F.2d 554, 559; Southland Industries, Inc., v. Federal Communications Comm., 69 App.D.C. 82, 99 F.2d 117; Woodmen of World Life Ins. Ass'n v. Federal Communications Comm., 69 App.D.C. 87, 99 F.2d 122; Red River Broadcasting Co. v. Federal Communications Comm., 69 App.D.C. 1, 8 F.2d 282.
5
See Western Air Lines v. Civil Aeronautics Board, 9 Cir., 196 F.2d 933; Southwest Airways Co. v. Civil Aeronautics Board, 9 Cir., 196 F.2d 937; Western Air Lines v. Civil Aeronautics Board, 9 Cir., 194 F.2d 211.
6
In Outland v. Civil Aeronautics Board, supra, the United States Court of Appeals for the District of Columbia exposed the fallacy in, and soundly rejected the reasoning of, the Consolidated Flowers case, supra, in the following language:
'The legislative history of 5 U.S.C.A. § 1009(c) indicates that it was adopted to achieve harmony with the holding in Levers v. Anderson, 1945, 326 U.S. 219, 66 S.Ct. 72, 90 L.Ed. 26 to the effect that a motion for rehearing was not necessary to exhaust administrative remedies. However, while making judicial review available without a motion for rehearing, that statute did not operate to repeal the law with respect to finality. Where a motion for rehearing is in fact filed there is no final action until the rehearing is denied, as we said in Braniff Airways, Inc. v. Civil Aeronautics Board, supra. Section 1009(c) does not command a motion for rehearing in order to reach finality by exhaustion of administrative remedies; it leaves that to each litigant's choice. But when the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary. Practical considerations, therefore, dictate that when a petition for rehearing is filed, review may properly be deferred until this has been acted upon. The contrary result reached by the Ninth Circuit has caused parties to file so called 'protective' petitions for judicial review while petitions for rehearing before the Board were pending. A whole train of unnecessary consequences flowed from this: the Board and other parties may be called upon to respond and oppose the motion for review; when the Board acts, the petition for judicial review must be amended to bring the petition up to date.
'We hold that when a motion for rehearing is made, the time for filing a petition for judicial review does not begin to run until the motion for rehearing is acted upon by the Board.' 109 U.S.App.D.C. at pages 93—94, 284 F.2d at pages 227—228.
7
In many instances, the Board has permitted certificates to become effective notwithstandin a motion or motions for reconsideration were pending undetermined. And in a number of such cases, as here, the Board has granted such motions and accordingly modified the 'effective' certificate. See, e.g., North Central case, 8 C.A.B. 208; Cincinnati-New York Additional Service, 8 C.A.B. 603; United-Western, Acquisition of Air Carrier Property, 11 C.A.B. 701; Service to Phoenix case, Order E—12039 (1957); South Central Area Local Service case, Order E—14219 (1959).
| 78
|
367 U.S. 348
81 S.Ct. 1570
6 L.Ed.2d 890
Emmett HORTON, Petitioner,v.LIBERTY MUTUAL INSURANCE CO.
No. 478.
Argued May 3, 1961.
Decided June 12, 1961.
Rehearing Denied Oct. 9, 1961.
See 82 S.Ct. 24.
Messrs. Joe H. Tonahill, Jasper, Tex., and William VanDercreek, Dallas, Tex., for petitioner.
Mr. Howell Cobb, for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
1
This case raises questions under that part of 28 U.S.C. § 1332, as amended in 1958, 28 U.S.C.A. § 1332,1 which grants jurisdiction to United States District Courts of all civil actions between citizens of different States 'where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs * * *.'
2
Petitioner, Horton, was injured while working for an employer in Texas insured by the respondent, liberty Mutual Insurance Company. Pursuant to the Texas Workmen's Compensation Law,2 petitioner filed a claim with the Texas Industrial Accident Board against his employer and the respondent insurance company alleging that he had been totally and permanently incapacitated and claiming the maximum recovery under the law of $35 per week for 401 weeks, or a total of $14,035. After administrative hearings the Board decided that petitioner would be disabled for only 30 weeks and accordingly made an award of only $1,050. Section 5 of Art. 8307 of the Texas Workmen's Compensation Law permits either the employee or the insurance company, if dissatisfied with an award, to 'bring suit in the county where the injury occurred to set asides aid final ruling,' in which event the issues shall be determined 'upon trial de novo, and the burden or (sic) proof shall be upon the party claiming compensation.' but in no event shall the court allow recovery in excess of the statutory maximum of $14,035. Acting under this provision of state law, the respondent, on April 30, 1959, the very day of the award, filed this diversity case in the United States District Court to set aside the award, alleging that petitioner had claimed, was claiming and would claim $14,035, but denying that petitioner was entitled to recover anything at all under Texas law. One week later the petitioner, who also was dissatisfied with the award, filed an action in the state court to set aside the Board's award and to recover in that court the full $14,035. After that, petitioner moved to dismiss the respondent's federal court suit on the ground that the value of the 'matter in controversy' was only the amount of the award, $1,050, and not the amount of his claim of $14,035, although he also contemporaneously filed, subject to his motion to dismiss, what he designated as a compulsory counterclaim3 for the full amount he had claimed before the Texas Board and in his Texas State Court suit. The District Court held that the 'matter in controversy' in the federal action was only the amount of the $1,050 award that the respondent company had asked the court to set aside. In so holding the District Court relied on National Surety Corp. v. Chamberlain,4 in which another District Court in Texas had reached the same conclusion as to jurisdiction largely on the basis of what it deemed to have been the purpose of Congress in enacting the 1958 amendment to 28 U.S.C. § 1332, 28 U.S.C.A. § 1332, which amendment rather severely cut down the jurisdiction of Federal District Courts, particularly in state workmen's compensation cases. The Court of Appeals reversed,5 and we granted certiorari to decide the important jurisdictional questions raised under the 1958 amendment.6
3
For reasons to be stated, we hold that the District Court has jurisdiction of the controversy.
4
First. It is true, as the Chamberlain opinion pointed out, that the purpose and effect of the 1958 amendment were to reduce congestion in the Federal District Court's partially caused by the large number of civil cases that were being brought under the long-standing $3,000 jurisdictional rule. This effort to reduce District Court congestion followed years of study by the United States Judicial Conference and the Administrative Office of the United States Courts, as well as by the Congress.7 To accomplish this purpose the 1958 amendment took several different but related steps. It raised the requisite jurisdictional amount from $3,000 to $10,000 in diversity and federal question cases; it provided that a corporation is to be deemed a citizen not only of the State by which it was incorporated but also of the State where it has its principal place of business; and, most importantly here, it also for the first time forbade the removal of state workmen's compensation cases from state courts to United States District Courts. By granting district judges a discretionary power to impose costs on a federal court plaintiff if he should 'recover less than the sum or value of $10,000,' the amendment further manifested a congressional purpose to discourage the trying of suits involving less than $10,000 in federal courts. In discussing the question of state workmen's compensation cases, the Senate Report on the amendment evidenced a concern not only about the problem of congestion in the fedr al courts, but also about trial burdens that claimants might suffer by having to go to trial in federal rather than state courts due to the fact that the state courts are likely to be closer to an injured worker's home and may also provide him with special procedural advantages in workmen's compensation cases.8
5
The foregoing are some of the appealing considerations that led the District Court to conclude that it would frustrate the congressional purpose to permit insurers to file workmen's compensation suits in federal courts when Congress had deliberately provided that such suits could not be removed to federal courts if filed by claimants in state courts. But after the most deliberate study of the whole problem by lawyers and judges and after its consideration by lawyers on the Senate Judiciary Committee in the light of statistics on both removals and original filings,9 Congress used language specifically barring removal of such cases from state to federal courts and at the same time left unchanged the old language which just as specifically permits civil suits to be filed in federal courts in cases where there are both diversity of citizenship and the prescribed jurisdictional amount. In this situation we must take the intent of Congress with regard to the filing of diversity cases in Federal District Courts to be that which its language clearly sets forth. Congress could very easily have used language to bar filing of workmen's compensation suits by the insurer as well as removal of such suits, and it could easily do so still. We therefore hold that under the present law the District Court has jurisdiction to try this civil case between citizens of different States if the matter in controversy is in excess of $10,000.
6
Second. We agree with petitioner that determination of the value of the matter in controversy for purposes of federal jurisdiction is a federal question to be decided under federal standards,10 although the federal courts must, of course, look to state law to determine the nature and extent of the right to be enforced in a diversity case. It therefore is not controlling here that Texas has held that the crucial factor for allocating its cases among different state courts on an amount-in-controversy basis is the amount originally claimed before its State Compensation Board.11
7
The general federal rule has long been to decide what the amount in controversy is from the complaint itself, unless it appears or is in some way shown that the amount stated in the complaint is not claimed 'in good faith.'12 In deciding this question of good faith we have said that it 'must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.'13 The complaint of the respondent company filed in the District Court, while denying any liability at all and asking that the award of $1,050 against it be set aside, also alleges that petitioner Horton has claimed, now claims and will claim that he has suffered total and permanent disability and is entitled to a maximum recovery of $14,035, which, of course, is in excess of the $10,000 requisite to give a federal court jurisdiction of this controversy. No denial of these al egations in the complaint has been made, no attempted disclaimer or surrender of any part of the original claim has been made by petitioner, and there has been no other showing, let alone a showing 'to a legal certainty,' of any lack of good faith on the part of the respondent in alleging that a $14,035 claim is in controversy. It would contradict the whole record as well as the allegations of the complaint to say that this dispute involves only $1,050. The claim before the Board was $14,035; the state court suit of petitioner asked that much; the conditional counterclaim in the federal court claims the same amount. Texas law under which this claim was created and has its being leaves the entire $14,035 claim open for adjudication in a de novo court trial, regardless of the award. Thus the record before us shows beyond a doubt that the award is challenged by both parties and is binding on neither; that petitioner claims more than $10,000 from the respondent and the respondent denies it should have to pay petitioner anything at all. No matter which party brings it into court, the controversy remains the same; it involves the same amount of money and is to be adjudicated and determined under the same rules. Unquestionably, therefore, the amount in controversy is in excess of $10,000.
8
Third. Petitioner contends, however that even though the amount in controversy is more than $10,000, the suit filed by the company is nothing more than an appeal from a state administrative order, that a Federal District Court has no appellate jurisdiction and that the dismissal of the case by the District Court therefore is supportable on that ground. This contention rests almost entirely on Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 581, 74 S.Ct. 290, 295, 98 L.Ed. 317, which held that a United States District Court was without jurisdiction to consider an appeal 'taken administratively or judicially in a state proceeding.' Aside from many other relevant distinctions which need not be pointed out, the Stude case is without weight here because, as shown by the Texas Supreme Court's interpretation of its compensation act:
9
'The suit to set aside an award of the board is in fact a suit, not an appeal. It is filed as any other suit is filed and when filed the subject matter is withdrawn from the board.'14
10
It is true that as conditions precedent to filing a suit a claim must have been filed with the Board and the Board must have made a final ruling and decision. But the trial in court is not an appellate proceeding. It is a trial de novo wholly without reference to what may have been decided by the Board.15
11
The Court of Appeals was right in holding that the District Court had jurisdiction of this case and its judgment is affirmed.
12
Affirmed.
13
Mr. Justice CLARK, with whom THE CHIEF JUSTICE, M. Justice BRENNAN and Mr. Justice STEWART join, dissenting.
14
The Court turns a new furrow in the field of diversity jurisdiction today and, in so doing, plows under a rule of almost a quarter of a century's standing—the rule that in determining jurisdiction, 'the sum claimed by the plaintiff controls if the claim is apparently made in good faith.' St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845. Here the respondent Insurance Company filed suit 'to set aside' an award of $1,050 given Horton by the Texas Industrial Accident Board. The Court, instead of testing the jurisdictional amount by this sum, looks instead to allegations of the Insurance Company that Horton, the defendant in the action, 'will claim the sum of ($14,035) * * *.' (Emphasis added.)
15
This is the first time the Court has let a plaintiff affix jurisdiction by prophesying what the defendant would or might claim, rather than by stating what the plaintiff itself did claim. In so generously construing the statute, the Court confounds the test heretofore applied in diversity cases. It also nullifies the result of 'years of study by the United States Judicial Conference and the Administrative Office of the United States Courts, as well as by the Congress,' 367 U.S. at page 351, 81 S.Ct. at page 1572, in the adoption of the Act of July 25, 1958, 72 Stat. 415, increasing the jurisdictional amount in diversity cases to $10,000. Once again the United States District Courts in Texas will be flooded by compensation cases,1 and the Congress once again will be obliged to amend the diversity statute. Moreover, today's decision practically wipes out the longexisting distinction between declaratory judgment actions and conventional suits. See 28 U.S.C. § 2201, 28 U.S.C.A. § 2201. For these reasons I must dissent.
16
Petitioner, an injured workman, filed a claim under the Texas Workmen's Compensation Act before the Texas Industrial Accident Board for the maximum allowable recovery, $14,035 (401 weeks at $35 per week). The Board, after a hearing, awarded petitioner $1,050 ($35 per week for 30 weeks). Within hours of the award, respondent, the compensation insurer, literally raced into Federal District Court and filed suit to set aside the Board's decision. The diversity action was brought pursuant to Vernon's Tex.Ann.Civ.Stat. Art. 8307, § 5, which allows the issues to be determined 'upon trial de novo, (where) * * * the burden or (sic) proof shall be upon the party claiming compensation.' Upon petitioner's motion, the District Court dismissed the action for lack of jurisdiction. The Court of Appeals reversed.
17
The jurisdictional limits of Federal District Courts are bounded on one side by the Constitution and on the other by the enactments of Congress. Only that judicial power expressly granted by statute may be exercised by the nisi prius courts. Lockerty v. Phillips, 1943, 319 U.S. 182, 63 S.Ct. 1019, 87 L.Ed. 1339; Kline v. Burke Construction Co., 1922, 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226; Sheldon v. Sill, 1850, 8 How. 441, 12 L.Ed. 1147. In the light of such history, this Court has repeatedly held that such jurisdiction is to be narrowly interpreted. 'The policy of the (diversity) statute calls for its strict construction.' Healy v. Ratta, 1934, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248. See City of Indianapolis v. Chase National Bank, 1941, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47; St. Paul Mercury Indemnity Co. v. Red Cab Co., supra.
18
The argument that the federal court, in diversity cases, is just another state court is inapposite here. As the Court points out, the determination of whether a case comes within the jurisdiction of a District Court 'is a federal question to be decided under federal standards.' 367 U.S. at page 352, 1 S.Ct. at page 1573. The jurisdictional statute, 'which is nationwide in its operation, was intended to be uniform in its application, unaffected by local law definition or characterization of the subject matter to which it is to be applied.' Shamrock Oil & Gas Corp. v. Sheets, 1941, 313 U.S. 100, 104, 61 S.Ct. 868, 870, 85 L.Ed. 1214. Regardless of the method used by the Texas courts to determine the jurisdictional amounts for such cases, we must scrupulously apply the standard set by Congress for federal courts.
19
The statute conferring jurisdiction on District Courts in suits between parties of diverse citizenship limits it to those actions 'where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs * * *.' 28 U.S.C. § 1332(a), 28 U.S.C.A. § 1332(a). In most cases, the determination of the amount in controversy is exceedingly simple, e.g., liquidated damages. However, where the relief sought is difficult to define in terms of money, or is of differing value to the parties, the statute does not admit of ready application. To clarify these situations, this Court, in St. Paul Mercury Indemnity Co. v. Red Cab Co., supra, 303 U.S. at page 288, 58 S.Ct. at page 590, stated: '(U)nless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith.' (Emphasis added.)
20
The application of the foregoing rules to the problem here results in a simple solution. At the time respondent filed its complaint, there was enforceable against it a liability in the amount of $1,050. If petitioner defaulted, the District Court would set aside the Board award. If respondent lost and petitioner filed no counterclaim, the judgment could only be for $1,050. It was only if petitioner counterclaimed for an amount in excess of the jurisdictional amount of $10,000, that respondent could have controverted a claim cognizable in federal court. It seems impossible to avoid the conclusion that the Court is allowing diversity jurisdiction to be predicated upon a counterclaim which might possibly be filed by petitioner. Even a 'disclaimer or surrender of (a) * * * part of the original claim' would not change the Court's insistence upon looking to the alleged counterclaim if that were more than the respondent's claim, for the jurisdictional minimum. Apparently the Court would require a 'denial of these allegations' that petitioner will claim an amount in excess of the jurisdictional limit before considering the respondent's prayer to set aside the Board's award as the source of the jurisdictional amount. 367 U.S. at page 353, 81 S.Ct. at page 1573. Not only is this in patent conflict with St. Paul Mercury Indemnity Co. v. Red Cab Co., supra, but it distorts the meaning of Rule 3, Federal Rules of Civil Procedure, which states, '(a) civil action is commenced by filing a complaint with the court.' Here the Court evidently holds that if the complaint, insufficient to meet the jurisdictional standards, alleges that a possible compulsory counterclaim, sufficient to meet such standards, may be filed by the defendant, federal jurisdiction attaches. Certainly we have never permitted a District Court to acquire jurisdiction under 28 U.S.C. § 1331(a), 28 U.S.C.A. § 1331(a)2 where the plaintiff does not allege a federal question but claims that the defendant will raise such an issue. '(W)hether a case is one (involving a federal question) * * * must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.' Taylor v. Anderson, 1914, 234 U.S. 74, 75—76, 34 S.Ct. 724, 58 L.Ed. 1218. (Emphasis added.) See Skelly Oil Co. v. Phillips Petroleum Co., 1950, 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194; First National Bank of Canton, Pa. v. Williams, 1920, 252 U.S. 504, 40 S.Ct. 372, 64 L.Ed. 690; Louisville & N.R. Co. v. Mottley 1908, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126. To allow such a procedure in diversity cases is to unbalance the entire jurisdictional pattern.
21
In essence, the Court has permitted respondent to turn its suit into an action for a declaratory judgment without meeting the requirements of the Declaratory Judgments Act. 28 U.S.C. § 2201, 28 U.S.C.A. § 2201. That Act provides that '(i)n a case of actual controversy within in its jurisdiction * * * any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration * * *.' (Emphasis added.)
22
The complaint filed in the District Court was not styled a declaratory judgment action, and it did not seek such relief. More importantly, respondent has succeeded in avoiding the element of discretion permitted by the statute. See Brillhart v. Excess Ins. Co., 1942, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620. Declaratory relief is a procedural remedy and, therefore, the construction of the Act is a federal matter. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 1937, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617. Whether or not such relief should be granted does not depend upon whether the state courts would exercise their discretion to grant a declaratory judgment in the same situation.3 Differing factors are pertinent to the discretionary decisions of the two separate judicial systems, state and federal. In the latter system, discretionary refusal to entertain the action frequently occurs when the suit involves a state statute, such as the one here. See Alabama State Federation of Labor, etc. v. McAdory, 1945, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725. Moreover, it is even questionable whether respondent has satisfied the jurisdictional amount requirement for such actions. See Travelers Ins. Co. v. Greenfield, 5 Cir., 154 F.2d 950; New York Life Ins. Co. v. Greenfield, 5 Cir., 154 F.2d 953; Commercial Casualty Ins. Co. v. Fowles, 9 Cir., 154 F.2d 884, 165 A.L.R. 1068; Mutual Life Ins. Co. of New York v. Moyle, 4 Cir., 116 F.2d 434. That the Declaratory Judgments Act in no way affects the jurisdictional requirements for federal courts is clear. 'To sanction suits for declaratory relief as within the jurisdiction of the District Courts merely because * * * artful pleading anticipates a defense based on federal law would contravene the whole trend of jurisdictional legislation by Congress, disregard the effective functioning of the federal judicial system and distort the limited procedural purpose of the Declaratory Judgment Act.' Skelly Oil Co. v. Phillips Petroleum Co., supra, 339 U.S. at pages 673—674, 70 S.Ct. at page 880.
23
Finally today's decision effectively emasculates the recent congressional attempt to limit diversity jurisdiction, especially in workmen's compensation cases. In order to decrease 'the workload of the Federal courts,' which 'has greatly increased because of the removal of workmen's compensation cases from the State courts to the Federal courts,' the Judicial Conference of the United States urged the passage of the curren legislation. S.Rep. No. 1830, 85th Cong., 2d Sess. 7, U.S.Code Cong. & Adm. News 1958, p. 3105. Workmen's compensation cases were singled out and specifically dealt with because they 'arise and exist only by virtue of State laws. No Federal question is involved and no law of the United States is involved in these cases.' Id., at 8, U.S.Code Cong. & Adm. News 1958, p. 3106. To accomplish the desired result of restricting federal diversity jurisdiction, Congress raised the minimum jurisdictional amount from $3,000 to $10,000. Corporations were deemed citizens of more than one State and removal of workmen's compensation cases to federal courts was forbidden.
24
To further limit the number of diversity cases, the Congress enacted 28 U.S.C. § 1332(b), 28 U.S.C.A. § 1332(b), which provides that
25
'where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $10,000, computed without regard to any * * * counterclaim to which the defendant may be adjudged to be entitled, * * * the district court * * * may impose costs on the plaintiff.' (Emphasis added.)
26
This provision makes little sense when applied to the result now approved by the Court. If respondent were to obtain the relief it sought, namely, to have the Board's award of less than $10,000 'vacated, set aside, voided and declared to be of no further force and effect,' it is clear that costs could be assessed against it under § 1332(b). This produces an anomalous situation which the Court must implicitly approve. Respondent has no hope of avoiding possible liability under the cost sanction of § 1332(b). This is so because the relief it obtains must be measured against the jurisdictional minimum 'without regard' for Horton's possible counterclaim. We are therefore left with the strange result that while respondent has met the requirements of § 1332(a), yet under § 1332(b) it will be liable for costs for failing to meet the same requirements.
27
Moreover, the Senate Report expressed concern for the problems of the injured employee in federal court,
28
'(S)ome of these State (workmen's compensation) statutes limit the venue to the place where the accident occurred or to the district of the workman's residence. When removed to the Federal court the venue provisions of the State statute cannot be applied. Very often cases removed to the Federal courts require the workman to travel long distances and to bring his witnesses at great expense. This places an undue burden upon the workman and very often the workman settles his claim because he cannot afford the luxury of a trial in Federal court.' S.Rep. No. 1830, 85th Cong., 2d Sess. 9, U.S.Code Cong. & Adm. News 1958, p. 3106.
29
While 28 U.S.C. § 1332, 28 U.S.C.A. § 1332 does not specifically prohibit the filing of original workmen's compensation cases, a clearer expression of congressional dislike for saddling federal courts with such cases could hardly be imagined. We should, therefor, give effect to this policy wherever possible. Not only does the decision today fail to do this, but the Court goes out of its way to defeat the congressional intent. The statement that 'the workman has the option to file his case in either the Federal or the State court,' S.Rep. No. 1830, 85th Cong., 2d Sess. 9 U.S.Code Cong. & Adm. News 1958, p. 3106, is no longer correct. It is now an unequal race to the courthouse door—a race which the insurers will invariably win, since they have resident counsel in Austin (the location of the Texas Industrial Accident Board) who quickly secure news of Board awards and are thus enabled to 'beat' the workman in the choice of forums. Thus, the Court—contrary to the specifically expressed intention of the Congress—grants the insurance companies the option of going into federal court, with all its attendant difficulties to the already overburdened federal judiciary and the impecunious workman. We thought differently in 1957, when we refused to 'read legil ation with a jaundiced eye,' saying that 'it will not do for us to tell the Congress 'We see what you were driving at but you did not use choice words to describe your purpose." United States v. Union Pacific R. Co., 353 U.S. 112, 118, 77 S.Ct. 685, 687, 1 L.Ed.2d 693. Congress closed the back door and locked it tight in 1958, only to have the Court break down the front door today and hang out the welcome sign.
1
Act of July 25, 1958, 72 Stat. 415.
2
Vernon's Tex.Ann.Civ.Stat. Arts. 8306-8309.
3
With exceptions not here relevant, Rule 13(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. requires a party to file a counterclaim arising out of the transaction or occurrence that is the subject of the opposing party's claim.
4
171 F.Supp. 591.
5
275 F.2d 148.
6
364 U.S. 814, 81 S.Ct. 79, 5 L.Ed.2d 46.
7
See H.R.Rep. No. 1706, 85th Cong., 2d Sess.; S.Rep. No. 1830, 85th Cong., 2d Sess., U.S.Code Cong. & Adm.News 1958, p. 3099; Hearings on H.R. 2516 and H.R. 4497, Subcommittee of House Committee on the Judiciary, 85th Cong., 1st Sess. With particular reference to the provision barring removal of state workmen's compensation cases, see 104 Cong.Rec. 12689—12690; S.Rep. No. 1830, supra, p. 9; Annual Report of the Proceedings of the Judicial Conference of the United States, 1957, p. 15.
8
S.Rep. No. 1830, 85th Cong., 2d Sess., pp. 8—9.
9
See, id., p. 8.
10
See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104, 61 S.Ct. 868, 870, 85 L.Ed. 1214.
11
Booth v. Texas Employers' Ins. Ass'n, 132 Tex. 237, 252, 123 S.W.2d 322, 331.
12
St. Paul Mercury Indemnity Co. v. Red Cob. Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845, and cases there cited.
13
Id., 303 U.S. at page 289, 58 S.Ct. at page 590. See also Bell v. Preferred Life Assurance Society, 320 U.S. 238, 240, 64 S.Ct. 5, 6, 88 L.Ed. 15; Aetna Casualty & Surety Co. v. Flowers, 330 U.S. 464, 468, 67 S.Ct. 798, 800, 91 L.Ed. 1024.
14
Booth v. Texas Employers' Ins. Ass'n, 132 Tex. 237, 246, 123 S.W.2d 322, 328.
15
The character of the lawfuit is further illuminated by decisions of the Texas Supreme Court holding that the administrative award becomes vacated and unenforceable once the court has acquired jurisdiction of the cause and the parties even if a voluntary nonsuit is taken and the case dismissed without judgment on the merits. Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674; Texas Reciprocal Ins. Ass'n v. Leger. 128 Tex. 319, 97 S.W.2d 677. This makes it all the more clear that the matter in controversy between the parties to the suit is not merely whether the award will be set aside since the suit automatically sets it aside for determination of liability de novo.
1
In 1957, 2,147 workmen's compensation cases were commenced in the United States District Courts of Texas. S.Rep. No. 1830, 85th Cong., 2d Sess. 8, U.S.Code Cong. & Adm.News 1958, p. 3105.
2
'The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.'
3
The argument that the suit here is not really one to set aside the Board award (because the moment it was filed that award was voided and the suit, is, in reality, a new proceeding in which the workman must establish liability), when coupled with the result here, leads to the total abandonment of the rule of St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845. It would permit jurisdiction to be established by the plaintiff's allegation that at some prior time the defendant had claimed, even if only extrajudicially, an amount equal to the jurisdictional minimum.
| 89
|
367 U.S. 433
81 S.Ct. 1541
6 L.Ed.2d 948
Emil RECK, Petitioner,v.Frank J. PATE, Warden.
No. 181.
Argued April 19, 1961.
Decided June 12, 1961.
Mr. Donald Page Moore, Chicago, Ill., for petitioner.
Mr. William C. Wines, Chicago, Ill., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
On the night of January 2, 1936, Dr. Silber C. Peacock, a Chicago physician, left his Edgewater Beach apartment in response to an emergency telephone call to attend a sick child. He never returned. The next day his lifeless body was found in his automobile on a Chicago street. It was apparent that he had been brutally murdered. On Wednesday, March 25, 1936, the petitioner, Emil Reck, and three others were arrested by the Chicago police on suspicion of stealing bicycles. Late the following Saturday afternoon Reck confessed to participation in the murder of Dr. Peacock. The next day he signed another written confession. At Reck's subsequent trial in the Criminal Court of Cook County, Illinois, the two confessions were, over timely objection, received in evidence against him. The jury found Reck guilty of murder, and he was sentenced to prison for a term of 199 years.
2
The conviction was affirmed by the Illinois Supreme Court, People v. Reck, 392 Ill. 311, 64 N.E.2d 526. Several years later Reck filed a petition under the Illinois Post-Conviction Hearing Act, S.H.A. ch. 38, § 826 et seq., alleging that his confessions had been procured by coercion and that their use as evidence at hix trial had, therefore, violated the Due Process Clause of the Fourteenth Amendment.1 After a hearing, the Criminal Court of Cook County denied relief. The Supreme Court of Illinois affirmed the Criminal Court's finding that due process had not been violated at Reck's trial. Reck v. People, 7 Ill.2d 261, 130 N.E.2d 200. This Court denied certiorari 'without prejudice to an application for a writ of habeas corpus in an appropriate United States District Court.' Reck v. People of State of Illinois, 351 U.S. 942, 76 S.Ct. 838, 100 L.Ed. 1469.
3
Reck then filed a petition for habeas corpus in the United States District Court for the Northern District of Illinois. The writ issued, and at the hearing the District Court received in evidence the transcripts of all relevant proceedings in the Illinois courts.2 In an opinion reviewing in detail the circumstances surrounding Reck's confession, the District Court held 'the Due Process Clause not violated in the instant case.' 172 F.Supp. 734, 747. The Court of Appeals for the Seventh Circuit affirmed, one judge dissenting, 274 F.2d 250, and we granted certiorari, 363 U.S. 838, 80 S.Ct. 1629, 4 L.Ed.2d 1725. The only question presented is whether the State of Illinois violated the Due Process Clause of the Fourteenth Amendment by using as evidence at Reck's trial confessions which he had been coerced into making.
4
The question whether there has been a violation of the Due Process Clause of the Fourteenth Amendment by the introduction of an involuntary confession is one which it is the ultimate responsibility of this Court to determine. See Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029; Thomas v. State of Arizona, 356 U.S. 390, 393, 78 S.Ct. 885, 887, 2 L.Ed.2d 863; Watts v. State of Indiana, 338 U.S. 49, 51—52, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801. After thoroughly reviewing the record in this cs e, we are satisfied that the district judge's summary of the undisputed facts is accurate and complete. Neither in brief nor oral argument did the respondent take issue with these findings. No useful purpose would be served by attempting to paraphrase the district judge's words:
5
'* * * Emil Reck was at the time of this horrible crime but nineteen years old. Throughout his life he had been repeatedly classified as mentally retarded and deficient by psychologists and phychiatrists of the Institute for Juvanile Research in Chicago. At one time he had been committed to an institution for the feebleminded, where he had spent a year. He dropped out of school at the age of 16, never having completed the 7th grade, and was found to have the intelligence of a child between 10 and 11 years of age at the time of his trial. Aside from his retardation, he was never a behavior problem and bore no criminal record.
6
'Reck was arrested in Chicago without a warrant at 11:00 a.m. Wednesday, March 25, 1936, on suspicion of stealing bicycles. He was then shuttled between the North Avenue Police Station and the Shakespeare Avenue Police Station until 1:15 p.m., at which time he was returned to the North Avenue Police Station and there interrogated mainly about bycycle thefts until 6:30 or 7:00 p.m. He was then taken to the Warren Avenue Police Station where he spent the night. During this time he was fed a ham sandwich and coffee at the North Avenue Station and a bologna sausage sandwich at the North Avenue Station and a bologna sausage sandwich at the Warren Avenue Station.
7
'On Thursday, at 10:00 a.m., Reck was brought back to the North Avenue Station where he was interrogated some six or seven hours about various crimes in the District. Afterwards, he was sent to the Shakespeare Station and later that evening he was taken downtown to the Detective Bureau where he was exhibited at a so-called 'show-up.' The record does not indicate where Reck spent the night. The record shows that Reck was fed an egg sandwich and a glass of milk on Thursday but apparently nothing else.
8
'The record is silent as to where Reck spent Friday morning but it is clear that interrogation was resumed sometime in the early afternoon. Friday evening over one hundred people congregated in the North Avenue Police Station where Reck was exhibited on the second floor. Shortly after 7:00 p.m. Reck fainted and was brought to the Cook County Hospital where he was examined by an intern who found no marks or bruises upon his body and rejected him for treatment. Reck was then taken directly back to the North Avenue Station where he was immediately again placed on exhibition. He again became sick and was taken to an unfurnished handball room, where a Sergeant Aitken, assigned to the Peacock murder investigation, questioned him about the Peacock murder for a short period of time. Reck again became sick and a Dr. Abraham was called who later testified that Reck was extremely nervous, that he was exposed and that his shirt was unbuttoned and hanging outside of his pants. He was rubbing his abdomen and complaining of pain in that region. After an examination of 60 to 90 seconds, Dr. Abraham left and Reck was questioned intermittently and exhibited to civilians until approximately 9:30 p.m. when he became ill and vomited a considerable amount of blood on the floor.
9
'Reck was again brought to the Cook County Hospital at 10:15 p.m. on Friday where he was placed in a ward and given injections of morphine, atropine, and ipecac twice during the evening. At about 2:00 a.m. two physicians, Doctor Scatliff and Doctor Day, who were members of a Chicago Medical Society which had been assisting the police in the Peacock murder came at the request of Prosecutor Kearney to see if there were any marks of brutality on Reck. They found the door to Reck's room barred by a police officer. After securing permission from one, Police Captain O'Connell, they went in and found Reck asleep and therefore made only a cursory x amination in the dark which revealed nothing conclusive. At 9:00 a.m. on Saturday, Reck told Dr. Zachary Felsher of the Cook County Hospital that the police had been beating him in the stomach. He also told Dr. Weissman of the same hospital that he had been beaten in the abdomen and chest over a three-day period. This was the first time since his arrest some 70 hours before that Reck had conversed with any civilian outside the presence of police officers. His father had attempted to see Reck on Thursday and Friday at the North Avenue Police Station and on Saturday at the Cook County Hospital. Each time he was refused.
10
'At 9:30 a.m. on Saturday, Reck was removed from the hospital in a wheelchair and was questioned about the Peacock murder as soon as he was transferred into Captain O'Connell's car to be transported to the North Avenue Police Station, where the questioning continued until the afternoon, when he was taken to the State's Attorney's office at approximately 2:00 p.m.
11
'Previously to this, on Friday evening, two of the boys, Nash and Goeth, who had been arrested with Reck, had confessed to the murder of Dr. Peacock, implicating Reck and one other boy, Livingston. At about 3:00 a.m. on Saturday, Livingston also agreed to sign a confession. (Upon arraignment, Livingston pleaded not guilty and alleged that he was subjected to physical abuse by the police.)
12
'On Saturday afternoon, Reck was questioned about the whereabouts of the gun which Goeth had told police that Reck possessed. After intensive interrogation, Reck admitted that Goeth had told him of the Peacock murder. About 4:30 p.m. in front of a group of officers and prosecutors, Reck was confronted with Nash and Goeth. Nash told the story which became his signed confession. Reck denied participation in the crime. Goeth then made the statement that Nash was telling the truth and implicated Reck. At this point Reck stated that he was present at the crime but that Livingston and not he struck Dr. Peacock.
'At 5:55 p.m. of the same Saturday, March 28, 1936, a
13
joint confession was taken, at which time Reck was very weak and sick looking. At this point, Reck had been in custody almost 80 hours without counsel, without contact with his family, without a court appearance and without charge or bail. The text of this joint confession reveals mostly yes and no answer in the case of Reck. The interrogation did not deal with the gun or the automobile used in the crime and was signed by all that Saturday night.
14
'On Sunday, Reck was again interrogated in the State's Attorney's office and at 4:30 p.m. his individual statement was taken which was more or less a reiteration of the joint confession. The boys then washed up and were given clean clothes. Thereafter, in a formal ceremony in front of numerous officers and prosecutors as well as twelve invited civilians, the statements were read to the boys, they were duly cautioned and the confessions were then signed. The boys did not know there were civilians present ans were not permitted counsel. At this time Reck had been without solid food since Friday when he had an egg sandwich. He was placed on a milk diet by the doctor Friday night at the hospital.
15
'Reck was held in custody Monday, Tuesday and Wednesday, March 30 through April 1. Why, is not revealed in the record. On Thursday, April 2, 1936, Reck was arraigned in open court and pleaded not guilty. He had not seen his father or other relatives or any lawyer during this entire period.'3
16
As the district judge further noted, the record 'carries an unexpressed import of police brutality * * *.' Reck testified at length to beatings inflicted upon him on each of the four days he was in police custody before he confessed. His testimony was corroborated. The police, however, denied beating Reck, and, in view of this conflict in the evidence, we proceed upon the premise, as did the District Court, that the officers did not inflict deliberate physical abuse or injury upon Reck during the period they held him in their custody.4 See Thomas v. State of Arizona, 356 U.S. 390, 402—403, 78 S.Ct. 885, 891—892, 2 L.Ed.2d 863; Stein v. People of State of New York, 346 U.S. 156, 183—184, 73 S.Ct. 1077, 1092, 97 L.Ed. 1522; Ashcraft v. State of Tennessee, 322 U.S. 143, 152—153, 64 S.Ct. 921, 925, 88 L.Ed. 1192; Ward v. State of Texas, 316 U.S. 547, 551—552, 62 S.Ct. 1139, 1141—1142, 86 L.Ed. 1663.
17
But it is hardly necessary to state that the question whether a confession was extracted by coercion does not depend simply upon whether the police resorted to the crude tactic of deliberate physical abuse. '(T)he blood of the accused is not the only hallmark of an unconstitutional inquisition.' Blackburn v. State of Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242. The question in each case is whether a defendant's will was overborne at the time he confessed. Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Watts v. State of Indiana, 338 U.S. 49, 52, 53, 69 S.Ct. 1347, 1348—1349, 93 L.Ed. 1801; Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948. If so, the confession cannot be deemed 'the product of a rational intellect and a free will,' Blackburn, supra, 361 U.S. at page 208, 80 S.Ct. at page 280. In resolving the issue all the circumstances attendant upon the confession must be taken into account. See Fikes v. State of Alabama, 352 U.S. 191, 198, 77 S.Ct. 281, 285, 1 L.Ed.2d 246; Payne v. State of Arkansas, 356 U.S. 560, 567, 78 S.Ct. 844, 849, 2 L.Ed.2d 975. Physical mistreatment is but one such circumstance, albeit a circumstance which by itself weighs heavily. But other circumstances may combine to produce an effect just as impellingly coercive as the deliberate use of the third degree. Such, we think, were the undisputed circumstances of this case, as set out in detail by the District Court.
18
At the time of his arrest Reck was a nineteen-year-old youth of subnormal intelligence. He had no prior criminal record or experience with the police. He was held nearly eight days without a judicial hearing. Four of those days preceded his first confession. During that period Reck was subjected each day to six- or seven-hour stretches of relentless and incessant interrogation. The questioning was conducted by groups of officers. For the first three days the interrogation ranged over a wide variety of crimes. On the night of the third day of his detention the interrogation turned to the crime for which petitioner stands convicted. During this same four-day period he was shuttled back and forth between police stations and interrogation rooms. In addition, Reck was intermittently placed on public exhibition in 'show-ups.' On the night before his confession, petitioner became ill while on display in such a 'show-up.' He was taken to the hospital, returned to the police station and put back on public display. When he again became ill he was removed from the 'show-up,' but interrogation in the windowless 'handball court' continued relentlessly until he grew faint and vomited blood on the floor. Once more he was taken to the hospital, where he spent the night under the influence of drugs. The next morning he was removed from the hospital in a wheel chair, and intensive interrogation was immediately resumed. Some eight hours later Reck signed his first confession. The next aftr noon he signed a second.
19
During the entire period preceding his confessions Reck was without adequate food, without counsel, and without the assistance of family or friends. He was, for all practical purposes, held incommunicado. He was physically weakened and in intense pain. We conclude that this total combination of circumstances 'is so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear.' Ashcraft v. State of Tennessee, 322 U.S. 143, 154, 64 S.Ct. 921, 926, 88 L.Ed. 1192.
20
It is true that this case lacks the physical brutality present in Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, the threat of mob violence apparent in Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975, the thirty-six hours of consecutive questioning found in Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192, the threats against defendant's family used in Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815, or the deception employed in Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, and Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. Nor was Reck's mentality apparently so irrational as that of the petitioner in Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242. However, it is equally true that Reck's youth, his subnormal intelligence, and his lack of previous experience with the police make it impossible to equate his powers of resistance to overbearing police tactics with those of the defendants in Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522; or Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166.
21
Although the process of decision in this area, as in most, requires more than a mere color-matching of cases, it is not inappropriate to compare this case with Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810, where we held a confession inadmissible on a record disclosing circumstances less compelling. Decision in Turner rested basically on three factors: the length of detention, the amount and manner of interrogation, and the fact that Turner had been held incommunicado by the police. Turner had been in custody for four nights and five days before he confessed. He had been questioned intermittently, as much as six hours in a day, sometimes by one, sometimes by several officers. He had been interrogated a total of some twenty-three hours. Reck was held the same length of time, under basically the same circumstances, before his second confession. He was held some twenty-four hours less than Turner before his first confession, but during that period he was subjected to more concentratedly intensive interrogation, in longer stretches. He also spent considerable periods of time on public display in 'show-ups,' a factor not present in Turner. In addition, Reck was weakened by illness, pain, and lack of food. Finally, unlike Turner, Reck must be regarded as a case of at least borderline mental retardation. The record here thus presents a totality of coercive circumstances far more aggravated than those which dictated our decision in Turner. See also Johnson v. Commonwealth of Pennsylvania, 340 U.S. 881, 71 S.Ct. 191, 95 L.Ed. 640; Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246.
22
It cannot fairly be said on this record that '(t)he inward consciousness of having committed a murder and a robbery and of being confronted with evidence of guilt which (petitioner) could neither deny nor explain seems enough to account for the confessions here.' Stein v. People of State of New York, 346 U.S. 156, 185, 73 S.Ct. 1077, 1093, 97 L.Ed. 1522. It is true that, as in Stein, Reck did not confess until confronted with the incriminating statements of his companions. But beyond this the circumstancs in Stein bear little resemblance to those involved in this case. The defendants in Stein were questioned a total of twelve hours during a thirty-two-hour detention. Part of that time was spent working out a 'bargain' with police officers. Neither defendant was 'young, soft, ignorant or timid.' Stein, supra, 346 U.S. at page 185, 73 S.Ct. at page 1093. Nor were they 'inexperienced in the ways of crime or its detection' or 'dumb as to their rights.' Id., 346 U.S. at page 186, 73 S.Ct. at page 1093. By contrast, Reck was in fact young and ignorant. He was in fact inexperienced in the ways of crime and its detection. Moreover, he was subjected to pressures much greater than were the defendants in Stein. He was held incommunicado and questioned over a much longer period. He was physically ill during much of that time, in pain, and weakened by lack of food. Confrontation with the confessions of his companions in these circumstances could well have been the event which made further resistance seem useless to Reck, whether he was guilty or not. On this record, therefore, the fact that his confession came hard upon the confessions of others who implicated him has little independent significance.
23
The State has made no effort to distinguish between the Saturday and Sunday confessions. Nor could it properly do so. The coercive circumstances preceding the first confession existed through Sunday. Reck remained in police custody, without a judicial hearing. He was subjected to further interrogation. He did not see counsel, family or friends between Saturday afternoon and Sunday afternoon. There are no other facts in the record suggesting that the Sunday confession was an act independent of the confession extracted on Saturday. Both confessions are subject to the same infirmities. Under the Due Process Clause of the Fourteenth Amendment neither was admissible at Reck's trial.
24
The petitioner's detention is in violation of the Constitution of the United States, and he is therefore entitled to be released. The judgments of the Court of Appeals and the District Court are vacated and the case remanded to the latter. On remand, the District Court should enter such orders as are appropriate and consistent with this opinion allowing the State a reasonable time in which to retry the petitioner. Cf. Rogers v. Richmond, 365 U.S. 534, 549, 81 S.Ct. 735, 744, 5 L.Ed.2d 760; Irvin v. Dowd, 366 U.S. 717, 729, 81 S.Ct. 1639, 1646, 6 L.Ed.2d 751.
25
Vacated and remanded.
26
Mr. Justice DOUGLAS, concurring.
27
Emil Reck at the age of twelve was classified as a 'high grade mental defective'1 and placed in an institution for mental defectives. He dropped out of school when he was sixteen. Though he was retarded he had no criminal record, no record of delinquency. At the time of his arrest, confession, and conviction he was nineteen years old.
28
He was arrested Wednesday morning, March 25, 1936. The next day, March 26, his father went to the police asking where his son was and asking to see him. The police would give him no information. On March 27 his father came to the police station again but was not allowed to see his son. Later the father tried to see his son at the hospital but was denied admission.
29
The father was denied the right to see his son over and again. The son was hold for at least eight full days incommunicado. He was arraigned before a magistrate on April 2, 1936, only after he had confessed.
30
The late Professor Alexander Kennedy of the University of Edinburgh has put into illuminating words the manner in which long-continued interrogation under conditions of stress can give the interrogator effective command over the prisoner.2 The techniques—now explained in a vast literature—include (1) disorientation and disillusion; (2) synthetic conflict and tension; (3) crisis and conversion; (4) rationalization and indoctrination; (5) apologetics and exploitation.3
31
The device of 'synthetic conflict and tension' is summarized as follows:4
32
'Production by conditioning methods of a state of psychological tension with its concomitant physical changes in heart, respiration, skin and other organs, the feeling being unattached to any particular set of ideas. This is later caused to transfer itself to synthetic mental conflicts created out of circumstances chosen from the subject's life-history, but entirely irrelevant to the reasons for his detention. The object is to build up anxiety to the limits of tolerance so as to invoke pathological mental mechanisms of escape comparable to those of Conversion Hysteria.'
33
Whether the police used this technique on Emil Reck no one knows. We do know from this record that Emil Reck was quite ill during his detention. He was so ill that he was taken to a hospital incommunicado. He was so ill he passed blood. What actually transpired no one will know. The records coming before us that involve the relations between the police and a prisoner during periods of confinement are extremely unreliable. The word of the police is on the side of orderly procedure, nonoppressive conduct, meticulous regard for the sensibilities of the prisoner. There is the word of the accused against the police. But his voice has little persuasion.
34
We do know that long detention, while the prisoner is shut off from the outside world, is a recurring practice in this country—for those of lowly birth, for those without friends or status.5 We also know that detention incommunicado was the secret of the inquisition and is the secret of successful interrogation in Communist countries. Professor Kennedy summarized the matter:6
35
'From the history of the Inquisition we learn that certain empirical discoveries were made and recognized as important by a thoughtful and objective minority of those concerned. The first was that if a prisoner were once induced to give a detailed history of his past and to discuss it with his interrogators in the absence of threat or persuasion or even of evidence of interest, he might after an emotional crisis recant and confess his heresies. The second discovery was that true and lasting conversion could never be produced by the threat of physical torture. Torture not infrequently had the opposite effect and induced a negative mental state in which the prisoner could no longer feel pain but could achieve an attitude of mental detachment from his circumstances and with it an immunity to inquisition. The most surprising feature was the genuine enthusiasm of those who did recant. While these results were necessarily ascribed at the time to the powers of persuasion of the Inquistadores, it is evident in retrospect that something was happening which was often beyond their control. The same facts come to light in the long history of Russian political interrogation. In the Leninist period, the success of the immensely tedious method of didactic interrogation then in use was similarly ascribed to the appeal of Marxist doctrine to reason. The fact is that in conditions of confinement, detailed history-taking without reference to incriminating topics and the forming of a personal relationship with an interrogator wo subscribes to a system of political or religious explanation, there may occur an endogenous and not always predictable process of conversion to the ideas and beliefs of the interrogator.'
36
Television teaches that confessions are the touchstone of law enforcement. Experience however teaches that confessions born of long detention under conditions of stress, confusion, and anxiety are extremely unreliable.
37
People arrested by the police may produce confessions that come gushing forth and carry all the earmarks of reliability. But detention incommunicado for days on end is so fraught with evil that we should hold it to be inconsistent with the requirements of that free society which is reflected in the Bill of Rights. It is the means whereby the commands of the Fifth Amendment (which I deem to be applicable to the States) are circumvented. It is true that the police have to interrogate to arrest; it is not true that they may arrest to interrogate.7 I would hold that any confession obtained by the police while the defendant is under detention is inadmissible, unless there is prompt arraignment and unless the accused is informed of his right to silence and accorded an opportunity to consult counsel. This judgment of conviction should therefore be reversed.
38
Mr. Justice CLARK, whom Mr. Justice WHITTAKER joins, dissenting.
39
Twenty-five years ago a jury found Reck guilty of the savage murder of Dr. Silber C. Peacock. His first attempt to upset that conviction came nine years later when he sought a writ of error to the Supreme Court of Illinois. It was denied by opinion. People v. Reck, 1946, 392 Ill. 311, 64 N.E.2d 526. This Court denied certiorari. Reck v. State of Illinois, 1947, 331 U.S. 855, 67 S.Ct. 1742, 91 L.Ed. 1862. In the same year the Illinois Supreme Court again denied Reck's application for discharge. The next year the United States District Court for the Northern District of Illinois did likewise. Then, in 1952, an application under the Illinois Post-Conviction Hearing Act, S.H.A. ch. 38, § 826 et seq. was filed to test the validity of Reck's 199-year sentence imposed 16 years previously. His application was denied after a full hearing by the trial court, and the Illinois Supreme Court affirmed by a unanimous opinion. Reck v. People, 1955, 7 Ill.2d 261, 130 N.E.2d 200. Petition for certiorari was again denied, without prejudice to the filing of appropriate proceedings in Federal District Court, 1956, 351 U.S. 942, 76 S.Ct. 838, 100 L.Ed. 1469. This case was then filed in the United States District Court where no witnesses were heard, the court being satisfied with reviewing the record. Once again relief was denied, D.C., 172 F.Supp. 734, and the Court of Appeals affirmed. 7 Cir., 274 F.2d 250.
40
Today—25 years after his conviction—this Court overturns the decision of the original trial judge, the judgment and findings of a state trial judge on post-conviction hearing, the unanimous opinion of the Supreme Court of Illinois on that appeal, decisions of both the Supreme Court of Illinois and a federal district judge on separate applications for habeas corpus and, finally, those of a federal district judge and Court of Appeals in this case. All of these courts are overruled on the ground that 'a totality of coercive circumstances' surrounded Reck's confession. The Court second-guesses the findings of the trial judge and those of the only other trial court that heard and saw any of the witnesses, both of which courts impartially declare the confession to be entirely voluntary.
41
The Court has quoted at length and with approval the summary of the evidence by the United States district judge. I quote in the margin the findings of the two state judges who saw the witnesses and heard the evidence, one a few weeks after the events,1 and the other sixteen years thereafter.2 A casual comparison of the three findings shows that the federal judge—to say the least—has imported conclusions and added embellishments not present in the cold record of the trial. I need only cite one example, where he finds that his 'cold summary * * * carries an unexpressed import of police brutality * * *.' While the Court of Appeals, at least sub silentio, overturned some of these findings, the State does not take issue with the basic facts in the summary but does strenuously object to its conclusory findings. Perhaps the explanation for these differences is best explained by the federal judge himself, when he finds that he has read '(t)he record * * * in the light most favorable' to Reck; and further that 'Reck's confession was tested before a judge and jury who had the opportunity to observe witnesses and weigh other fresh evidence at first hand while I must make my decision on the basis of a cold and ancient record, which can appear misleading.' (Emphasis added.)
42
Although the Court says that it proceeds 'upon the premise, as did the District Court, that the officers did not inflict deliberate physical abuse or injury upon Reck,' it nonetheless finds the confession to have been coerced. I assume, therefore, that the Court bases its reversal on psychological or mental coercion. In so doing it goes far beyond the holding of any of the prior cases of this Court.
43
I shall not repeat the facts except to note that Reck was arrested on Wednesday; he was not interrogated concerning Dr. Peacock's murder until Friday, when he immediately became ill, and was hospitalized; later that night all three of his confederates confessed; confronted with them on Saturday—each accusing him of participation in the murder—he confessed. There was no evidence of physical brutality, no request for counsel, nor, unlike Turner v. Commonwealth of Pennsylvania, 1949, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810, for relatives or friends. Nor did he ask for food or make any indication of any desire or need therefore, showing, in the light of the record, nothing more than the lack of interest in food of one who had suffered from stomach ulcers for years. How the Court can now—25 years later—find on this 'cold' record that these circumstances amounted to mental or psychological coercion is beyond my comprehension. I agree with the score of judges who have decided to the contrary.
44
Since mental coercion is the keystone of its rationale, the Court properly sets to one side the cases involving physical brutality, e.g., Brown v. State of Mississippi, 1936, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. While they dealt with factors bearing upon the mental state of the defendants, the Court properly distinguishes cases involving threats of mob violence, the wearing down of the accused b protracted questioning, threats against members of the defendant's family, and those in which deception was practiced.3 Nor can Reck be classified as a mental defective, as was the case in Blackburn v. State of Alabama, 1960, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242.
45
The Court relies heavily on Turner v. Commonwealth of Pennsylvania, supra. I do not agree that it presented this Court with 'a totality of coercive circumstances' significantly less 'aggravated' than the situation presented here. In Turner the Court reviewed the Pennsylvania Supreme Court's affirmance of petitioner's conviction by a jury. In the present case no claim is made that the codefendants' confessions, with which Reck was confronted, were in fact not made and did not in fact implicate Reck in the murder of which he was convicted. In Turner, however, the petitioner 'was falsely told that other suspects had 'opened up' on him.' 338 U.S. at page 64, 69 S.Ct. at page 1353. Such a falsification, in my judgment, presents a much stronger case for relief because at the outset Pennsylvania's officers resorted to trickery. Moreover, such a psychological artifice tends to prey upon the mind, leading its victim to either resort to countercharges or to assume that 'further resistance (is) useless,' and abandonment of claimed innocence the only course to follow.
46
Further, the issue of voluntariness of the confession in Turner was submitted to the jury, but the trial judge refused to charge 'that in considering the voluntariness of the confession the prolonged interrogation should be considered.' At page 65, of 338 U.S., at page 1353 of 69 S.Ct. And the appellate court considered it an indifferent circumstance that 'a convicted murderer' was held five days in jail. 358 Pa. 350, 356, 58 A.2d 61, 64. Finally, in Turner the 'Supreme Court of Pennsylvania affirmed the conviction in an opinion stressing the probable guilt of the petitioner and assuming that the alternatives before it were either to approve the conduct of the police or to turn the petitioner 'loose upon (society) after he has confessed his guilt." 338 U.S. at page 65, 69 S.Ct. at page 1353. This Court might well have disagreed in that case with findings so made, and, with less hesitation than is appropriate here, where the determinations of voluntariness have been so constant and so numerous, have reached an opposite conclusion. In this case we are not considering the validity of a conviction by certiorari to the court affirming that judgment. Voluntariness has not been here inadequately tested by a standard which refuses to take account of relevant factors. Cf. Rogers v. Richmond, 1961, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. To the contrary, a proper standard has been successively applied by at least two trial courts and several appellate courts, no one of which felt itself forced to choose between what it considered equally undesirable results, and with whose conclusions this Court may not so lightly disagree.
47
Similarly, in Fikes v. State of Alabama, 1957, 352 U.S. 191, 196—197, 77 S.Ct. 281, 284, 1 L.Ed.2d 246, also relied on by the Court, the confession was wrung from an 'uneducated Negro, certainly of law mentality, if not mentally ill.' Fikes 'was a weaker and more susceptible subject than the record in that case reveals Turner to have been.' Unlike Reck, Fikes was removed from the local jail to a state prison far from his home and the Court recognized that petitioner's location was a fact 'to be weighed.' So, too, in Fikes the petitioner's lawyer was barred from seeing him, unlike the situation here, where no request for counsel was made.
48
Of course, I agree with the Cor t that confession cases are not to be resolved by color-matching. Comparisons are perhaps upon occasion unavoidable, and may even be proper, as in a case 'on all fours' whose facts approach identity with those of the one claimed apposite. I do not find that to be the situation here, however. In my view, the Court today moves onto new ground, and does not merely retread the steps it took in Turner. In my judgment, neither the elusive, measureless standard of psychological coercion heretofore developed in this Court by accretion on almost an ad hoc, case-by-case basis, nor the disposition made in Turner requires us to disagree with more than a score of impartial judges who have previously considered these same facts. Perhaps, as these cases indicate, reasonable minds may differ in the gauging of the cumulative psychological factors upon which the Court bases its reversal, but in what case, I ask, has a court dealing with the same extrinsic facts, a quarter of a century after conviction, overturned so many decisions by so many judges, both state and federal, entirely upon psychological grounds? When have the conclusions of so many legal minds been found to be so unreasonable by so few?
49
Certainly, I walk across this shadowy field no more sure-footedly than do my Brothers, but after reading the whole record and the opinions of all of the courts that have heard the case I am unpersuaded that the combined psychological effect of the circumstances somehow, in some way made Reck speak. The fact is, as the Court of Appeals said, when confronted with and accused by all three of his confederates, Reck knew the 'dance was over and the time had come to pay the fiddler,' quoting from Mr. Justice Jackson's opinion for the Court in Stein v. People of State of New York, 1953, 346 U.S. 156, 186, 73 S.Ct. 1077, 1093, 97 L.Ed. 1522.
1
So far as the record shows, this was the first time after the trial that petitioner raised this issue.
2
The transcripts of the pre-trial sanity proceedings, of the proceedings at the hearing on the admissibility of the confessions conducted by the trial judge outside the presence of the jury, of the trial proceedings in the presence of the jury, and of the proceedings at the post-conviction hearing.
3
The brief factual summary in the opinion of the Supreme Court of Illinois affirming the denial of post-conviction relief is entirely consistent with these findings:
'Petitioner was in the custody of the police for a week, during which time he was frequently ill, fainted several times, vomited blood on the floor of the police station and was twice taken to the hospital on a stretcher. During that week no formal charge was placed against petitioner, and he was confined practically incommunicao .' 7 Ill.2d 261, 264, 130 N.E.2d 200, 202.
4
This was also the implicit finding of the trial judge.
1
At an interview taking place a few weeks after his arrest in 1936, Reck knew that the Mississippi was a big river, that New York was a big city, that Washington, D.C., was our capital, and that Hoover preceded Roosevelt. But he was unable to divide 25 by 5; he did not know how many weeks were in a year, how many feet in a yard, how many quarts in a gallon, when Columbus discovered America, who the opponents were in the Civil War, or the capitals of Illinois, England, France, or Germany.
2
Kennedy, The Scientific Lessons of Interrogation, Proc.Roy.Instn. 38, No. 170 (1960).
3
Id., pp. 96—97.
4
Id., p. 96.
5
'The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.' Anatole France as quoted in Cournos, A Modern Plutarch (1928), p. 27.
6
Id., p. 94.
7
In ordinary circumstances, the police, under law, are to conduct investigations of crime by interview, and not by interrogation. Typically, it is the Grand Jury or a Court, not the police, which has the power to compel testimony, subject to the limitations of relevance and privilege. See United States v. Bufalino, 2 Cir., 285 F.2d 408, 415, 416, 420. To allow the police to use their power to arrest as a substitute for the power of subpoena is, I think, to strip the Fifth Amendment of its meaning.
1
The original trial judge, after a hearing on the admissibility of the confession, stated:
'The Court has listened attentively to all of the testimony presented in support of the exhibits and against the introduction of the exhibits. The law in this state is that the burden is on the People to establish by a preponderance of the evidence that a confession or what is introduced as a confession was made voluntarily and freely. If there was any coercion or promise of immunity or reward for making the confession, or if the person making the confession was abused in any way either by striking or threatening or any form of mental or physical abuse, then the confessions would not be free and voluntary confessions.
'After considering all the testimony introduced on this preliminary hearing, the Court finds that the confessions are free and voluntary; and the Court is satisfied that that is established not only by a greater weight of the evidence, but by an overwhelming weight of the evidence. Therefore, the Court will admit these confessions. The Court has admitted the confessions. Now, as to the weight that shall be given to the confessions, that is for the jury.'
2
At the conclusion of the post-conviction hearing, the judge stated:
'Well, the defendant testified that he was arrested on March 25th and that he was taken to a hospital on March 27th. Now, without considering the testimony of the police officers at all, Mr. Kearney testified that he was an Assistant State's Attorney at that time and is now practicing law; that on Friday, at about 10 P.M., he went to the North Avenue Station, after having received a phone call from Chief Aitken; that he told everyone there that he was from the State's Attorney's Office; that he called Dr. Scatliff and Dr. Day and had them go to the County Hospital to examine the petitioner because the petitioner had complained that he was ill; that at the time he took the statement of the petitioner, a member of the Grand Jury was present and several doctors were present during the taking of the statement of the petitioner. He said that he and Assistant State's Attorney Crowley, now Judge Crowley, questioned Reck and Reck gave the answers. He says that he saw no marks or bruises
on Reck. Reck at no time complained of any brutality. No one struck or threatened Reck in the presence of Mr. Kearney. He says that he first saw Reck and then the police brought him to the State's Attorney's Office from the County Hospital. Reck told Mr. Kearney that he had been to the County Hospital, but he didn't tell him why. Then Kearney called Dr. Scatliff and Dr. Day at twelve midnight and asked them to go to the County Hospital to see what, if anything, was wrong with Reck. Dr. Scatliff testified that he saw Reck at the County Hospital in the middle of the night on Friday to Saturday and that Dr. Day was with him. That first, he made a visual examination; that when he arrived in the room Reck was asleep, but he was aroused, and Reck was asked if he was ill and Reck merely grunted. The doctor asked Reck if he was in pain and Reck said 'No.' He asked Reck what the trouble was and Reck pointed to his stomach. The doctor then testified that we looked him over, he and Dr. Day; that he, Dr. Scatliff, found no bruises or discolorations. Dr. Scatliff said that he pressed on the stomach of this petitioner and the petitioner said nothing. Again, on Sunday, he saw the petitioner and the petitioner had no marks or bruises; that he was asked if he had been mistreated and the petitioner said he had not. The petitioner was asked if he had eaten and the petitioner said he had eaten. On cross-examination he testified that he did not examine the petitioner's stool or urine; that he pressed on his abdomen and there was no evidence of pain; that he had been told that petitioner bled from the mouth, while at the police station, and he testified that bleeding from the mouth could be caused by dental disorders, tumors, by injuries to the stomach, that he had been told that defendant had a gastric ulcer and that, in his opinion, a gastric ulcer could cause bleeding. He also testified on recross examination that a blow on the stomach would aggravate and cause a dormant ulcer to become active and cause bleeding. Captain Aitken testified that while he was talking to the defendant, to the petitioner, the petitioner commenced to bleed from the mouth; that he asked the petitioner what the trouble was, and the petitioner said he had ulcers; that then the doctor recommended that the petitioner be taken to the hospital. Mr. Blair Varnes also testified, an attorney, that he was present at
the taking of one of the statements, and he said he saw no bruises on the petitioner and the petitioner made no complaint to him. I do not believe there is sufficient evidence before this Court to disturb the finding of the jury.'
3
E.g., Payne v. State of Arkansas, 1958, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Ashcraft v. State of Tennessee, 1944, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Harris v. State of South Carolina, 1949, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815; Spano v. People of State of New York, 1959, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265.
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367 U.S. 364
81 S.Ct. 1523
6 L.Ed.2d 901
Dante Edward GORI, Petitioner,v.UNITED STATES.
No. 486.
Argued May 3, 1961.
Decided June 12, 1961.
Rehearing Denied Oct. 9, 1961.
See 82 S.Ct. 25.
Mr. Harry I. Rand, Washington, D.C., for petitioner.
Miss Beatrice Rosenberg, Washington, D.C., for respondent.
Opinion of the Court, by Mr. Justice FRANKFURTER, announced by Mr. Justice CLARK.
1
In view of this Court's prior decisions, our limited grant of certiorari in this case1 brings a narrow question here. We are to determine whether, in the particular circumstances of this record, petitioner's conviction at his second trial2 for violation of 18 U.S.C. § 659, 18 U.S.C.A. § 659,3 after his first trial had been terminated by the trial judge's declaration of a mistrial sua sponte and without petitioner's 'active and express consent,'4 violates the Fifth Amendment's prohibition of double jeopardy. The Court of Appeals for the Second Circuit in banc affirmed petitioner's conviction (one judge dissenting), holding his constitutional objection without merit. 282 F.2d 43. We agree that the Fifth Amendment does not require a contrary result.5
2
Petitioner was brought to trial before a jury in the District Court for the Eastern District of New York on February 4, 1959, on an information charging that he had knowingly received and possessed goods stolen in interstate commerce. That same afternoon, during the direct examination of the fourth witness for the Government, the presiding judge, on his own motion and with neither approval nor objection by petitioner's counsel,6 withdrew a juror and declared a mistrial. It is unclear what reasons caused the court to take this action, which the Court of Appeals characterized as 'overassiduous' and criticized as premature.7 Apparently the trial judge inferred that the prosecuting attorney's line of questioning presaged inquiry calculated to inform the jury of other crimes by the accused, and took action to forestall it. In any event, it is obvious, as the Court of Appeals concluded, that the judge 'was acting according to his convictions in protecting the rights of the accused.' 282 F.2d at page 46. The court below did not hold the mistrial ruling erroneous or an abuse of discretion. It did find the prosecutor's conduct unexceptionable and the reason for the mistrial, therefore, not 'entirely clear.' It did say that 'the judge should have awaited a definite question which would have permitted a clear-cut ruling,' and that, in failing to do so, he displayed an 'overzealousness' and acted 'too hastily.' Id., at pages 46, 48. But after discussing the wide range of discretion which the 'fundamental concepts of the federal administration of criminal justice' allow to the trial judge in determining whether or not a mistrial is appropriate—a responsibility which 'is particularly acute in the avoidance of prejudice arising from nuances in the heated atmosphere of trial, which cannot be fully depicted in the cold record on appeal,' id., at page 47—and the corresponding affirmative responsibility for the conduct of a criminal trial which the federal precedents impose, it concluded:
3
'On this basis we do not believe decision should be difficult, for the responsibility and discretion exercised by the judges below seem to us sound. * * * ' Id., at page 48.
4
Certainly, on the skimpy record before us8 it would exceed the appropriate scope of review were we ourselves to attempt to pass an independent judgment upon the propriety of the mistrial, even should we be prone to do so—as we are not, with due regard for the guiding familiarity with district judges and with district court conditions possessed by the Courts of Appeals.
5
On March 9, 1959, petitioner moved to dismiss the information on the ground that to try him again would constitute double jeopardy. The motion was denied and he was retried in April. He now attacks the conviction in which the second trial resulted.
6
In this state of the record, we are not required to pass upon the broad contentions pressed, respectively, by counsel for petitioner and for the Government. The case is one in which, viewing it most favorably to petitioner, the mistrial order upon which his claim of jeopardy is based was found neither apparently justified nor clearly erroneous by the Court of Appeals in its review of a cold record. What that court did find and what is unquestionable is that the order was the product of the trial judge's extreme solicitude—an overeager solicitude, it may be—in favor of the accused.
7
Since 1824 it has been settled law in this Court that 'The double-jeopardy provision of the Fifth Amendment* * * does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.' Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 837, 93 L.Ed. 974. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Keerl v. State of Montana, 213 U.S. 135, 137—138, 29 S.Ct. 469, 470, 53 L.Ed. 734; see Ex parte Lange, 18 Wall. 163, 173—174, 21 L.Ed. 872; Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199. Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Dreyer v. People of State of Illinois, 187 U.S. 71, 85—86, 23 S.Ct. 28, 32—33, 47 L.Ed. 79. It is also clear that 'This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served * * *,' Brock v. State of North Carolina, 344 U.S. 424, 427, 73 S.Ct. 349, 350, 97 L.Ed. 456,9 and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion. See Lovato v. State of New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244; cf. Wade v. Hunter, supra. In the Perez case, the authoritative starting point of our law in this field, Mr. Justice Story, for a unanimous Court, thus stated the principles which have since guided the federal courts in their application of the concept of double jeopardy to situations giving rise to mistrials:
8
'* * * We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office. * * *' 9 Wheat., at page 580.
9
The present case falls within these broad considerations. Judicial wisdom counsels against anticipating hypothetical situations in which the discretion of the trial judge may be abused and so call for the safeguard of the Fifth Amendment—cases in which the defendant would be harassed by successive, oppressive prosecutions, or in which a judge exercises his authority to help the prosecution, at a trial in which its case is going badly, by affording it another, more favorable opportunity to convict the accused. Suffice that we are unwilling, where it clearly appears that a mistrial has been granted in the sole interest of the defendant, to hold that its necessary consequence is to bar all retrial. It would hark back to the formalistic artificialities of seventeenth century criminal procedure so to confine our federal trial courts by compelling them to navigate a narrow compass between Scylla and Charybdis. We would not thus make them unduly hesitant conscientiously to exercise their most sensitive judgment according to their own lights in the immediate exigencies of trial for the more effective protection of the criminal accused.
10
Affirmed.
11
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.
12
The place one comes out, when faced with the problem of this case, depends largely on where one atarts.
13
Today the Court phrases the problem in terms of whether a mistrial has been granted 'to help the prosecution' on the one hand or 'in the sole interest of the defendant' on the other. The former is plainly in violation of the provision of the Fifth Amendment that no person shall '* * * be subject for the same offence to be twice put in jeopardy of life or limb * * *.' That was what we said in Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199. But not until today, I believe, have we ever intimated that a mistrial ordered 'in the sole interest of the defendant' was no bar to a second trial where the mistrial was not ordered at the request of the defendant or with his consent. Yet that is the situation presented here, for the Court of Appeals found that the trial judge 'was acting according to his convictions in protecting the rights of the accused.' (282 F.2d 46)1
14
There are occasions where a second trial may be had, although the jury which was impanelled for the first trial was discharged without reaching a verdict and without the defendant's consent. Mistrial because the jury was unable to agree is the classic example; and that was the critical circumstance in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617. 36 L.Ed. 429; Dreyer v. People of State of Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79; Moss v. Glenn, 189 U.S. 506, 23 S.Ct. 851, 47 L.Ed. 921; Keerl v. State of Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734. Tactical situations of an army in the field have been held to justify the withdrawal of a court-martial proceeding and the institution of another one in calmer days. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 837, 93 L.Ed. 974. Discovery by the judge during the trial that 'one or more members of a jury might be biased against the Government or the defendant' has been held to warrant discharge of the jury and direction of a new trial. Id., 336 U.S. 689, 69 S.Ct. 837. And see Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Thompson v. United t ates, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146. That is to say, 'a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments.'2 Wade v. Hunter, supra, 336 U.S. 689, 69 S.Ct. 837. While the matter is said to be in the sound discretion of the trial court, that discretion has some guidelines—' a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice.' Id., 336 U.S. 690, 69 S.Ct. 838.
15
To date these exceptions have been narrowly confined. Once a jury has been impanelled and sworn, jeopardy attaches and a subsequent prosecution is barred, if a mistrial is ordered—absent a showing of imperious necessity.3 As stated by Mr. Justice Story in United States v. Coolidge, 25 Fed.Cas. page 622, No.14,858, the discretion is to be exercised 'only in very extraordinary and striking circumstances.'
16
That is my starting point. I read the Double Jeopardy Clause as applying a strict standard. 'The prohibition is not against being twice punished, but against being twice put in jeopardy.' United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300. It is designed to help equalize the position of government and the individual, to discourage abusive use of the awesome power of society. Once a trial starts jeopardy attaches. The prosecution must stand or fall on its performance at the trial. I do not see how a mistrial directed because the prosecutor has no witnesses is different from a mistrial directed because the prosecutor abuses his office and is guilty of misconduct. In neither is there a breakdown in judicial machinery such as happens when the judge is stricken, or a juror has been discovered to be disqualified to sit, or when it is impossible or impractical to hold a trial at the time and place set. The question is not, as the Court of Ap eals thought, whether a defendant is 'to receive absolution for his crime.' 282 F.2d 43, 48. The policy of the Bill of Rights is to make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice. The risk of judicial arbitrariness rests where, in my view, the Constitution puts it—on the Government.
1
364 U.S. 917, 81 S.Ct. 282, 5 L.Ed.2d 258.
2
Prior to the proceedings in the two trials which are relevant for present purposes, denominated the 'first' and 'second' trials herein, there had been a mistrial granted upon motion of petitioner.
3
The statute makes unlawful, inter alia, the receipt or possession of any goods stolen from a vehicle and moving as, or constituting, an interstate shipment of freight, knowing the goods to be stolen.
4
282 F.2d 43, 46.
5
We cannot, of course, determine what result would obtain had the Court of Appeals, in light of its close acquaintance with the local situation, decided that petitioner's mistrial operated to bar his furtherp rosecution, and were such a decision before us.
6
In light of our disposition, we need not reach the Government's suggestion that petitioner's failure to object to the mistrial adversely affects his claim. We note petitioner's argument that, because of the precipitous course of events, there was no opportunity for such objection.
7
'The colloquy (immediately preceding the mistrial) * * * demonstrates that the prosecutor did nothing to instigate the declaration of a mistrial and that he was only performing his assigned duty under trying conditions. This is borne out by the entire transcript, including also that covering the morning session. Nor does it make entirely clear the reasons which led the judge to act, though the parties appear agreed that he intended to prevent the prosecutor from bringing out evidence of other crimes by the accused. Even so, the judge should have awaited a definite question which would have permitted a clear-cut ruling. * * *' 282 F.2d at page 46.
8
The record here contains, with respect to the February 4 trial, two paragraphs from the Government's opening, four paragraphs from the petitioner's opening, a six-line colloquy between the court and prosecuting counsel, a portion of the examination of the third of the Government's first three witnesses, and the entire transcript of the testimony of the fourth witness. The last two items are set out in the affidavit of the Assistant United State Attorney in opposition to petitioner's motion to dismiss the information following the mistrial.
9
Brock v. State of North Carolina was a state prosecution and therefore arose, of course, under the Due Process Clause of the Fourteenth Amendment. The passage quoted from Brock, however, related to the application in federal prosecutions of the double jeopardy provision of the Fifth.
1
In this case the trial judge said:
'I declare a mistrial and I don't care whether the action is dismissed or not. I declare a mistrial because of the conduct of the district attorney.'
2
In Lovato v. State of New Mexico, 242 U.S. 199, 201, 37 S.Ct. 107, 108, 61 L.Ed. 244, the jury was dismissed so that the defendant could be arraigned and could plead; and it was then impanelled again. The case stands for no more than the settled proposition that 'a mere irregularity of procedure' does not always amount to double jeopardy.
3
See United States v. Watson, 28 Fed.Cas. p. 499, No. 16,651; United States v. Whitlow, D.C., 110 F.Supp. 871; Ex parte Ulrich, D.C., 42 F. 587.
In state cases, a second prosecution has been barred where the jury was discharged through the trial judge's misconstruction of the law. Jackson v. Superior Court, 10 Cal.2d 350, 74 P.2d 243, 113 A.L.R. 1422; State v. Spayde, 110 Iowa 726, 80 N.W. 1058; State v. Callendine, 8 Iowa 288; Lillard v. Commonwealth, Ky., 267 S.W.2d 712; Mullins v. Commonwealth, 258 Ky. 529, 80 S.W.2d 606; Robinson v. Commonwealth, 88 Ky. 386, 11 S.W. 210; Williams v. Commonwealth, 78 Ky. 93; Yarbrough v. State, 90 Okl.Cr. 74, 210 P.2d 375; Loyd v. State, 6 Okl.Cr. 76, 116 P. 959.
Where the trial judge has made a mistake in concluding that the jury was illegally impanelled, or biased, a second prosecution has been barred. Whitmore State, 43 Ark. 271; Gillespie v. State, 168 Ind. 298, 80 N.E. 829; O'Brian v. Commonwealth, 72 Ky. 333; People v. Parker, 145 Mich. 488, 108 N.W. 999; State v. Nelson, 19 R.I. 467, 34 A. 990, 33 L.R.A. 559; State v. M'Kee, 17 S.C.L. (1 Bailey) 651, 21 Am.Dec. 499; Tomasson v. State, 112 Tenn. 596, 79 S.W. 802. See also Hilands v. Commonwealth, 111 Pa. 1, 2 A. 70, 56 Am.Rep. 235, as limited by Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498. Cf. Maden v. Emmons, 83 Ind. 331.
The accused has also been discharged where the trial judge erred in his estimate of the prejudicial quality of the remarks made by counsel for the accused, Armentrout v. State, 214 Ind. 273, 15 N.E.2d 363, or of the jurors' drinking beer which had been brought in by the bailiff. State v. Leunig, 42 Ind. 541.
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367 U.S. 568
81 S.Ct. 1860
6 L.Ed.2d 1037
Arthur CULOMBE, Petitioner,v.CONNECTICUT.
No. 161.
Argued Jan. 19, 1961.
Decided June 19, 1961.
Mr. Alexander A. Goldfarb, Hartford, Conn., for petitioner.
Mr. John D. LaBelle, Manchester, Conn., for respondent.
Mr. Justice FRANKFURTER announced the judgment of the Court, and an opinion in which Mr. Justice STEWART joins.
1
Once again the Court is confronted with the painful duty of sitting in judgment on a State's conviction for murder, after a jury's verdict was found flawless by the State's highest court, in order to determine whether the defendant's confessions, decisive for the conviction, were admitted into evidence in accordance with the standards for admissibility demanded by the Due Process Clause of the Fourteenth Amendment. This recurring problem touching the administration of criminal justice by the States presents in an aggravated form in this case the anxious task of reconciling the responsibility of the police for ferreting out crime with the right of the criminal defendant, however guilty, to be tried according to constitutional requirements.
2
On December 15, 1956, the dead bodies of two men were found in Kurp's Gasoline Station in New Britain, Connecticut. Edward J. Kurpiewski, the proprietor, was found in the boiler room with a bullet in his head. Daniel J. Janowski, a customer, was found in the men's toilet room shot twice in the head. Parked at the pumps in front of the station was Janowski's car. In it was Janowski's daughter, physically unharmed. She was the only surviving eyewitness of what had happened at the station. She was eighteen months old.
3
The Krup's affair was one in a series of holdups and holdup killings that terrified the operators of gasoline stations, package stores and small shops throughout the environing Connecticut area. Newspapers and radio and television broadcasters reported each fresh depredation of the 'mad killers.' At Hartford, the State Police were at work investigating the crimes, apparently with little evidence to go on. At the scene of the killings of Kurpiewski and Janowski no physical clues were discovered.1 The bullet slugs removed from the brains of the two victims were split and damaged.
4
In the last week of February 1957, for reasons which do not appear in this record, suspicion in connection with at least two of the holdups under investigation, holdups of a country store in Coventry and of a package store in Rocky Hill, focused on two friends, Arthur Culombe and Joseph Taborsky. On the afternoon of February 23, the two were accosted by teams of officers and asked to come to State Police Headquarters. They were never again out of police custody. In the Headquarters' interrogation room and elsewhere, they were questioned about the Coventry and Rocky Hill holdups, Kurp's, and other matters. Within ten days Culombe had five times confessed orally to participation in the Kurp's Gasoline Station affair—once re-enacting the holdup for the police and had signed three typed statements incriminating himself and Taborsky in the Kurp's killings. Taborsky also confessed.
5
The two were indicted and tried jointly for murder in the first degree before a jury in the Superior Court at Hartford. Certain of their oral and written statements were permitted to go to the jury over their timely objections that these had been extracted from them by police methods which made the confessions inadmissible consistently with the Fourteenth Amendment. Both men were convicted of first-degree murder and their convictions affirmed by the Supreme Court of Errors. 147 Conn. 194, 158 A.2d 239. Only Culombe sought review by this Court. Because his petition for certiorari presented serious questions concerning the limitations imposed by the Federal Due Process Clause upon the investigative activities of state criminal law enforcement officials, we issued the writ. 363 U.S. 826, 80 S.Ct. 1604, 4 L.Ed.2d 1522.
I.
6
The occasion which in December 1956 confronted the Connecticut State Police with two corpses and an infant as their sole informants to a crime of community-disturbing violence is not a rare one. Despite modern advances in the technology of crime detection, offenses frequently occur about which things cannot be made to speak. And where there cannot be found innocent human witnesses to such offenses, nothing remains if police investigation is not to be balked before it has fairly begun—but to seek out possibly guilty witnesses and ask them questions, witnesses, that is, who are suspected of knowing something about the offense precisely because they are suspected of implication in it.
7
The questions which these suspected witnesses are asked may serve to clear them. They may serve, directly or indirectly, to lead the police to other suspects than the persons questioned. Or they may become the means by which the persons questioned are themselves made to furnish proofs which will eventually send them to prison or death. In any event, whatever its outcome, such questioning is often indispensable to crime detection. Its compelling necessity has been judicially recognized as its sufficient justification, even in a society which, like ours, stands strongly and constitutionally committed to the principle that persons accused of crime cannot be made to convict themselves out of their own mouths.
8
But persons who are suspected of crime will not always be unreluctant to answer questions put by the police. Since under the procedures of Anglo-American criminal justice they cannot be constrained by legal process to give answers which incriminate them, the police have resorted to other means to unbend their reluctance, lest criminal investigation founder.2 Kindness, cajolery, entreaty deception, persistent cross-questioning, even physical brutality have been used to this end.3 In the United States, 'interrogation' has become a police technique,4 and detention for purposes of interrogation a common, although generally unlawful, practice.5 Crime detection officials, finding that if their suspects are kept under tight police control during questioning they are less i kely to be distracted, less likely to be recalcitrant and, of course, less likely to make off and escape entirely, not infrequently take such suspects into custody for 'investigation.'
9
This practice has its manifest evils and dangers. Persons subjected to it are torn from the reliances of their daily existence and held at h e mercy of those whose job it is—if such persons have committed crimes, as it is supposed they have—to prosecute them. They are deprived of freedom without a proper judicial tribunal having found them guilty, without a proper judicial tribunal having found even that there is probable cause to believe that they may be guilty.6 What actually happens to them behind the closed door of the interrogation room is difficult if not impossible to ascertain. Certainly, if through excess of zeal or aggressive impatience or flaring up of temper in the face of obstinate silence a prisoner is abused,7 he is faced with the task of overcoming, by his lone testimony, solemn official denials.8 The prisoner knows this—knows that no friendly or disinterested witness is present—and the knowledge may itself induce fear.9 But, in any case, the risk is great that the police will accomplish behind their closed door precisely what the demands of our legal order forbid: make a suspect the unwilling collaborator in establishing his guilt. This they may accomplish not only with ropes and a rubber hose, not only by relay questioning persistently, insistently subjugating a tired mind, but by subtler devices.
10
In the police station a prisoner is surrounded by known hostile forces. He is disoriented from the world he knows and in which he finds support.10 He is subject to coercing impingements, undermining even if not obvious pressures of every variety. In such an atmosphere, questioning that is long continued—even if it is only repeated at intervals, never protracted to the point of physical exhaustion—inevitably suggests that the questioner has a right to, and expects, an answer.11 This is so, certainly, when the prisoner has never been told that he need not answer and when, because his commitment to custody seems to be at the will of his questioners, he has every reason to believe that he will be held and interrogated until he speaks.12
11
However, a confession made by a person in custody is not always the result of an overborne will. The police may be midwife to a declaration naturally born of remorse, or relief, or desperation, or calculation. If that is so, if the 'suction process'13 has not been at the prisoner and drained his capacity for freedom of choice, does not the awful responsibility of the police for maintaining the peaceful order of society justify the means which they have employed? It will not do to forget, as Sir Patrick (now Lord Justice) Devlin has put it, that 'The least criticism of police methods of interrogation deserves to be most carefully weighed because the evidence which such interrogation produces is often decisive; the high degree of proof which the English law requires—proof beyond reasonable doubt—often could not be achieved by the prosecution without the assistance of the accused's own statement.'14 Yet even if one cannot adopt 'an undiscriminating hostility to mere interrogation * * * without unduly fettering the States in protecting society from the criminal,'15 there remain the questions: When, applied to what practices, is a judgment of impermissibility drawn from the fundamental conceptions of Anglo-American accusatorial process 'undiscriminating'? What are the characteristics of the 'mere interrogation' which is allowable consistently with those conceptions?
II.
12
The problem which must be faced in fair recognition of the States' basic security and of the States' observance of their own standards, apart from the sanctions of the Fourteenth Amendment, in bringing the guilty to justice is that which Mr. Justice Jackson described in dealing with three cases before us:
13
'In each case police were confronted with one or more brutal murders which the authorities were under the highest duty to solve. Each of these murders was unwitnessed, and the only positive knowledge on which a solution could be based was possessed by the killer. In each there was reasonable ground to suspect an individual but not enough legal evidence to charge him with guilt. In each the police attempted to meet the situation by taking the suspect into custody and interrogating him. * * *
14
'* * * (N)o one suggests that any course held promise of solution of these murders other than to take the suspect into custody for questioning. The alternative was to close the books on the crime and forget it, with the suspect at large. This is a grave choice for a society in which two-thirds of the murders already are closed out as insoluble.
15
'* * * The suspect neither had nor was advised of his right to get counsel. This presents a real dilemma in a free society. To subject one without counsel to questioning which may and is intended to convict him, is a real peril to individual freedom. To bring in a lawyer means a real peril to solution of the crime, because, under our adversary system, he deems that his sole duty is to protect his client—guilty or innocent—and that in such a capacity he owes no duty whatever to help society solve its crime problem. Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.' Watts v. State of Indiana, 338 U.S. 49, 57, 58—59, 69 S.Ct. 1347, 1357, 93 L.Ed. 1801.
16
The nature and components of this problem, concerning as it does liberty and security, had better be overtly and critically examined than smothered by unanalyzed assumptions. That judges who agree on relatively legal considerations may disagree in their application to the same set of circumstances does not weaken the validity of those considerations nor minimize their importance. Differences in the appraisal of the same facts is a common-place of adjudication.
17
The critical elements of the problem may be quickly isolated in light of what has already been said. Its first pole is the recognition that 'Questioning suspects is indispensable in law enforcement.'16 As the Supreme Court of New Jersey put it recently: 'the public interest requires that interrogation, and that at a police station, not completely be forbidden, so long as it is conducted fairly, reasonably, within proper limits and with full regard to the rights of those being questioned.'17 But if it is once admitted that questioning of suspects is permissible, whatever reasonable means are needed to make the questioning effective must also be conceded to the police. Often prolongation of the interrogation period will be essential, so that a suspect's story can be checked and, if it proves untrue, he can be confronted with the lie; if true, released without charge.18 Often the place of questioning will have to be a police interrogation room, both because it is important to assure the proper atmosphere of privacy and non-distraction if questioning is to be made productive,19 and because, where a suspect is questioned but not taken into custody, he—and in some cases his associates—may take prompt warning and flee the premises. Legal counsel for the suspect will generally prove a thorough obstruction to the investigation.20 Indeed, even to inform the suspect of his legal right to keep silent will prove an obstruction. Whatever fortifies the suspect ors econds him in his capacity to keep his mouth closed is a potential obstacle to the solution of crime.
18
At the other pole is a cluster of convictions each expressive, in a different manifestation, of the basic notion that the terrible engine of the criminal law is not to be used to overreach individuals who stand helpless against it.21 Among these are the notions that men are not to be imprisoned at the unfettered will of their prosecutors, nor subjected to physical brutality by officials charged with the investigation of crime. Cardinal among them, also, is the conviction, basic to our legal order, that men are not to be exploited for the information necessary to condemn them before the law, that, in Hawkins' words, a prisoner is not 'to be made the deluded instrument of his own conviction.' 2 Hawkins, Pleas of the Crown (8th ed. 1824), 595. This principle, branded into the consciousness of our civilization by the memory of the secret inquisitions, sometimes practiced with torture, which were borrowed briefly from the continent during the era of the Star Chamber,22 was well known to those who established the American governments.23 Its essence is the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips. See Blackburn v. State of Alabama, 361 U.S. 199, 206—207, 80 S.Ct. 274, 279—280, 4 L.Ed.2d 242; Chambers v. State of Florida, 309 U.S. 227, 235—238, 60 S.Ct. 472, 476—477, 84 L.Ed. 716. Quite early the English courts acknowledged the barrier that, in this regard, set off the accusatorial system from the inquisitorial.24 And soon they came to enforce it by the rigorous demand that an extra-judicial confession, if it was to be offered in evidence against a man, must be the product of his own free choice.25 So fundamental, historically, is this concept, that the Fourteenth Amendment, as enforced by our decisions, applied it as a limitation upon the criminal procedure of the States. Consistently with that Amendment neither the body nor mind of an accused may be twisted until he breaks. Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948.
19
Recognizing the need to protect criminal suspects from all of the dangers which are to be feared when the process of police interrogation is entirely unleashed, legislatures have enacted several kinds of laws designed to curb the worst excesses of the investigative activity of the police. The most widespread of these are the ubiquitous statutes requiring the prompt taking of persons arrested before a judicial officer;26 these are responsive both to the fear of administrative detention without probable cause and to the known risk of opportunity for third-degree practices which is allowed by delayed judicial examination.27 Other statutes outlaw the sweating, beating or imprisonment of suspects for the purpose of extorting confessions,28 or assure imprisoned suspects the right to communicate with friends or legal counsel.29 But because it is the courts which are charged, in the ultimate, both with the enforcement of the criminal law and with safeguarding the criminal defendant's rights to procedures consistent with fundamental fairness, the problem of reconciling society's need for police interrogation with society's need for protection from the possible abuses of police interrogation decisively devolves upon the courts, particularly in connection with the rules of evidence which regulate the admissibility of extrajudicial confessions. Under our federal system this task, with respect to local crimes, is, of course, primarily the responsibility of the state courts. The Fourteenth Amendment, however, limits their freedom in this regard. It subjects their broad powers to a limited, but searching, federal review and places upon this Court the obligation—with all the deference and caution which exercise of such a competence demands—to adjudicate what due process of law requires by way of restricting the state courts in their use of the products of police interrogation.
20
That judgment is what is at issue in this case.
III.
21
The dilemma posed by police interrogation of suspects in custody and the judicial use of interrogated confessions to convict their makers cannot be resolved simply by wholly subordinating one set of opposing considerations to the other. The argument that without such interrogation it is often impossible to close the hiatus between suspicion and proof, especially in cases involving professional criminals, is often pressed in quarters responsible and not unfeeling. It is the same argument that was once invoked to support the lash and the rack.30 Where it has been put to this Court in its extreme form, as justifying the all-night grilling of prisoners under circumstances of sustained, week-long terror, we have rejected it. Chambers v. State of Florida, 309 U.S. 227, 240—241, 60 S.Ct. 472, 478—479, 84 L.Ed. 716. 'The Constitution proscribes such lawless means irrespective of the end.'
22
But asking questions is not the lash or the rack, and to say that the argument ex necessitate is not the short answer to every situation in which it is invoked is not to dismiss it altogether. Due process does not demand of the States, in their administration of the criminal law, standards of favor to the accused which our civilization, in its most sensitive expression, has never found it practical to adopt. The principle of the Indian Evidence Act which excludes all confessions made to the police or by persons while they are detained by the police31 has never been accepted in England32 or in this country.33 Nor has the principle of the Scottish cases barring the use in evidence of a defendant's incriminating responses to police questioning at any time after suspicion has focused on him.34 Rather, this Court (in cases coming here from the lower federal courts),35 the courts of England36 and of Canada,37 and the courts of all the States38 have agreed in holding permissible the receipt of confessions secured by the questioning of suspects in custody by crime-detection officials. And, in a long series of cases, this Court has held that the Fourteenth Amendment does not prohibit a State from such detention and examination of a suspect as, under all the circumstances, is found not to be coercive. See Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481; Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Stein v. People of State of New York, 346 U.S. 156, 184, 73 S.Ct. 1077, 1092, 97 L.Ed. 1522; Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523. And see Townsend v. Burke, 334 U.S. 736, 738, 68 S.Ct. 1252, 1254, 92 L.Ed. 1690.
23
It is true that the English courts have long tended severely to discourage law enforcement officers from asking questions of persons under arrest or who are so far suspected that their arrest is imminent. The judges have many times deprecated the practice even while receiving in evidence the confessions it has produced.39 The manual known as the Judges' Rules, first issued in 1912, augmented in 1918, and clarified by a Home Office Circular published in 1930, embodies the attitude of the English Bench in this regard.40 While encouraging police officers to put questions to all possibly informed persons, whether or not suspected, during the early phase of their investigation which aims at discovering who committed the offense, the Rules admonish that so soon as the officers make up their minds to charge a particular person with a crime, they should caution him, first, that he need say nothing and, second, that what he says may be used in evidence, before questioning him or questioning him further. Persons in custody are not to be questioned, except that when a prisoner, having been cautioned, volunteers a statement, such questions may be asked as are fairly needed to remove ambiguities, so long as the questioner does not seek to elicit information beyond the scope of what the prisoner has offered. If two or more persons are charged with an offense and the police have taken the statement of one of them, copies may be furnished to the others but nothing should be said or done to invite a reply.41 The Judges' Rules are not 'law' in the sense that any violation of them by a questioning officer eo ipso renders inadmissible in evidence whatever incriminatory responses he may obtain.42 But it is clear that the judges presiding at criminal trials have broad discretion to exclude any confession procured by methods which offend against the letter or the spirit of the Rules,43 and violations have in a few instances seemed to influence, although not to control, the judgment of the Court of Criminal Appeal in quashing convictions.44 For these reasons, and because of the respect which attaches to the Rules in view of their source, they have doubtless had a pervasive effect upon actual police practices, and they appear to be regarded by the constabulary as am ore or less infrangible code.45 Inasmuch as the same conception is shared by counsel for the Crown, the contemporary English reports do not disclose cases involving the sort of claims of coercion so frequently litigated in our courts. It may well be that their circurstances seldom arise;46 when they do, the Crown does not offer the confession; if it were offered—in a case, for example, where several hours of questioning could be shown—the trial judge would almost certainly exclude it.47
24
This principle by which the English trial judges have supplemented the traditional Anglo-American rule that confessions are admissible if voluntary, by the exercise of a discretion to exclude incriminating statements procured by methods deemed oppressive although not deemed fundamentally inconsistent with accusatorial criminal procedure,48 has not been imitated in the United States.49 In 1943 this Court, in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, drew upon its supervisory authority over the administration of federal criminal justice to inaugurate an exclusionary practice considerably less stringent than the English. That practice requires the exclusion of any confession 'made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the 'confession is the result of torture, physical or psychological * * *." Upshaw v. United States, 335 U.S. 410, 413, 69 S.Ct. 170, 172, 93 L.Ed. 100.50 Its purpose is to give effect to the requirement that persons arrested be brought without unnecessary delay before a judicial officer—a safeguard which our society, like other civilized societies, has found essential to the protection of personal liberty.51
25
The McNabb case was an innovation which derived from our concern and responsibility for fair modes of criminal proceeding in the federal courts.52 The States, in the large, have not adopted a similar exclusionary principle.53 And although we adhere unreservedly to McNabb for federal criminal cases, we have not extended its rule to state prosecutions as a requirement of the Fourteenth Amendment. Gallegos v. State of Nebraska, 342 U.S. 55, 63—64, 72 S.Ct. 141, 146—147, 96 L.Ed. 86 (opinion of Reed, J.); Brown v. Allen, 344 U.S. 443, 476, 73 S.Ct. 397, 417, 97 L.Ed. 469; Stein v. People of State of New York, 346 U.S. 156, 187—188, 73 S.Ct. 1077, 1094, 97 L.Ed. 1522; cf. Lyons v. State of Oklahoma, 322 U.S. 596, 597—598, note 2, 64 S.Ct. 1208, 1210, 88 L.Ed. 1481; Townsend v. Burke, 334 U.S. 736, 738, 68 S.Ct. 1252, 1254, 92 L.Ed. 1690; Stroble v. State of California, 343 U.S. 181, 197, 72 S.Ct. 599, 607, 96 L.Ed. 872.
26
In light of our past opinions and in light of the wide divergence of views which men may reasonably maintain concerning the propriety of various police investigative procedures not involving the employment of obvious brutality, this much seems certain: It is impossible for this Court, in enforcing the Fourteenth Amendment, to attempt precisely to delimit, or to surround with specific, all-inclusive restrictions, the power of interrogation allowed to state law enforcement officers in obtaining confessions. No single litmus-paper test for constitutionally impermissible interrogation has been evolved: neither extensive cross-questioning—deprecated by the English judges; nor undue delay in arraignment—proscribed by McNabb; nor failure to caution a prisoner—enjoined by the Judges' Rules; nor refusal to permit communication with friends and legal counsel at stages in the proceeding when the prisoner is still only a suspect prohibited by several state statutes. See Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; 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.
27
Each of these factors, in company with all of the surrounding circumstances—the duration and conditions of detention (if the confessor has been detained), the manifest attitude of the police toward him, his physical and mental state, the diverse pressures which sap or sustain his powers of resistance and self-control—is relevant.54 The ultimate test remains that which has been the ol y clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.
IV.
28
The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external, 'phenomenological' occurrences and events surrounding the confession. Second, because the concept of 'voluntariness' is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, 'psychological' fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.
29
In a case coming here from the highest court of a State in which review may be had, the first of these phases is definitely determined, normally, by that court. Determination of what happened requires assessments of the relative credibility of witnesses whose stories, in cases involving claims of coercion, are frequently, if indeed not almost invariably, contradictory. That ascertainment belongs to the trier of facts before whom those witnesses actually appear, subject to whatever corrective powers a State's appellate processes afford.
30
This means that all testimonial conflict is settled by the judgment of the state courts. Where they have made explicit findings of fact, those findings conclude us and form the basis of our review—with the one caveat, necessarily, that we are not to be bound by findings wholly lacking support in evidence. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. Where there are no explicit findings, or in the case of lacunae among the findings, the rejection of a federal constitutional claim by state criminal courts applying proper constitutional standards55 resolves all conflicts in testimony bearing on that claim against the criminal defendant. In such instances, we consider only the uncontested portions of the record: the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Ashcraft v. State of Tennessee, 322 U.S. 143, 152—153, 64 S.Ct. 921, 925, 88 L.Ed. 1192; Lyons v. State of Oklahoma, 322 U.S. 596, 602—603, 64 S.Ct. 2 08, 1212, 88 L.Ed. 1481; Watts v. State of Indiana, 338 U.S. 49, 50—52, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801 (opinion of Frankfurter, J.); Gallegos v. State of Nebraska, 342 U.S. 55, 60—62, 72 S.Ct. 141, 144—145, 96 L.Ed. 86; Stein v. People of State of New York, 346 U.S. 156, 180—182, 73 S.Ct. 1077, 1090—1091, 97 L.Ed. 1522; Payne v. State of Arkansas, 356 U.S. 560, 561—562, 78 S.Ct. 844, 846—847, 2 L.Ed.2d 975; Thomas v. State of Arizona, 356 U.S. 390, 402—403, 78 S.Ct. 885, 891—892, 2 L.Ed.2d 863.
31
The second and third phases of the inquiry—determination of how the accused reacted to the external facts, and of the legal significance of how he reacted—although distinct as a matter of abstract analysis, become in practical operation inextricably interwoven. This is so, in part, because the concepts by which language expresses an otherwise unrepresentable mental reality are themselves generalizations importing preconceptions about the reality to be expressed. It is so, also, because the apprehension of mental states is almost invariably a matter of induction, more or less imprecise, and the margin of error which is thus introduced into the finding of 'fact' must be accounted for in the formulation and application of the 'rule' designed to cope with such classes of facts. The notion of 'voluntariness' is itself an amphibian. It purports at once to describe an internal psychic state and to characterize that state for legal purposes. Since the characterization is the very issue 'to review which this Court sits,' Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801 (opinion of Frankfurter, J.), the matter of description, too, is necessarily open here. See Lisenba v. People of State of California, 314 U.S. 219, 237—238, 62 S.Ct. 280, 290, 86 L.Ed. 166; Ward v. State of Texas, 316 U.S. 547, 550, 62 S.Ct. 1139, 1141, 86 L.Ed. 1663; 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, 417, 65 S.Ct. 781, 783, 789, 89 L.Ed. 1029.
32
No more restricted scope of review would suffice adequately to protect federal constitutional rights. For the mental state of involuntariness upon which the due process question turns can never be affirmatively established other than circumstantially that is, by inference; and it cannot be competent to the trier of fact to preclude our review simply by declining to draw inferences which the historical facts compel. Great weight, of course, is to be accorded to the inferences which are drawn by the state courts. In a dubious case, it is appropriate, with due regard to federal-state relations, that the state court's determination should control. But where on the uncontested external happenings, coercive forces set in motion by state law enforcement officials are unmistakably in action; where these forces, under all the prevailing states of stress, are powerful enough to draw forth a confession; where, in fact, the confession does come forth and is claimed by the defendant to have been extorted from him; and where he has acted as a man would act who is subjected to such an extracting process—where this is all that appears in the record—a State's judgment that the confession was voluntary cannot stand.
33
'* * * (I)f force has been applied, this Court does not leave to local determination whether or not the confession was voluntary. There is torture of mind as well as body; the will is as much af ected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men.' Watts v. State of Indiana, supra, 338 U.S. at page 52, 69 S.Ct. at page 1349.
V.
34
We turn, then, to the uncontested historical facts as they appear in this record. Since judgment as to legal voluntariness vel non under the Due Process Clause is drawn from the totality of the relevant circumstances of a particular situation, a detailed account of them is unavoidable. When Culombe's confessions were offered by the prosecution and objected to as constitutionally inadmissible, the Connecticut Superior Court, pursuant to the applicable Connecticut procedure,56 excused the jury and took evidence bearing on the issue of coercion. It later made explicit findings setting forth the facts which it credited and deemed relevant. On the basis of these findings and—insofar as they do not cover all aspects of the testimony—of evidence that is unconstradicted, the following may be taken as established.57
35
In February 1957, the Connecticut State Police at Hartford were investigating a number of criminal incidents. In connection with certain of these (other than the Kurp's Gasoline Station killings in New Britain) it was decided on Saturday, February 23 to have two men, Arthur Culombe and Joseph Taborsky, picked up and viewed by witnesses. Lieutenant Rome, who was in charge of the investigation, delegated teams of officers to go to different addresses where the men might be located.
36
Shortly after 2 p.m., two officers accosted Culombe and Taborsky entering a car in front of the home of the latter's mother in Hartford. They told Taborsky that Lieutenant Rome wanted to talk to him at State Police Headquarters. They said that this was not an arrest. Taborsky stated that he was willing to go and Culombe drove him to Headquarters, following the officer's car. Leaving Taborsky, Culombe immediately drove home.
37
Shortly after his arrival, at about 2:30 p.m., Sergeant Paige and another officer came to Culombe's apartment to bring him back to Headquarters. They told Culombe that he was not arrested, that Lieutenant Rome wanted to talk to him. Culombe drove Sergeant Paige to Headquarters in his, Culombe's, car. From this time, Culombe was never again out of the effective control of the police.
38
Lieutenant Rome spoke briefly to Culombe and Taborsky and asked them if they would agree to accompany several officers to Coventry and Rocky Hill for purposes of possible identification. They consented. Sergeant Paige and two other officers took Culombe and Taborsky on this trip, which consumed about three hours, between 3 and 6 p.m. In the car, Culombe was questioned concerning his possible participation in several crimes. He was not then regarded as under arrest. During the stops at Coventry and Rocky Hill, after Culombe and Taborsky, t the officers' request, had entered a country store and a package store feigning to be customers, the two men were left for brief periods of time in the police cruiser with only Officer Griffin present. Griffin permitted them to drink the contents of a bottle of liquor which Taborsky carried.
39
On the return to Hartford the group stopped at a diner for dinner. Culombe and Taborsky were told to order what they wanted and ate well. At Headquarters Culombe was questioned for an hour by Paige concerning his possession of guns. He told Paige that he was a gun collector and had seven or eight guns at his home which he agreed to turn over to the police. The reason Culombe revealed this information to Paige was that the guns were registered and Culombe knew that Paige could have traced them to him in any event.
40
Paige and another officer took Culombe to his home, where Culombe left them in the living room and went to the bedroom. Following, they found him with two guns. They found a clip of cartridges in a drawer which he had just closed and six more guns in a small safe. They took these. Culombe and the second officer left and waited together on the street near the cruiser, the officer holding Culombe's arm, for approximately twenty minutes while Paige remained in Culombe's apartment questioning Culombe's wife.
41
Culombe was taken back to Headquarters. Paige talked with him for a short while, then discontinued his investigation for the night. Rome talked with Culombe for about two hours, apparently over a three- or three-and-a-half-hour period. The talk concerned the Kurp's killings and other matters. At this time Culombe and Taborsky were kept in separate rooms. Rome would question one, then the other, staying with each man until he got some bit of information that he could have checked. During respites of questioning by Rome, Culombe remained in the interrogation room.
42
At one point, Culombe told Rome that he wanted to see a lawyer but did not give the name of any specific lawyer. Rome replied that Culombe could have any lawyer he wanted if Culombe would tell Rome what lawyer to call. Rome knew that Culombe, an illiterate, was unable to use the telephone directory.
43
About 10 p.m., Rome put Culombe under arrest by virtue of a Connecticut statute permitting arrest without a warrant where the arresting officer has cause to suspect that the person arrested has committed a felony. The statute requires that persons so arrested be presented with reasonable promptness before the proper authority.58 Culombe was taken to a cell at Headquarters sometime before midnight. However, the log book in which notation is customarily made of prisoners detained in the Headquarters cell blocks shows no entry for Culombe Saturday night.
44
Concerning the purpose of the questioning which began on Saturday and continued intermittently until Culombe confessed the following Wednesday, Sergeant Paige candidly admitted that it was intended to obtain a confession if a confession was obtainable.59 Lieutenant Rome agreed that he had kept after Culombe until he got answers which he could prove were correct.60 There is no indication that at any time Culombe was warned of his right to keep silent. Neither Paige nor anyone in Paige's hearing cautioned Culombe concerning his constitutional rights.61
45
On Sunday, February 24, Culombe was questioned for a short time about the New Britain killings and denied that he was involved. He was also questioned by Paige and a Hartford detective about another robbery. The following morning Culombe and Taborsky were driven to New Britain and, after a substantial wait at the Detective Headquarters building, were booked for breach of the peace at New Britain Police Headquarters. Crowds lined both sides of the street where the stations were located. After the booking, en route back to Hartford, the cruiser in which Culombe rode stopped at Kurp's gas station. Rome asked Culombe if he recognized the place; Culombe said that he did not. On Monday afternoon Culombe was again questioned at Headquarters concerning Kurp's as well as other matters. Lieutenant Rome questioned him for two or three hours. Sergeant Paige also questioned him for twenty minutes or half an hour, but this appears to have been concurrent with Rome's questioning. Culombe then confessed to the theft of certain canned goods and made a statement about them that was reduced to writing.
46
On Tuesday, February 26, Culombe was removed from his cell to be taken to the New Britain Police Court for presentation on the breach of the peace charge. At that time Rome told him that he was to be brought to court and would have an opportunity to see a lawyer. At New Britain there were again crowds on the street, but not as heavy as Monday's.
47
The courtroom was crowded. Once in it, Culombe and Taborsky were placed in a prisoners' pen, a wire-mesh, cage-like affair in the corner of the room. Photographers with flashbulbs took photographs of them in the pen. The crowd was between the pen and the judge's bench. When court convened, the two men were presented for breach of the peace. Culombe was not required to plead. He was not heard by the court. He was not taken out of the pen and brought before the bench. He was not told that he might have counsel. No one informed the judge that Culombe had previously asked to see a lawyer. At Lieutenant Rome's suggestion, the prosecuting attorney moved for a continuance. Without Giving Culombe an occasion to contest the motion or participate in any way in the proceedings, the court continued the case for a week and issued a mittimus committing Culombe to the Hartford County Jail until released by due course of law.
48
The idea of presenting Culombe and Taborsky on charges of breach of the peace was Rome's, in collaboration with the alternate prosecutor.62 Its purpose, Rome testified, was 'To help me investigate some serious crimes in the state of Connecticut.' This breach of the peace prosecution was later nolled, Culombe having never been brought back before the Police Court because 'It wasn't necessary.'63 In testimony admitted in Taborsky's case, Rome conceded that he could have booked Taborsky (and hence, presumably, Culombe, since the legal proceedings against the two men were at all stages prosecuted simultaneously) on Sunday and presented him on Monday, but delayed because he, Rome, wanted more time, more interrogation. Presenting the man on Monday, although it would have been in accordance wit the Connecticut statute requiring presentation with reasonable promptness, was not, Rome testified, 'in accordance with good investigation.'64
49
On leaving the Police Court, and after another stop at Kurp's, Culombe was returned to Headquarters in Hartford, where he and Taborsky were questioned by Rome and other officers during an indeterminate period that cannot have been more than about two hours. At 3 or 4 that afternoon, Rome visited the Culombe home and questioned Culombe's wife for half an hour. Rome then returned to Headquarters where, shortly thereafter, Mrs. Columbe arrived, brought in a police cruiser by a policewoman pursuant to arrangements made by Rome, but by her own request or, at the least, her own agreement. Her children were with her. She spoke briefly with Rome, who asked her if she 'would go along and lay the cards on the table to her husband and see if he wouldn't confess.'65 Mrs. Columbe was then taken to a room where, in the presence of Rome and the policewoman, she talked to Culombe during a quarter of an hour. The children were not in the room. Mrs. Culombe asked Culombe if he were responsible for the New Britain killings and told him that if he were he should tell the police the truth. Rome permitted this confrontation because 'it is another way of getting a confession.' He admitted that he asked Mrs. Culombe to help the police and that she did help them indirectly; that he tried to use her as a means of securing her husband's confession.
50
After Mrs. Culombe left the room, Rome continued to question Culombe concerning certain conversations between Culombe and Taborsky. Culombe and Rome went to the door of the room and Rome called Culombe's thirteen-year-old daughter into the room, saying: 'Honey, come in here and * * *. You tell me how they went into the bedroom and talked—Joe Taborsky and your father.' There is no indication that the girl did come into the room or that she said anything.
51
Culombe was returned to his cell. Paige came to the cell and began to ask him questions, but Culombe was upset by the scene with his family and choked up or sobbed and told Paige that he did not want to talk. Paige discontinued the questioning and sat with Culombe for fifteen or twenty minutes until other officers came to remove Culombe to the County Jail pursuant to the mittimus of the New Britain Police Court. Paige admitted that Culombe's confrontation by his wife had been an 'ordeal,' and Rome agreed that the prisoner was 'upset.' Culombe was logged in at the jail between 8 and 9 that night.
52
At about 10 a.m. on Wednesday, February 27, ji l guards came to Culombe's cell, led him to the gates of the jail, and turned him into the custody of Sergeant Paige and several other State Police officers. Notation was made on the books of the jail that the State Police had 'borrowed' Culombe.66 Held at Headquarters until 1 p.m., Culombe was then brought to the interrogation room for questioning by Paige and Detective Murphy. Paige, who was at first alone in the room with Culombe, began by telling Culombe that Culombe had been lying to him. He suggested that, whenever Culombe did not want to answer a question, Culombe say 'I don't want to answer' instead of lying. Culombe agreed, and thereupon Paige, who held a list of the crimes being investigated, went through it questioning Culombe about his participation in each. Answering each question, Culombe stated either that he had not been there or that he did not want to talk about it. When Paige had gotten through the list, Murphy, having come in, took the list over and repeated the same questions that Culombe had answered or refused to answer for Paige. Paige left the room for a while, then reentered. Murphy asked Culombe whether Culombe did not want to cooperate. Culombe said that he did but that it was a hard decision to make. Murphy asked whether Culombe was in fear of anyone and Culombe answered that he was in fear of Taborsky. After approximately an hour and a half, Culombe told the police that they were looking for four guns and two men and that he had not done any killing himself. Immediately, Rome, who had been listening to the interrogation over an intercommunication system, came into the room and, shortly thereafter, Detective O'Brien also arrived. Culombe agreed to show the officers where the guns would be found.67 He requested that they travel in an unmarked car and was assured that the cruiser would carry no identifying insignia. At about 3:30 p.m., the four officers and Culombe left Headquarters for Culombe's home.
53
During the short ride, Rome questioned Culombe in the rear seat of the car. The other three officers sat up front. When Culombe began to give answers which Rome regarded as significant, Rome told O'Brien, who had been driving, to let Murphy take the wheel. O'Brien, who was skilled at shorthand, understood that this meant that he was to take the conversation down. He did so. In it Culombe admitted participation in a number of crimes, including the gas station holdup. He gave a detailed description of what happened at Kurp's in which he related that he and Taborsky had robbed the station and that Taborsky had shot both the proprietor and the customer. Several officers testified to the content of this oral confession at the trial.
54
Culombe, the four officers and two police photographers entered the Culombes' project apartment. There they found Mrs. Culombe with her younger, five-year-old daughter. After directing Rome to a cache behind the medicine cabinet where certain weapons were concealed and to a safe compartment containing parts of a gun, Culombe spoke with his wife in the living room in the presence of at least one detective. He told her that he had decided to cleanse his conscience and make a clean breast of things; that he was afraid that Taborsky might harm her, and so he was cooperating. He also said that he wanted to save Mrs. Culombe embarrassment as far as the neighbors were concerned.68 Leaving the apartment in the cruiser, Culombe directed the officers to a nearby swampy area where he pointed out the location in which he had disposed of one gun and part of another used at Kurp's. He led them to another swamp where a raincoat said to have been worn on the night of the holdup was recovered. After several other like stops he was taken back to Headquarters, arriving just after 6 p.m. There, in response to brief questioning in the presence of Major Remer and Commissioner Kelly, he repeated his confessions of the early afternoon.
55
Culombe was taken to dinner. Shortly afterwards he again saw Mrs. Culombe, who had come to Headquarters with her five-year-old. The child was sick. Mrs. Culombe told Culombe that the child was sick and Culombe said that he thought that the policewoman would take it to the hospital if she were asked. At about 8 p.m., Rome, Paige O'Brien and County Detective Matus brought Culombe to the interrogation room to reduce his several confessions to writing. Culombe made a number of statements. The manner of taking them (no doubt complicated by Culombe's illiteracy and his tendency to give rambling and non-consecutive answers) was as follows: Rome questioned Culombe; Culombe answered; Rome transposed the answer into narrative form; Culombe agreed to it; Rome dictated the phrase or sentence to O'Brien. Each completed statement was read to and signed by Culombe. The last of them related to the Kurp's holdup and to another crime committed earlier on the same day. It was started shortly before 11 p.m. and the Kurp's episode was reached at 12:30 a.m. The Kurp's statement required a half hour to compose.
56
At the end of this four-and-a-half-hour interview, Culombe was unshaved, his clothing a sorry sight. He was tired. He spent that night in a cell at State Police Headquarters at his own request, apparently because he was afraid of Taborsky, who was still lodged in the Hartford Jail. Although the confession which he signed that night was not put in as an exhibit at the trial, it was fully laid before the jury by the receipt in evidence of another typed paper substituted for it by stipulation and whose contents, several officers testified, embodied the substance of what Culombe told them shortly after midnight Wednesday.69
57
On Thursday, February 28, Rome had Culombe brought into a room where he was talking to Taborsky. At the Lieutenant's direction, Culombe repeated his confession. Later Culombe was presented in the Superior Courto n a charge of first-degree murder pursuant to a bench warrant issued that morning. The presiding judge warned Culombe of his rights to keep silent and to have counsel. He asked Culombe if he wanted counsel and Culombe replied that he did. Culombe said that he did not want the public defender, that he wanted attorney McDonough but could not afford to pay for his services. The judge promised that the court would see that Culombe had the attorney of his choice at state expense. He then informed Culombe that the police wished to conduct an investigation into the charges against him and had requested an order releasing Culombe into their custody for that purpose. Asked if he was willing to cooperate, Culombe said that he was. He was told that this might mean that he would be taken to the sites of various crimes and again said that he was willing to cooperate; he wanted 'to cooperate with them in any way I can.' Accordingly, the court released Culombe to the State Police Commissioner for the purpose of continuing the investigation.
58
At Kurp's gasoline station, Culombe re-enacted the holdup for Rome and other officers. Later that afternoon, at Headquarters, New York detectives talked to him concerning a New York killing. No further investigation relating to the Connecticut crimes was conducted that day or Friday. Culombe remained in the cell block at Headquarters, rather than at the County Jail, at his own request. On Friday night he first saw Mr. McDonough, his court-appointed counsel, and also saw his wife.
59
Two state psychiatrists examined Culombe during two hours on Saturday, March 2. At 10 p.m. that evening, when Culombe was alone in his cell, he called out to the guard assigned to the cell block and said that he wanted to volunteer some information relating to the Kurp's holdup. The guard had not previously spoken to Culombe during his watch except to say, 'Hi, Art,' when he first came on duty at 6 o'clock. Culombe now narrated a new version of what had happened at Kurp's. This was generally similar to his previous statements except that in it he admitted that he himself had shot Kurpiewski. The guard telephoned this information to Lieutenant Rome and Culombe thanked him. At trial the guard related the occasion and contents of this oral confession to the jury.
60
Sunday morning, Rome, the guard to whom Culombe had confessed the night before, and another officer interviewed Culombe in the interrogation room. In answer to Rome's question, Culombe said that he wanted to change the story that he had previously given. He then said that he had shot Kurpiewski. Following the same procedure that had been used on Wednesday night, a detailed statement of his new version of the New Britain killings was composed and Culombe signed it. It was received in evidence at the trial. Later in the afternoon attorney McDonough spoke with Culombe and Rome at Headquarters. He told Culombe not to sign any more papers or to talk to the police. He told Rome that he did not want the police bothering Culombe further and requested that Culombe be removed from Headquarters to the County Jail. This was done.
61
The following day, Monday, March 4, Lieutenant Rome and Detective O'Brien visited Culombe at the jail for half an hour. Rome brought a new typed statement prepared by the police. This was a substantially verbatim transcription of the document which Culombe had signed on Wednesday, but with all references to the second, separate crime committed on December 15, 1956, deleted. Rome read the transcription to Culombe and Culombe signed it. It was admitted at trial. Rome did not notify McDonough that Culombe's signature was to be otained because he was worried that if he did, McDonough would not permit Culombe to sign. Rome testified that he could 'do better without' the attorney: Culombe 'was cooperative. * * * I needed his cooperation and got it.'
62
The man who was thus cooperative with the police, Arthur Culombe, was a thirty-three-year-old mental defective of the moron class with an intelligence quotien of sixty-four70 and a mental age of nine to nine and a half years. He was wholly illiterate.71 Expert witnesses for the State, whose appraisal of Culombe's mental condition was the most favorable adduced at trial, classified him as a 'high moron' and 'a rather high grade mentally defective' and testified that his reactions would not be the same as those of the chronological nine-year-old because his greater physical maturity and fuller background of experience gave him a perspective that the nine-year-old would not possess. Culombe was, however, 'handicapped.'
63
Culombe had been in mental institutions for diagnosis and treatment. He had been in trouble with the law since he was an adolescent and had been in prison at least twice in Connecticut since his successful escape from a Massachusetts training school for mental defectives. During the three years immediately preceding his arrest he had held down, and adequately performed, a freight handler's job and had supported his wife and two young children. A psychiatrist testifying for the State said that, although he was not a fearful man, Culombe was suggestible and could be intimidated.72
64
Ten days after his last confession, on March 14, 1957, Culombe was indicted for first-degree murder.
VI.
65
In the view we take of this case, only the Wednesday confessions need be discussed.73 If these were coerced, Culombe's conviction, however convincingly supported by other evidence, cannot stand. Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029. Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975. On all the circumstances of this record we are compelled to conclude that these confessions were not voluntary. By their use petitioner was deprived of due process of law.
66
Consideration of the body of this Court's prior decision which have found confessions coerced informs this conclusion. For although the question whether a particular criminal defendant's will has been overborne and broken is one, it deserves repetition, that must be decided on the peculiar, individual set of facts of his case, it is only by a close, relevant comparison of situations that standards which are solid and effectively enforceable—not doctrinaire or abstract—can be evolved. In approaching these decisions, we may put aside at the outset cases involving physical brutality,74 threats of physical brutality,75 and such convincingly terror-arousing, and otherwise unexplainable, incidents of interrogation as the removal of prisoners from jail at night for questioning in secluded places,76 the shuttling of prisoners from jail to jail, at distances from their homes, for questioning,77 the keeping of prisoners unclothed or standing on their feet for long periods during questioning.78 No such obvious, crude devices appear in this record. We may put aside also cases where deprivation of sleep has been used to sap a prisoner's strength and drug him79 or where bald disregard of his rudimentary need for food is a factor that adds to enfeeblement.80 Culombe was not subject to wakes or starvation. We may put aside cases stamped with the overhanging threat of the lynch mob,81 for although it is true that Culombe saw crowds of people gathered to witness his booking and presentation in New Britain, this circumstance must be accounted of small significance here. There were no mobs at Hartford where he was held securely imprisoned at State Police Headquarters.82 Finally, we may put aside cases of gruelling, intensely unrelaxing questioning over protracted periods.83 Culombe's most extended session prior to his first confession ran three and a half hours with substantial respites. Because all of his questioning concerned not one but several offenses, it does not present an aspect of relentless, constantly repeated probing designed to break concentrated resistance. Particularly, the sustained four-and-a-half-hour interview that preceded the Wednesday-midnight confession was almost wholly taken up with matters other than Kurp's, and at that time, far from resisting, Culombe was wholly cooperating with the police.
67
Similarly, our decisions in Hae y v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, and Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242, are not persuasive here. Haley, a fifteen-year-old boy, was arrested at his home and taken to a police station at midnight, where he was questioned by relays of officers until he confessed at 5 a.m. He had seen no friend or legal counsel during that time and he was subsequently held incommunicado for three days. On the totality of circumstances, the Court held his confession coerced. But Culombe was never questioned concerning one crime for five hours. Indeed, he was never questioned during five hours at a stretch. He was never questioned in the early morning hours. And while Haley, whose questioning began immediately on his arrival at the station and did not let up until he confessed, had every reason to expect that his relay interrogators intended to keep the pace up till he broke,84 Culombe, at the time of his confessions, had been questioned on several previous days and knew that the sessions had not run more than a few hours. Moreover, Culombe, despite his mental age of nine or nine and a half, cannot be viewed as a child. Expert testimony in the record, which the Connecticut courts may have credited, precludes the application to Culombe of standards appropriate to the adolescent Haley.
68
Nor, without guessing, as untutored laymen and not professionally informed as judges, about the susceptibility of a mental defective to overreaching, can we apply to Culombe the standards controlling the case of the active psychotic, Blackburn. The expert evidence of hallucinations, delusional ideas and complete loss of contact with his surroundings which we found uncontradicted in the Blackburn record has no counterpart in Culombe's. Also, Blackburn, like Haley, confessed after a protracted questioning session—eight or nine hours, with a one-hour break, in Blackburn's case—more exhausting than any single period that Culombe underwent.
69
On the other hand, what must enter our judgment about Culombe's mental equipment—that he is suggestible and subject to intimidation—does not permit us to attribute to him powers of resistance comparable to those which the Court found possessed by the defendant Cooper in Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, who haggled for terms with the officials to whom he confessed,85 or the defendant James in Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166, who bragged immediately before his confession that there were not enough men in the District Attorney's office to make him talk. Culombe was detained in the effective custody of the police for four nights and a substantial portion of five days before he confessed. During that time he was questioned so repeatedly, although intermittently, that he cannot but have been made to believe what the police hardly denied, that the police wanted answers and were determined to get them.86 Other than his questioners and jailers and the police officials who booked him at New Britain, he spoke to only two people: Taborsky, of whom he was afraid, and his own wife, who, by prearrangement with Lieutenant Rome, asked him to tell the police the truth.87 The very duration of such a detention distinguishes this case from those in which we have found to be voluntary confessions given after several hours questioning or less on the day of arrest. See Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523; Ashdown v. State of Utah, 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443; cf. Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448. In other cases, in which we have sustained convictions resting on confessions made after prolonged detention, questioning of the defendant was sporadic, no systematic,88 or had been discontinued during a considerable period prior to confession,89 so that we did not find, in the circumstances there presented, that police interrogators had overborne the accused.
70
The cases most closely comparable to the present one on their facts are Turner v. Com. of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Johnson v. Com. of Pennsylvania, 340 U.S. 881, 71 S.Ct. 191, 95 L.Ed. 640, and Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246. Turner, like Culombe, was arrested without a warrant and, without having been brought before a magistrate,90 was detained during four nights and about five days before he confessed. Like Culombe, also, he was questioned in daylight and evening hours, sometimes by one, sometimes by several officers. Turner saw no visitors during his detention; Culombe saw only his wife, who gave him scant support. It is true that Turner's interrogation amounted to a total of more than twenty-three hours, as against the approximately twelve and one half hours that Culombe was questioned prior to his first confession, and that Turner was questioned on two days for as many as six hours (in two sessions, on each occasion), while Culombe was never questioned for more than three hours on any one day. It is true also that Turner's questioning involved only a single crime, not several. But Turner was not a mental defective, as is Culombe, and certain significant pressures brought to bear on Culombe—the use of his family, the intimidating effect of the New Britain Police Court hearing—were absent in the Turner record. The Court held Turner's confession coerced.
71
Johnson, indicted as Turner's accomplice, was detained during approximately the same period and under the same conditions as was Turner. He was questioned, however, for only somewhat more than six hours over these five days, never more than an hour and a half at a sitting. At least five officers participated, at one time or another, in the questioning. At his separate trial, both his own confession and Turner's were admitted. This Court reversed per curiam.91
72
The facts on which the Court relied in Fikes were these. The defendant, a twenty-seven-year-old Negro with a third-grade education, apparently schizophrenic and highly suggestible, and who had previously been involved with the law on only one occasion, was apprehended by private persons in a white neighborhood in Selma, Alabama, at midnight on a Saturday. Jailed and held by the police on open charges, he was questioned for four and a half or five hours in two sessions on Sunday, and during the second of these sessions he was driven around the city to the locations of several unsolved burglaries. That day he talked to the sheriff of his home county, cale d to Selma at his request. On Monday he talked to his employer. After two hours of questioning in the morning he was taken to a state prison fifty-five miles from Selma and eighty miles from his home, where he was questioned during several hours in the afternoon and a short while in the evening. Thereafter, he was kept in a segregation unit at the prison, where he saw only jailers and police officers. He did not consult counsel, nor was he brought before a magistrate—despite the requirement of Alabama law that he be taken forthwith for a magistrate's hearing—prior to the time of his confession.
73
On Tuesday he was not questioned. On Wednesday he was questioned several hours in the afternoon and into the evening. On Thursday the questioning totaled three and a half hours in two sessions, and on that day his father, who had come to the prison to see him, was turned away. Thursday evening his first confession, consisting largely of yes-and-no answers to often leading or suggestive questions by an examiner, was taken. Saturday he was questioned again for three hours. A lawyer who came to the prison to see him was refused admission. On Sunday, however, Fikes' father was permitted to see him. The following Tuesday, after questioning of two and a half hours, he confessed a second time. Both confessions were admitted in evidence at his trial.
74
This Court reversed Fikes' conviction. showed, as does Culombe's, only intermittent showed, as does Ulombe's, only intermittent interrogation and no total denial of friendly communication to the prisoner. It showed also, as does the present record, a background atmosphere of community outrage but no appreciable threat of lynch violence. Particularly significant, Fikes, like Culombe, was suspected not of only one, but of a number of offenses under investigation. Fikes, concededly, was removed to a prison located at a considerable distance from his home, as Culombe was not. This is a factor to be considered. But in Fikes that removal was purportedly and not unconvincingly—justified b concern for the prisoner's safety, compare Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663, and was not, as such, a predominant element in our decision.
75
We find that the present case is not less strong for reversal than Fikes v. State of Alabama. Culombe—certainly not a stronger man than Fikes—was apparently never informed of his constitutional rights, as was Fikes. Nevertheless, he expressly told the police that he wanted counsel, as Fikes did not, and his request was in effect frustrated. We are told that this was because Culombe did not know the name of any particular attorney and the police do not regard it as an appropriate practice for them to suggest attorneys' names to prisoners. However laudable this policy may be in the general run of things, it manifests an excess of police delicacy when a totally illiterate man, detained at police headquarters and suspected of many serious felonies, obviously needs a lawyer and asks for one. In any event, in every county in Connecticut there is a public defender.92
76
Moreover, Culombe was subjected to other pressures not brought to bear on Fikes. By Lieutenant Rome's arrangement, Mrs. Culombe was permitted—indeed asked—to confront her husband and tell him to confess. Culombe's thirteen-year-old daughter was called upon in his presence to recount incriminating circumstances. This may fall short of the crude chicanery of employing persons intimate with an accused, to play on his emotions, that was involved in Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. But it appears, in conjunction with all of the other circumstances, to have had precisely the effect that Rome, by his own admission, calculated: 'it is another way of getting a confession.'93
77
What appears in this case, then, is this. Culombe was taken by the police and held in the carefully controlled environment of police custody for more than four days before he confessed. During that time he was questioned—questioned every day about the Kurp's affir—and with the avowed intention, not merely to check his story to ascertain whether there was cause to charge him, but to obtain a confession if a confession was obtainable.
78
All means found fit were employed to this end. Culombe was not told that he had a right to remain silent. Although he said that he wanted a lawyer, the police made no attempt to give him the help he needed to get one.94 Instead of bringing him before a magistrate with reasonable promptness, as Connecticut law requires, to be duly presented for the grave crimes of which he was in fact suspected (and for which he had been arrested under the felony-arrest statute), he was taken before the New Britain Police Court on the palpable ruse of a breach-of-the-peace charge concocted to give the police time to pursue their investigation. This device is admitted. It had a two-fold effect. First, it kept Culombe in police hands without any of the protections that a proper magistrate's hearing would have assured him. Certainly, had he been brought before it charged with murder instead of an insignificant misdemeanor, no court would have failed to warn Culombe of his rights and arrange for appointment of counsel.95 Second, every circumstance of the Police Court's procedure was, in itself, potentially intimidating. Culombe had been told that morning that he would be presented in a court of law and would be able to consult counsel. Instead, he was led into a crowded room, penned in a corner, and, without ever being brought before the bench or given a chance to participate in any way, his case was disposed of. Culombe had been convicted of crimes before and presumably was not ignorant of the way in which justice is regularly done. It would deny the impact of experience to believe that the impression which even his limited mind drew from this appearance before a court which did not even hear him, a court which may well have appeared a mere tool in the hands of the police, was not intimidating.
79
That same evening, by arrangement of the State Police, Culombe's wife and daughter appeared at Headquarters for the interview that left him sobbing in his cell. The next morning, although the mittimus of the New Britain Police Court had committed Culombe to the Hartford Jail until released by due course of law, the police 'borrowed' him, and later the questioning resumed. There can be no doubt of its purpose at this time. For Paige then 'knew'—if he was ever to know—that Culombe was guilty.96 Paige opened by telling Culombe to stop lying and to say instead that he did not want to answer. But when Culombe said that he did not want to answer, Detective Murphy took over and repeated the same questions that Paige had asked.
80
It is clear that this man's will was broken Wednesday afternoon. It is no less clear that his will was broken Wednesday night when, after several hours in a car with four policemen, two interviews with his wife and his apparently ill child, further inquiries made of him in the presence of the Police Commissioner, and a four-and-a-half-hour session which left him (by police testimony) 'tired,' he agreed to the composition of a statement that was not even cast in his own words. We do not overlook the fact that Culombe told his wife at their apartment that he wanted to cleanse his conscience and make a clean breast of things. This item, in the total context, does not overbalance the significance of all else, particulr ly since it was his wife who the day before, at the request of Lieutenant Rome, had asked him to confess.97 Neither the Wednesday-afternoon nor the Wednesday-midnight statement may be proved against Culombe, and he convicted by their use, consistently with the Constitution.
VII.
81
Regardful as one must be of the problems of crime-detection confronting the States, one does not reach the result here as an easy decision. In the case of such unwitnessed crimes as the Kurp's killings, the trails of detection challenge the most imaginative capacities of law enforcement officers. Often there is little else the police can do than interrogate suspects as an indispensable part of criminal investigation. But when interrogation of a prisoner is so long continued, with such a purpose, and under such circumstances, as to make the whole proceeding an effective instrument for extorting an unwilling admission of guilt, due process precludes the use of the confession thus obtained. Under our accusatorial system, such an exploitation of interrogation, whatever its usefulness, is not a permissible substitute for judicial trial.
82
Reversed.
83
Mr. Chief Justice WARREN, concurring.
84
It has not been the custom of the Court, in deciding the cases which come before it, to write lengthy and abstract dissertations upon questions which are neither presented by the record nor necessary to a proper disposition of the issues raised. The opinion which announces the judgment of the Court in the instant case has departed from this custom and is in the nature of an advisory opinion, for it attempts to resolve with finality many difficult problems which are at best only tangentially involved here. The opinion was unquestionably written with the intention of clarifying these problems and of establishing a set of principles which could be easily applied in any coerced-confession situation. However, it is doubtful that such will be the result, for while three members of the Court agree to the general principles enunciated by the opinion, they construe those principles as requiring a result in this case exactly the opposite from that reached by the author of the opinion. This being true, it cannot be assumed that the lower courts and law enforcement agencies will receive better guidance from the treatise for which this case seems to have provided a vehicle. On an abstract level, I find myself in agreement with some portions of the opinion and in disagreement with other portions. However, I would prefer not to write on many of the difficult questions which the opinion discusses until the facts of a particular case make such writing necessary. In my view, the reasons which have compelled the Court to develop the law on a case-by-case approach, to declare legal principles only in the context of specific factual situations, and to avoid expounding more than is necessary for the decision of a given case are persuasive. See Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 461—462, 65 S.Ct. 1384, 1389—1390, 89 L.Ed. 1725, and cases cited; Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752. I see no reason for making an exception in this case, and I am therefore unable to join the opinion which announces the judgment of the Court. Accordingly, I join the separate concurring opinion of Mr. Justice BRENNAN.
85
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK agrees, concurring.
86
I find this case a simple one. As my Brother BRENNAN states, it is controlled by many of our decisions concerning confessions unlawfully obtained. It is also controlled by the principle some of us have urged upon the Court in several prior cases, including Crooker v. State of California, 357 U.S. 433, 441, 78 S.Ct. 1287, 1292, 2 L.Ed.2d 1448 (dissenting opinion); Ashdown v. State of Utah, 357 U.S. 426, 431, 78 S.Ct. 1354, 1357, 2 L.Ed.2d 1443 (dissenting opinion); Cicenia v. Lagay, 357 U.S. 504, 511, 78 S.Ct. 1297, 1301, 2 L.Ed.2d 1523 (dissenting opinion); Spano v. People of State of New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (concurring opinion).1 That principle is that any accused—whether rich or poor—has the right to consult a lawyer before talking with the police; and if he makes the request for a lawyer and it is refused, he is denied 'the Assistance of Counsel for his defence' guaranteed by the Sixth and Fourteenth Amendments.
87
The police first descended on petitioner on a Saturday afternoon. By ten that night—at the latest—he was in 'custody.' He asked to see an attorney. That request was callously turned aside. The testimony of Officer Rome exposes the critical issue in the case:
88
'Q. Up until Monday night Culombe hadn't seen a lawyer, had he? A. No, sir.
89
'Q. He had asked to see a lawyer, hadn't he? A. Yes, sir.
90
'Q. Didn't you tell him that he could see a lawyer when you got good and ready to let him see him? A. No, sir.
91
'Q. Well, when he asked to see a lawyer did he see a lawyer? A. No, sir.
92
'Q. Did you allow him to go to a telephone to call a lawyer? A. There was a telephone right there. He didn't have the name of an attorney to call.
93
'Q. Well, there are a large number of Hartford lawyers' names in the Hartford telephone directory. A. Yes, sir.
94
'Q. Did you offer him the use of the directory to find out the name of a lawyer to call? A. We were told that he couldn't read.
95
'Q. Oh, you were told that he couldn't read? A. Yes, sir.
96
'Q. Who told you that? A. He did.
97
'Q. Well, then, before I asked the question here in the courtroom, you had information that he couldn't read? A. After I talked with him.
98
'Q. So, therefore, a telephone directory would have been of no use to him? That is what you mean by the answer? A. If what he told me was the truth, yes, sir.
99
'Q. Did you tell him that he could have gotten in touch with Mr. Cosgrove, the Public Defender for this court? A. I make it my business never to mention any attorneys. It is up to them to mention their attorney.
100
'Q. This man was in the hands of the police on a serious investigation. He said that he wanted a lawyer and you did nothing to help him? A. I told him he could have a lawyer if he told me who he wanted me to call.
101
'Q. Did you tell him that? A. Yes, sir.
102
'Q. Didn't Culombe tell you on Monday night, 'If that is the way you operate up here I want to get in touch with a lawyer,' and you replied, 'We will let you get in touch with one at the right time, not until then.' A. No, sir.
103
'Q. But there was talk about a lawyer? A. Yes, sir.'
104
Petitioner is illiterate and mentally defective—a moron or an imbecile. He spent six years in the third grade and left school at the age of sixteen. He has twice been in state institutions for the feeble-minded.
105
He did not see an attorney until six days after he was first arrested and after he had confessed to the police. During all this time the police questioned him until their questioning produced the confession on which his present conviction is based.
106
It is said that if we enforced the guarantee of counsel by allowing a person, wo is arrested, to obtain legal advice before talking with the police, we 'would effectively preclude police questioning' (Crooker v. State of California, supra, 357 U.S. 441, 78 S.Ct. 1292) and 'would constrict state police activities in a manner that in many instances might impair their ability to solve difficult cases.' Cicenia v. Lagay, supra, 357 U.S. 509, 78 S.Ct. 1300. It is said that 'any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.' Watts v. State of Indiana, 338 U.S. 49, 57, 59, 69 S.Ct. 1347, 1358, 93 L.Ed. 1801 (concurring opinion). In other words, an attorney is likely to inform his client, clearly and unequivocally, that 'No person * * * shall be compelled in any criminal case to be a witness against himself,' as provided in the Fifth Amendment. This is the 'evil' to be feared from contact between a police suspect and his lawyer.
107
Interrogation of people by the police is an indispensable aspect of criminal investigations. But there is no right to interrogate—by the police any more than by the courts—when the privilege against self-incrimination is invoked. Knowing this, the police have set up in its place a system of administrative detention that has no constitutional justification. It is detention incommunicado, a system which breeds oppression. See Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224. In the present case this illiterate petitioner was not given the modicum of protection afforded in England where a prisoner is warned that statements made may be used against him2 and where the police are enjoined not to hammer away at a prisoner nor even to cross-examine him when he makes a voluntary statement except to clear up ambiguities. See Devlin, The Criminal Prosecution in England (1958), pp. 137—141. The flow of cases coming here shows that detention incommunicado is often accompanied by illegality and brutality. The arrival of an attorney is a specific against these proscribed practices.
108
If this accused were a son of a wealthy or prominent person, and demanded a lawyer, can there be any doubt that his request would have been heeded? But petitioner has no social status. He comes from a lowly environment. No class or family is his ally. His helplessness before the police when he is without 'the guiding hand of counsel' (Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158) emphasizes the lack of equal protection inherent in the dwarfed and twisted construction we have given the constitutional guarantee of the assistance of counsel. Cf. McNeal v. Culver, 365 U.S. 109, 117, 81 S.Ct. 413, 5 L.Ed.2d 445 (concurring opinion).
109
The system of police interrogation under secret detention falls heaviest on the weak and illiterate—the least articulate segments of our society. See American Civil Libet ies Union Report, Secret Detention by the Chicago Police (1959), pp. 19—21. The indigent who languishes in jail for want of bail, cf. Bandy v. United States, 81 S.Ct. 197 (memorandum opinion), or the member of a minority group without status or power3 is the one who suffers most when we leave the constitutional right to counsel to the discretion of the police. That right can only be protected by a broad guarantee of counsel that applies across the board to rich and poor alike. See Reck v. Pate, 367 U.S. at page 444, 81 S.Ct. at page 1548 (concurring opinion).
110
I believe that the denial of petitioner's request that he be given the right of counsel was a violation of his constitutional rights. I therefore concur in the judgment of the Court reversing the conviction.
111
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice BLACK join, concurring in the result.
112
It is my view that the facts stated in Part V of the opinion of my Brother FRANKFURTER require the conclusion that all and not alone the Wednesday confessions were coerced from the petitioner, and that under our cases none is admissible in evidence against him. See, e.g., Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, and cases there cited.
113
Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice WHITTAKER join, dissenting.
114
I agree to what my Brother FRANKFURTER his written in delineation of the general principles governing police interrogation of those suspected of, or under investigation in connection with, the commission of crime, and as to the factors which should guide federal judicial review of state action in this field. I think, however, that upon this record, which contains few of the hallmarks usually found in 'coerced confession' cases, such considerations find their proper reflection in affirmance of this judgment.
115
With due regard to the medical and other evidence as to petitioner's history and subnormal mentality, I am unable to consider that it was constitutionally impermissible for the State to conclude that petitioner's 'Wednesday' confessions were the product of a deliberate choice on his part to try to ameliorate his fate by making a clean breast of things, and not the consequence of improper police activity. To me, petitioner's supplemental confession on the following Saturday night, which as depicted by the record bears all the indicia of spontaneity, is especially persuasive against this Court's contrary view.
116
I should also add that I find no constitutional infirmity in the standards used by the Connecticut courts in evaluating the voluntariness of petitioner's confessions. Cf. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760.
117
I would affirm.
1
At the trial of petitioner and his co-defendant Taborsky for the killings at Kurp's, no evidence of any importance was presented by the State that did not derive, directly or indirectly, from the cn fessions and disclosures obtained from the two men during February and March 1957.
2
It is significant that the proposal most frequently made with the object of curbing third-degree methods by the police is the provision of some form of preliminary judicial interrogation of persons accused of crime, in which proceeding the privilege against self-incrimination is to be so far withdrawn as to permit the prosecution, upon subsequent trial of the accused, to comment on his refusal to answer questions. See IV National Commission on Law Observance and Enforcement, Report No. 11, Lawlessness in Law Enforcement (hereinafter IV Wickersham) (1931), 5—6; Kauper, Judicial Examination of the Accused—A Remedy for the Third Degree, 30 Mich.L.Rev. 1224 (1932); Pound, Legal Interrogation of Persons Accused or Suspected of Crime, 24 J.Crim.L. & Criminology 1014 (1934); McCormick, Some Problems and Developments in the Admissibility of Confessions, 24 Tex.L.Rev. 239, 277 (1946). Cf. Report of Committee on Lawless Enforcement of Law, Section of Criminal Law and Criminology of the American Bar Assn., 1 Am.J.Pol.Sci. (hereinafter ABA Committee Report) 575, 593 (1930). Underlying these proposals is the recognition that some form of interrogation of criminal suspects is necessary to effective law enforcement.
3
For the prevalence in this country of various methods of police pressuring ranging from persistent questioning to beatings see, e.g., ABA Committee Report, passim; IV Wickersham, passim; Booth, Confessions, and Methods Employed in Procuring Them, 4 So.Calif.L.Rev. 83 (1930); Note, 43 Harv.L.Rev. 617 (1930); Hopkins, Our Lawless Police (1931), passim; Report of the President's Committee on Civil Rights, To Secure These Rights (1947), 25—27. See also authorities cited in note 5, infra. Although the third degree is, in England, spoken of as the American practice, England herself is not free of police interrogation and cross-questioning. Report of the Royal Commission of Police Powers and Procedure (Cmd. 3297) (1929), 100 102; Preliminary Investigations of Criminal Offences, A Report by Justice (1960), 9—10; Williams, Questioning by the Police: Some Practical Considerations, (1960) Crim.L.Rev. 325, 328—331; Williams, Police Detention and Arrest Privileges Under Foreign Law, England, 51 J.Crim.L., Criminology & Pol.Sci. 413 (1960). A Royal Commission is now engaged in a comprehensive inquiry concerning the police which will, apparently, include study of police methods insofar as these may relate to the control and administration of the police and their relationship with the public. See the Commission's terms of reference, Royal Commission on the Police 1960, Interim Report (Cmd. 1222) (1960), iv.
4
See, e.g., Kidd, Police Interrogation (1940); Mulbar, Interrogation (1951); Dienstein, Technics for the Crime Investigator (1952), 97—115; Inbau and Reid, Lie Detection and Criminal Interrogation (3d ed. 1953); O'Hara, Fundamentals of Criminal Investigation (1956), 95—126. Compare with the highly sophisticated methods of police interrogation described in these volumes Lord Brampton's address to Police Constables printed, in part, in Report of the Royal Commission, supra, note 3, Appendix 8, at 147: 'Perhaps the best maximum for a constable to bear in mind with respect to an accused person is, 'Keep your eyes and hour ears open, and your mouth shut." See also Regina v. Male and Cooper, 17 Cox C.C. 689, 690.
5
American Civil Liberties Union, Illinois Division, Secret Detention by the Chicago Police (1959); see also Foote, Law and Police Practice: Safeguards in the Law of Arrest, 52 Nw.U.L.Rev. 16, 20—27 (1957); Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. of Chi.L.Rev. 345, 359—362 (1936); Hall, Police and Law in a Democratic Society, 28 Ind.L.J. 133, 154 (1953).
6
For a thorough discussion of the evils inherent in the detention of suspected persons for interrogation, see Memorandum on the Detention of Arrested Persons and Their Production Before a Committing Magistrate, Transmitted to Sub-committee No. 2 of the Committee on the Judiciary of the House of Representatives (1944), in Chafee, Documents on Fundamental Human Rights, Pamphlets 1—3 (1951—1952), 483. Beyond the obvious, immediate considerations concerning incarceration without judicial hearing, the threat of the third degree, deprivation of counsel at a possibly critical period in the criminal proceeding, etc., there lie other less evident but equally significant menaces. There is the threat that a police system which has grown to rely too heavily on interrogation will not pursue, or learn, other crime detection methods, and the consequent danger that the police will feel themselves under pressure to secure confessions. See IV Wickersham, at 187—189; Glueck, Crime and Justice (1936), 76. There is the danger that the police, by offending canons of fairness regarded as fundamental by the people, will create an atmosphere of public resentment to authority inimical to law enforcement. See Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. of Chi.L.Rev. 345, 373 (1936); Williams, Questioning by the Police: Some Practical Considerations, (1960) Crim.L.Rev. 325, 337.
7
See IV Wickersham, at 174: 'But there is danger that the process of questioning may develop into the third degree. Once the interrogation has begun, the police or other officials are naturally reluctant to leave off until the desired information has been obtained, regardless of the prisoner's fatigue or need of sleep; and the baffled questioner, getting obstinate silence or evasive and impudent replies, is easily tempted to eke out his unsuccessful questions by threats or violence.'
8
There can be no doubt that the secrecy in which police-station interrogation is usually carried out is a condition which encourages questioning to run over into violence. See ABA Committee Report, at 587—588; Hogan and Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1, 27 (1958); cf. IV Wickersham, at 31. Historically there has been intimate connection between the use of torture and secret investigations. Filamor, Third Degree Confession, 13 Bombay L.J. 339, 342 (1936).
9
See ABA Committee Report, at 579: '* * * (T)he prisoner knows that he is wholly at the mercy of his inquisitor and that the severe cross-examination may at any moment shift to a severe beating.'
10
See Report of the Royal Commission on Police Powers and Procedure (Cmd. (1929), at 61: '* * * (P)ersons in custody * * * are from the nature of things at a disadvantage because of their position. As one witness expressed it to us, 'the whole of the influences around them appear to them to be hostile' and we think that a right of asking questions in these circumstances is in itself a source of danger. * * *'
11
O'Brien, J., dissenting, in Regina v. Johnston, 15 Irish Common Law Reports, 60, 87, 90 (Crim.App.): '* * * (I)t appears to me that answers given by a prisoner to questions put to him by those in whose custody he is, respecting the offence with which he is charged, cannot be regarded as voluntary statements, except the prisoner be at the same time apprised that he is not obliged to answer them, and that his answers may be given in evidence against him at his trial. The very fact of these questions being put by such a person, unaccompanied by any such caution, conveys to the prisoner's mind the idea of some obligation on his part to answer them, and deprives the statement of that voluntary character which is essential to its admissibility.' Cf. Cuthbert W. Pound, Inquisitorial Confessions, 1 Cornell L.Q. 77, 80 (1916).
12
Cf. Wilde, C.J., in Regina v. Pettit, 4 Cox C.C. 164, 165: 'The law is so extremely cautious in guarding against anything like torture, that it extends a similar principle to every case where a man is not a free agent in meeting an inquiry. If this sort of examination be admitted in evidence, it is hard to say where it might stop. A person in custody, or in other imprisonment, questioned by a magistrate, who has power to commit him and power to release him, might think himself bound to answer for fear of being sent to gaol. The mind in such a case would be likely to be affected by the very influences which render the statements of accused persons inadmissible.' Cf. IV Wickersham, at 93.
13
Watts v. State of Indiana, 338 U.S. 49, 53, 69 S.Ct. 1347, 93 L.Ed. 1801 (opinion of Frankfurter, J.).
14
Devlin, The Criminal Prosecution in England (1958), 58.
15
Jackson, J., dissenting in Ashcraft v. Tennessee, 322 U.S. 143, 156, 160, 64 S.Ct. 921, 927, 929, 88 L.Ed. 1192.
16
People v. Hall, 413 Ill. 615, 624, 110 N.E.2d 249, 254. See 3 Wigmore on Evidence (3d ed. 1940), § 851; Filamor, Third Degree Confession, 13 Bombay L.J. 339, 347 (1936); Kidd, Police Interrogation (1940), 13—15; Mulbar, Interrogation (1951), 3—4; O'Hara, Fundamentals of Criminal Investigation (1956), 8—10; Inbau and Reid, Lie Detection and Criminal Investigation (3d ed. 1953), 195—197.
17
State v. Smith, 32 N.J. 501, 534, 161 A.2d 520, 537. The need to permit police interrogation of suspects in custody has been persistently asserted in this country. See, e.g., H.R.Rep. No. 1815, 85th Cong., 2d Sess. 5—7 ('If the police * * * are, in effect, prevented from conducting a proper and reasonable interrogation of suspects, law enforcement is faced with a serious challenge.' Id., at 5.); S.Rep. No. 1478, 85th Cong., 2d Sess. 7 11 ('We abhor * * * the idea * * * that the police do not have the right to reasonably interrogate persons held in custody prior to arraignment. This subcommittee believe that the police not only have the right, but they have the duty to conduct reasonable interrogation of persons charged with crime.' Id., at 11.); H.R.Rep. No. 352, 86th Cong., 1st Sess. 4, 6—9 ('(T)o preclude police questioning would have a devastating effect on the criminal law.' Id., at 4.); Admission of Evidence in Certain Cases, Hearings before Subcommittee No. 2 of the Committee on the Judiciary, House of Representatives, on H.R. 3690, 78th Cong., 1st Sess., Ser. No. 12, 1—10, 27—60; Supreme Court Decisions, Hearings before the Special Subcommittee to Study Decisions of the Supreme Court of the United States, of the Committee on the Judiciary, House of Representatives, 85th Cong., 2d Sess., Ser. No. 12, pt. 1, 2—21, 30—101, 157—190; Admission of Evidence (Mallory Rule), Hearings before the Subcommittee on Improvements in the Federal Criminal Code of the Committee on the Judiciary, Senate, on H.R. 11477, S. 2970, S. 3325, S. 3355, 85th Cong., 2d Sess. 22—45, 64 74, 128—149, 160—162; Confessions and Police Detention, Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, Senate, 85th Cong., 2d Sess. 2—8, 119—141; 93 Cong.Rec. 1390; 105 Cong.Rec. 12863; Wickersham, The Supreme Court and Federal Criminal Procedure, 44 Cornell L.Q. 14, 19—22 (1958); Inbau, The Confession Dilemma in the United States Supreme Court, 43 Ill.L.Rev. 442 (1948); Inbau, Law and Police Practice: Restrictions in the Law of Interrogation and Confessions, 52 Nw.U.L.Rev. 77, 80—82 (1957); Hall, Police and Law in a Democratic Society, 28 Ind.L.J. 133, 176 (1953); cf. IV Wickersham, at 173 174. And see Williams, Questioning by the Police: Some Practical Considerations, (1960) Crim.L.Rev. 325, 332—334, 340—341.
18
See Coakley, Law and Police Practice: Restrictions in the Law of Arrest, 52 Nw.U.L.Rev. 2, 8—10 (1957), criticizing as possibly too short, in some cases, the twenty-four-hour maximum prehearing detention period provided by § 11 of the Uniform Arrest Act. The Act is found in Warner, The Uniform Arrest Act, 28 Va.L.Rev. 315, 343, 347 (1942).
19
See Mulbar, Interrogation (1951), 18—19.
20
See Confessions and Police Detention, Hearings, supra, note 17, at 117—118; H.R.Rep. No. 352, 86th Cong., 1st Sess. 8. See also Kauper, Judicial Examination of the Accused—A Remedy for the Third Degree, 30 Mich.L.Rev. 1224, 1247 (1932), suggesting that the presence of counsel would be obstructive even at an interrogation where the accused was deprived of his privilege against self-incrimination. It is significant that critics of French criminal procedure attribute the presence of third-degree methods and extra-judicial police interrogation in France to the impediment to judicial inquisition introduced by the law of 1897, giving suspects the right to be represented by counsel before the juge d'instruction. Hamson, The Prosecution of the Accused—English and French Legal Methods, (1955) Crim.L.Rev. 272, 275—276, 278; Vu in, The Protection of the Accused in French Criminal Procedure, 5 Int'l & Comp.L.Q. 1, 17 (1956).
21
These involve, as Sir Patrick Devlin put it, 'the recognition, by every system of law in which the liberty of the subject is considered, that inquiry into crime cannot be left simply to administrative discretion. In most systems it has been found necessary to regulate, formally or informally, the power of interrogation.' Devlin, The Criminal Prosecution in England (1958), 13—14.
22
For the history of this episode in English judicial practice see 5 Holdsworth, A History of English Law (1924), 184 196; Lowell, The Judicial Use of Torture, 11 Harv.L.Rev. 220, 290 (1897).
23
Patrick Henry, in 3 Elliot's Debates (2d ed. 1891), 447 448: '* * * What has distinguished our ancestors?—That they would not admit of tortures, or cruel and barbarous punishment But (in the absence of a Bill of Rights) Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany of torturing, to extort a confession of the crime. They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone.'
24
See Gilbert on Evidence (3d ed. 1769) 140: '* * * but then this Confession must be voluntary and without Compulsion; for our Law in this differs from the Civil Law, that it will not force any Man to accuse himself; and in this we do certainly follow the Law of Nature, which commands every Man to endeavor his own Preservation; and therefore Pain and Force may compel Men to confess what is not the Truth of Facts, and consequently such extorted Confessions are not to be depended on.' And see Brown v. Walker, 161 U.S. 591, 596—597, 16 S.Ct. 644, 646—647, 40 L.Ed. 819; 1 Cooley's Constitutional Limitations (8th ed. 1927) 647—648; cf. 2 Story on the Constitution (4th ed. 1873) § 1788.
Of course, the continental countries which employ inquisitorial modes of criminal procedure have themselves long ago given up reliance upon the tortures which they once used to wring incriminating information out of the accused and which were a salient feature of the inquisitorial system at the time that the English definitely rejected it in the seventeenth century. For descriptions of the development and modern character of the inquisitorial method, see Keedy, The Preliminary Investigation of Crime in France, 88 U. of Pa.L.Rev. 385, 692, 915 (1940); Garner, Criminal Procedure in France, 25 Yale L.J. 255 (1916); Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America, 48 Harv.L.Rev. 433 (1935); Hamson, The Prosecution of the Accused—English and French Legal Methods, (1955) Crim.L.Rev. 272; and see Vouin, Provisional Release in French Penal Law, 108 U. of Pa.L.Rev. 355 (1960). A description of the careful procedural safeguards which the inquisitorial system now maintains is found in Vouin, The Protection of the Accused in French Criminal Procedure, 5 Int'l & Comp.L.Q. 1 (1956), and an interesting study of some of those safeguards in operation in a particular case is Vouin, L'Affaire Drummond, (1955) Crim.L.Rev. 5.
25
Rex v. Rudd, 1 Cowp. 331, 334. See Ibrahim v. Rex, (1914) A.C. 599, 609—610 (P.C.) Wigmore, it is true, attributes to the English exclusionary rule the sole purpose of assuring the reliability of evidence. See 3 Wigmore on Evidence (3d ed. 1940) §§ 815—867. There can be no doubt, of course, that the fear of false confessions played a large part in the adoption of the rule. See Rex v. Warickshall, 1 Leach 298, 299—300; 3 Russell on Crimes (6th ed. 1896) 478, n. (e). But it is equally clear that there soon mingled with this original and at first exclusive impetus another independent and sufficient, although historically diverse, reason for the rule: the conception that the use of extorted confessions set at naught the underlying tenet of the accusatorial system, that men might not be compelled to speak what would convict them. See Gilbert on Evidence, quoted note 24, supra. Quite apart from testimonial unreliability, where it appeared that coercion had been applied to extract extra-judicial incriminating statements, the courts refused to be party to such proceedings. Regina v. Jarvis, 10 Cox C.C. 574, 576 (Crim.App.); Regina v. Thompson, (1893) 2 Q.B. 12, 18—19 (Cr.Cas.Res.); Chalmers v. H. M. Advocate, (1954) Sess.Cas. 66, 78—79, 81—82 (J.C.); O'Brien, J., dissenting in Regina v. Johnston, 15 Irish Common Law Reports 60, 87, 88. Compare Bram v. United States, 168 U.S. 532, 543, 18 S.Ct. 183, 187, 42 L.Ed. 568. And see McCormick, The Scope of Privilege in the Law of Evidence, 16 Tex.L.Rev. 447, 451—457 (1938); Smith, Public Interest and the Interests of the Accused in the Criminal Process—Reflections of a Scottish Lawyer, 32 Tulane L.Rev. 349, 354—355 (1958); Lowell, The Judicial Use of Torture, 11 Harv.L.Rev. 220, 290, 296 (1897). In this way, the conceptions underlying the rule excluding coerced confessions and the privilege against self-incrimination have become, to some extent, assimilated. See 1 Stephen, A History of the Criminal Law of England (1883), 440; 1 Taylor on Evidence (12th ed. 1931) 556; Fraenkel, From Suspicion to Accusation, 51 Yale L.J. 748, 753 (1942); Report of the Royal Commission on Police Powers and Procedures (Cmd. 3297) (1929) 24; IV Wickersham, at 26—27. Our own decisions enforcing the Due Process Clause of the Fourteenth Amendment have made clear that 'The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairnes 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. See Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, and authorities cited therein. And see State v. Smith, 1960, 42 N.J. 501, 541—544, 161 A.2d 520, 541—543.
26
See McNabb v. United States, 318 U.S. 332, 342—343, note 7, 63 S.Ct. 608, 613—614, 87 L.Ed. 819. The most prevalent American provision is that requiring judicial examination 'without unnecessary delay.' See, e.g., Fed.Rules Crim.Proc. rule 5(a), 18 U.S.C.A.; Cal.Penal Code, § 849; Ill.Rev.Stat.1959, c. 38, § 660; N.Y.Code Crim.Proc. § 165; American Law Institute, Code Crim.Proc., 1931, §§ 6, 35; and see 1 Alexander, The Law of Arrest (1949), 623—633. Some jurisdictions fix specific periods of permissible pre-examination detention. See Cal.Penal Code, § 825 (without unnecessary delay; two-day maximum); § 544.170 Mo.Rev.Stat.1959, V.A.M.S. (twenty hours unless prisoner charged and held by warrant); N.H.Rev.Stat.1955, §§ 594:2, 594:19, 594:20, 594:22, 594:23 (four-hour detention without arrest in certain cases; twenty-four hours after night arrest; examination without unreasonable delay if arrest is by warrant; other arrests require prompt examination; twenty-four-hour maximum); R.I.Gen.Laws, 1956, §§ 12—7—1, 12—7—13 (two-hour detention without arrest in certain cases; twenty-four hours after arrest). Judicial decisions as to what constitutes unnecessary or unreasonable delay, under the pertinent statutes or at common law, are not wholly harmonious. Compare Keefe v. Hart, 213 Mass. 476, 100 N.E. 558 (jury could find one and a quarter hours unlawful), with Lynn v. Weaver, 251 Mich. 265, 231 N.W. 579 (four hours lawful); Madsen v. Hutchison, 49 Idaho 358, 290 P. 208 (five hours unlawful as matter of law; no extenuating circumstances found), with Haggard v. First Nat. Bank of Mandan, 72 N.D. 434, 8 N.W.2d 5 (jury can find five hours lawful under circumstances); Dragna v. White, 45 Cal.2d 469, 473, 289 P.2d 428, 430 (dictum that less than two days may be unlawful under Cal.Penal Code § 825), with People v. Sewell, 95 Cal.App.2d 850, 856, 214 P.2d 113, 117 (suggestion that two-day detention is lawful under § 825; no consideration of circumstances). Cases can be found holding necessary or reasonable relatively long periods of delay. E.g., People v. Kelly, 404 Ill. 281, 288, 89 N.E.2d 27, 30—31, semble; Commonwealth v. Banuchi, 335 Mass. 649, 141 N.E.2d 835; Mulberry v. Fuellhart, 203 Pa. 573, 53 A. 504; Peloquin v. Hibner, 231 Wis. 77, 285 N.W. 380 (alternative holding); United States ex rel. Goodchild v. Burke, 7 Cir., 245 F.2d 88 (Wisconsin law). But see Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479.
Outside the United States, too, legislation requiring that arrested persons be brought before a magistrate within some fixed period of time is common, although the period fixed varies from country to country. See, e.g., Criminal Code of Canada, § 438(2) (twenty-four hours whenever a justice is available within twenty-four hours; if not, as soon thereafter as possible); Magistrates' Courts Act, 1952, 15 & 16 Geo. VI & 1 Eliz. II, c. 55, § 38 (police must release on recognizance persons arrested without warrant who cannot practicably be brought before a magistrate within twenty-four hours, unless the offense is serious); Criminal Procedure (Scotland) Act, 1887, 50 & 51 Vict., c. 35, § 17 (examination on declaration may be delayed forty-eight hours to permit person arrested to secure counsel); compare the new French Code de Procedure Penale, Arts. 63, 77, 154 (twenty-four-hour detentions for investigation in certain cases). For discussion of such foreign regulations, see Working Papers E through V, United Nations, 1958 Seminar on the Protection of Human Rights in Criminal Law and Procedure, Baguio City, Philippines (1958), and the Symposium: The Comparative Study of Conditional Release, 108 U. of Pa.L.Rev. 290—365 (1960).
In sum, it seems fair to say that there is unanimity for the proposition that 'Strict observance of some reasonably definite and rather short time-limit for the detention of a prisoner after arrest without judicial sanction is vital to personal liberty.' Statement by the Committee on the Bill of Rights of the American Bar Assn., Submitted to Subcommittee No. 2 of the Committee on the Judiciary, House of Representatives, in Chafee, Documents on Fundamental Human Rights, Pamphlets 1—3 (1951—1952), 480. But there is wide divergence of views concerning how definite is 'reasonably definite' and how short is 'rather short.'
27
Instances of third-degree treatment of prisoners almost invariably occur during the period between arrest and preliminary examination. IV Wickersham, at 169; Annual Report of the Committee on Criminal Courts, Law and Procedure for 1927—1928 to the Association of the Bar of the City of New York, Year Book, 1928, of the Assn. of the Bar, City of New York 235, 243, 253; Leibowitz, Law and Police Practice: Safeguards in the Law of Interrogation and Confessions, 52 Nw.U.L.Rev. 86, 87 (1957); Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U. of Chi.L.Rev. 345, 357 (1936).
28
E.g., Ill.Rev.Stat.1959, c. 38, § 379 (penalizing assault and battery or imprisonment by two or more persons for the purpose of obtaining confessions); Ky.Rev.Stat.1960, § 422.110 (penalizing attempts by persons having custody of prisoners charged with crime to obtain incriminating information by plying with questions, by threats or by other wrongful means; confession so obtained made inadmissible in evidence).
29
E.g., Cal.Penal Code, § 825 (attorneys permitted to see arrested persons; officers neglecting or refusing to permit such visits are guilty of a misdemeanor and civilly liable for statutory forfeiture); N.H.Rev.Stat.1955, §§ 594:15, 594:16, 594:17 (relatives, friends and attorney to be notified of arrest and permitted to see person arrested; violation of these provisions made criminal); Vernon's Ann.Tex.Penal Code, Art. 1176 (makes it unlawful for persons having prisoners in custody to prevent prisoners' consultation or communicai on with counsel). For citation to statutes employing various approaches to elimination of third-degree practices and the protection of prisoners' interests, see McCormick, Some Problems and Developments in the Admissibility of Confessions, 24 Tex.L.Rev. 239, 251—254 (1946).
30
Under the inquisitorial system as it was practiced with systematized torture (the system embodied, for example, in the French Ordinance of 1670), the rack was applied to suspects in whose cases the preliminary examination had developed indications of guilt sufficient to justify its use but insufficient to satisfy the severe burden of proof necessary to conviction. See Lowell, The Judicial Use of Torture, 11 Harv.L.Rev. 220, 224—228 (1897).
31
The Indian Evidence Act, 1872. Section 25 excludes confessions made to a police officer; § 26 excludes confessions made by any person while in the custody of a police officer, except in the immediate presence of a magistrate. However, § 27 provides that 'when any fact is deposed to as discovered in consequence of information recev ed from a person accused of any offense, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.' Compare the bill, reported to have passed one house of the California Legislature in 1929, set out in Booth, Confessions, and Methods Employed in Procuring Them, 4 So.Calif.L.Rev. 83, 84—85, n. 3a (1930). And see the provision submitted without recommendation by the Commission on Penal Procedure at the Sixth Congress of the International Association of Democratic Lawyers, in Coe, Practices of Police and Prosecution Prior to Trial, 17 Law.Guild Rev. 62, 64 (1957).
32
E.g., Ibrahim v. Rex (1914) A.C. 599 (P.C.); Regina v. May, 36 Cr.App.Rep. 91.
33
Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343; Pierce v. United States, 160 U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454. And see Wilson v. United States, 162 U.S. 613, 623, 16 S.Ct. 895, 40 L.Ed. 1090; United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 157, 44 S.Ct. 54, 57, 68 L.Ed. 221.
34
Chalmers v. H.M. Advocate, (1954) Sess.Cas. 66 (J.C.). As expressed in the opinion of the Lord Justice-General,
'* * * The theory of our law is that at the stage of initial investigation the police may question any one with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centred upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e.g., to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded.' Id., at 78.
35
United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48; cf. United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140. And see Bram v. United States, 168 U.S. 532, 558, 18 S.Ct. 183, 192, 42 L.Ed. 568; Ziang Sung Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131; McNabb v. United States, 318 U.S. 332, 346, 63 S.Ct. 608, 615, 87 L.Ed. 819.
36
Rex v. Thornton, 1 Mood. 27; Rex v. Gilham, 1 Mood. 186; Rex v. Voisin, (1918) 1 K.B. 531 (Crim.App.); Regina v. Straffen, (1952) 2 Q.B. 911 (Crim.App.); and See Lambe's Case, 2 Leach 552, 554. Irish courts reach the same result. Rex v. Gibney, Jebb's Res.Cas. 14; Regina v. Johnston, 15 Irish Common Law Rep. 60 (Crim.App.). Several English decisions at the end of the last century appeared to lay down a per se rule excluding confessions by persons questioned in custody, see Regina v. Gavin, 15 Cox C.C.
656; Regina v. Male and Cooper, 17 Cox C.C. 689, but these cases have since been laid to rest. Rex v. Best, (1909) 1 K.B. 692 (Crim.App.). Perhaps the best statement of the current English law, subject to some qualification with respect to the Judges' Rules, see text at notes 39—47, infra, is that in Rex v. Voisin, (1918) 1 K.B. 531, 539 (Crim.App.):
'* * * (T)he mere fact that a statement is made in answer to a question put by a police constable is not in itself sufficient to make the statement inadmissible in law. It may be, and often is, a ground for the judge in his discretion excluding the evidence; but he should do so only if he thinks the statement was not a volunary one * * *, or was an unguarded answer made under circumstances that rendered it unreliable, or unfair for some reason to be allowed in evidence against the prisoner.' See Ibrahim v. Rex, (1914) A.C. 599, 610—614 (P.C.).
37
Boudreau v. Rex, (1949) 3 D.L.R. 81 (S.C.Can.); Rex v. Bellos, (1927) 3 D.L.R. 186 (S.C.Can.); Regina v. Day, 20 Ont. 209 (Q.B.); Regina v. Elliott, 31 Ont. 14 (D.C.). In Canada, as in England, however, trial judges exercise a broad discretion to exclude confessions by prisoners in response to police questioning where, under all the circumstances, admission of the confessin § is deemed unfair. See Rex v. Anderson, (1942) 3 D.L.R. 179 (C.A., B.C.). Compare Rex v. Kooten, (1926) 4 D.L.R. 711 (K.B., Man.), with the Canadian cases cited in notes 47 and 48, infra. And in both countries the heavy burden placed on the Crown affirmatively to demonstrate the voluntariness of any offered statement as a condition of its admissibility, Regina v. Thompson, (1893) 2 Q.B. 12 (Cr.Cas.Res.), often operates to exclude interrogated confessions. See, e.g., Rex v. Chadwick, 24 Crim.App.Rep. 138 (Recorder erred in determining issue of voluntariness on depositions; burden is on Crown affirmatively to show that confession is voluntary); Rex v. Dick, (1947) 2 D.L.R. 213 (C.A., Ont.); Rex v. Howlett, (1950) 2 D.L.R. 517 (C.A., Ont.). The Canadian law is discussed in Kaufman, The Admissibility of Confessions in Criminal Matters (1960).
38
Alabama: Ingram v. State, 1949, 252 Ala. 497, 42 So.2d 36; Myhand v. State, 1953, 259 Ala. 415, 66 So.2d 544. Arizona: State v. Miller, 1945, 62 Ariz. 529, 158 P.2d 669; Hightower v. State, 1945, 62
Ariz. 351, 158 P.2d 156, semble; State v. Jordan, 1958, 83 Ariz. 248, 320 P.2d 446, semble. Arkansas: State v. Browning, 1944, 206 Ark. 791, 178 S.W.2d 77; Moore v. State, 1958, 229 Ark. 335, 315 S.W.2d 907; and see Dorsey v. State, 1951, 219 Ark. 101, 240 S.W.2d 30. California: People v. Bashor, 1957, 48 Cal.2d 763, 312 P.2d 255; and see Rogers v. Superior Court, 1955, 46 Cal.2d 3, 291 P.2d 929. Colorado: Cahill v. People, 1943, 111 Colo. 29, 137 P.2d 673, 148 A.L.R. 536; Downey v. People, 1950, 121 Colo. 307, 215 P.2d 892; Leick v. People, 1958, 136 Colo. 535, 322 P.2d 674. Connecticut: State v. Zukauskas, 1945, 132 Conn. 450, 45 A.2d 289; State v. Buteau, 1949, 136 Conn. 113, 68 A.2d 681; and see State v. Guastamachio, 1950, 137 Conn. 179, 75 A.2d 429. Delaware: Garner v. State, 1958, 51 Del. 301, 145 A.2d 68. Florida: Graham v. State, Fla.1956, 91 So.2d 662; Singer v. State, Fla.1959, 109 So.2d 7, 26; and see Finley v. State, 1943, 153 Fla. 394, 14 So.2d 844; Rollins v. State, Fla.1949, 41 So.2d 885. Georgia: Bryant v. State, 1941, 191 Ga. 686, 13 S.E.2d 820; 1944, 197 Ga. 641, 30 S.E.2d 259; Russell v. State, 1943, 196 Ga. 275, 26 S.E.2d 528; and see Ferguson v. State, 1959, 215 Ga. 117, 109 S.E.2d 44, reversed on other grounds 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783. Hawaii: Territory of Hawaii v. Young and Nozawa, 1945, 37 Haw. 189; Territory of Hawaii v. Aquino, 1959, 43 Haw. 347. Idaho: State v. Behler, 1944, 65 Idaho 464, 146 P.2d 338, semble; and see State v. Johnson, 1953, 74 Idaho 269, 261 P.2d 638. Illinois: People v. Lazenby, 1949, 403 Ill. 95, 85 N.E.2d 660; People v. Hall, 1953, 413 Ill. 615, 110 N.E.2d 249; Davies v. People, 1956, 10 Ill.2d 11, 139 N.E.2d 216; People v. Goard, 1957, 11 Ill.2d 495, 144 N.E.2d 603; Napue v. People, 1958, 13 Ill.2d 566, 571, 150 N.E.2d 613, 616 (dictum), reversed on other grounds 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; People v. Miller, 1958, 13 Ill.2d 84, 148 N.E.2d 455; and see People v. Lettrich, 1952, 413 Ill. 172, 108 N.E.2d 488. Indiana: Krauss v. State, 1951, 229 Ind. 625, 100 N.E.2d 824; Pearman v. State, 1954, 233 Ind. 111, 117 N.E.2d 362; and see Davis v. State, 1956, 235 Ind. 620, 137 N.E.2d 30. Iowa: State v. Williams, 1954, 245 Iowa 494, 62 N.W.2d 742; State v. Harriott, 1956, 248 Iowa 25, 79 N.W.2d 332; State v. Triplett, 1956, 248 Iowa 339, 79 N.W.2d 391. Kansas: State v. Vargas, 1957, 180 Kan. 716, 308 P.2d 81;
and see State v. Smith, 1944, 158 Kan. 645, 149 P.2d 600. Kentucky: Commonwealth v. Mayhew, 1943, 297 Ky. 172, 178 S.W.2d 928; Curtis v. Commonwealth, 1949, 312 Ky. 205, 226 S.W.2d 753; Reed v. Commonwealth, 1949, 312 Ky. 214, 226 S.W.2d 513; Milam v. Commonwealth, Ky.1955, 275 S.W. 921; Karl v. Commonwealth, Ky.1956, 288 S.W.2d 628. Louisiana: State v. Holmes, 1944, 205 La. 730, 18 So.2d 40; State v. Joseph, 1950, 217 La. 175, 46 So.2d 118; State v. Solomon, 1952, 222 La. 269, 62 So.2d 481; State v. Weston, 1957, 232 La. 766, 95 So.2d 305; and see State v. Green, 1952, 221 La. 713, 60 So.2d 208. Maine:S tate v. Priest, 1918, 117 Me. 223, 103 A. 359. Maryland: Cox v. State, 1949, 192 Md. 525, 64 A.2d 732; James v. State, 1949, 193 Md. 31, 65 A.2d 888; Merchant v. State, 1958, 217 Md. 61, 141 A.2d 487. Massachusetts: Commonwealth v. Mabey, 1937, 299 Mass. 96, 12 N.E.2d 61; Commonwealth v. Banuchi, 1957, 335 Mass. 649, 141 N.E.2d 835. Michigan: People v. La Panne, 1931, 255 Mich. 38, 237 N.W. 38, semble; and see People v. Hamilton, 1960, 359 Mich. 410, 416—417, 102 N.W.2d 738. Minnesota: State v. Schabert, 1946, 222 Minn. 261, 24 N.W.2d 846. Mississippi: Winston v. State, 1950, 209 Miss. 799, 48 So.2d 513, semble; Crouse v. State, 1956, 229 Miss. 15, 89 So.2d 919, semble. Missouri: State v. Eillis, 1946, 354 Mo. 998, 193 S.W.2d 31, 37; State v. Francies, Mo.1956, 295 S.W.2d 8; State v. Smith, Mo.1958, 310 S.W.2d 845; and see State v. Lee, 1950, 361 Mo. 163, 233 S.W.2d 666. Montana: State v. Dixson, 1927, 80 Mont. 181, 260 P. 138; State v. Robuck, 1952, 126 Mont. 302, 248 P.2d 817. Nebraska: Kitts v. State, 1949, 151 Neb. 679, 39 N.W.2d 283; Gallegos v. State, 1950, 152 Neb. 831, 43 N.W.2d 1, affirmed 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86; Parker v. State, 1957, 164 Neb. 614, 83 N.W.2d 347. Nevada: State v. Boudreau, 1950, 67 Nev. 36, 214 P.2d 135; Ex parte Sefton, 1957, 73 Nev. 2, 306 P.2d 771. New Hampshire: State v. Howard, 1845, 17 N.H. 171; and see State v. George, 1945, 93 N.H. 408, 43 A.2d 256. New Jersey: State v. Pierce, 1950, 4 N.J. 252, 72 A.2d 305; State v. Cooper, 1952, 10 N.J. 532, 92 A.2d 786; State v. Grillo, 1952, 11 N.J. 173, 93 A.2d 328; State v. Wise, 1955, 19 N.J. 59, 115 A.2d 62; State v. Smith, 1960, 32 N.J. 501, 161 A.2d 520. New
Mexico: State v. Lindemuth, 1952, 56 N.M. 257, 243 P.2d 325; State v. Griego, 1956, 61 N.M. 42, 294 P.2d 282; State v. Padilla, 1959, 66 N.M. 289, 347 P.2d 312. New York: People v. Perez, 1949, 300 N.Y. 208, 90 N.E.2d 40; People v. Spano, 1958, 4 N.Y.2d 256, 173 N.Y.S.2d 793, 150 N.E.2d 226, reversed 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; People v. Vargas, 1960, 7 N.Y.2d 555, 200 N.Y.S.2d 29, 166 N.E.2d 831; and see People v. Alex, 1934, 265 N.Y. 192, 192 N.E. 289, 94 A.L.R. 1033; People v. Elmore, 1938, 277 N.Y. 397, 14 N.E.2d 451, 124 A.L.R. 465; People v. Lovello, 1956, 1 N.Y.2d 436, 154 N.Y.S.2d 8, 136 N.E.2d 483. But see People v. Di Biasi, 1960, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825 (post-indictment). North Carolina: State v. Brown, 1951, 233 N.C. 202, 63 S.E.2d 99; State v. Rogers, 1951, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Davis, 1960, 253 N.C. 86, 116 S.E.2d 365. North Dakota: State v. Nagel, 1947, 75 N.D. 495, 28 N.W.2d 665; State of Braathen, 1950, 77 N.D. 309, 43 N.W.2d 202. Ohio: State v. Collett, Ohio App.1944, 58 N.E.2d 417, appeal dismissed 1945, 144 Ohio St. 639, 60 N.E.2d 170; State v. Lowder, 1946, 79 Ohio App. 237, 72 N.E.2d 785, appeal dismissed 1947, 147 Ohio St. 530, 72 N.E.2d 102. Oklahoma: Fry v. State, 1944, 78 Okl.Cr. 299, 147 P.2d 803; Hendrickson v. State, 1951, 93 Okl.Cr. 379, 229 P.2d 196; Thacker v. State, Okl.Cr. 1957, 309 P.2d 306; and see Application of Fowler, Okl.Cr.1960, 356 P.2d 770, 778. Oregon: State v. Folkes, 1944, 174 Or. 568, 150 P.2d 17; State v. Nunn, 1958, 212 Or. 546, 321 P.2d 356; and see State v. Leland, 1951, 190 Or. 598, 227 P.2d 785, affirmed 1952, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. Pennsylvania: Commonwealth v. Agoston, 1950, 364 Pa. 464, 72 A.2d 575; Commonwealth v. Bibalo, 1953, 375 Pa. 257, 100 A.2d 45; Commonwealth ex rel. Sleighter v. Banmiller, 1958, 392 Pa. 133, 139 A.2d 918. Rhode Island: State v. Andrews, 1957, 86 R.I. 341, 134 A.2d 425. South Carolina: State v. Brown, 1948, 212 S.C. 237, 47 S.E.2d 521; State v. Bullock, 1959, 235 S.C. 356, 111 S.E.2d 657; and see State v. Chasteen, 1955, 228 S.C. 88, 88 S.E.2d 880. South Dakota: State v. Landers, 1908, 21 S.D. 606, 114 N.W. 717; State v. Nicholas, 1934, 62 S.D. 511, 253 N.W. 737, semble. Tennessee: Wynn v. State, 1944, 181 Tenn. 325, 181 S.W.2d 332; Ford v. State, 1945, 184 Tenn. 443, 201 S.W.2d 539; Taylor v. State 1950, 191 Tenn. 670, 235 S.W.2d 818; and see McGhee v. State, 1945, 183 Tenn. 20, 189 S.W.2d
826, 164 A.L.R. 617; Acklen v. State, 1954, 196 Tenn. 314, 267 S.W.2d 101. Texas: Dimery v. State, 1951, 156 Tex.Cr.R. 197, 240 S.W.2d 293; Leviness v. State, 1952, 157 Tex.Cr.R. 160, 247 S.W.2d 115; Golemon v. State, 1952, 157 Tex.Cr.R. 534, 247 S.W.2d 119; LeFors v. State, 1954, 161 Tex.Cr.R. 544, 278 S.W.2d 837; Walker v. State, 1955, 162 Tex.Cr.R. 408, 286 S.W.2d 144; Childress v. State, 1958, 166 Tex.Cr.R. 95, 312 S.W.2d 247. Utah: Mares v. Hill, 1950, 118 Utah 484, 222 P.2d 811; and see State v. Gardner, 1951, 119 Utah 579, 230 P.2d 559; State v. Braasch, 1951, 119 Utah 450, 229 P.2d 289. Vermont: State v. Blair, 1953, 118 Vt. 81, 99 A.2d 677; State v. Goyet, 1957, 120 Vt. 12, 132 A.2d 623. Virginia: James v. Commonwealth, 1951, 192 Va. 713, 66 S.E.2d 513; Campbell v. Commonwealth, 1953, 194 Va. 825, 75 S.E.2d 468; Mendoza v. Commonwealth, 1958, 199 Va. 961, 103 S.E.2d 1. Washington: State v. Winters, 1951, 39 Wash.2d 545, 236 P.2d 1038; State v. Johnson, 1959, 53 Wash.2d 666, 335 P.2d 809. West Virginia: State v. Digman, 1939, 121 W.Va. 499, 5 S.E.2d 113; State v. Bruner, 1958, 143 W.Va. 755, 105 S.E.2d 140; and see State v. Brady, 1927, 104 W.Va. 523, 140 S.E. 546. Wisconsin: State v. Fransisco, 1950, 257 Wis. 247, 43 N.W.2d 38; Kiefer v. State, 1950, 258 Wis. 47, 44 N.W.2d 537; State v. Babich, 1951, 258 Wis. 290, 45 N.W.2d 660; State v. Stortecky, 1956, 273 Wis. 362, 77 N.W.2d 721; State v. Bronston, 1959, 7 Wis.2d 627, 97 N.W.2d 504, 98 N.W.2d 468. Wyoming: Mortimore v. State, 1916, 24 Wyo. 452, 161 P. 766; State v. Lantzer, 1940, 55 Wyo. 230, 99 P.2d 73.
39
Regina v. Berriman, 6 Cox C.C. 388, 388—389 ('I very much disapprove of this proceeding. By the law of this country, no person ought to he (sic) made to criminate himself, and no police officer has any right, until there is clear proof of a crime having been committed, to put searching questions to a person for the purpose of eliciting from him whether an offence has been perpetrated or not. If there is evidence of an offence, a police officer is justified, after a proper caution, in putting to a suspected person interrogatories with a view to ascertaining whether nor not there are fair and reasonable grounds for apprehending him. Even this course should be very sparingly resorted to. * * * I wish it to go forth amongst those
who are inferior officers in the administration of justice, that such a practice is entirely opposed to the spirit of our law.'); Regina v. Mick, 3 F. & F. 822, 823 ('I entirely disapprove of the system of police officers examining prisoners. The law has surrounded prisoners with great precautions to prevent confessions being extorted from them, and the magistrates are not allowed to question prisoners, or to ask them what they have to say; and it is not for policemen to do these things. It is assuming the functions of the magistrate without those precautions which the magistrates are required by the law to use, and assuming functions which are entrusted to the magistrates and to them only.'); Regina v. Reason, 12 Cox C.C. 228, 229 ('It is the duty of the police-constable to hear what the prisoner has voluntarily to say, but after the prisoner is taken into custody it is not the duty of the police-constable to ask questions.'); Regina v. Cheverton, 2 F. & F. 833, 835; Regina v. Regan, 17 Law Times Rep.(N.S.) 325, 326.
40
The first four of the rules, drawn up by the judges of the King's Bench at the request of the Home Secretary, were circulated in 1912. Their text is set forth in Rex v. Voisin, (1918) 1 K.B. 531, 539, n. (3). A memorandum approved by the judges in 1918 increased their number to nine. See 145 Law Times 389 (Sept. 28, 1918). Ambiguities in the rules were pointed out by a Royal Commission in 1929, see Report of the Royal Commission on Police Powers and Procedure (Cmd. 3297) (1929) 69—74, and in response to the Commission's observations a clarifying circular was issued by the Home Office in 1930 with the approval of the judges. See 6 Police Journal (1933) 342, 352—356; 1 Taylor on Evidence (12th ed. 1931) 557—559. Further Home Office Circulars in 1947 and 1948 were approved by the Lord Chief Justice. For the text of the Rules and Circulars as presently in operation, see 1 Stone's Justices' Mannual (92 ed. 1960) 353—356. See also Devlin, The Criminal Prosecution in England (1958), 38—42, 137—141. The Home Secretary recently responded to Parliament that he had been in touch with the Lord Chief Justice, who had agreed that the time had come when it would be appropriate for the judges to carry out a review of the scope and operation of the Judges' Rules, 636 H.C.Deb., Hansard, No. 75 (written answers) 145 (March 16, 1961).
41
The Rules, in pertinent part, are:
'(1) When a police officer is endeavouring to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks that useful information can be obtained.
'(2) Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking any questions r any further questions, as the case may be.
'(3) Persons in custody should not be questioned without the usual caution being first administered.
'(4) If the prisoner wishes to volunteer any statement, the usual caution should be administered * * *.
'(7) A prisoner making a voluntary statement must not be cross-examined, and no questions should be put to him about it except for the purpose of removing ambiguity in what he has actually said. For instance, if he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and day of the month which do not agree, or has not made it clear to what individual or what place he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point.
'(8) When two or more persons are charged with the same offence and statements are taken separately from the persons charged, the
police should not read these statements to the other persons charged, but each of such persons should be furnished by the police with a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply, the usual caution should be administered.' These must be read in connection with the Home Office Circular of 1930, which states:
'Rule 3 was never intended to encourage or authorize the questioning or cross-examination of a person in custody after he has been cautioned, on the subject of the crime for which he is in custody, and long before this Rule was formulated, and since, it has been the practice for the Judge not to allow any answer to a question so improperly put to be given in evidence; but in some cases it may be proper and necessary to put questions to a person in custody after the caution has been administered. For instance, a person arrested for a burglary may, before he is formally charged, say, 'I have hidden or thrown the property away,' and after caution he would properly be asked, 'Where have you hidden or thrown it?'; or a person, before he is formally charged as a habitual criminal, is properly asked to give an account of what he has done since he last came out of prison. Rule 3 is intended to apply to such cases and, so understood, is not in conflict with and does not qualify Rule 7, which prohibits any question upon a voluntary statement except such as is necessary to clear up ambiguity.'
42
Regina v. Wattam, 36 Crim.App.Rep. 72, 77; Regina v. Straffen, (1952) 2 Q.B. 911, 914 (Crim.App.).
43
Ibid.; Rex v. May, 36 Crim.App.Rep. 91, 93; Rex v. Voisin, (1918) 1 K.B. 531, 539—540; see 'Questioning an Accused Person,' 92 J.P. 743, 758 (1928); Brownlie, Police Questioning, Custody and Caution, (1960) Crim.L.Rev. 298.
44
See Rex v. Dwyer, 23 Crim.App.Rep. 156; Regina v. Bass, 37 Crim.App.Rep. 51.
45
See Devlin, The Criminal Prosecution in England (1958), passim.
46
No doubt the Judges' Rules are sometimes broken, but the reported breaches themselves seem relatively mild—compared with what is common American police practice—so that even these appear to support the conclusion that, in the large, the tenor of the Rules is that which prevails in practical operation among the English constabulary. See the several articles composing the 'Special Issue on Police Questioning,' (1960) Crim.L.Rev. 298—356; Elliott, Book Review, 5 J.Soc.Public Teachers of Law (N.S.) 230 (1960).
The furor, both within and without Parliament, raised by an afternoon's questioning of Miss Savidge, is illuminating. See Inquiry In Regard to the Interrogation By the Police of Miss Savidge, Report of the Tribunal appointed under the Tribunals of Inquiry (Evidence) Act, 1921 (Cmd. 3147) (1928); 217 H.C.Deb. 1216 1220, 1303—1339, 1921—1931 (5th ser. 1928). So is the comment to which the English practice has sometimes given occasion. See, e.g., Forsyth, The History of Lawyers (1875), 282, n. 1: 'Not long ago, at a trial at the Central Criminal Court, a policeman was asked whether the prisoner had not made a statement. He answered, 'No:h e was beginning to do so; but I knew my duty better, and I prevented him."
47
See the 1905 decision, Rex v. Knight, 21 T.L.Rep. 310; and see Rex v. Kay, 11 B.C. 157.
48
Compare Rex v. Godwin, (1924) 2 D.L.R. 362 (K.B., N.B.), with Ibrahim v. Rex, (1914) A.C. 599 (P.C.). And see Rex v. Pattison, 21 Cr.App.Rep. 139.
49
The Judges' Rules' requirement of a caution has been adopted, however, and made a condition of admissibility of incriminating statements, by the Uniform Code of Military Justice, 10 U.S.C. § 831, 10 U.S.C.A. § 831. The same requirement, with certain exceptions, prevails by statute in Texas. Vernon's Ann.Tex.Code Crim.Proc., Arts. 726, 727. Compare S. 3325, 85th Cong., 2d Sess.
50
In McNabb, our decision turned on the failure of the arresting officers to comply with procedures prescribed by federal statutes then in effect requiring prompt production of persons arrested for preliminary examination. Compare Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. The Upshaw case and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, carried the same exclusionary rule over in implementation of Fed.Rules Crim.Proc., 5(a). Of course, our decision in United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, makes clear that confessions made during the period immediately following arrest and before delay becomes unlawful are not to be excluded under the rule.
51
318 U.S. at pages 343—344, 63 S.Ct. at page 614:
'* * * The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation * * * requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard—not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the 'third degree' which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection.' See notes 26, 27, supra.
52
Prior to McNabb, the rule prevailing in the federal courts made voluntariness the test of admissibility. Ziang Sung Wan v. United States, 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131. See also Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568.
53
See cases cited in note 38, supra. Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Louisiana (semble), Maryland, Massachusetts (semble), Mississippi, Missouri, Nevada, New Jersey, New York, North Carolina (semble), North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania (no prompt-arraignment statute), Rhode Island (semble), Tennessee (no prompt-arraignment statute), Texas, Utah, Vermont (semble), Virginia, Washington and Wisconsin (semble) have expressly rejected McNabb. Colorado appears clearly to reject it. Minnesota also appears to reject it, the decision in State v. Schabert, 222 Minn. 261, 24 N.W.2d 846, qualifying whatever suggestion might have been inferred from the opinion in the earlier appeal of the same case, 218 Minn. 1, 15 N.W.2d 585, that McNabb would be followed. There is dictum in Kentucky suggesting that protracted pre-arraignment delay would not eo ipso cause exclusion of a confession. Reed v. Commonwealth, 1949, 312 Ky. 214, 218, 226 S.W.2d 513, 514—515. Idaho, where State v. Johnson, 74 Idaho 269, 261 P.2d 638, limits and in part overrules State v. Kotthoff, 67 Idaho 319, 177 P.2d 474 (a decision whose reasoning seems in some respects similar to that of McNabb) must now be regarded as uncommitted. The only State to follow McNabb is Michigan. People v. Hamilton, 359 Mich. 410, 102 N.W.2d 738.
54
Cf. Cicenia v. La Gay, 357 U.S. 504, 509, 78 S.Ct. 1297, 1300, 2 L.Ed.2d 1523:
'* * * On the one hand, it is indisputable that the right to counsel in criminal cases has a high place in our scheme of procedural safeguards. On the other hand, it can hardly be denied that adoption of petitioner's position (that any state denial of a defendant's request to confer with counsel during police questioning violates due process) would constrict state police activities in a manner that in many instances might impair their ability to solve difficult cases. A satisfactory formula for reconciling these competing concerns is not to be found in any broad pronouncement that one must yield to the other in all instances. Instead, * * * this Court, in judging whether state prosecutions meet the requirements of due process, has sought to achieve a proper accommodation by considering a defendant's lack of counsel one pertinent element in determining from all the circumstances whether a conviction was attended by fundamental unfairness.'
55
The record in this case does not make clear, as did that in Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, that the legal standard applied by the trial judge in passing upon the admissibility of Culombe's confessions was, under this Court's decisions, an impermissible one. In view of the disposition which we make upon the facts of this case, viewed under the assumption that a proper criterion of judgment was employed below, we need not further pursue the inquiry whether the trial judge's standard satisfied the constitutional requirements regarding coercion.
56
State v. Buteau, 136 Conn. 113, 116—118, 68 A.2d 681, 682 683; State v. Lorain, 141 Conn. 694, 699—700, 109 A.2d 504, 506 507. And see State v. McCarthy, 133 Conn. 171, 177, 49 A.2d 594, 596—597.
57
Portions of the following statement of facts are based upon testimony introduced into the record in the case of Taborsky, Culombe's co-defendant, who was tried jointly with Culombe. Virtually all of the evidence concerning Culombe's mental capacity was introduced, not at the time of the trial to the court of the issue of coercion relevant to the admissibility of Culombe's confessions, but at a later stage of the trial, in connection with Culombe's defense of insanity. Since all of this evidence was in the record at the time that the Supreme Court of Errors considered and rejected Culombe's federal claim of coercion, and since the opinion of that court does not indicate that it considered the material improperly before it as a matter of state procedure, we need not now decide what effect such a ruling would have on the scope of our review. Compare Blackburn v. State of Alabama, 361 U.S. 199, 209—211, 80 S.Ct. 274, 281—282, 4 L.Ed.2d 242.
58
Conn.Gen.Stat.1955 Supp., § 195d, now Conn.Gen.Stat.1958, § 6—49: '* * * (M)embers of the state police department * * * shall arrest, without previous complaint and warrant, any person who such officer has reasonable grounds to believe has committed or is committing a felony. Any person so arrested shall be presented with reasonable promptness before proper authority.'
59
'Q. All of the questioning of Culombe, from the time that he was taken into custody was with the object in view of obtaining a confession if a confession was obtainable, that is true, isn't it? A. That is correct.' (Cross-examination of Sergeant Paige.)
60
'Q. You kept after him, to use very conservative words A. Yes, sir. Q. Until you received the answers that you wanted? That's right, isn't it? A. No, sir. Until we received the answers which we proved were correct. Q. The answers that you wanted were admissions of guilt? You wanted those answers? A. No, sir, not if he were not guilty. Q. You were bound and determined, weren't you, Lieutenant, to get such answers? A. No, sir. Not if he were guilty. (Sic) We wanted answers that we could prove were correct.' (Cross-examination of Lieutenant Rome.)
61
'Q. Were they told of their rights, Constitutional rights? A. I didn't tell them. Q. You didn't hear anyone else tell it to them? A. No, sir, not that I know of.' (Cross-examination of Sergeant Paige.) It is unclear from the context of these responses whether they are meant to refer to the whole of Culombe's period of detention or only to Saturday afternoon.
62
Rome admitted that he might have told someone that he was taking a chance presenting Culombe on a breach of the peace charge (there was a chance, he said, as to whether or not the police presenting Culombe on a breach of the peace), and that he had thanked the alternate prosecutor for coming down to Hartford from New Britain on Sunday night at his request in connection with this matter.
63
The testimony is Lieutenant Rome's.
64
'Q. You could have presented him on Monday, couldn't you? A. Yes, sir.
'Q. And you didn't do that? A. No, sir.
'Q. Why didn't you do it? * * *
'THE WINTESS: It wasn't in accordance with good investigation.
'Q. But it was in accordance with the Statute, wasn't it? A. Yes, sir.
'Q. With reasonable promptness to bring him before a proper authority? A. Reasonable promptness—Tuesday morning, yes. * * *
'Q. You didn't bring him before the Court on Monday? A. No, sir.
'Q. And with reasonable promptness, you could have, couldn't you? A. Yes, sir.
'Q. But you wanted to hold him and do some more grilling, didn't you?
'MR. BILL: Objection to the grilling.
'THE COURT: I will sustain it.
'Q. You wanted to interrogate him some more, didn't you? A. Yes, Mr. Burke.
'Q. And that is why you didn't bring him before the proper authority—you wanted some more time? A. Yes, Mr. Burke.' (Cross-examination of Lieutenant Rome.)
65
The testimony is Lieutenant Rome's.
66
The Superior Court ruled that this borrowing was illegal under Connecticut law; the Supreme Court of Errors found it unnecessary to pass on the point.
67
Culombe requested that Mr. Bill, the State's Attorney, be told what he was doing, that he was cooperating. He said that he wanted Mr. Bill to see the statements that he made. The officers seem to have told Culombe that Mr. Bill would be notified of his cooperation but, in fact, Mr. Bill was never so notified.
68
Culombe testified that his five-year-old daughter, who was present in the room, appeared sick to him at that time. The officers testified that they did not notice any illness in the child and that Culombe had expressed no apprehension concerning her health, but it is undisputed that the little girl had to be taken to a hospital that night with mumps.
69
Because the Wednesday-midnight confession also contained references to another criminal offense, it was not physically offered in evidence at the trial. Counsel for the State and for the defense stipulated that another document, a substantially verbatim copy of the Kurp's portion of the confession, might be substituted for it. This was the so-called Monday confession. It was a paper prepared by the police from the Wednesday-midnight statement which was read to, and signed by, Culombe the following Monday. Notwithstanding the stipulation, the prosecution laid a foundation for the introduction as an exhibit of the Monday confession by offering testimony before the jury, first, that Culombe had made a statement Wednesday night; second, that it had been committed to writing; and third, that this writing was substantially identical to the typed paper which Culombe signed on Monday (witnesses on the stand examined and compared the documents). The Monday confession was then submitted to the jury. Under these circumstances, the effective use of the Wednesday-midnight statement was much the same as if it had gone physically to the jury, and for purposes of the constitutional issue presented here we may treat the Wednesday-midnight confession as put in evidence. See Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029.
70
As measured on the full scale Wechsler-Bellevue test. The normal intelligence quotient on this scale is ninety to one hundred and ten.
71
Culombe can read and write only his name.
72
Again, this is the most favorable diagnosis of Culombe's capacity in this regard. The report of a clinical psychologist appointed by the court to examine Culombe both for the State and for the defense states: 'In addition to being saddled with deficient mental equipment with which he must try to cope with life's problems, Mr. C. is also possessed of that character defect so frequently found in individuals of low intellectual calibre: he is enormously suggestible. Thus, lacking in the capacity for sufficient critical judgment, his manner of thinking, his pattern of living and his way of behaving can all easily be influenced by those persons closest to him. * * *'
73
Timely question was raised at trial concerning the voluntariness of each of Culombe's Wednesday confessions, and both were found voluntary by the Connecticut court. The petition for certiorari in this Court adverts among the questions presented only to the written, Wednesday-midnight confession. However, in view of the intimate connection between the afternoon and midnight confessions, we regard the petition as fairly comprising a claim that the oral confession, as well, is unconstitutionally tainted by coercion.
74
Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; cf. Ward c. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663. And see Com. of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126.
75
Cf. Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029. And see Lee v. State of Mississippi, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330.
76
White v. State of Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342; Vernon v. State of Alabama, 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513.
77
Ward v. State of Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663.
78
Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Lomax v. State of Texas, 313 U.S. 544, 61 S.Ct. 956, 85 L.Ed. 1511.
79
Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948.
80
Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975.
81
Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975.
82
Cf. Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863.
83
Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (relay questioning for more than thirty-six hours with one five-minute pause); Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (relay questioning from 11:30 p.m. to 2:30 or 3 a.m. on the first day of detention and from 5:30 p.m. to 3 a.m. on four of the five succeeding days); Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815 (relay questioning in a hot cubicle throughout one evening and during eleven and a half hours, with a one-hour respite, the next day; then, on the day following, more than a half-dozen hours of questioning before the confession was made); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (questioning throughout afternoon and evening on the first day; 10 a.m. to midnight on the second; then from 9 a.m. on the third until 8:30 a.m. on the morning of the fourth, with the questioning later resuming, after a brief recess, until Leyra confessed). Cf. Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. But see Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166.
84
See also Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265.
85
The defendant Stein, like Cooper, was 'an experienced criminal. * * * These men were not young, soft, ignorant or timid.' 346 U.S. at page 185, 73 S.Ct. at page 1093. Although Culombe, too, has had considerable criminal experience, its value to him, as a school for toughening his resistance, must be duly discounted in light of his subnormal mental capacities. The testimony of a psychiatric expert for the prosecution is that 'as a mental defective he is suggestible. I don't think that he is a fearful man. I think that he can be intimidated, and to use his own expression 'I don't have the Moxie that someone else has.' . . . He is suggestible and he can be intimidated. . . . I would say this—with benevolent influences, he gets along, as I said he did in the last three and a half years. With sufficiently intimidating malignant influences, he doesn't.'
86
Compare Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863 (confession before justice of the peace at preliminary hearing on morning following afternoon of defendant's arrest; defendant warned of his rights to counsel and to plead not guilty); Ashdown v. State of Utah, 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443 (defendant cautioned that she can refuse to answer and can consult with counsel); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (defendant repeatedly warned that he can remain silent and have assistance of counsel; whenever defendant told police that he wanted to stop the conversation his request was respected and he was returned to jail).
87
Compare Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (defendant saw counsel and at least two friends during detention, one of whom was located by police at his request; it is true that one of these friends appears to have been cooperating with the police in certain regards, but there is no indication that she attempted to persuade the prisoner to confess); Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481 (defendant's wife and family visited him in jail).
88
In Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86, the defendant was arrested in Texas by Texas authorities and, when questioned, gave a false name. He was held in custody and again questioned—after intervals first of twenty-one, then of forty-eight hours—for the purpose of establishing his identity. On the second occasion, he gave his name and admitted that he had been in Nebraska. On the following day, he confessed to a crime committed in that State. He was removed to Nebraska and during his first questioning by Nebraska officers, a week after his Texas confession, he again confessed. No claim of coercion was pressed in this Court in Gallegos, counsel for the petitioner relying on the fact of illegally prolonged detention without preliminary examination and before appointment of counsel. In Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481, the defendant was questioned for two hours on the day of his arrest, then remained in jail (where his family visited him) for eleven days. At the end of this period he was subjected to one prolonged, night-long interrogation session under intimidating circumstances and he confessed. This confession was not offered in evidence, having concededly been coerced. He confessed again the same evening, after he had been taken to the state penitentiary and delivered into custody of the warden; and the question raised was whether the coercive influences attending the initial confession also infected the later one. The whole pattern of factors in Lyons was different from that of the present case and involved wholly different considerations. Cf. United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654. And see Wilson v. State of Louisiana, 341 U.S. 901, 71 S.Ct. 611, 95 L.Ed. 1341 (defendat had been interrogated during four or five hours following his arrest and confessed; two days later he was asked to repeat his story and he again confessed, there being no indication in the record that he was questioned on the second occasion).
89
In Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, the defendant had been arrested on Monday, twice questioned for an hour or two on that day, and questioned daily for a couple of hours on Tuesday and Wednesday. On Thursday he was confronted by witnesses and, after they had related certain information, he was asked whether he had any questions to ask them. On each occasion he was warned that he need make no statement and that he had a right to the assistance of counsel before he made any statement. He was not again interviewed until the following Saturday, when the charges against him were read to him, he was asked if he wanted to make a statement, and—without questioning—he confessed. See also note 87, supra.
90
Culombe's appearance before the New Britain Police Court, whether or not it legitimated his detention under Connecticut law, hardly afforded him the protection of a preliminary examination with respect to the felonies of which he was suspected. See 367 U.S. at page 632, 81 S.Ct. at page 1895, infra.
91
Without entering into further discussion of this admittedly not unambiguous decision, one may draw from it, at the least, a reaffirmance of what was decided in Turner.
92
Conn.Gen.Stat.1949, § 8796, now Conn.Gen.Stat.1958, § 54 80.
93
We have duly taken into account, in this regard, the finding by the Connecticut Superior Court: 'Nothing was said or done by the police to Mrs. u lombe or the children to cause anxiety on the part of Culombe or to reduce his resistance or will power, or to influence him to confess.' Whatever was done to Mrs. Culombe, it is what was done with her, and with her daughter, that is singificant. To the extent that this finding can be read—as we think it cannot—to mean that no use was made of Culombe's family which in fact reduced his resistance, such a finding would lack support in evidence. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. It is the uncontroverted testimony of both Rome and Paige that Culombe was upset by his wife's visit of Tuesday night, and Paige testified that Culombe thereafter choked up or sobbed.
94
We do not ignore that Culombe never repeated his request for a lawyer after Saturday night. In view of its frustration at that time, this is not surprising. Lieutenant Rome told him on Tuesday morning that he would have a chance to consult counsel at court—a promise that was not made good.
It is also true that Culombe several times saw his wife, at home and at State Police Headquarters, and that he did not request that she secure an attorney for him. Under the stressing circumstances of these meetings, such reserve of thought can hardly have been expected. Culombe's own explanation for his failure to make this request of his wife is that which the circumstances, even without his testimony, compel: 'I didn't ask her. I didn't even think of it, to begin with * * *. How could you, with all this pressure? You don't even know what day it is half the time.'
95
In Rex v. Dick, (1947) 2 D.L.R. 213, certain statements made by a prisoner who had been charged with vagrancy, cautioned concerning that offense (or not at all), and then questioned with the purpose of eliciting n formation about the murder of which she was suspected, were held inadmissible as involuntary. Robertson, C.J.O., said, at 225:
'* * * It seems to me to be an abuse of the process of the criminal law to use the purely formal charge of a trifling offence upon which there is no real intention to proceed, as a cover for putting the person charged under arrest, and obtaining from that person incriminating statements, not in relation to the charge laid and made the subject of a caution, but in relation to a more serious and altogether different offence: * * * It is trifling with the long-established maxim nemo tenetur seipsum accusare, and has more than the mere appearance—but, in the intended result it has at times the effect—of a trial by the police in camera before even the charge has been laid.'
96
On the basis of the following testimony by Sergeant Paige on cross-examination, it would be difficult to regard Wednesday's questioning of Culombe as anything other than a pile-driving effort to force his conviction from his own lips:
'Q. How long did he continue to say that? A. Well, I started talking to him at one-thirty and it was just a short while afterwards that I took this piece of paper with all the different crimes on it and asked him these questions. Murphy came in and repeated the same thing and we were out of the barracks by half past three that afternoon.
'Q. Well, how long did he keep that up—saying he didn't want to talk about it? A. Everytime we would ask him a question and ask him if he was there and he would say he didn't want to talk about it.
'Q. How long a period of time did that take to give that answer? A. What answer?
'Q. 'I don't want to talk about it'? A. Three quarters of an hour.
'Q. And he had been doing that in addition to denying it for days up to that point, hadn't he? A. Well, that wasn't a denial, Mr. McDonough.
'Q. Well, he said he had nothing to do with them, didn't he? A. No, he said rather than lie—he said 'I don't want to talk about it,' which was telling me that he was involved in the crimes.
'Q. That was your conclusion? A. That was the conclusion between us.
'Q. He never said any such thing that you just said—that is a conclusion of yours—that is what you are assuming? A. That is what I knew.
'Q. That is what you knew he was involved in—he didn't tell you he was involved in any of those crimes? A. But I knew that was the answer without his actually saying yes.
'Q. Isn't that an assumption you drew? A. That was the knowledge I received from his acts.
'Q. That is what you drew? A. Yes.'
97
We accord small weight, also, to the fact that on Thursday, when Culombe was presented in the Superior Court for murder, he told the presiding judge that he wanted to cooperate with the police and was willing to be released into their custody. Of course, if Culombe's sole claim of coercion were that he had been physically abused at State Police Headquarters, such behavior on his part might ground a reasonable inference that assertions of brutality were not credible. But the pressures of which he complains, and in which we sustain him, are of a subtler sort, and nothing in his willingness to 'cooperate'—on the day after he signed a series of confessions—is inconsistent with the conclusion that those pressures broke his resistance.
1
Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; In re Groban, 352 U.S. 330, 337, 77 S.Ct. 510, 515, 1 L.Ed.2d 376, (dissenting opinion); Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 298, 79 S.Ct. 1157, 1163, 3 L.Ed.2d 1234 (dissenting opinion).
2
'The form of caution expresses two things. First, there is the reminder that the accused is not obliged to talk: secondly, there is the warning that, if he does talk, what he says will be taken down in writing and may be given in evidence. From the lawyer's point of view both are statements of the obvious. Just as an accused or suspect is never obliged to talk, so the police are always at liberty to take down what an accused or suspect says and give it in evidence. The real significance of the caution is that it is, so to speak, a declaration of war. By it the police announce that they are no longer representing themselves to the man they are questioning as the neutral inquirer whom the good citizen ought to assist; they are the prosecution and are without right, legal or moral, to further help from the accused; no man, innocent or guilty, need thereafter reproach himself for keeping silent, for that is what they have just told him he may do. The caution, the charge, the arrest—any of these three things show that hostilities have begun and that the suspect has formally become the accused.' Devlin, The Criminal Prosecution in England (1958), pp. 36—37.
3
'Police officers are charged with the fair and impartial administration of the law. Yet, in many localities, there are sharp and shocking contrasts in the kind of 'law' administered to different groups of citizens. * * * (P)eople lacking special status or 'pull' may be pushed around, roughed up, arrested on vague and even false charges, and treated generally as second-class citizens. This is especially true of dwellers in slum areas with high crime rates—and even more especially of poverty-ridden Negroes and other minority groups—where police raids on tenement homes are sometimes made on slight suspicion without the benefit of search warrants.' Deutsch, The Trouble with Cops (1955), p. 63.
| 01
|
367 U.S. 687
81 S.Ct. 1727
6 L.Ed.2d 1109
AMERICAN AUTOMOBILE ASSOCIATION, Petitioner,v.UNITED STATES.
No. 288.
Argued April 17, 1961.
Decided June 19, 1961.
Rehearing Denied Oct. 9, 1961.
See 82 S.Ct. 24.
Mr. Fleming Bomar, Washington, D.C., for petitioner.
Mr. Louis F. Oberdorfer, Washington, D.C., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.
1
In this suit for refund o federal income taxes the petitioner, American Automobile Association, seeks determination of its tax liability for the years 1952 and 1953. Returns filed for its taxable calendar years were prepared on the basis of the same accrual method of accounting as was used in keeping its books. The Association reported as gross income only that portion of the total prepaid annual membership dues, actually received or collected in the calendar year, which ratably corresponded with the number of membership months covered by those dues and occurring within the same taxable calendar year. The balance was reserved for ratable monthly accrual over the remaining membership period in the following calendar year as deferred or unearned income reflecting an estimated future service expense to members. The Commissioner contends that petitioner should have reported in its gross income for each year the entire amount of membership dues actually received in the taxable calendar year without regard to expected future service expense in the subsequent year. The sole point at issue, therefore, is in what year the prepaid dues are taxable as income.
2
In auditing the Association's returns for the years 1952 through 1954, the Commissioner, in the exercise of his discretion under § 41 of the Internal Revenue Code of 1939,1 determined not to accept the taxpayer's accounting system. As a result, adjustments were made for those years principally by adding to gross income for each taxable year the amount of prepaid dues which the Association had received but not recognized as income, and subtracting from gross income amounts recognized in the year although actually received in the prior year. A net operating loss claimed for 1954 and corresponding carryback deductions were greatly reduced, and tax deficiencies were assessed for 1952 and 1953. Petitioner paid the deficiencies and its timely claim for refund was denied. Suit to recover was instituted in the Court of Claims, but the court sustained the Commissioner, 181 F.Supp. 255. Recognizing a conflict between the decision below and that in Bressner Radio, Inc., v. Commissioner, 2 Cir., 267 F.2d 520, we granted certiorari. 364 U.S. 813, 81 S.Ct. 69, 5 L.Ed. 45. We have concluded that for tax purposes the dues must be included as income in the calendar year of their actual receipt.
3
The Association is a national automobile club organized as a nonstock membership corporation with its principal office in Washington, D.C. It provides a variety of services2 to the members of affiliated local automobile clubs and those of ten clubs which taxpayer itself directly operates as divisions, but such services are rendered solely upon a member's demand. Its income is derived primarily from dues paid one year in advance by members of the clubs. Memberships may commence or be renewed in any month of the year. For many years, the association has employed an accrual method of accounting and the calendar year as its taxable year. It is admitted that for its purposes the method used is in accord with generally accepted commercial accounting principles The membership dues, as received, were deposited in the Association's bank accounts without restriction as to their use for any of its corporate purposes. However, for the Association's own accounting purposes, the dues were treated in its books as income received ratably3 over the 12-month membership period. The portions thereof ratably attributb le to membership months occurring beyond the year of receipt, i.e., in a second calendar year, were reflected in the Association's books at the close of the first year as unearned or deferred income. Certain operating expenses were chargeable as prepaid membership cost and deducted ratably over the same periods of time as those over which dues were recognized as income.
4
The Court of Claims bottomed its opinion on Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, finding that 'the method of treatment of prepaid automobile club membership dues employed (by the Association here was,) * * * for Federal income tax purposes, 'purely artificial." 181 F.Supp. 255, 258. It accepted that case as 'a rejection by the Supreme Court of the accounting method advanced by plaintiff in the case at bar.' Ibid. The Association does not deny that its accounting system is substantially identical to that used by the petitioner in Michigan. It maintains, however, that Michigan does not control this case because of a difference in proof, i.e., that in this case the record contains expert accounting testimony indicating that the system used was in accord with generally accepted accounting principles; that its proof of cost of member service was detailed; and that the correlation between that cost and the period of time over which the dues were credited as income was shown and justified by proof of experience. The holding of Michigan, however, that the system of accounting was 'purely artificial' was based upon the finding that 'substantially all services are performed only upon a member's demand and the taxpayer's performance was not related to fixed dates after the tax year.' 353 U.S. 180, 189, note 20, 77 S.Ct. 713. That is also true here.4 As the Association's own accounting expert testified:
5
'You are dealing with a group or pool. Any pooling or risk situation, particular members may in a particular year require very little of a specific service that is rendered to certain other members. I wouldn't know that the experience on that would be, but I would think it would be rather irregular between individual members. * * * I am buying the availability of services, the protection * * *. Frankly, the irregularity of the actual furnishing of the maps and helping you out when you run out of gasoline and so on, I frankly don't think that has a blessed thing to do with the over-all accounting.'
6
It may be true that to the accountant the actual incidence of cost in serving an individual member in exchange for his individual dues is inconsequential, or, from the viewpoint of commercial accounting, unessential to determination and disclosure of th overall financial condition of the Association. That 'irregularity,' however, is highly relevant to the clarity of an accounting system which defers receipt, as earned income, of dues to a taxable period in which no, some, or all the services paid for by those dues may or may not be rendered. The Code exacts its revenue from the individual member's dues which, no one disputes, constitute income. When their receipt as earned income is recognized ratably over two calendar years, without regard to correspondingly fixed individual expense or performance justification, but consistently with overall experience, their accounting doubtless presents a rather accurate image of the total financial structure, but fails to respect the criteria of annual tax accounting and may be rejected by the Commissioner.
7
The Association further contends that the findings of the court below support its position. We think not. The Court of Claims' only finding as to the accounting system itself is as follows:
8
'22. The method of accounting employed by plaintiff during the years in issue has been used regularly by plaintiff since 1931 and is in accord with generally accepted commercial accounting principles and practices and was, prior to the adverse determination by the Commissioner of the Internal Revenue, customarily and generally employed in the motor club field.' This is only to say that in performing the function of business accounting the method employed by the Association 'is in accord with generally accepted commercial accounting principles and practices.' It is not to hold that for income tax purposes it so clearly reflects income as to be binding on the Treasury.5 Likewise, other findings merely reflecting statistical computations of average monthly cost per member on a group or pool basis are without determinate significance to our decision that the federal revenue cannot, without legislative consent and over objection of the Commissioner, be made to depend upon average experience in rendering performance and turning a profit. Indeed, such tabulations themselves demonstrate the inadequacy from an income tax standpoint of the pro rata method of allocating each year's membership dues in equal monthly installments not in fact related to the expenses incurred. Not only did individually incurred expenses actually vary from month to month, but even the average expense varied—recognition of income nonetheless remaining ratably constant. Although the findings below seem to indicate that it would produce substantially the same result as that of the system of ratable monthly recognition actually employed, we consider similarly unsatisfactory, from an income tax standpoint, allocation of monthly dues to gross monthly income to the extent of actual service expenditures for the same month computed on a group or pool basis. In addition, the Association's election in 1954 to change its monthly recognition formula6 to one which treats one-half of the dues as income in the year of receipt and the other half as income received in the subsequent year, without regard to month of payment, only more clearly indicates the artificiality of its method, at least so far as controlling tax purposes are concerned. Moreover, the Association realized that the findings of the Court of Claims were not alone sufficient for its purposes. In its petition for rehearing below, petitioner specifically asked that they be amended and enlarged, especially as to No. 22 set out above. Rehearing and amendment were denied.
9
Whether or not the Court's judgment in Michigan controls our disposition of this case, there are other considerations requiring our affirmance. They concern the action of the Congress with respect to its own positive ande xpress statutory authorization of employment of such sound commercial accounting practices in reporting taxable income. In 1954 the Congress found dissatisfaction in the fact that 'as a result of court decisions and rulings, there have developed many divergencies between the computation of income for tax purposes and income for business purposes as computed under generally accepted accounting principles. The areas of difference are confined almost entirely to questions of when certain types of revenue and expenses should be taken into account in arriving at net income.' House Ways and Means Committee Report, H.R.Rep.No.1337, 83d Cong., 2d Sess. 48, U.S.Code Cong. and Adm.News 1954, p. 4073. As a result, it introduced into the Internal Revenue Code of 1954 § 452 and § 462,7 which specifically permitted essentially the same practice as was employed by the Association here.8 Only one year later, however, in June 1955, the Congress repealed these sections retroactively. It appears that in this action Congress first overruled the long administrative practice of the Commissioner and holdings of the courts in disallowing such deferral of income for tax purposes and then within a year reversed its own action. This repeal, we believe, confirms our view that the method used by the Association could be rejected by the Commissioner. While the claim is made that Congress did not 'intend to disturb prior law as it affected permissible accrual accounting provisions for tax purposes,' H.R.Rep. No. 293, 84th Cong., 1st Sess. 4—5, the cold fact is that it repealed the only law incontestably permitting the practice upon which the Association depends. To say that, as to taxpayers using such systems, Congress was merely declaring existing law when it adopted § 452 in 1954, and that it was merely restoring unaffected the same prior law when it repealed the new section in 1955 for good reason, is a contradiction in itself, 'varnishing nonsense with the charm of sound.' Instead of constituting a merely duplicative creation, the fact is that § 452 for the first time specifically declared petitioner's system of accounting to be acceptable for income tax purposes, and overruled the long-standing position of the Commissioner and courts to the contrary. And the repeal of the section the following year, upon insistence by the Treasury that the proposed endorsement of such tax accounting would have a disastrous impact on the Government's revenue, was just as clearly a mandate from the Congress that petitioner's system was not acceptable for tax purposes. To interpret its careful consideration of the problem otherwise is to accuse the Congress of engaging in sciamachy. We are further confirmed in this view by consideration of the even more recent action of the Congress in 1958, subsequent to the decision in Michigan, supra. In that year § 4559 was added to the Internal Revenue Code of 1954. It permits publishers to defer receipt as income of prepaid subscriptions of newspapers, magazines and periodicals. An effort was made in the Senate to add a provision in § 455 which would extend its coverage to prepaid automobile club membership dues.10 However, in conference the House Conferees refused to accept this amendment. Senator Byrd explained the rejection of the amendment to the Senate (104 Cong.Rec., Part 14, p. 17744):
10
'It was the position of the House conferees that this matter of prepaid dues and fees received by nonprofit service organizations was a part of the entire subject dealing with the treatment of prepaid income and that such subject should be left for study of this entire problem. * * *'11
11
It appears, therefore, that, pending its own further study, Congress has given publishers but denied automobile clubs the very relief that the Association seeks in this Court.
12
To recapitulate, it appears that Congress has long been aware of the problem this case presents. In 1954 it enacted § 452 and § 462, but quickly repealed them. Since that time Congress has authorized the desired accounting only in the instance of prepaid subscription income, which, as was pointed out in Michigan, is ratably earned by performance on 'publication dates after the tax year.' 353 U.S. 180, 189, note 20, 77 S.Ct. 712. It has refused to enlarge § 455 to include prepaid membership dues. At the very least, this background indicates congressional recognition of the complications inherent in the problem and its seriousness to the general revenue. We must leave to the Congress the fashioning of a rule which, in any event, must have wide ramifications. The Committees of the Congress have standing committees expertly grounded in tax problems, with jurisdiction covering the whole field of taxation and facilities for studying considerations of policy as between the various taxpayers and the necessities of the general revenues. The validity of the long-established policy of the Court in deferring, where possible, to congressional procedures in the tax field is clearly indicated in this case.12 Finding only that, in light of existing provisions not specifically authorizing it, the exercise of the Commissioner's discretion in rejecting the Association's accounting system was not unsound, we need not anticipate what will be the product of further 'study of this entire problem.'
13
Affirmed.
14
Mr. Justice STEWART, whom Mr. Justice DOUGLAS, Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.
15
In Automobile Club of Michigan the Court pointed out that the method of accounting employed by the taxpayer was 'purely artificial,' so far as the record there showed. 353 U.S. at page 189, 77 S.Ct. at page 712. Here, by contrast, the petitioner proved, and the Court of Claims found, that the method of accounting employed by the petitioner during the years in issu was in accord with generally accepted commercial accounting principles and practice, was customarily employed by similar taxpayers, and, in the opinion of qualified experts in the accounting field, clearly reflected the petitioner's net income. I do not understand that the Court today questions either that proof or those findings.1
16
The Court thus holds that the Commissioner is authorized to disregard and override a method of reporting income under which prepaid dues are deferred in direct relation to the taxpayer's costs under its membership contracts. The effect of the Court's decision is to allow the Commissioner to prevent an accrual basis taxpayer from making returns in accordance with the accepted and clearly valid accounting practice of excluding from gross income amounts received as advances until the right to such amounts is earned by rendition of the services for which the advances were made. To permit the Commissioner to do this, I think, is to ignore the clear statutory command that a taxpayer must be allowed to make his returns in accord with his regularly employed method of accounting, so long as that method clearly reflects his income.2 The result, I am afraid, will be to engender far-reaching confusion and injustice in the administration of the Internal Revenue Laws.3
I.
17
The Commissioner's basic argument against the deferred reporting of prepayments has traditionally been that such a method conflicts with a series of decisions of this Court which establish the so-called 'claim of right doctrine.'4 In this case the Government abandoned that argument, with good reason. As four Circuits have correctly held, the claim of right doctrine furnishes no support for the Government's position. Bressner Radio, Inc., v. Commissioner, 2 Cir., 267 F.2d 520, 524, 525—528; Schlude v. Commissioner, 8 Cir., 283 F.2d 234; Schuessler v. Commissioner, 5 Cir., 230 F.2d 722, 725; Beacon Publishing Co. v. Commissioner, 10 Cir., 218 F.2d 697, 699—701.5 A claim of right without 'restriction on use' may be the crucial factor in determining that particular funds are includable in gross income. See North American Oil Consolidated . Burnet, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197; United States v. Lewis, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560; Healy v. Commissioner, 345 U.S. 278, 73 S.Ct. 671, 97 L.Ed. 1007. But it hardly follows that all such funds must necessarily be reported by an accrual basis taxpayer as income in the year of receipt, whether or not then earned.
18
The Government shifted its argument in this case to the contention that the 'annual accounting requirement' demands that '(n)either income nor deduction items may be accelerated or postponed from one taxable year to another in order to reflect the long-term economic result of a particular transaction or group of transactions.' The Government finds a basis for this argument in such cases as Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725; Brown v. Helvering, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725; Burnet v. Sanford & Brooks Co., 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383; Guaranty Trust Co. v. Commissioner, 303 U.S. 493, 58 S.Ct. 673, 82 L.Ed. 975; and Heiner v. Mellon, 304 U.S. 271, 58 S.Ct. 926, 82 L.Ed. 1337.
19
The Court today does not base its decision on this theory, presumably because the Court believes, as I do, that the theory is not valid. Putting to one side the point that many of the cases relied on involved cash basis taxpayers,6 these decisions no more pertain to deferred reporting of totally unearned receipts than do the claim of right decisions. These cases, like the claim of right cases, start from the premise that the income in question has been fully earned.7 The underlying premise of the annual accounting requirement is that otherwise reportable income derived from a transaction cannot be excluded from gross income in order to let the taxpayer wait to see in a later year how the over-all transaction turns out.8 That is not the issue in this case. The question here is whether any reportable income has been derived from a transaction when payments are received in advance of performance.
20
Although wisely rejecting the claim of right and annual accounting arguments, the Court decides this case upon grounds which seem to me equally invalid. I can find nothing in Automobile Club of Michigan which controls disposition of this case. And the legislative history upon which the Court alternatively relies seems to me upon examination to be singularly unconvincing.
21
In Michigan there was no offer of proof to show the rate at which the taxpayer fulfilled its obligations under its membership contracts. The deferred reporting of prepaid dues was, therefore, rejected in that case simply because there was no showing of a correlation between the amounts deferred and the costs incurred by the taxpayer in carrying out its obligations to its members. Until today, that case, has been recognized as one that simply held that, in the absence of proof that the proration used by the taxpayer reasonably matched actual expenses with the earning of related revenue, the Commissioner was justified in rejecting the taxpayer's proration. I am hardly alone in thinking that Michigan was decided upon the very premise that a realistic deferral of income based upon proof of average costs of service during identifiable periods would be entirely permissible. See Bressner Radio, Inc. v. Commissioner, 2 Cir., 267 F.2d 520, 526—529.9 Such proof was concededly adduced in this case.
22
As to the enactment and repeal of § 452 and § 462, upon which the Court places so much reliance, there are, at the outset, obvious difficulties in relying on what happened in 1954 and 1955 to ascertain the meaning of § 41 of the 1939 Code. See Fogarty v. United States, 340 U.S. 8, 13—14, 71 S.Ct. 5, 8, 95 L.Ed. 10; Gemsco, Inc. v. Walling, 324 U.S. 244, 265, 65 S.Ct. 605, 617, 89 L.Ed. 921; Cammarano v. United States, 358 U.S. 498, 510, 79 S.Ct. 524, 531, 3 L.Ed.2d 462. But these problems aside, I think that the enactment and subsequent repeal of § 452 and § 462 give no indication of Congressional approval of the position taken by the Commissioner in this case. If anything, the legislative action leads to the contrary impression.
23
The statutory provisions in question were passed as part of a general revision of the internal revenue laws in 1954. Section 452 permitted an accrual basis taxpayer to defer the inclusion of advances i gross income until they were earned.10 Most significantly, a taxpayer could shift to this method without the consent of the Commissioner. Section 462, which permitted the deduction of anticipated expenses, was not aimed specifically at the problem of reporting advances.11 The function of the provisions was to bring '(t)ax accounting * * * more nearly in line with accepted business accounting by allowing prepaid income to be taxed as it is earned rather than as it is received, and by allowing reserves to be established for known future expenses.'12
24
In seeking to accomplish this objective, Congress recognized that as a result of 'court decisions and rulings,' the claim of right approach had been used to require reporting for the year of receipt all payments 'subject to free and unrestricted use * * * even though the payments are for goods or services to be provided by the taxpayer at a future time.' H.R.Rep. No. 1337, 83d Cong., 2d Sess. 48, A159, U.S.Code Cong. and Adm.News 1954, pp. 4073, 4297.13 Congressional awareness of administrative and judicial misapplication of the claim f right doctrine clearly did not imply approval of it. For by 1954, '(i) t was long recognized that the difficulty lay, not with the statute, but with administrative trative and court interpretation.'14 And while the Committee reports contain no express rejection of the Commissioner's interpretation of the 1939 statute, the language used in explaining the need for a change certainly indicates disapproval.15
25
Although § 452 and § 462 were shortlived, the shape of the decisional law with respect to § 41 of the 1939 Code changed considerably during the interval between the passage and repeal of the new sections. In Beacon Publishing Co. v. Commissioner, 218 F.2d 697, 699, the Tenth Circuit rejected the Commissioner's reliance on the claim of right rationale and found that the deferment of advances in accord with accrual principles did 'clearly reflect * * * income' under § 41. At about the same time a Ninth Circuit decision permitted income received from the sale of goods to be offset by a deduction for the future expense of shipping the goods. Pacific Grape Products Co. v. Commissioner, 9 Cir., 219 F.2d 862.
26
When Congress repealed § 452 and § 462, the record shows that it was fully aware of these decisions. Congress recognized that the rationale of these cases would produce a complete reversal of the previous administrative position with respect to the reporting of unearned receipts under § 41 and its counterpart under the 1954 Code, § 446. Congressional intent with respect to this possibility was entirely clear—the trend of judicial decisions should be allowed to run its course without any inference of disapproval being drawn from the repeal of § 452 and § 462. This intent was evidenced in the assurances which the House Ways and Means Committee demanded and received from the Secretary of the Treasury, who had sought the repeal of the two sections. In a letter to the Chairman of the Committee, the Secretary stated:
27
'My dear Mr. Chairman: This letter will confirm the statements made to you today by Treasury representatives.
28
'Furthermore, the Treasury Department will not consider the repeal of section 452 as any indication of congressional intent as to the proper treatment of prepaid subscriptions and other items of prepaid income, either under prior law or under other provisions of the 1954 code. In other words, the repeal of section 452 will not be considered by the Department as either the acceptance or the rejection by Congress of the decision in Beacon Publishing Co. v. Commissioner (218 F.2d 697, C.A. 10, 1955) or any other judicial decisions.
29
'It is my understanding that the foregoing is consistent with the desire of your committee, with which I agree, that the repeal of sections 452 and 462 should operate simply to reestablish the principles of law which would have been applicable if sections 452 and 462 had never been enacted.' H.R.Rep. No. 293, 84th Cong., 1st Sess. 5. (Emphasis supplied.)
30
The same viewpoint was expressed in the Senate Report, which stated:
31
'Another aspect of the uncertainty with respect to subscription income if section 452 is repealed arises from a recent circuit court decision in Beacon Publishing Company v. Commissioner (C.C.A.10th, January 3, 1955). The court in this case held that the deferral of prepaid subscription income was in fact proper under the accrual method of accounting. The Secretary of the Treasury in the letter previously referred to which he sent to the chairman of the House Committee on Ways and Means indicated that the repeal of section 452 would not be taken as an indication by the Treassury Department of congressional intent as to the proper treatment of prepaid subscription income under prior law or under other provisions of the 1954 code. He also indicated that the repeal of section 452 will not be considered by the Department as either accp tance or rejection by Congress of the decision in Beacon Publishing Company v. Commissioner or in any other judicial decisions. * * *
32
'Uncertainty will also exist in other areas with the repeal of these two provisions. In Pacific Grape Products (C.C.A.9th, February 10, 1955), for example, the circuit court held that certain freight and shipping expenses incurred after the end of the year could be accrued for tax purposes as of the end of the year. An extension of the principles laid down in this case might well lead the courts in the future to permit the accrual of most estimated expenses which would be covered by section 462 even though this section is repealed.' S.Rep. No. 372, 84th Cong., 1st Sess. 5—6, U.S.Code Cong. and Adm.News 1955, p. 2050.16
33
To my mind, this legislative history shows that Congress made every effort to dissuade the courts from doing exactly what the Court is doing in this case—drawing from the repeal of § 452 an inference of Congressional disapproval of deferred reporting of advances.17 But even if the legislative history on this point were hazy, the same conclusion would have to be reached upon examination of Congressional purpose in repealing § 452 and § 462. Cf. United States v. Benedict, 338 U.S. 692, 696, 70 S.Ct. 472, 475, 94 L.Ed. 478. For the fact of the matter is, contrary to the impression left by the Court's opinion, that the reasons for rejecting § 452 and § 462 were entirely consistent with accepting the deferred reporting of receipts in a case like this. Sections 452 and 462 were repealed solely because of a prospective loss of revenue during the first year in which taxpayers would take advantage of the new sections.18 Insofar as the reporting of advances was concerned, that loss of revenue would have occurred solely as a consequence of taxpayers changing their method of reporting, without the necessity of securing the Commissioner's consent, to that authorized under § 452 and § 462.19 The taxpayer who shifted his basis for reporting advances would have been allowed what was commonly termed a 'double deduction' during the transitional year.20 Under § 462, deductions could be taken in the year of change for expenses attributable to advances taxed in prior years under a claim of right theory, as well as for reserves for future expenditures attributable to advances received and reported during that year. Similarly, under § 452, pre-payments received during the year of transition would be excluded from gross income while current expenditures attributable to past income would still be deductible.21
34
The Congressional purpose in repealing § 452 and § 462 maintenance of the revenues—does not, however, require disapproval of sound accounting principles in cases of taxpayers who, like the petitioner, have customarily and regularly used a sound accrual accounting method in reporting advance payments. No transition is involved, and no 'double deduction' is possible. Moreover, taxpayers formerly reporting advances as income in the year of receipt can now shift to a true accrual system of reporting only with the approval of the Commissioner. See Treas.Reg. 111, § 29.41 2 (1943); Treas.Reg. 118, § 39.41—2(c) (1953); Int.Rev.Code of 1954, § 446(e).22 Before giving his approval the Commissioner can be expected to insist upon adjustments in the taxpayer's transition year to forestall any revenue loss which would otherwise result from the change in accounting method. See Kahuku Plantation Co. v. Commissioner, 9 Cir., 132 F.2d 671, 674; 2 Mertens, Law of Federal Income Taxation, §§ 12.21, 12.21a. Cf. Brown v. Helvering, 291 U.S. 193, 204, 54 S.Ct. 356, 361, 78 L.Ed. 725.
35
In short, even if the legislative history of the repeal of § 452 and § 462 did not clearly indicate, as it does, that the repeal of those sections should have no bearing upon judicial determination of whether the deferred reporting of advances 'clearly reflects income,' the purpose of the Congress which repealed those provisions would lead to the same conclusion. It need hardly be added that the subsequent legislative activity cited by the Court in no way alters this conclusion. Contrary to the Court's suggestion, the 'relief that the Association seeks in this Court' is far short of what was sought in 1958 in urging that the coverage of § 455 be extended to prepaid automobile club membership dues. As enacted, § 455 was not limited in application to publishers previously reporting prepaid subscriptions on a deferral basis. See I.T. 3369, 1940—1 Cum.Bull. 46. It applied to all publishers using the accrual method and permitted a change to deferred reporting of subscriptions for the year 1958 without consent of the Commissioner. 26 U.S.C. § 455(c)(3) (B), 26 U.S.C.A. § 455(c)(3)(B).
II.
36
I think the Government's position in this case is at odds with the statutes,23 regulations,24 and court decision,25 which, since 1916, have recognized that realistic accrual accounting does 'clearly reflect income.' If I am correct, the law did not give the Commissioner any 'discretion * * * not to accept the taxpayer's accounting system.'
37
The basic concept of including advances in gross income only as they are earned is but an aspect of accrual accounting principles which have consistently received judicial approval. We have, for example, often recognized that deductions for business expenses must be reported as soon as the obligation to pay becomes 'certain.' See, e.g., United States v. Anderson, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347; American National Co. v. United States, 274 U.S. 99, 47 S.Ct. 520, 71 L.Ed. 946; Niles Bement Pond Co. v. United States, 281 U.S. 357, 360, 50 S.Ct. 251, 252, 74 L.Ed. 901; United States v. Olympic Radio & Television, 349 U.S. 232, 236, 75 S.Ct. 733, 99 L.Ed. 1024. This may be before or after cash payment is made,26 or even before it is due.27 The controlling factor is not the flow of cash, but the 'economic and bookkeeping' principles with which § 41 is concerned. United States v. Anderson, supra, 269 U.S. at page 441, 46 S.Ct. at page 134. See also American National Co. v. United States, supra. These principles are at the foundation of the so-called 'all events' test for determining the accrual of deductions. See United States v. Anderson, supra, 269 U.S. at page 441, 46 S.Ct. at page 134;28 United States v. Consolidated Edison Co., 366 U.S. 380, 384—386, 81 S.Ct. 1326, 1329—1330, 6 L.Ed.2d 356. The same principles are applicable to the accrual of income. See Continental Tie & Lumber Co. v. United States, 286 U.S. 290, 52 S.Ct. 529, 76 L.Ed. 1111. As has been correctly noted, '(i)t is a necessary corollary of this 'economic and bookkeeping' proposition' upon which Anderson rested that receipts are not reportable in income until 'substantially 'all the events' have occurred, both as to the cost and time of performance, which must occur in order to discharge the liability to perform which was given by (the taxpayer) in return for the receipt.' Bressner Radio, Inc., v. Commissioner, 2 Cir., 267 F.2d 520, 524. See also United States v. Anderson, supra, 269 U.S. at page 440, 46 S.Ct. at page 134; Beacon Publishing Co. v. Commissioner, 10 Cir., 218 F.2d 697, 699. Indeed, 'accrual' of income has been commonly defined in terms of 'earnings' from the sale of goods or the performance of services. See, e.g., Spring City Foundry Co. v. Commissioner, 292 U.S. 182, 184—185, 54 S.Ct. 644, 645, 78 L.Ed. 1200; Stanley and Kilcullen, The Federal Income Tax (3d ed. 1955), 190.29 In rejecting petitioner's method of allocating prepaid advances, the Court, I think, disregards these basic principles.
38
The net effect of compelling the petitioner to include all dues in gross income in the year received is to force the petitioner to utilize a hybrid accounting method—a cash basis for dues and an accrual basis for all other items. Schlude v. Commissioner, 8 Cir., 283 F.2d 234, 239. Cf. Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831. For taxpayers generally the enforcement of such a hybrid accounting method may result in a gross distortion of actual income, particularly in the first and last years of doing business. On the return for the first year in which advances are received, a taxpayer will have to report an unrealistically high net income, since he will have to include unearned receipts, without any offsetting deductions for the future cost of earning those receipts. On subsequent tax returns, each year's unearned prepayments will be partially offset by the deduction of current expenses attributable to prepayments taxed in prior years. Even then, however, if the taxpayer is forbidden to correlate earnings with related expenditures, the result will be a distortion of normal fluctuations in the taxpayer's net income. For example, in a year when there are low current expenditures because of fewer advances received in the preceding year, the result may be an inflated adjusted gross income for the current year. Finally, should the taxpayer decide to go out of business upon fulfillment of the contractual obligations already undertaken, in the final year there will be no advances to report and many costs attributable to advances received in prior years. The result will be a grossly unrealistic reportable not loss.
39
The Court suggests that the application of sound accrual principles cannot be accepted here because deferment is based on an estimated rate of earnings, and because this estimate, in turn, is based on average, not individual, costs. It is true, of course, that the petitioner cannot know what service an individual member will require or when he will demand it. Accordingly, in determining the portion of its outstanding contractual obligations which have been discharged during a particular period (and hence the portion of receipts earned during that period), the petitioner can only compare the total expenditures for that period against estimated average expenditures for the same number of members over a full contract term. But this use of estimates and averages is in no way inconsistent with long-accepted accounting practices in reflecting and reporting income.
40
As the Government has pointed out in past litigation, 'many business concerns * * * keep accounts on an accrual basis and have to estimate for the tax year the amount to be received on transactions undoubtedly allocable to such year.' Continental Tie & Lumber Co. v. United States, 286 U.S. 290, 295—296, 52 S.Ct. 529, 531, 76 L.Ed. 1111. Similarly, the deduction of future expenditures which have already accrued often requires estimates like those involved here. See, e.g., Harrold v. Commissioner, 4 Cir., 192 F.2d 1002; Schuessler v. Commissioner, 5 Cir., 230 F.2d 722; Denise Coal Co. v. Commissioner, 3 Cir., 271 F.2d 930, 934 937; Hilinski v. Commissioner, 6 Cir., 237 F.2d 703. Finally, it is to be noted that the regulations under both the 1939 and 1954 Codes permit various methods of reporting income which require the use of estimates.30 In the absence of any showing that the estimates used here were faulty, I think the law did not permit the Commissioner to forbid the use of standard accrual methods simply upon the ground that estimates were necessary to determine what the rate of deferral should be.
41
Similarly, it is not relevant that the petitioner 'defers receipt * * * of dues to a taxable period in which no, some, or all the services paid for by those dues may or may not be rendered.' The fact of the matter is that what the petitioner has an obligation to provide, i.e., the constant readiness of services if needed, will with certainty be provided during the period to which deferment has been made. Averages are frequently utilized in tax reporting. In computing the value of work in process, in distributing overhead to product cost, and in various other areas, the use of averages has long been accepted. See, e.g., Rookwood Pottery Co. v. Commissioner, 6 Cir., 45 F.2d 43; Eatonville Lumber Co. v. Commissioner, 10 B.T.A. 232. The use of an 'average cost' is particularly appropriate here where the dues are earned by making services continuously available. The cost of doing so must necessarily be based on composite figures.
42
For these reasons I think that the petitioner's original returns clearly reflected its income, that the Commissioner was therefore without authority under the law to override the petitioner's accounting method, and that the judgment should be reversed.
1
A taxpayer's 'net income shall be computed * * * in accordance with the method of accounting regularly employed in keeping the books * * * but * * * if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income * * *.' 53 Stat. 24, 26 U.S.C. (1952 ed.) § 41, 26 U.S.C.A. § 41. See also the similar provision in the Internal Revenue Code of 1954, 26 U.S.C. (1958 ed.) § 446, 26 U.S.C.A. § 446.
2
These generally include furnishing road maps, routing, tour books, etc.; emergency road service through contracts with local garages; bail bond protection; personal automobile accident insurance and theft protection; and, in some of its divisions, motor license procurement, brake and headlight adjustment service, notarial duties and advice in the prosecution of small claims.
3
In 1952 and 1953 dues collected in any month were accounted as income to the extent of one-twenty-fourth for that month (on the assumption that the mean date of receipt was the middle of the month), one-twelfth for each of the next eleven months, and again one-twenty-fourth in the anniversary month. In 1954, however, guided by its own statistical average experience, the Association changed its system so as to more simply reach almost the same result by charging to year of receipt, without regard to month of receipt, one-half of the entire dues payment and deferring the balance to the following year.
4
Beacon Publishing Co. v. Commissioner, 10 Cir., 218 F.2d 697, and Schuessler v. Commissioner, 5 Cir., 230 F.2d 722, may be distinguished from the present case on the same grounds which made them distinguishable in Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 189, note 20, 77 S.Ct. 712.
5
The Hearing Commissioner of the Court of Claims had specifically found as fact that petitioner's 'method of accounting * * * clearly reflected its net income for such years.' The court, however, did not adopt that finding.
6
See note 2, supra.
7
26 U.S.C. (1952 ed., Supp. II) §§ 452, 462, 26 U.S.C.A. §§ 452, 462, repealed, 69 Stat. 134 (1955).
8
The Senate Report included this language:
'Under the 1939 Code, regardless of the method of accounting * * * amounts are includible in gross income by the recipient not later than the time of receipt if they are subject to free and unrestricted use by the taxpayer even though the payments are for goods or services to be provided by the taxpayer at a future time.' S.Rep. No. 1622, 83d Cong., 2d Sess. 301, U.S.Code Cong. and Adm.News 1954, p. 4940.
9
26 U.S.C. (1958 ed.) § 455, 26 U.S.C.A. § 455.
10
An unsuccessful attempt to inducec ongressional action on this problem was made last year, see H.R. 11266, 86th Cong., 2d Sess., which passed the House August 24, 1960, 106 Cong.Rec. 17482, but failed to draw any action by the Senate before adjournment. An identical bill is currently pending, see H.R. 929, 87th Cong., 1st Sess., and H.R.Rep. No. 381 accompanying the bill and recommending its passage. Under that measure the taxpayer's liability to its members 'shall be deemed to exist ratably over the period * * * that such services are required to be rendered, or * * * privileges * * * made available.' (Emphasis added.)
11
The Eighty-fourth Congress started the study of 'legislation dealing with prepaid income and reserves for estimated expenses * * *.' S.Rep. No. 372, 84th Cong., 1st Sess. 6, U.S.Code Cong. and Adm.News 1955, p. 2051.
12
In 1955 it was estimated that transitional loss of revenue under § 452 and § 462, repealed that year, would total in excess of a billion dollars. H.R.Rep. No. 293, 84th Cong., 1st Sess. 3. That this impact on the revenue continues to be an important factor in congressional consideration of the problem is indicated by the observation of the House Committee on Ways and Means that a 'transitional rule' is necessary 'to minimize the initial revenue impact' of the measure currently pending. H.R.Rep. No. 381, 87th Cong., 1st Sess. 4. That the system used by petitioner here is, perhaps, presently not uncommon may be indicated by the fact that during this Term alone several cases involving similar systems have reached this Court.
1
The Court does not, for example, challenge Finding No. 26 of the Court of Claims:
'Had the plaintiff recognized, assigned and transferred to its gross income account its monthly receipts of dues collected in advance in the proportion to its cost of servicing all of its members each month, instead of ratably over the membership period of 12 months, the proportion of advance dues which would have been recognized and assigned to gross income during the years in issue herein would have been substantially the same as the gross income from dues as determined and reported by the plaintiff under the method of accounting actually employed.'
2
Int.Rev.Code of 1939, § 41, 53 Stat. 24, 26 U.S.C.A. § 41. Int.Rev.Code of 1954, § 446, 26 U.S.C. § 446, 26 U.S.C.A. § 446.
3
The scope of the problem is well illustrated by the reported cases. See, e.g., South Dade Farms v. Commissioner, 5 Cir., 138 F.2d 818 (rent received in advance); Clay Sewer Pipe Ass'n v. Commissioner, 3 Cir., 139 F.2d 130 (subscriptions for promotion campaign to be consummated in years subsequent to receipt); Beacon Publishing Co. v. Commissioner, 10 Cir., 218 F.2d 697 (advance newspaper subscription payments); Bressner Radio, Inc. v. Commissioner, 2 Cir., 267 F.2d 520 (advance payments in a television servicing contract); Schlude v. Commissioner, 8 Cir., 283 F.2d 234 (fees for dancing lessons paid in advance); Moritz v. Commissioner, 21 T.C. 622 ('customers' deposits' on undeveloped photographs); South Tacoma Motor Co. v. Commissioner, 3 T.C. 411 (proceeds from sale of coupons entitling bearer to garage services in later years); Your Health Club, Inc. v. Commissioner, 4 T.C. 385 (advance payments for use of gym and other facilities); Northern Illinois College of Optometry v. Commissioner, 2 C C H Tas Ct.Mem. 664 (tuition paid in advance).
4
Almost all of the decisions sustaining the Commissioner's disallowance of deferred reporting of advances by accrual basis taxpayers have relied on the claim of right doctrine. See, e.g., Andrews v. Commissioner, 23 T.C. 1026, 1032—1033; South Dade Farms v. Commissioner, 5 Cir., 138 F.2d 818 (but compare Schuessler v. Commissioner, 5 Cir., 230 F.2d 722); Clay Sewer Pipe Ass'n v. Commissioner, 3 Cir., 139 F.2d 130; Automobile Club of Michigan v. Commissioner, 6 Cir., 230 F.2d 585, 591, affirmed on other grounds, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746. The Tax Court has carried the claim of right doctrine to the point where it was found applicable to advance fees which were due but not yet paid. Your Health Club, Inc. v. Commissioner, 4 T.C. 385.
5
The rejection of the applicability of the claim of right doctrine in these cases has been enthusiastically approved by legal commentators. See, e.g., Gelfand, The 'Claim of Right' Doctrine, 33 Taxes 726; Wolder, Deduction of Reserves for Future Expenses and Deferring of Prepaid Income, 34 Taxes 524; Note, 59 Col.L.Rev. 942, 946. But cf. Freeman, Tax Accrual Accounting for Contested Items, 56 Mich.L.Rev. 727, 730—732, 747.
6
See, e.g., Guaranty Trust Co. v. Commissioner, 303 U.S. 493, 58 S.Ct. 673, 82 L.Ed. 975; Burnet v. Sanford & Brooks Co., 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383. In the latter case, the Court took special notice of the fact that the taxpayer had not 'attempted to avail itself' of the accrual system under which 'expenses of a transaction incurred in one year might be offset by the amounts actually received from it in another.' 282 U.S. at page 366, 51 S.Ct. at page 152. In Security Mills Flour Co. v. Commissioner, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725, the taxpayer was attempting to use what the Court described as 'a divided and inconsistent method of accounting not properly to be denominated either a cash or an accrual system.' 321 U.S. at page 287, 64 S.Ct. at page 599. In Brown . Helvering, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725, the taxpayer was on an accrual basis generally, but its assertion of a right to defer reporting 'overriding commissions' constituted a change in accounting procedures as to the acceptance of which the Commissioner was said to have 'wide discretion.' 291 U.S. at page 204, 54 S.Ct. at page 361. See the discussion in Bressner Radio, Inc., v. Commissioner, 2 Cir., 267 F.2d 520, 525—526.
7
With the possible exception of contingent related expenditures, which cannot not be accurately measured. See Brown v. Helvering, 291 U.S. 193, 200-201, 54 S.Ct. 356, 360, 78 L.Ed. 725.
8
This becomes entirely clear upon examination of the cases upon which the Government relies. For example, in Heiner v. Mellon, 304 U.S. 271, 58 S.Ct. 926, 82 L.Ed. 1337, members of partnerships which had been formed to liquidate two corporations attempted to defer reporting income earned during the year until it could be determined in a subsequent year whether the partnerships' over-all liquidation enterprise had been profitable. The Court held that such a postponement was barred by the annual accounting principle. In Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725, the taxpayer attempted to reopen a prior year's return so as to deduct amounts which it had subsequently paid but of receipts earned in that year. Again the Court relied on the annual accounting principle in denying the taxpayer's claim.
9
See also Hoffman, Accounting Treatment Counts in Determining Net Taxable Income, 35 Taxes 918, 921; Behren, Prepaid Income-Accounting Concepts and The Tax Law, 15 Tax L.Rev. 343, 359 360; Note, 67 Yale L.J. 1425, 1439—1440.
10
There were certain restrictions upon the period over which the advances could be deferred, but these are not relevant for our purposes here. See Proposed Treas.Reg. § 1.452, 20 Fed.Reg. 515; Wolder, Deduction of Reserves for Future Expenses and Deferring of Prepaid Income, 34 Taxes 524; Bierman and Helstein, Accounting for Prepaid Income and Estimated Expenses under the Internal Revenue Code of 1954, 10 Tax L.Rev. 83, 93—96. Section 452 specifically envisage the deferral of club dues. See H.R.Rep. No. 1337, 83d Cong., 2d Sess. 48.
11
See, e.g., S.Rep. No. 372, 84th Cong., 1st Sess. 2. Section 462 provided that, 'In computing taxable income for the taxable year, there shall be taken into account (in the discretion of the secretary or his delegate) a reasonable addition to each reserve for estimated expenses * * *.' § 462(a), 68A Stat. 158. 'Estimated expense' was defined as a deduction '(A) part or all of which would * * * be required to be taken into account for a subsequent taxable year; (B) which is attributable to the income of the taxable year or prior taxable years for which an election under this section is in effect; and (C) which the Secretary or his delegate is satisfied can be estimated with reasonable accuracy.' § 462(d)(1), 68A Stat. 158. See Bierman and Helstein, Accounting for Prepaid Income and Estimated Expenses under the Internal Revenue Code of 1954. 10 Tax L.Rev. 83, 103—113.
12
S.Rep. No. 372, 84th Cong., 1st Sess. 3 (quoting from the tax recommendation in the Presidential budget message of 1954), U.S.Code Cong. and Adm.News 1955, p. 2048.
13
There were some exceptions to the rigid application of this rule which had been recognized. See I.T. 3369, 1940—1 Cum.Bull. 46 (permitting deferred reporting of subscriptions for publishers who had consistently followed that practice); I.T. 2080, III—2 Cum.Bull. 48 (1924) (permitting deferment of receipts from sales of tickets for tourist cruises), but compare National Airlines, Inc. v. Commissioner, 9 T.C. 159. See also Veenstra & DeHaan Coal Co. v. Commissioner, 11 T.C. 964; Summit Coal Co. v. Commissioner, 18 B.T.A. 983.
14
Freeman, Tax Accrual Accounting for Contested Items, 56 Mich.L.Rev. 727, 729, n. 9. See Bierman and Helstein, Accounting for Prepaid Income and Estimated Expenses under the Internal Revenue Code of 1954, 10 Tax L.Rev. 83, 84.
15
'Present law provides that the net income of a taxpayer shall be computed in accordance with the method of accounting regularly employedb y the taxpayer, if such method clearly reflects the income and the regulations state that approved standard methods of accounting will ordinarily be regarded as clearly reflecting taxable income. Nevertheless, as a result of court decisions and rulings, there have developed many divergencies between the computation of income for tax purposes and income for business purposes as computed under generally accepted accounting principles. * * *' H.R.Rep. No. 1337, 83d Cong., 2d Sess. 48, U.S.Code Cong. and Adm.News 1954, p. 4073.
16
See also H.R.Rep. No. 293, 84th Cong., 1st Sess. 4—5.
17
It is to be noted that no such inference was relied upon in the Michigan case, although the same arguments with respect to §§ 452 and 462 were pressed upon the Court by the Government. See Brief for Respondent, pp. 62—65, Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746.
18
See H.R.Rep. No. 293, 84th Cong., 1st Sess. 2—5; S.Rep. No. 372, 84th Cong., 1st Sess. 4—5; Hearings Before the Senate Finance Committee on H.R. 4725, 84th Cong., 1st Sess. 6. The prospective loss was more than ten times the original estimate of 47 million. Ibid. See Note, 67 Yale L.J. 1425, 1432, n. 25.
19
There was also a problem of expanded use of reserves for estimated expenditures under § 462 for items like vacation pay which were not related to the reporting of advances. See Hearings Before the Senate Finance Committee on H.R. 4725, 84th Cong., 1st Sess. 5, 9; Sporrer, The Past and Future of Deferring Income and Reserving for Expenses, 34 Taxes 45, 55—56; Griswold, Federal Taxation (5th ed. 1960), 497—498.
20
See S.Rep. No. 372, 84th Cong., 1st Sess. 4; Hearings Before the Senate Finance Committee on H.R. 4725, 84th Cong., 1st Sess., at 7, 8, 10; Dakin, The Change from Cash to Accrual Accounting for Federal Income Tax Purposes—Pyramided Income, Double Deductions and Double Talk, 51 Nw.U.L.Rev. 515, 50 —538; Griswold, Federal Taxation (5th ed. 1960), 497—498; Note, 67 Yale L.J. 1425, 1430.
21
Only one-tenth of the estimated loss during the transitional year was attributable to § 452. See Hearings Before the Senate Finance Committee on H.R. 4725, 84th Cong., 1st Sess. 21.
22
See also Treas.Reg. § 1.446—1(e)(2) (1957); Brown v. Helvering, 291 U.S. 193, 204—205, 54 S.Ct. 356, 361, 78 L.Ed. 725; Advertisers Exchange, Inc. v. Commissioner, 25 T.C. 1086; 2 Mertens, Law of Federal Income Taxation, §§ 12.19—12.20.
23
The Revenue Act of 1913, 38 Stat. 114, provided only for a strict cash receipts and disbursements method of accounting. See e.g., § IIB, 38 Stat. 167. In the 1916 Act, the sections dealing with permissible methods of computing income were revised to provide that:
'A corporation * * * keeping accounts upon any basis other than that of actual receipts and disbursements, unless such other basis does not clearly reflect its income, may, subject to regulations made by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, make its return upon the basis upon which its accounts are kept, * * *' § 13(d), 39 Stat. 771. See also § 8(g), 39 Stat. 763 (identical provision with respect to returns filed by individuals).
These sections were designed specifically to permit accrual accounting. See H.R.Rep. No. 922, 64th Cong., 1st Sess. 4; United States v. Anderson, 269 U.S. 422, 439—4 1, 46 S.Ct. 131, 133—134, 70 L.Ed. 347. In the Revenue Act of 1918, the necessity of obtaining special permission to use the accrual method was omitted, see § 212(b), 40 Stat. 1064—1065, and the provision permitting the use of accrual accounting remained substantially the same for the next thirty-six years. See Int.Rev.Code of 1939, § 41, 53 Stat. 24; Reubel v. Commissioner, 1 B.T.A. 676, 677—678. In 1954 the pertinent provision was again changed, with specific mention of the 'accrual method.' See Int.Rev.Code of 1954, § 446, 26 U.S.C. § 446, 26 U.S.C.A. § 446. See generally May, Accounting and the Accountant in the Administration of Income Taxation, 47 Col.L.Rev. 377, 380—382.
24
See, e.g., T.D. 2433, 19 Treas.Dec. 5 (1917); Treas.Reg. 45, Art. 23, Art. 111 (1920); Treas.Reg. 118, § 39.41 (1953); Treas.Reg. § 1.446—1 (1957).
25
See, e.g., United States v. Anderson, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347; Niles Bement Pond Co. v. United States, 281 U.S. 357, 50 S.Ct. 251, 74 L.Ed. 901; Aluminum Castings Co. v. Routzahn, 282 U.S. 92, 51 S.Ct. 11, 75 L.Ed. 234; Spring City Foundry Co. v. Commissioner, 292 U.S. 182, 184—185, 54 S.Ct. 644, 645, 78 L.Ed. 1200; see also Weed & Brothers v. United States, 38 F.2d 935, 938—940, 69 Ct.Cl. 246, 251—257.
26
Compare, e.g., Aluminum Castings Co. v. Routzahn, 282 U.S. 92, 51 S.Ct. 11 (deduction taken in year prior to cash disbursement) with Shelby Salesbook Co. v. United States, D.C., 104 F.Supp. 237 (dedc tion taken in later year).
27
United States v. Anderson, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347; American National Co. v. United States, 274 U.S. 99, 47 S.Ct. 520, 71 L.Ed. 946; Aluminum Castings Co. v. Routzahn, 282 U.S. 92, 51 S.Ct. 11, 75 L.Ed. 234.
28
The Court there held that an accrual taxpayer should have deducted a tax expense in 1916 so that it properly could have been offset against the profits from sales in 1916 upon which the tax was levied. The Court rejected the contention that the tax could not accrue in 1916 because it was not due until 1917. It stated:
'In a technical legal sense it may be argued that a tax does not accrue until it has been assessed and becomes due; but it is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it. In this respect, for purposes of accounting and of ascertaining true income for a given accounting period, the munitions tax here in question did not stand on any different footing than other accrued expenses appearing on appellee's books. In the economic and bookkeeping sense with which the statute and Treasury decision were concerned, the taxes had accrued. It should be noted that § 13(d) makes no use of the words 'accrue' or 'accrual' but merely provides for a return upon the basis upon which the taxpayer's accounts are kept, if it reflects income—which is precisely the return insisted upon by the government.' 269 U.S. at page 441, 46 S.Ct. at page 134.
29
The authors there state:
'In the ordinary case, accrual precedes actual receipt since there is an accrual when there is a right to receive. But in some cases items are received before they are earned, and then the receipt precedes the accrual.'
See also Continental Tie & Lumber Co. v. United States, 286 U.S. 290, 52 S.Ct. 529, 76 L.Ed. 1111; Georgia School-Book Depository, Inc. v. Commissioner, 1 T.C. 463; 1961 C.C.H.Tax Reporter § 2820.025 ('On the accrual basis, income is reported when earned'); Freeman, Tax Accrual Accounting for Contested Items, 56 Mich.L.Rev. 727, 728.
30
See e.g., Treas.Reg. 111, § 29.42—4 (1943), Treas.Reg. 118, § 39.42—4 (1953), and Treas.Reg. § 1.451—3 (1957) (providing for the percentage of completion method of reporting income on long-term contracts); Treas.Reg. 111, § 29.42—5 (1943), Treas.Reg. 118, § 39.42—5 (1953), and Treas.Reg. § 1.451—4 (1957) (providing for the duduction for redemption of trading stamps based upon 'The rate, in percentage, which the stamps redeemed in each year bear to the total stamps issued in such year'). See generally Brown & Williamson Tobacco Corp. v. Commissioner, 16 T.C. 432.
| 1112
|
367 U.S. 497
81 S.Ct. 1752
6 L.Ed.2d 989
Paul POE et al., Appellants,v.Abraham ULLMAN, State's Attorney. Jane DOE, Appellant, v. Abraham ULLMAN, State's Attorney. C. Lee BUXTON, Appellant, v. Abraham ULLMAN, State's Attorney.
Nos. 60, 61.
Argued March 1, 2, 1961.
Decided June 19, 1961.
Rehearing Denied Oct. 9, 1961.
See 82 S.Ct. 21, 22.
Mr. Fowler V. Harper, New Haven, Conn., for appellants in both cases.
Mrs. Harriet Pilpel, New York City, for Planned Parenthood Federation of America, Inc., as amicus curiae, in both cases.
Mr. Raymond J. Cannon, Hartford, Conn., for appellee in both cases.
Mr. Justice FRANKFURTER announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice CLARK and Mr. Justice WHITTAKER join.
1
These appeals challenge the constitutionality, under the Fourteenth Amendment, of Connecticut statutes which, as authoritatively construed by the Connecticut Supreme Court of Errors, prohibit the use of contraceptive devices and the giving of medical advice in the use of such devices. In proceedings seeking declarations of law, not on review of convictions for violation of the statutes, that court has ruled that these statutes would be applicable in the case of married couples and even under claim that conception would constitute a serious threat to the health or life of the female spouse.
2
No. 60 combines two actions brought in a Connecticut Superior Court for declaratory relief. The complaint in the first alleges that the plaintiffs, Paul and Pauline Poe,1 are a husband and wife, thirty and twenty-six years old respectively, who live together and have no children. Mrs. Poe has had three consecutive pregnancies terminating in infants with multiple congenital abnormalities from which each died shortly after birth. Plaintiffs have consulted Dr. Buxton, an obstetrician and gynecologist of eminence, and it is Dr. Buxton's opinion that the cause of the infants' abnormalities is genitic, although the underlying 'mechanism' is unclear. In view of the great emotional stress already suffered by plaintiffs, the probable consequence of another pregnancy is psychological strain extremely disturbing to the physical and mental health of both husband and wife. Plaintiffs know that it is Dr. Buxton's opinion that the best and safest medical treatment which could be prescribed for their situation is advice in methods of preventing conception. Dr. Buxton knows of drugs, medicinal articles and instruments which can be safely used to effect contraception. Medically, the use of these devices is indicated as the best and safest preventive measure necessary for the protection of plaintiffs' health. Plaintiffs, however, have been unable to obtain this information for the sole reason that its delivery and use may or will be claimed by the defendant State's At orney (appellee in this Court) to constitute offenses against Connecticut law. The State's Attorney intends to prosecute offenses against the State's laws, and claims that the giving of contraceptive advice and the use of contraceptive devices would be offenses forbidden by Conn.Gen.Stat.Rev.1958, §§ 53—32 and 54—196.2 Alleging irreparable injury and a substantial uncertainty of legal relations (a local procedural requisite for a declaration), plaintiffs ask a declaratory judgment that §§ 53—32 and 54—196 are unconstitutional, in that they deprive the plaintiffs of life and liberty without due process of law.
3
The second action in No. 60 is brought by Jane Doe, a twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with her husband, they have no children; Mrs. Doe recently underwent a pregnancy which induced in her a critical physical illness—two weeks' unconsciousness and a total of nine weeks' acute sickness which left her with partial paralysis, marked impairment of speech, and emotional instability. Another pregnancy would be exceedingly perilous to her life. She, too, has consulted Dr. Buxton, who believes that the best and safest treatment for her is contraceptive advice. The remaining allegations of Mrs. Doe's complaint, and the relief sought, are similar to those in the case of Mr. and Mrs. Poe.
4
In No. 61, also a declaratory judgment action, Dr. Buxton is the plaintiff. Setting forth facts identical to those alleged by Jane Doe, he asks that the Connecticut statutes prohibiting his giving of contraceptive advice to Mrs. Doe be adjudged unconstitutional, as depriving him of liberty and property without due process.
5
In all three actions, demurrers were advanced, inter alia, on the ground that the statutes attacked had been previously construed and sustained by the Supreme Court of Errors of Connecticut, and thus there did not exist the uncertainty of legal relations requisite to maintain suits for declaratory judgment. While the Connecticut Supreme Court of Errors in sustaining the demurrers referred to this local procedural ground, relying on State v. Nelson, 126 Conn. 412, 11 A.2d 856, and Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582, appeal dismissed 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603, we cannot say that its decision rested on it. 147 Conn. 48, 156 A.2d 508. We noted probable jurisdiction. 362 U.S. 987, 80 S.Ct. 1077, 4 L.Ed.2d 1020.
6
Appellants' complaints in these declaratory judgment proceedings do not clearly, and certainly do not in terms, allege that appellee Ullman threatens to prosecute them for use of, or for giving advice concerning, contraceptive devices. The allegations are merely that, in the course of his public duty, he intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses. The lack of im ediacy of the threat described by these allegations might alone raise serious questions of non-justiciability of appellants' claims. See United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 88, 67 S.Ct. 556, 564, 91 L.Ed. 754. But even were we to read the allegations to convey a clear threat of imminent prosecutions, we are not bound to accept as true all that is alleged on the face of the complaint and admitted, technically, by demurrer, any more than the Court is bound by stipulation of the parties. Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 289, 61 L.Ed. 722. Formal agreement between parties that collides with plausibility is too fragile a foundation for indulging in constitutional adjudication.
7
The Connecticut law prohibiting the use of contraceptives has been on the State's books since 1879. Conn.Acts 1879, c. 78. During the more than three-quarters of a century since its enactment, a prosecution for its violation seems never to have been initiated, save in State v. Nelson, 126 Conn. 412, 11 A.2d 856. The circumstances of that case, decided in 1940, only prove the abstract character of what is before us. There, a test case was brought to determine the constitutionality of the Act as applied against two doctors and a nurse who had allegedly disseminated contraceptive information. After the Supreme Court of Errors sustained the legislation on appeal from a demurrer to the information, the State moved to dismiss the information. Neither counsel nor our own researches have discovered any other attempt to enforce the prohibition of distribution or use of contraceptive devices by criminal process.3 The unreality of these law suits is illumined by another circumstance. We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores.4 Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would mere quickly invite the attention of enforcement officials than the conduct in which the present appellants wish to engage—the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. What was said in another context is relevant here. 'Deeply embedded traditional ways of carrying out state policy * * *'—or not carrying it out 'are often tougher and truer law than the dead words of the written text.' Nashville, C. & St. L.R. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254.
8
The restriction of our jurisdiction to cases and controversies within the meaning of Article III of the Constitution, see Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246, is not the sole limitation on the exercise of our appellate powers, especially in cases raising constitutional questions. The policy reflected in numerous cases and over a long period was thus summarized in the oft-quoted statement of Mr. Justice Brandeis: 'The Court (has) developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.' Ashwander v. Tennessee alley Authority, 297 U.S. 288, 341, 346, 56 S.Ct. 466, 482, 80 L.Ed. 688 (concurring opinion). In part the rules summarized in the Ashwander opinion have derived from the historically defined, limited nature and function of courts and from the recognition that, within the framework of our adversary system, the adjudicatory process is most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity. See Little v. Bowers, 134 U.S. 547, 558, 10 S.Ct. 620, 623, 33 L.Ed. 1016; People of State of California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747; United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 554, 5 L.Ed.2d 476. In part they derive from the fundamental federal and tripartite character of our National Government and from the role—restricted by its very responsibility—of the federal courts, and particularly this Court, within that structure. See the Note to Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436; Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488—489, 43 S.Ct. 597, 601, 67 L.Ed. 1078; Watson v. Buck, 313 U.S. 387, 400—403, 61 S.Ct. 962, 966—968, 85 L.Ed. 1416; Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 471, 65 S.Ct. 1384, 1394, 89 L.Ed. 1725.
9
These considerations press with special urgency in cases challenging legislative action or state judicial action as repugnant to the Constitution. 'The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.' Parker v. County of Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161, 163, 94 L.Ed. 144. See also Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. The various doctrines of 'standing,'5 'ripeness,'6 and 'mootness,'7 which this Court has evolved with particular, though not exclusive, reference to such cases are but several manifestations—each having its own 'varied application'8—of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action. Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed. 475; State of Texas v. Interstate Commerce Comm., 258 U.S. 158, 42 S.Ct. 261, 66 L.Ed. 531; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 89—90, 67 S.Ct. 556, 564—565, 91 L.Ed. 754. 'This court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here.' State of Georgia v. Stanton, 6 Wall. 50, 75, 18 L.Ed. 721, approvingly quoting Mr. Justice Thompson, dissenting, in Cherokee Nation v. State of Georgia, 5 Pet. 1, 75, 8 L.Ed. 25; also quoted in State of New Jersey v. Sargent, 269 U.S. 328, 331, 46 S.Ct. 122, 70 L.Ed. 289. 'The party who invokes the power (to annul legislation on grounds of its unconstitutionality) must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement * * *.' Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078.9
10
This principle was given early application and has been recurringly enforced in the Court's refusal to entertain cases which disclosed a want of a truly adversary contest, of a collision of actively asserted and differing claims. See, e.g., Cleveland v. Chamberlain, 1 Black 419, 17 L.Ed. 93; Wood-Paper Co. v. Heft, 8 Wall. 333, 19 L.Ed. 379. Such cases may not be 'collusive' in the derogatory sense of Lord v. Veazie, 8 How. 251, 12 L.Ed. 1067—in the sense of merely colorable disputes got up to secure an advantageous ruling from the Court. See South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 301, 12 S.Ct. 921, 36 L.Ed. 712. The Court has found unfit for adjudication any cause that 'is not in any real sense adversary,' that 'does not assume the 'honest and actual antagonistic assertion of rights' to be adjudicated—a safeguard essential to the integrity of the judicial process, and one which we have held to be indispensable to adjudication of constitutional questions by this Court.' United States v. Johnson, 319 U.S. 302, 305, 63 S.Ct. 1075, 1076, 87 L.Ed. 1413. The requirement for adversity was classically expounded in Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 344—345, 12 S.Ct. 400, 402, 36 L.Ed. 176:
11
'* * * The theory upon which, apparently, this suit was brought is that parties have an appeal from the legislature to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to thec ourts an inquiry as to the constitutionality of the legislative act.'
12
What was said in the Wellman case found ready application in proceedings brought under modern declaratory judgment procedures. For just as the declaratory judgment device does not 'purport to alter the character of the controversies which are the subject of the judicial power under the Constitution,' United States v. State of West Virginia, 295 U.S. 463, 475, 55 S.Ct. 789, 793, 79 L.Ed. 1546, it does not permit litigants to invoke the power of this Court to obtain constitutional rulings in advance of necessity. Electric Bond & Share Co. v. Securities and Exchange Comm., 303 U.S. 419, 443, 58 S.Ct. 678, 687, 82 L.Ed. 936. The Court has been on the alert against use of the declaratory judgment device for avoiding the rigorous insistence on exigent adversity as a condition for evoking Court adjudication. This is as true of state court suits for declaratory judgments as of federal. By exercising their jurisdiction, state courts cannot determine the jurisdiction to be exercised by this Court. Tyler v. Judges of the Court of Registration, 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. Although we have held that a state declaratory-judgment suit may constitute a case or controversy within our appellate jurisdiction, it is to be reviewed here only 'so long as the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy, which is finally determined by the judgment below.' Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 264, 53 S.Ct. 345, 348, 77 L.Ed. 730. It was with respect to a state-originating declaratory judgment proceeding that we said, in Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 471, 65 S.Ct. 1384, 1394, 89 L.Ed. 1725, that 'The extent to which the declaratory judgment procedure may be used in the federal courts to control state action lies in the sound discretion of the Court. * * *' Indeed, we have recognized, in such cases, that '* * * the discretionary element characteristic of declaratory jurisdiction, and imported perhaps from equity jurisdiction and practice without the remedial phase, offers a convenient instrument for making * * * effective * * *.' the policy against premature constitutional decision. Rescue Army v. Municipal Court, 331 U.S. 549, 573, note 41, 67 S.Ct. 1409, 1422, 91 L.Ed. 1666.
13
Insofar as appellants seek to justify the exercise of our declaratory power by the threat of prosecution, facts which they can no more negative by complaint and demurrer than they could by stipulation preclude our determining their appeals on the merits. Cf. Bartemeyer v. State of Iowa, 18 Wall. 129, 134—135, 21 L.Ed. 929. It is clear that the mere existence of a state penal statute would constitute insufficient grounds to support a federal court's adjudication of its constitutionality in proceedings brought against the State's prosecuting officials if real threat of enforcement is wanting. See Ex parte La Prade, 289 U.S. 444, 458, 53 S.Ct. 682, 77 L.Ed. 1311. If the prosecutor expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed here. C.I.O. v. McAdory, 325 U.S. 472, 475, 65 S.Ct. 1395, 1397, 89 L.Ed. 1741. Eighty years of Connecticut history demonstrate a similar, albeit tacit agreement. The fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. This Court cannot be umpire to debates concerning harmless, empty shadows. To find it necessary to pass on these statutes now, in order to protect appellants from the hazards of prosecution, would be to close our eyes to reality.
14
Nor does the allegation by the Poes and Doe that they are unable to obtain information concerning contraceptive devices from Dr. Buxto, 'for the sole reason that the delivery and use of such information and advice may or will be claimed by the defendant State's Attorney to constitute offenses,' disclose a necessity for present constitutional decision. It is true that this Court has several times passed upon criminal statutes challenged by persons who claimed that the effects of the statutes were to deter others from maintaining profitable or advantageous relations with the complainants. See, e.g., Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. But in these cases the deterrent effect complained of was one which was grounded in a realistic fear of prosecution. We cannot agree that if Dr. Buxton's compliance with these statutes is uncoerced by the risk of their enforcement, his patients are entitled to a declaratory judgment concerning the statutes' validity. And, with due regard to Dr. Buxton's standing as a physician and to his personal sensitiveness, we cannot accept, as the basis of constitutional adjudication, other than as chimerical the fear of enforcement of provisions that have during so many years gone uniformly and without exception unenforced.
15
Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures, including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought. Both these factors justify withholding adjudication of the constitutional issue raised under the circumstances and in the manmer in which they are now before the Court.
16
Dismissed.
17
Mr. Justice BLACK dissents because he believes that the constitutional questions should be reached and decided.
18
Mr. Justice BRENNAN, concurring in the judgment.
19
I agree that this appeal must be dismissed for failure to present a real and substantial controversy which unequivocally calls for adjudication of the rights claimed in advance of any attempt by the State to curtail them by criminal prosecution. I am not convinced, on this skimpy record, that these appellants as individuals are truly caught in an inescapable dilemma. The true controversy in this case is over the opening of birth-control clinics on a large scale; it is that which the State has prevented in the past, not the use of contraceptives by isolated and individual married couples. It will be time enough to decide the constitutional questions urged upon us when, if ever, that real controversy flares up again. Until it does, or until the State makes a definite and concrete threat to enforce these laws against individual married couples—a threat which it has never made in the past except under the provocation of litigation—this Court may not be compelled to exercise its most delicate power of constitutional adjudication.
20
Mr. Justice DOUGLAS, dissenting.
I.
21
These cases are dismissed because a majority of the members of this Court conclude, for varying reasons, that this controversy does not present a justiciable question. That conclusion is too transparent to require an extended reply. The device of the declaratory judgment is an honored one. Its use in the federal system is restricted to 'cases' or 'controversies' within the meaning of Article III. The question must be 'appropriate for judicial determination,' not hypothetical, abstract, academic or moot. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 464, 81 L.Ed. 617. It must touch 'the legal relations of parties having adverse legal interests.' Id., 300 U.S. at pages 240—241, 57 S.Ct. at page 464. It must be 'real and substantial' and admit of 'specific relief through a decree of a conclusive character.' Id., 300 U.S. at page 241, 57 S.Ct. at page 464. The fact that damages are not awarded or an injunction does not issue, the fact that there are no allegations of irreparable injury are irrelevant. Id., 300 U.S. at page 241, 57 S.Ct. at page 464. This is hornbook law. The need for this remedy in the federal field was summarized in a Senate Report as follows:
22
'* * * it is often necessary, in the absence of the declaratory judgment procedure, to violate or purport to violate a statute in order to obtain a judicial determination of its meaning or validity.' S.Rep. No. 1005, 73d Cong., 2d Sess., pp. 2—3.
23
If there is a case where the need for this remedy in the shadow of a criminal prosecution is shown, it is this one, as Mr. Justice HARLAN demonstrates. Plaintiffs in No. 60 are two sets of husband and wife. One wife is pathetically ill, having delivered a stillborn fetus. If she becomes pregnant again, her life will be gravely jeopardized. This couple have been unable to get medical advice concerning the 'best and safest' means to avoid pregnancy from their physician, plaintiff in No. 61, because if he gave it he would commit a crime. The use of contraceptive devices would also constitute a crime. And it is alleged—and admitted by the State—that the State's Attorney intends to enforce the law by prosecuting offenses under the laws.
24
A public clinic dispensing birth-control information has indeed been closed by the State. Doctors and a nurse working in that clinic were arrested by the police and charged with advising married women on the use of contraceptives. That litigation produced State v. Nelson, 126 Conn. 412, 11 A.2d 856, which upheld these statutes. That same police raid on the clinic resulted in the seizure of a quantity of the clinic's contraception literature and medical equipment and supplies. The legality of that seizure was in question in State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 863.
25
The Court refers to the Nelson prosecution as a 'test case' and implies that it had little impact. Yet its impact was described differently by a contemporary observer who concluded his comment with this sentence: 'This serious setback to the birth control movement (the Nelson case) led to the closing of all the clinics in the state, just as they had been previously closed in the state of Massachusetts.'1 At oral argument, counsel for appellants confirmed that the clinics are still closed. In response to a question from the bench, he affirmed that 'no public or private clinic' has dared give birth-control advice since the decision in the Nelson case.2
26
These, then, are the circumstances in which the Court feels that it can, contrary to every principle of American or English common law,3 go outside the record to conclude that there exists a 'tacit agreement' that these statutes will not be enforced. No lawyer, I think, would advise his clients to rely on that 'tacit agreement.' No police official, I think, would feel himself bound by that 'tacit agreement.' After our national experience during the prohibtion era, it would be absurd to pretend that all criminal statutes are adequately enforced. But that does not mean that bootlegging was the less a crime. Cf. Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551. In fact, an arbitrary administrative pattern of non-enforcement may increase the hardships of those subject to the law. See J. Goldstein, Police Discretion Not to Invoke the Criminal Process, 69 Yale L.J. 543.
27
When the Court goes outside the record to determine that Connecticut has adopted 'The undeviating policy of nullification * * * of its anti-contraceptive laws,' it selects a particularly poor case in which to exercise such a novel power. This is not a law which is a dead letter. Twice since 1940, Connecticut has reenacted these laws as part of general statutory revisions. Consistently, bills to remove the statutes from the books have been rejected by the legislature. In short, the statutes—far from being the accidental left-overs of another era—are the center of a continuing controversy in the State. See, e.g., The New Republic, May 19, 1947, p. 8.
28
Again, the Court relies on the inability of counsel to show any attempts, other than the Nelson case, 'to enforce the prohibition of distribution or use of contraceptive devices by criminal process.' Yet, on oral argument, counsel for the appellee stated on his own knowledge that several proprietors had been prosecuted in the 'minor police courts of Connecticut' after they had been 'picked up' for selling contraceptives. The enforcement of criminal laws in minor courts has just as much impact as in those cases where appellate courts are resorted to. The need of the protection of constitutional guarantees, and the right to them, are not less because the matter is small or the court lowly. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654; Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. Nor is the need lacking because the dispensing of birth-control information is by a single doctor rather than by birth-control clinics. The nature of the controversy would not be changed one iota had a dozen doctors, representing a dozen birth-control clinics, sued for remedial relief.
29
What are these people—doctor and patients—to do? Flout the law and go to prison? Violate the law surreptitiously and hope they will not get caught? By today's decision we leave them no other alternatives. It is not the choice they need have under the regime of the declaratory judgment and our constitutional system. It is not the choice worthy of a civilized society. A sick wife, a concerned husband, a conscientious doctor seek a dignified, discrete, orderly answer to the critical problem confronting them. We should not turn them away and make them flout the law and get arrested to have their constitutional rights determined. See Railway Mail Ass'n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072. They are entitled to an answer to their predicament here and now.
II.
30
The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion. The leading cases on freedom of expression are generally framed with reference to public debate and discourse. But as Chafee said, 'the First Amendment and other parts of the law erect a fence inside which men can talk. The law-makers, legislators and officials stay on the outside of that fence. But what the men inside the fence say when they are let alone is no concern of the law.' The Blessings of Liberty (1956), p. 108.
31
The teacher (Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311) as well as the public speaker (Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430) is included. The actor on stage or screen, the artist whose creation is in oil or clay or marble, the poet whose reading public may be practically nonexistent, the musician and his musical scores, the counselor whether priest, parent or teacher no matter how small his audience—these too are beneficiaries of freedom of expression. The remark by President James A. Garfield that his ideal of a college was al og in the woods with a student at one end and Mark Hopkins at another (9 Dict.Am Biog., p. 216) puts the present problem in proper First Amendment dimensions. Of course a physician can talk freely and fully with his patient without threat of retaliation by the State. The contrary thought—the one endorsed sub silentio by the courts below—has the cast of regimentation about it, a cast at war with the philosophy and presuppositions of this free society.
32
We should say with Kant that 'It is absurd to expect to be enlightened by Reason, and at the same time to prescribe to her what side of the question she must adopt.'4 Leveling the discourse of medical men to the morality of a particular community is a deadening influence. Mill spoke of the pressures of intolerant groups that produce 'either mere conformers to commonplace, or time-servers for truth.'5 We witness in this case a sealing of the lips of a doctor because he desires to observe the law, obnoxious as the law may be. The State has no power to put any sanctions of any kind on him for any views or beliefs that he has or for any advice he renders. These are his professional domains into which the State may not intrude. The chronicles are filled with sad attempts of government to stomp out ideas, to ban thoughts because they are heretical or obnoxious. As Mill stated, 'Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion.'6 When that happens society suffers. Freedom working underground, freedom bootlegged around the law is freedom crippled. A society that tells its doctors under pain of criminal penalty what they may not tell their patients is not a free society. Only free exchange of views and information is consistent with 'a civilization of the dialogue,' to borrow a phrase from Dr. Robert M. Hutchins. See Wieman v. Updegraff, 344 U.S. 183, 197, 73 S.Ct. 215, 222, 97 L.Ed. 216 (concurring opinion).
III.
33
I am also clear that this Connecticut law as applied to this married couple deprives them of 'liberty' without due process of law, as that concept is used in the Fourteenth Amendment.
34
The first eight Amendments to the Constitution have been made applicable to the States only in part. My view has been that when the Fourteenth Amendment was adopted, its Due Process Clause incorporated all of those Amendments. See Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (dissenting opinion). Although the history of the Fourteenth Amendment may not be conclusive, the words 'due process' acquired specific meaning from Anglo-American experience.7 As Mr. Justice BRENNAN recently stated, 'The Bill of Rights is the primary source of expressed information as to what is meant by constitutional liberty. The safeguards enshrined in it are deeply etched in the foundations of America's freedoms.' The Bill of Rights and the States (1961), 36 N.Y.U.L.Rev. 761, 776. When the Framers wrote the Bill of Rights they enshrined in the form of constitutional guarantees those rights—in part substantive, in part procedural which experience indicated were indispensable to a free society. Some would disagree as to their importance; the debate concerning them did indeed start before their adoption and has continued to this day. Yet the constitutional conception of 'due process' must, in my view, include them all until and unless there are amendments that remove them. That has indeed been the view of a full court of nine Justices, though the members who make up that court unfortunately did not sit at the same time.8
35
Though I believe that 'due process' as used in the Fourteenth Amendment includes all of the first eight Amendments, I do not think it is restricted and confined to them. We recently held that the undefined 'liberty' in the Due Process Clause of the Fifth Amendment includes freedom to travel. Kent v. Dulles, 357 U.S. 116, 125-127, 78 S.Ct. 1113, 1118—1119, 2 L.Ed.2d 1204. Cf. Edwards v. People of State of California, 314 U.S. 160, 177, 178, 62 S.Ct. 164, 169, 86 L.Ed. 119 (concurring opinion). The right 'to marry, establish a home and bring up children' was said in Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, to come within the 'liberty' of the person protected by the Due Process Clause of the Fourteenth Amendment. As I indicated in my dissent in Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed. 1068, 'liberty' within the purview of the Fifth Amendment includes the right of 'privacy,' a right I thought infringed in that case because a member of a 'captive audience' was forced to listen to a government-sponsored radio program. 'Liberty' is a conception that sometimes gains content from the emanations of other specific guarantees (N.A.A.C.P. v. State of Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488) or from experience with the requirements of a free society.
36
For years the Court struck down social legislation when a particular law did not fit the notions of a majority of Justices as to legislation appropriate for a free enterprise system. Mr. Justice Holmes, dissenting, rightly said that 'a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.' Lochner v. State of New York, 198 U.S. 45, 75—76, 25 S.Ct. 539, 547, 49 L.Ed. 937.
37
The error of the old Court, as I see it, was not in entertaining inquiries concerning the constitutionality of social legislation but in applying the standards that it did. See Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834. Social legislation dealing with business and economic matters touches no particularized prohibition of the Constitution, unless it be the provision of the Fifth Amendment that private property should not be taken for public use without just compensation. If it is free of the latter guarantee, it has a wide scope for application. Soem go so far as to suggest that whatever the majority in the legislature says goes (cf. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 64, 33 S.Ct. 667, 672, 57 L.Ed. 1063), that there is no other standard of constitutionality. That reduces the legislative power to sheer voting strength and the judicial function to a matter of statistics. As Robert M. Hutchins has said, 'It is obviously impossil e to raise questions of freedom and justice if the sole duty of the court is to decide whether the case at bar falls within the scope of the duly issued command of a duly constituted sovereign.' Two Faces of Federalism (1960), p. 18. While the legislative judgment on economic and business matters is 'well-nigh conclusive' (Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27), it is not beyond judicial inquiry. Cf. United States v. Oregon, 366 U.S. 643, 649, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (dissenting opinion).
38
The regime of a free society needs room for vast experimentation. Crises, emergencies, experience at the individual and community levels produce new insights; problems emerge in new dimensions; needs, once never imagined, appear. To stop experimentation and the testing of new decrees and controls is to deprive society of a needed versatility. Yet to say that a legislature may do anything not within a specific guarantee of the Constitution may be as crippling to a free society as to allow it to override specific guarantees so long as what it does fails to shock the sensibilities of a majority of the Court.9
39
The present legislation is an excellent example. If a State banned completely the sale of contraceptives in drug stores, the case would be quite different. It might seem to some or to all judges an unreasonable restriction. Yet it might not be irrational to conclude that a better way of dispensing those articles is through physicians. The same might be said of a state law banning the manufacture of contraceptives. Health, religious, and moral arguments might be marshalled pro and con. Yet it is not for judges to weigh the evidence. Where either the sale or the manufacture is put under regulation, the strictures are on business and commercial dealings that have had a long history with the police power of the States.
40
The present law, however, deals not with sale, not with manufacture, but with use. It provides:
41
'Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.' Conn.Gen.Stat.1958, § 53—32.
42
The regulation as applied in this case touches the relationship between man and wife. It reaches into the intimacies of the marriage relationship. If we imagine a regime of full enforcement of the law in the manner of an Anthony Comstock,10 we would reach the point where search warrants issued and officers appeared in bedrooms to find out what went on.11 It is said that this is not that case. And so it is not. But when the State makes 'use' a crime and applies the criminal sanction to man and wife, the State has entered the innermost sanctum of the home. If it can make this law, it can enforce it. And proof of its violation necessarily involves an inquiry into the relations between man and wie .
43
That is an invasion of the privacy that is implicit in a free society. A noted theologian who conceives of the use of a contraceptive as a 'sin' nonetheless admits that a 'use' statute such as this enters a forbidden domain.
44
'* * * the Connecticut statute confuses the moral and legal, in that it transposes without further ado a private sin into a public crime. The criminal act here is the private use of contraceptives. The real area where the coercions of law might, and ought to, be applied, at least to control an evil namely, the contraceptive industry—is quite overlooked. As it stands, the statute is, of course, unenforceable without police invasion of the bedroom, and is therefore indefensible as a piece of legal draughtsmanship.' Murray, We Hold These Truths (1960), pp. 157—158.
45
This notion of privacy is not drawn from the blue.12 It emanates from the totality of the constitutional scheme under which we live.13
46
'One of the earmarks of the totalitarian understanding of society is that it seeks to make all subcommunities—family, school, business, press, church completely subject to control by the State. The State then is not one vital institution among others: a policeman, a referee, and a source of initiative for the common good. Instead, it seeks to be coextensive with family and school, press, business community, and the Church, so that all of these component interest groups are, in principle, reduced to organs and agencies of the State. In a democratic political order, this megatherian concept is expressly rejected as out of accord with the democratic understanding of social good, and with the actual make-up of the human community.'14
47
Can there be any doubt that a Bill of Rights that in time of peace bars soldiers from being quartered in a home 'without the consent of the Owner'15 should also bar the police from investigating the intimacies of the marriage relation? The idea of allowing the State that leeway is congenial only to a totalitarian regime.
48
I dissent from a dismissal of these cases and our refusal to strike down this law.
49
Mr. Justice HARLAN, dissenting.
50
I am compelled, with all respect, to dissent from the dismissal of these appeals. In my view the course which the Court has taken does violence to established concepts of 'justiciability,' and unjustifiably leaves these appellants under the threat of unconstitutional prosecution. Regrettably, an adequate exposition of my views calls for a dissenting opinion of unusual length.
51
Between them these suits seek declaratory relief against the threatened enforcement of Connecticut's antibirth-control laws making criminal the use of contraceptives, insofar as such laws relate to the use of contraceptives by married persons and the giving of advice to married persons in their use.1 The appellants, a married couple, a married woman, and a doctor, ask that it be adjudged, contrary to what the Connecticut courts have held, that such laws, as threatened to be applied to them in circumstances described in the opinion announcing the judgment of the Court (ante, 367 U.S. at pages 498—500, 81 S.Ct. at pages 1753—1754), violate the Fourteenth Amendment, in that they deprive appellants of life, liberty, or property without due process.
52
The plurality opinion of the Court gives, as the basis for dismissing the appeals, the reason that, as to the two married appellants, the lack of demonstrated enforcement of the Connecticut statute bespeaks an absence of exigent adversity which is posited as the condition for evoking adjudication from us, and, as to the doctor, that his compliance with the state statute is uncoerced by any 'realistic fear of prosecution,' giving due recognition to his 'standing as a physician and to his personal sensitiveness.' With these reasons it appears that the concurring opinion agrees.
53
In Alabama State Federation of Labor, etc. v. McAdory, 325 U.S. 450, 462, 65 S.Ct. 1384, 1390, 89 L.Ed. 1725, it was said that 'declaratory judgment procedure may be resorted to only in the sound discretion of the Court and where the interests of justice will be advanced and an adequate and effective judgment may be rendered.' In my view of these cases a present determination of the Constitutional issues is the n ly course which will advance justice, and I can find no sound reason born of considerations as to the possible inadequacy or ineffectiveness of the judgment that might be rendered which justifies the Court's contrary disposition. While ordinarily I would not deem it appropriate to deal, in dissent, with Constitutional issues which the Court has not reached, I shall do so here because such issues, as I see things, are entangled with the Court's conclusion as to the nonjusticiability of these appeals.
54
Part One.
55
Justiciability.
56
There can be no quarrel with the plurality opinion's statement that 'Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification,' but, with deference, the fact that justiciability is not precisely definable does not make it ineffable. Although a large number of cases are brought to bear on the conclusion that is reached, I think it is fairly demonstrable that the authorities fall far short of compelling dismissal of these appeals.2 Even so, it is suggested that the cases do point the way to a 'rigorous insistence on exigent adversity' and a 'policy against premature constitutional decision,' which properly understood does indeed demand that result.
57
The policy referred to is one to which I unreservedly subscribe. Without undertaking to be definitive, I would suppose it is a policy the wisdom of which is woven of several strands: (1) Due regard for the fact that the source of the Court's power lies ultimately in its duty to decide, in conformity with the Constitution, the particular controversies which come to it, and does not arise from some generalized power of supervision over state and national legislatures; (2) therefore it should insist that litigants bring to the Court interests and rights which require present recognition and controversies demanding immediate resolution; (3) also it follows that the controversy must be one which is in truth and fact the litigant's own, so that the clash of adversary contest which is needed to sharpen and illuminate issues is present and gives that aid on which our adjudicatory system has come to rely; (4) finally, it is required that other means of redress for the particular right claimed be unavailable, so that the process of the Court may not become overburdened and conflicts with other courts or departments of government may not needlessly be created, which might come about if either those truly affected are not the ones demanding relief, or if the relief we can give is not truly needed.
58
In particularization of this composite policy the Court, in the course of its decisions on matters of justiciability, has developed and given expression to a number of important limitations on the exercise of its jurisdiction, the presence or absence of which here should determine the justiciability of these appeals. Since allo f them are referred to here in one way or another, it is well to proceed to a disclosure of those which are not involved in the present appeals, thereby focusing attention on the one factor on which reliance appears to be placed by both the plurality and concurring opinions in this instance.
59
First: It should by now be abundantly clear that the fact that only Constitutional claims are presented in proceedings seeking anticipatory relief against state criminal statutes does not for that reason alone make the claims premature. See, e.g., Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Whatever general pronouncements may be found to the contrary must, in context, be seen to refer to considerations quite different from anything present in these cases.
60
Thus in Alabama State Federation of Labor, etc. v. McAdory, supra, anticipatory relief was withheld for the precise reason that normally this Court ought not to consider the Constitutionality of a state statute in the absence of a controlling interpretation of its meaning and effect by the state courts. To the same effect see Parker v. Los Angeles County, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144; Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; Beal v. Missouri Pacific R. Co., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577. Indeed, without belaboring the point, the principle that anticipatory relief against state criminal statutes is not unavailable as a general matter may best be illustrated by several cases recently decided in this Court. In Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, the premise of our action was that anticipatory relief should be obtained, if possible—with review here on certiorari or appeal—in a state court which could then authoritatively construe a new and ambiguous state statute; only if such relief were unavailable, should a Federal District Court exercise its statutory jurisdiction. And in our recent decisions upholding the Constitutionality of state Sunday-closing laws, 366 U.S. 420 et seq., 81 S.Ct. 1101 et seq., not one of the opinions paused even slightly over the appropriateness of anticipatory relief, although in one case that issue was argued, Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122.
61
Hence, any language in the cases where the Court has abstained from exercising its jurisdiction, to the effect that we should not 'entertain constitutional questions in advance of the strictest necessity,' Parker v. Los Angeles County, supra, 338 U.S. at page 333, 70 S.Ct. at page 164, is not at all apposite in the present cases. For these appeals come to us from the highest court of Connecticut, thus affording us—in company with previous state interpretations of the same statute—a clear construction of the scope of the statute, thereby in effect assuring that our review constitutes no greater interference with state administration than the state procedures themselves allow.
62
Second: I do not think these appeals may be dismissed for want of 'ripeness' as that concept has been understood in its 'varied applications.'3 There is no lack of 'ripeness' in the sense that is exemplified by cases such as Stearns v. Wood, 236 U.S. 75, 35 S.Ct. 229, 59 L.Ed. 475; Electric Bond & Share Co. v. Securities & Exchange Comm., 303 U.S. 419, 58 S.Ct. 678, 82 L.Ed. 936; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; International Longshoremen's and Warehousemen's Union, Local 37 Union v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650; and perhaps again Parker v. Los Angeles County, supra. In all of those cases the lack of ripeness inhered in the fact that the need for some further procedure, some further contingency of application or interpretation, whether judicial, administrative or executive, or some furtherc larification of the intentions of the claimant, served to make remote the issue which was sought to be presented to the Court. Certainly the appellants have stated in their pleadings fully and unequivocally what it is that they intend to do; no clarifying or resolving contingency stands in their way before they may embark on that conduct. Thus there is no circumstance besides that of detection or prosecution to make remote the particular controversy. And it is clear beyond cavil that the mere fact that a controversy such as this is rendered still more unavoidable by an actual prosecution, is not alone sufficient to make the case too remote, not ideally enough 'ripe' for adjudication, at the prior stage of anticipatory relief.
63
Moreover, it follows from what has already been said that there is no such want of ripeness as was presented in Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666, or in our recent decisions dismissing the appeals in Atlanta Newspapers, Inc. v. Grimes, 364 U.S. 290, 81 S.Ct. 63, 5 L.Ed.2d 39, and United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476, where the records presented for adjudication a controversy so artifically truncated as to make the cases not susceptible to intelligent decision. I cannot see what further elaboration is required to enable us to decide the appellants' claims, and indeed neither the plurality opinion nor the concurring opinion—not-withstanding the latter's characterization of this record as 'skimpy'—suggests what mere grist is needed before the judicial mill could turn.
64
Third: This is not a feigned, hypothetical, friendly or colorable suit such as discloses 'a want of a truly adversary contest.' Clearly these cases are not analogous to Wood-Paper Co. v. Heft, 8 Wall. 333, 19 L.Ed. 379, or South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 12 S.Ct. 921, 36 L.Ed. 712, where prior to consideration the controversy in effect became moot by the merger of the two contesting interests. Nor is there any question of collusion as in Lord v. Veazie, 8 How. 251, 12 L.Ed. 1067, or in United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413. And there is nothing to suggest that the parties by their conduct of this litigation have cooperated to force an adjudication of a Constitutional issue which—were the parties interested solely in winning their cases rather than obtaining a Constitutional decision—might not arise in an arm's-length contested proceeding. Such was the situation in Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176, where the parties sought a ruling as to whether a particular passenger rate was unconstitutionally confiscatory, having stipulated all the debatable and contingent facts which otherwise might have rendered a Constitutional decision unnecessary.
65
In the present appeals no more is alleged or conceded than is consistent with undisputed facts and with ordinary practice in deciding a case for anticipatory relief on demurrer. I think it is unjustifiably stretching things to assume that appellants are not deterred by the threat of prosecution from eg aging in the conduct in which they assert a right to engage, or to assume that appellee's demurrer to the proposition that he asserts the right to enforce the statute against appellants at any time he chooses is anything but a candid one.
66
Indeed, as will be developed below, I think both the plurality and concurring opinions confuse on this score the predictive likelihood that, had they not brought themselves to appellee's attention, he would not enforce the statute against them, with some entirely suppositious 'tacit agreement' not to prosecute, thereby ignoring the prosecutor's claim, asserted in these very proceedings, of a right, at his unbounded prosecutorial discretion, to enforce the statute.
67
Fourth: The doctrine of the cases dealing with a litigant's lack of standing to raise a Constitutional claim is said to justify the dismissal of these appeals. The precedents put forward as examples of this doctrine, see the plurality opinion, note 5, as well as cases such as Commonwealth of Massachusetts v. Mellon (Frothingham v. Mellon) 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, and State of Texas v. Interstate Commerce Comm., 258 U.S. 158, 42 S.Ct. 261, 66 L.Ed. 531, do indeed stand for the proposition that a legal claim will not be considered at the instance of one who has no real and concrete interest in its vindication. This is well in accord with the grounds for declining jurisdiction suggested above. But this doctrine in turn needs further particularization lest it become a catchall for an unarticulated discretion on the part of this Court to decline to adjudicate appeals involving Constitutional issues.
68
There is no question but that appellants here are asserting rights which are peculiarly their own, and which, if they are to be raised at all, may be raised most appropriately by them. Cf. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603; State of Texas v. Interstate Commerce Comm., supra; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (concurring opinion). Nor do I understand the argument to be that this is the sort of claim which is too remote ever to be pressed by anyone, because no one is ever sufficiently involved. Cf. Commonwealth of Massachusetts v. Mellon (Frothingham v. Mellon), supra. Thus, in truth, it is not the parties pressing this claim but the occasion chosen for pressing it which is objected to. But as has been shown the fact that it is anticipatory relief which is asked cannot of itself make the occasion objectionable.
69
We are brought, then, to the precise failing in these proceedings which is said to justify refusal to exercise our mandatory appellate jurisdiction: that there has been but one recorded Connecticut case dealing with a prosecution under the statute.4 The significance of this lack of recorded evidence of prosecutions is said to make the presentation of appellants' rights too remote, too contingent, too hypothetical for adjudication in the light of the policies already considered. See 367 U.S. at pages 526—530, 81 S.Ct. at pages 1768—1770, supra. In my view it is only as a result of misconceptions both about the purport of the record before us and about the nature of the rights appellants put forward that this conclusion can be reached.
70
As far as the record is concerned, I think it is pure conjecture, and indeed conjecture which to me seems contrary to realities, that an open violation of the statute by a doctor (or more obviously still by a birth-control clinic) would not resul in a substantial threat of prosecution. Crucial to the opposite conclusion is the description of the 1940 prosecution instituted in State v. Nelson, 126 Conn. 412, 11 A.2d 856, as a 'test case' which, as it is viewed, scarcely even punctuates the uniform state practice of nonenforcement of this statute. I read the history of Connecticut enforcement in a very different light. The Nelson case, as appears from the state court's opinion, was a prosecution of two doctors and a nurse for aiding and abetting violations of this statute by married women in prescribing and advising the use of contraceptive materials by them. It is true that there is evidence of a customary unwillingness to enforce the statute prior to Nelson, for in that case the prosecutor stated to the trial court in a later motion to discontinue the prosecutions that 'When this Waterbury clinic (operated by the defendants) was opened there were in open operation elsewhere in the State at least eight other contraceptive clinics which had been in existence for a long period of time and no questions as to their right to operate had been raised * * *.'5
71
What must also be noted is that the prosecutor followed this statement with an explanation that the primary purpose of the prosecution was to provide clear warning to all those who, like Nelson, might rely on this practice of nonenforcement. He stated that the purpose of the prosecution was:
72
'the establishment of the constitutional validity and efficacy of the statutes under which these accused are informed against. Henceforth any person, whether a physician or layman, who violates the provisions of these statutes, must expect to be prosecuted and punished in accordance with the literal provisions of the law.'6
73
Thus the respect in which Nelson was a test case is only that it was brought for the purpose of making entirely clear the State's power and willingness to enforce against 'any person, whether a physician or layman' (emphasis supplied), the statute and to eliminate from future cases the very doubt about the existence of these elements which had resulted in eight open birth-control clinics, and which would have made unfair the conviction of Nelson.
74
The plurality opinion now finds, and the concurring opinion must assume, that the only explanation of the absence of recorded prosecutions subsequent to the Nelson case is that Connecticut has renounced that intention to prosecute and punish 'any person * * * in accordance with the literal provisions of the law' which it announced in Nelson. But if renunciation of the purposes of the Nelson prosecution is consistent with a lack of subsequent prosecutions, success of that purpose is no less consistent with this lack. I find it difficult to believe that doctors generally and not just those operating specialized clinics—would continue openly to disseminate advice about contraceptives after Nelson in reliance on the State's supposed unwillingness to prosecute, or to consider that high-minded members of the profession would in consequence of such inaction deem themselves warranted in disrespecting this law so long as it is on the books. Nor can I regard as 'chimerical' the fear of enforcemento f these provisions that seems to have caused the disappearance of at least nine birth-control clinics.7 In short, I fear that the Court has indulged in a bit of sleight of hand to be rid of this case. It has treated the significance of the absence of prosecutions during the twenty years since Nelson as identical with that of the absence of prosecutions during the years before Nelson. It has ignored the fact that the very purpose of the Nelson prosecution was to change defiance into compliance. It has ignored the very possibility that this purpose may have been successful.8 The result is to postulate a security from prosecution for open defiance of the statute which I do not believe the record supports.9
75
These considerations alone serve to bring appellants so squarely within the rule of Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, and Tra x v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, that further demonstration would be pointless.
76
But even if Dr. Buxton were not in the litigation and appellants the Poes and Doe were seeking simply to use contraceptives without any need of consulting a physician beforehand—which is not the case we have, although it is the case which the plurality opinion of the Court is primarily concerned to discuss—even then I think that it misconceives the concept of justiciability and the nature of these appellants' rights to say that the failure of the State to carry through any criminal prosecution requires dismissal of their appeals.
77
The Court's disposition assumes that to decide the case now, in the absence of any consummated prosecutions, is unwise because it forces a difficult decision in advance of any exigent necessity therefor. Of course it is abundantly clear that this requisite necessity can exist prior to any actual prosecution, for that is the theory of anticipatory relief, and is by now familiar law. What must be relied on, therefore, is that the historical absence of prosecutions in some way leaves these appellants free to violate the statute without fear of prosecution, whether or not the law is Constitutional, and thus absolves us from the duty of deciding if it is. Despite the suggestion of a 'tougher and truer law' of immunity from criminal prosection and despite speculation as to a 'tacit agreement' that this law will not be enforced, there is, of course, no suggestion of an estoppel against the State if it should attempt to prosecute appellants. Neither the plurality nor the concurring opinion suggests that appellants have some legally cognizable right not to be prosecuted if the statute is Constitutional. What is meant is simply that the appellants are more or less free to act without fear of prosecution because the prosecuting authorities of the State, in their discretion and at their whim, are, as a matter of prediction, unlikely to decide to prosecute.
78
Here is the core of my disagreement with the present disposition. As I will develop later in this opinion, the most substantial claim which these married persons press is their right to enjoy the privacy of their marital relations free of the enquiry of the criminal law, whether it be in a prosecution of them or of a doctor whom they have consulted. And I cannot agreed that their enjoyment of this privacy is not substantially impinged upon, when they are told that if they use contraceptives, indeed whether they do so or not, the only thing which stands between them and being forced to render criminal account of their marital privacy is the whim of the prosecutor.10 Connecticut's highest court has told us in the clearest terms that, given proof, the prosecutor will succeed if he decides to bring a proceeding against one of the appellants for taking the precise actions appellants have announced they intend to take. The State Court does not agree that there has come into play a 'tougher and truer law than the dead words of the written text,' and in the light of twelve unsuccessful attempts since 1943 to change this legislation, Poe v. Ullman, 147 Conn. 48, 56, note 2, 156 A.2d 508, 513, this position is not difficult to understand. Prosecution and conviction for the clearly spelled-out actions the appellants wish to take is not made unlikely by any fortuitous factor outside the control of the parties, nor is it made uncertain by possible variations in the actions appellants actually take from those the state courts have already passed upon. All that stands between the appellants and jail is the legally unfettered whim of the prosecutor and the Constitutional issue this Court today refuses to decide.
79
If we revert again to the reasons underlying our reluctance to exercise a jurisdiction which technically we possess, and the concrete expression of those underlying reasons in our cases, see 367 U.S. at pages 526—531, 81 S.Ct. at pages 1768—1770, supra, then I think it must become clear that there is no justification for failing to decide these married persons's appeals. The controversy awaits nothing but an actual prosecution, and, as will be shown, the substantial damage against which these appellants, Mrs. Doe and the Poes, are entitled to protection will be accomplished by such a prosecution, whatever its outcome in the state courts or here. By the present decision, although as a general matter the parties would be entitled to our review in an anticipatory proceeding which the State allowed to be instituted in its courts, these appellants are made to await actual prosecution before we will hear them. Indeed it appears that whereas appellants would surely have been entitled to review were this a new statute, see Harrison v. N.A.A.C.P., supra, the State here is enabled to maintain at least some substantial measure of compliance with this statute and still obviate any review in this Court, by the device of purely discretionary prosecutorial inactivity. It seems to me to destroy the whole purpose of anticipatory relief to consider the prosecutor's discretion, once all legal and administrative channels have been cleared, as in any way analogous to those other contingencies which make remote a controversy presenting Constitutional claims.
80
In this light it is not surprising that the Court's position is without support in the precedents.11 Indeed it seems to me that Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, provides very clear authority contrary to the position of the Court in this case, for there a Court which included Justices Holmes, Brandeis, and Stone rejected a claim of prematureness and then passed upon and held unconstitutional a state statute whose sanctions were not even to become effective for more than seventeen months after the time the case was argued to this Court. The Court found allegations of present loss of business, caused by the threat of the statute's future enforcement against the Society's clientele, sufficient to make the injury to the Society 'present and very real.' 268 U.S. at page 536, 45 S.Ct. at page 574. I cannot regard as less present, or less real, the tendency to discourage the exercise of the liberties of these appellants, caused by reluctance to submit their freedoms from prosecution and conviction to the discretion of the Connecticut prosecuting authorities. I therefore think it incumbent on us to consider the merits of appellants' Constitutional claims.
81
Part Two.
82
Constitutionality.
83
I consider that this Connecticut legislation, as construed to apply to these appellants, violates the Fourteenth Amendment. I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life. I reach this conclusion, even though I find it difficult and unnecessary at this juncture to accept appellants' other argument that the judgment of policy behind the statute, so applied, is so arbitrary and unreasonable as to render the enactment invalid for that reason alone. Since both the contentions draw their basis from no explicit language of the Constitution, and have yet to find expression in any decision of this Court, I feel it desirable at the outset to state the framework of Constitutional principles in which I think the issue must be judged.
I.
84
In reviewing state legislation, whether considered to be in the exercise of the State's police powers, or in provision for the health, safety, morals or welfare of its people, it is clear that what is concerned are 'the powers of government inherent in every sovereignty.' The License Cases, 5 How. 504, 583, 12 L.Ed. 256. Only to the extent that the Constitution so requires may this Court interfere with the exercise of this plenary power of government. Barron for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 8 L.Ed. 672. But precisely because it is the Constitution alone which warrants judicial interference in sovereign operations of the State, the basis of judgment as to the Constitutionality of state action must be a rational one, approaching the text which is the only commission for our power not in a literalistic way, as if we had a tax statute before us, but as the basic charter of our society, setting out in spare but meaningful terms the principles of government. M'Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. But as inescapable as is the rational process in Constitutional adjudication in general, nowhere is it more so than in giving meaning to the prohibitions of the Fourteenth Amendment and, where the Federal Government is involved, the Fifth Amendment, against the deprivation of life, liberty or property without due process of law.
85
It is but a truism to say that this provision of both Amendments is not self-explanatory. As to the Fourteenth, which is involved here, the history of the Amendment also sheds little light on the meaning of the provision. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights, 2 Stan.L.Rev. 15. It is important to note, however, that two views of the Amendment have not been accepted by this Court as delineating its scope. One view, which was ably and insistently argued in response to what were felt to be abuses by this Court of its reviewing power, sought to limit the provision to a guarantee of procedural fairness. See Davidson v. City of New Orleans, 96 U.S. 97, 105, 24 L.Ed. 616; Brandeis, J., in Whitney v. People of State of California, 274 U.S. 357, at page 373, 47 S.Ct. 641, at page 647, 71 L.Ed. 1095; Warren, The New 'Liberty' under the 14th Amendment, 39 Harv.L.Rev. 431; Reeder, The Due Process Clauses and 'The Substance of Individual Rights,' 58 U.Pa.L.Rev. 191; Shattuck, The True Meaning of the Term 'Liberty' in Those Clauses in the Federal and State Constitutions Which Protect 'Life, Liberty, and Property,' 4 Harv.L.Rev. 365. The other view which has been rejected would have it that the Fourteenth Amendment, whether by way of the Privileges and Immunities Clause or the Due Process Clause, applied against the States only and precisely those restraints which had prior to the Amendment been applicable merely to federal action. However, 'due process' in the consistent view of this Court has even been a broader concept than the first view and more flexible than the second.
86
Wered ue process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. Compare, e.g., Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349; Butler v. Perry, 240 U.S. 328, 36 S.Ct. 258, 60 L.Ed. 672; Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194. Thus the guaranties of due process, though having their roots in Magna Carta's 'per legem terrae' and considered as procedural safeguards 'against executive usurpation and tyranny,' have in this country 'become bulwarks also against arbitrary legislation.' Hurtado v. People of State of California, 110 U.S. 516, at page 532, 4 S.Ct. 111, at page 119, 28 L.Ed. 232.
87
However it is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process, but rather, as was suggested in another context long before the adoption of that Amendment, those concepts which are considered to embrace those rights 'which are * * * fundamental; which belong * * * to the citizens of all free governments,' Corfield v. Coryell, Fed.Cas.No.3,230, 4 Wash.C.C. 371, 380, for 'the purposes (of securing) which men enter into society,' Calder v. Bull, 3 Dall. 386, 388, 1 L.Ed. 648. Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights. The Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394; Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678; Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; Presser v. State of Illinois, 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615; In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Twining v. State of New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Indeed the fact that an identical provision limiting federal action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. See Mormon Church v. United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 481; Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088; Territory of Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1046; Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627; Farrington v. T. Tokushige, 273 U.S. 284, 47 S.Ct. 406, 71 L.Ed. 646; Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.
88
Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.
89
It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional prv isions, since that character must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, see Allgeyer v. State of Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780; Booth v. People of State of Illinois, 184 U.S. 425, 22 S.Ct. 425, 46 L.Ed. 623; Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Skinner v. State of Oklahoma, 316 U.S. 535, 544, 62 S.Ct. 1110, 1114, 86 L.Ed. 1655 (concurring opinion); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Cf. Skinner v. State of Oklahoma, supra; Bolling v. Sharpe, supra.
90
As was said in Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 'this court has not attempted to define with exactness the liberty thus guaranteed * * *. Without doubt, it denotes, not merely freedom from bodily restraint * * *.' Thus, for instance, when in that case and in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, the Court struck down laws which sought not to require what children must learn in schools, but to prescribe, in the first case, what they must not learn, and in the second, where they must acquire their learning, I do not think it was wrong to put those decisions on 'the right of the individual to * * * establish a home and bring up children,' Meyer v. State of Nebraska, ibid., or on the basis that 'The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only,' Pierce v. Society of Sisters, 268 U.S. at page 535, 45 S.Ct. at page 573. I consider this so, even though today those decisions would probably have gone by reference to the concepts of freedom of expression and conscience assured against state action by the Fourteenth Amendment, concepts that are derived from the explicit guarantees of the First Amendment against federal encroachment upon freedom of speech and belief. See West Virginia State Board of Education v. Barnette, 319 U.S. 624 and 656, 63 S.Ct. 1178 and 1193, 87 L.Ed. 1628 (dissenting opinion); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645. For it is the purposes of those guarantees and not their text, the reasons for their statement by the Framers and not the statement itself, see Palko v. State of Connecticut, 302 U.S. 319, 324—327, 58 S.Ct. 149, 151 153, 82 L.Ed. 288; United States v. Carolene Products Co., 304 U.S. 144, 152—153, 58 S.Ct. 778, 783—784, 82 L.Ed. 1234, which have led to their present status in the compendious notion of 'liberty' embraced in the Fourteenth Amendment.
91
Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Though we exercise limited and sharply restrained judgment, yet there is no 'mechanical yard-stick,' no 'mechanical answer.' The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take 'its place in relation to what went before and further (cut) a channel for what is to come.' Irvine v. People of State of California, 347 U.S. 128, 147, 74 S.Ct. 381, 391, 98 L.Ed. 561 (dissenting opinion). The matter was well put in Rochin v. People of State of California, 342 U.S. 165, 170—171, 72 S.Ct. 205, 208, 96 L.Ed. 183:
92
'The vague contours of the Due Process Clause do not leave judges at large. We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function. Even though the concept of due process of law is not final and fixed, these limits are derived from considerations that are fused in the whole nature of our judicial process. * * * These are considerations deeply rooted in reason and in the compelling traditions of the legal profession.'
93
On these premises I turn to the particular Constitutional claim in this case.
II.
94
Appellants contend that the Connecticut statute deprives them, as it unquestionably does, of a substantial measure of liberty in carrying on the most intimate of all personal relationships, and that it does so arbitrarily and without any rational, justifying purpose. The State, on the other hand, asserts that it is acting to protect the moral welfare of its citizenry, both directly, in that it considers the practice of contraception immoral in itself, and instrumentally, in that the availability of contraceptive materials tends to minimize 'the disastrous consequence of dissolute action,' that is fornication and adultery.
95
It is argued by appellants that the judgment, implicit in this statute—that the use of contraceptives by married couples is immoral—is an irrational one, that in effect it subjects them in a very important matter to the arbitrary whim of the legislature, and that it does so for no good purpose. Where, as here, we are dealing with what must be considered 'a basic liberty,' cf. Skinner v. State of Oklahoma, supra, 316 U.S. at page 541, 62 S.Ct. at page 1113, 'There are limits to the extent to which the presumption of constitutionality can be pressed,' id., 316 U.S. at page 544, 62 S.Ct. at page 1115, (concurring opinion), and the mere assertion that the action of the State finds justification in the controversial realm of morals cannot justify alone any and every restriction it imposes. See Alberts v. State of California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
96
Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the community, but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Compare McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 1153, 1218.
97
It is in this area of sexual morality, which contains many proscriptions of consensual behavior having little or no direct impact on others, that the State of Connecticut has expressed its moral judgment that all use of contraceptives is improper. Appellants cite an impressive list of authorities who, from a great variety of points of view, commend the considered use of contraceptives by married couples. What they do not emphasize is that not too long ago the current of opinion was very probably quite the opposite,12 and that even today the issue is not free of controversy. Certainly, Connecticut's judgment is no more demonstrably correct or incorrect than are the varieties of judgment, expressed in law, on marriage and divorce, on adult consensual homosexuality, abortion, and sterilization, or euthanasia and suicide. If we had a case before us which required us to decide simply, and in abstraction, whether the moral judgment implicit in the application of the present statute to married couples was a sound one, the very controversial nature of these questions would, I think, require us to hesitate long before concluding that the Constitution precluded Connecticut from choosing as it has among these various views. Cf. Alberts v. State of California, 354 U.S. 476, 500—503, 77 S.Ct. 1304, 1317—1319, 1 L.Ed.2d 1498 (concurring opinion).
98
But, as might be expected, we are not presented simply with this moral judgment to be passed on as an abstract proposition. The secular state is not an examiner of consciences: it must operate in the realm of behavior, of overt actions, and where it does so operate, not only the underlying, moral purpose of its operations, but also the choice of means becomes relevant to any Constitutional judgment on what is done. The moral presupposition on which appellants ask us to pass judgment could form the basis of a variety of legal rules and administrative choices, each presenting a different issue for adjudication. For example, one practical expression of the moral view propounded here might be the rule that a marriage in which only contraceptive relations had taken place had never been consummated and could be annulled. Compare, e.g., 2 Bouscaren, Canon Law Digest, 307—313. Again, the use of contraceptives might be made a ground for divorce, or perhaps tax benefits and subsidies could be provided for large families. Other examples also readily suggest themselves.
III.
99
Precisely what is involved here is this: the State is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full power of the criminal law. Potentially, this could allow the deployment of all the incidental machinery of the criminal law, arrests, searches and seizures; inevitably, it must mean at the very least the lodging of criminal charges, a public trial, and testimony as to the corpus delicti. Nor could any imaginable elaboration of presumptions, testimonial privileges, or other safeguards, alleviate the necessity for testimony as to the mode and manner of the married couples' sexual relations, or at least the opportunity for the accused to make denial of the h arges. In sum, the statute allows the State to enquire into, prove and punish married people for the private use of their marital intimacy.
100
This, then, is the precise character of the enactment whose Constitutional measure we must take. The statute must pass a more rigorous Constitutional test than that going merely to the plausibility of its underlying rationale. See 367 U.S. at pages 542—545, 81 S.Ct. at pages 1776—1778, supra. This enactment involves what, by common understanding throughout the Engligh-speaking world, must be granted to be a most fundamental aspect of 'liberty,' the privacy of the home in its most basic sense, and it is this which requires that the statute be subjected to 'strict scrutiny.' Skinner v. State of Oklahoma, supra, 316 U.S. at page 541, 62 S.Ct. at page 1113.
101
That aspect of liberty which embraces the concept of the privacy of the home receives explicit Constitutional protection at two places only. These are the Third Amendment, relating to the quartering of soldiers,13 and the Fourth Amendment, prohibiting unreasonable searches and seizures.14 While these Amendments reach only the Federal Government, this Court has held in the strongest terms, and today again confirms, that the concept of 'privacy' embodied in the Fourth Amendment is part of the 'ordered liberty' assured against state action by the Fourteenth Amendment. See Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684.
102
It is clear, of course, that this Connecticut statute does not invade the privacy of the home in the usual sense, since the invasion involved here may, and doubtless usually would, be accomplished without any physical intrusion whatever into the home. What the statute undertakes to do, however, is to create a crime which is grossly offensive to this privacy, while the Constitution refers only to methods of ferreting out substantive wrongs, and the procedure it requires presupposes that substantive offenses may be committed and sought out in the privacy of the home. But such an analysis forecloses any claim to Constitutional protection against this form of deprivation of privacy, only if due process in this respect is limited to what is explicitly provided in the Constitution, divorced from the rational purposes, historical roots, and subsequent developments of the relevant provisions.
103
Perhaps the most comprehensive statement of the principle of liberty underlying these aspects of the Constitution was given by Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U.S. 438, at page 478, 48 S.Ct. 564, at page 572, 72 L.Ed. 944:
104
'The protection guaranteed by the (Fourth and Fifth) Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual whatever the means employed, must be deemed a violationo f the Fourth Amendment. * * *'
105
I think the sweep of the Court's decisions, under both the Fourth and Fourteenth Amendments, amply shows that the Constitution protects the privacy of the home against all unreasonable intrusion of whatever character. '(These) principles * * * affect the very essence of constitutional liberty and security. They reach farther than (a) concrete form of the case * * * before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employe § of the sanctity of a man's home and the privacies of life. * * *' Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746. 'The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society.' Wolf v. People of State of Colorado, supra, 338 U.S. at page 27, 69 S.Ct. at page 1361. In addition, see, e.g., Davis v. United States, 328 U.S. 58i, 587, 66 S.Ct. 1256, 1258, 90 L.Ed. 1453; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 202—203, 66 S.Ct. 494, 502, 90 L.Ed. 614; Frank v. State of Maryland, 359 U.S. 360, 365—366, 79 S.Ct. 804, 808—809, 3 L.Ed.2d 877; Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734.
106
It would surely be an extreme instance of sacrificing substance to form were it to be held that the Constitutional principle of privacy against arbitrary official intrusion comprehends only physical invasions by the police. To be sure, the times presented the Framers with two particular threats to that principle, the general warrant, see Boyd v. United States, supra, and the quartering of soldiers in private homes. But though 'Legislation, both statutory and constitutional, is enacted, * * * from an experience of evils * * * its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. * * * (A) principle, to be vital, must be capable of wider application than the mischief which gave it birth.' Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793.
107
Although the form of intrusion here—the enactment of a substantive offense—does not, in my opinion, preclude the making of a claim based on the right of privacy embraced in the 'liberty' of the Due Process Clause, it must be acknowledged that there is another sense in which it could be argued that this intrusion on privacy differs from what the Fourth Amendment, and the similar concept of the Fourteenth, were intended to protect: here we have not an intrusion into the home so much as on the life which characteristically has its place in the home. But to my mind such a distinction is so insubstantial as to be captious: if the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of the life within. Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right. Thus, Mr. Justice Brandeis, writing of a statute which made 'it punishable to teach (pacifism) in any place (to) a single person * * * no matter what the relation of the parties may be,' found such a 'statute invades the privacy and freedom of the home. Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacifism. If they do, any police officer may summarily arrest them.' Gilbert v. State of Minnesota, 254 U.S. 325, 335—336, 41 S.Ct. 125, 128, 65 L.Ed. 287 (dissenting opinion). This same principle is expressed in the Pierce and Meyer cases, supra. These decisions, as was said in Prince v. Commonwealth of Massachusetts, 321 U.S. 158, at page 166, 64 S.Ct. 438, at page 442, 88 L.Ed. 645, 'have respected the private realm of family life which the state cannot enter.'
108
Of this whole 'private realm of family life' it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations. We would indeed be straining at a gnat and swallowing a camel were we to show concern for the niceties of property law involved in our recent decision, under the Fourth Amendment, in Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, and yet fail at least to see any substantial claim here.
109
Of course, just as the requirement of a warrant is not inflexible in carrying out searches and seizures, see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, so there are countervailing considerations at this more fundamental aspect of the right involved. '(T)he family * * * is not beyond regulation,' Prince v. Commonwealth of Massachusetts, supra, and it would be an absurdity to suggest either that offenses may not be committed in the bosom of the family or that the home can be made a sanctuary for crime. The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much has been explicitly recognized in acknowledging the State's rightful concern for its people's moral welfare. See 367 U.S. at pages 545—548, 81 S.Ct. at pages 1778—1780, supra. But not to discriminate between what is involved in this case and either the traditional offenses against good morals or crimes which, though they may be committed anywhere, happen to have been committed or concealed in the home, would entirely misconceive the argument that is being made.
110
Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.
111
In sum, even though the State has determined that the use of contraceptives is as iniquitous as any act of extra-marital sexual immorality, the intrusion of the whole machinery of the criminal law into the very heart of marital privacy, requiring husband and wife to render account before a criminal tribunal of their uses of that intimacy, is surely a very different thing indeed from punishing those who establish intimacies which the law has always forbidden and which can have no claim to social protection.
112
In my view the appellants have presented a very pressing claim for Constitutional protection. Such difficulty as the claim presents lies only in evaluating it against the State's countervailing contention that it be allowed to enforce, by whatever means it deems appropriate, its judgment of the immorality of the practice this law condemns. In resolving this conflict a number of factors compel me to conclude that the decision here must most emphatically be for the appellants. Since, as it appears to me, the statute marks an abridgment of important fundamental liberties protected by the Fourteenth Amendment, it will not do to urge in justification of that abridgment simply that the statute is rationally related to the effectuation of a proper state purpose. A closer scrutiny and stronger justification than that are required. See 367 U.S. at pages 542—545, 81 S.Ct. at pages 1776—1778, supra.
113
Though the State has argued the Constitutional permissibility of the moral judgment underlying this statute, neither its brief, nor its argument, nor anything in n y of the opinions of its highest court in these or other cases even remotely suggests a justification for the obnoxiously intrusive means it has chosen to effectuate that policy. To me the very circumstance that Connecticut has not chosen to press the enforcement of this statute against individual users, while it nevertheless persists in asserting its right to do so at any time—in effect a right to hold this statute as an imminent threat to the privacy of the households of the State—conduces to the inference either that it does not consider the policy of the statute a very important one, or that it does not regard the means it has chosen for its effectuation as appropriate or necessary.
114
But conclusive, in my view, is the utter novelty of this enactment. Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.15 Indeed, a diligent search has revealed that no nation, including several which quite evidently share Connecticut's moral policy,16 has seen fit to effectuate that policy by the means presented here.
115
Though undoubtedly the States are and should be left free to reflect a wide variety of policies, and should be allowed broad scope in experimenting with various means of promoting those policies, I must agree with Mr. Justice Jackson that 'There are limits to the extent to which a legislatively represented majority may conduct * * * experiments at the expense of the dignity and personality' of the individual. Skinner v. State of Oklahoma, supra (316 U.S. 535, 62 S.Ct. 1116). In this instance these limits are, in my view, reached and passed.
116
I would adjudicate these appeals and hold this statute unconstitutional, insofar as it purports to make criminal the conduct contemplated by these married women. It follows that if their conduct cannot be a crime, appellant Buxton cannot be an accomplice thereto. I would reverse the judgment in each of these cases.
117
Mr. Justice STEWART, dissenting.
118
For the reasons so convincingly advanced by both Mr. Justice DOUGLAS and Mr. Justice HARLAN, I join them in dissenting from the dismissal of these appeals. Since the appeals are nonetheless dismissed, my dissent need go no further. However, in refraining from a discussion of the constitutional issues, I in no way imply that the ultimate result I would reach on the merits of these controversies would differ from the conclusions of my dissenting Brothers.
1
Plaintiffs in the two cases composing No. 60 sue under fictitious names. The Supreme Court of Errors of Connecticut approved this procedure in the special circumstances of the cases.
2
As a matter of specific legislation, Connecticut outlaws only the use of contraceptive materials. Conn.Gen.Stat.Rev.1958, § 53—32 provides:
'Use of drugs or instruments to prevent conception. Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.'
There are no substantive provisions dealing with the sale or distribution of such devices, nor with the giving of information concerning their use. These activities are deemed to be involved in law solely because of the general criminal accessory enactment of Connecticut. This is Conn.Gen.Stat.Rev.1958, § 54—196:
'Accessories. Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.'
3
The assumption of prosecution of spouses for use of contraceptives is not only inherently bizarre, as was admitted by counsel, but is underscored in its implausibility by the disability of spouses, under Connecticut law, from being compelled to testify against one another.
4
It is also worthy of note that the Supreme Court of Errors has held that contraceptive devices could not be seized and destroyed as nuisances under the State's seizure statutes. See State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 803, decided on the same day as the Nelson case.
5
See, e.g., Braxton County Court v. State of West Virginia, 208 U.S. 192, 28 S.Ct. 275, 52 L.Ed. 450; Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193; Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499; Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603; United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. Cf. Owings v. Norwood's Lessee, 5 Cranch 344, 3 L.Ed. 120.
6
See, e.g. State of New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70 L.Ed. 289; State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154; International Longshoremen's and Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650. Cf. Coffman v. Breeze Corporations, 323 U.S. 316, 65 S.Ct. 298, 89 L.Ed. 264.
7
See, e.g., San Mateo County v. Southern Pacific R. Co., 116 U.S. 138, 6 S.Ct. 317, 29 L.Ed. 589; Singer Mfg. Co. v. Wright, 141 U.S. 696, 12 S.Ct. 103, 35 L.Ed. 906; Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293; Kimball v. Kimball, 174 U.S. 158, 19 S.Ct. 639, 43 L.Ed. 932; State of Tennessee v. Condon, 189 U.S. 64, 23 S.Ct. 579, 47 L.Ed. 709; American Book Co. v. State of Kansas, 193 U.S. 49, 24 S.Ct. 394, 48 L.Ed. 613; Jones v. Montague, 194 U.S. 147, 24 S.Ct. 611, 48 L.Ed. 913; Security Mutual Life Ins. Co. v. Prewitt, 200 U.S. 446, 26 S.Ct. 314, 50 L.Ed. 545; Richardson v. McChesney, 218 U.S. 487, 31 S.Ct. 43, 54 L.Ed. 1121; Berry v. Davis, 242 U.S. 468, 37 S.Ct. 208, 61 L.Ed. 441; Atherton Mills v. Johnston, 259 U.S. 13, 42 S.Ct. 422, 66 L.Ed. 814.
8
Mr. Justice Brandeis, concurring, in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 347, 56 S.Ct. 466, 480, 483, 80 L.Ed. 688.
9
The Mellon cases involved what is technically designated as the problem of 'standing,' but the concern which they exemplify that constitutional issues be determined only at the suit of a person immediately injured has equal application here. It makes little sense to insist that only the parties themselves whom legislation immediately threatens may sue to strike it down and, at the same time, permit such suit when there is not even a remote likelihood that the threat to them will in fact materalize.
1
Himes, A Decade of Progress in Birth Control, 212 Annals Am.Acad.Pol. & Soc.Sci. 88, 94 (1940).
2
It may be, as some suggest, that these bizarre laws are kept on the books solely to insure that traffic in contraceptives will be furtive, or will be limited to those who, by the accident of their education, travels, or wealth, need not rely on local public clinics for instruction and supply. Yet these laws—as the decision below shows—are not limited to such situations.
3
'On the continent there was some speculation during the middle ages as to whether a law could become inoperative through long-continued desuetude. In England, however, the idea of prescription and h e acquisition or loss of rights merely by the lapse of a particular length of time found little favour. * * * There was consequently no room for any theory that statutes might become obsolete.' Plucknett, A Concise History of the Common Law (1956), pp. 337—338.
4
The Critique of Pure Reason, 42 Great Books, p. 221.
5
On Liberty of Thought and Discussion, 43 Great Books, p. 282.
6
Ibid.
7
See Konvitz, Fundamental Liberties of a Free People (1957), pp. 37—39; Green, The Bill of Rights, the Fourteenth Amendment and the Supreme Court, 46 Mich.L.Rev. 869, 904 et seq. (9 48); Holmes, The Fourteenth Amendment and the Bill of Rights, 7 S.C.L.Q.Rev. 596 (1955).
And see Mr. Justice Rutledge (concurring) in In re Oliver, 333 U.S. 257, 280—281, 68 S.Ct. 499, 511, 92 L.Ed. 682.
8
I start with Justices Bradley, Swayne, Field, Clifford and Harlan. To this number, Mr. Justice Brewer can probably be joined on the basis of his agreement 'in the main' with Mr. Justice Harlan in O'Neil v. State of Vermont, 144 U.S. 323, 371, 12 S.Ct. 693, 711, 36 L.Ed. 450. See the Appendix to Mr. Justice Black's dissent in Adamson v. People of State of California, supra, 332 U.S. 120—123, 67 S.Ct. 1709—1711. To these I add Mr. Justice Black, Mr. Justice Murphy, Mr. Justice Rutledge and myself (Adamson v. People of State of California, supra, 332 U.S. 68, 123, 67 S.Ct. 1684, 1683).
9
'The due process clause is said to exact from the states all that is 'implicit in the concept of ordered liberty.' It is further said that the concept is a living one, that it guarantees basic rights, not because they have become petrified as of any one time, but because due process follows the advancing standards of a free society as to what is deemed reasonable and right. It is to be applied, according to this view, to facts and circumstances as they arise, the cases falling on one side of the line or the other as a majority of nine justices appraise conduct as either implicit in the concept of ordered liberty or as lying without the confines of that vague concept. Of course, in this view, the due process clause of the Fifth Amendment, which confessedly must be construed like that of the Fourteenth, may be repetitious of many of the other guaranties of the first eight amendments and may render many of their provisions superfluous.' Roberts, The Court and the Constitution (1951), p. 80.
10
Anthony Comstock (1844—1915)—the Congregationalist who inspired the foundation of the New York Society for the Suppression of Vice in 1873 and the Watch and Ward Society of Boston in 1876 and who inspired George Bernard Shaw to use the opprobrious word 'comstockery' in Mrs. Warren's Profession—was responsible for the passage in 1879 of this Connecticut law.
'Anthony Comstock had moral earnestness and it can't be faked. His concern was with Puritan theology rather than Puritan ethics. Righteousness seemed to him less important than salvation and consequently tricks which seemed shabby to enutrals left him without shame. A man who fights for the safety of his immortal soul can hardly be expected to live up to the best Queensberry traditions in the clinches. To grant the major premises of Comstock's religious and social philosophy is to acquit him of any lack of logic. Obscenity was to Anthony poison to soul and body, and anything remotely touching upon sex was to his mind obscene. He seems to have believed implicitly in medical theories which have since his time been discarded. Even in his day beliefs were changing, but Comstock was loyal to the old-line ideas. It was his notion that idiocy, epilepsy and locomotor-ataxia were among the ailments for which auto-eroticism was responsible. Since death and damnation might be, according to his belief, the portion of the girl or boy who read a ribald story, it is easy to understand why he was so impatient with those who advanced the claims of art. Even those who love beauty would hardly be prepared to burn in hell forever in its service. Comstock's decision was even easier, for he did not know, understand or care anything about beauty.' Broun and Leech, Anthony Comstock (1927), pp. 265—266.
11
Those warrants would, I think, go beyond anything so far known in our law. The law has long known the writ de ventre inspiciendo authorizing matrons to inspect the body of a woman to determine if she is pregnant. This writ was issued to determine before a hanging whether a convicted famale was pregnant or to ascertain whether rightful succession of property was to be defeated by assertion of a suppositions heir. See 1 Blackstone Commentaries (Jones ed. 1915), p. 651.
12
The right 'to be let alone' had many common-law overtones. See Cooley, Torts (2d ed. 1888), p. 29; Warren and Brandeis, Right To Privacy, 4 Harv.L.Rev. 192. Cf. Ohio Rev.Code, § 2905.34, which makes criminal knowing 'possession' of 'a drug, medicine, article, or thing intended for the prevention of conception,' doctors and druggists being excepted. § 2905.37.
13
Mr. Justice Murphy dissenting in Adamson v. People of State of California, 332 U.S. 46, 124, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903, said:
'I agree that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment. But I am not prepared to say that the latter is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutin al condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights.'
14
Calhoun, Democracy and Natural Law, 5 Nat.Law Forum, 31, 36 (1960).
15
The Third Amendment provides:
'No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.'
1
These statutes, Conn.Gen.Stat.Rev.1958, § 53—32 (forbidding the use of contraceptives), and Conn.Gen.Stat.Rev.1958, § 54—196 (the general accessory law), are set forth in note 2 of the plurality opinion, ante, 367 U.S. at page 499, 81 S.Ct. at page 1753.
2
Only two cases are squarely relied on, C.I.O. v. McAdory, 325 U.S. 472, 65 S.Ct. 1395, 89 L.Ed. 1741, a companion case to Alabama State Federation of Labor, etc. v. McAdory, supra, discussed at pages 526—527 of 367 U.S., at page 1768 of 81 S.Ct., infra, and tendering the same issues; and Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311. The appeal in the principal McAdory case was dismissed because the state statute there challenged had not yet been construed by the state courts, and it was thought that state construction might remove some Constitutional doubts. In the companion McAdory case, the appeal was likewise dismissed, the State having 'agreed not to enforce § 7 of the Act (there challenged) until the final decision as to the section's validity by this Court in Alabama State Federation of Labor v. McAdory * * *.' Id., 325 U.S. at page 475, 65 S.Ct. at page 1397. In the present appeals there is no agreement not to prosecute, no companion case awaiting disposition, and no uncertainty about state law due to lack of state construction.
As to Ex parte La Prade, supra, see note 11, infra.
3
Manifestly the type of ripeness found wanting in cases such as Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; State of Texas v. Interstate Commerce Comm., 258 U.S. 158, 42 S.Ct. 261, 66 L.Ed. 531; State of New Jersey v. Sargent, 269 U.S. 328, 46 S.Ct. 122, 70 L.Ed. 289, and State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154, is not lacking in the cases before us. For the recurrent theme of those cases, all of which challenge federal action as an encroachment on state sovereignty, is the fact that the mere existence of state sovereign powers and prerogatives which may bear generally upon individual rights raises no such concrete and practical issues as courts are accustomed to consider, so that adjudication upon their validity in such circumstances would take place in the most abstract kind of setting.
4
Some support is sought to be drawn for the supposition of state acquiescence in violation of the statute from the case of State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A.2d 863. But that case held no more than that contraceptive materials could not be seized under the authority of a statute interpreted to deal with the seizure of gambling paraphernalia.
5
The 'circumstances' of the Nelson case may best be gathered from the remarks of the State's prosecuting attorney, Mr. Fitzgerald, seeking the approval of the trial judge for a nolle prosequi in that case after the decision of the State Supreme Court. In an affidavit accompanying a transcript of the proceedings on the State's motion, the attorney for the defendants stated that 'said criminal prosecutions were prosecutions instituted by the State upon complaint of a citizen and were instituted in no sense with the prior knowledge or approval of the accused and there was no pre-trial acquiescence by the accused that said actions would be instituted to test the constitutionality of the statutes in question.'
6
This statement was made in the same proceedings referred to in note 5, supra.
7
See Brief of Planned Parenthood Federation of America, Inc., as amicus curiae, p. 4, and Appendix f.
8
The concurring opinion concludes, apparently on the basis of the Nelson episode, that the 'true controversy in this case is over the opening of birth-control clinics on a large scale * * *.' It should be said at once that as to these appeals this is an entirely unwarranted assumption. The amicus curiae in this case, the Planned Parenthood Federation of America, Inc., is indeed interested in such clinics, see note 7, supra, but as to the actual parties here, there is not one word in the record or their briefs to suggest that their interest is anything other than they say it is. The Nelson prosecution, it is true, involved a doctor and nurses at a birth-control clinic, but there is nothing about these statutes as they have been authoritatively construed in this and previous cases, that limits their application to advice given by a doctor in a clinic of that sort, as opposed to advice given by a doctor in some less specialized clinic, a hospital or in his own office.
The only conceivable sense in which 'The true controversy in this case is over the opening of birth-control clinics' must lie in the circumstance that since the notorious and avowed purpose of such a clinic is the violation of these statutes, there would not be the same problem of detection or proof of violations as might otherwise present itself. The relevance in turn of this circumstances must be that, in the view of the concurring opinion there is a present threat of enforcement against any such clinic which I too believe—but coupled with a further assumption—one shared by the plurality opinion though lacking any factual warrant whatever—that these statutes do not also deter members of the medical profession in general from violating these statutes. Furthermore both opinions must share the assumption that the appellants may be required to hold what may be their constitutional rights at the whim and pleasure of the prosecutor. In sum, the strong implication of the concurring opinion that a suit for anticipatory relief brought by a birth-control clinic (though it would raise no different issues and present a record no less 'skimpy') would succeed in invoking our jurisdiction where these suits fail, exposes the fallacy underlying the Court's disposition: the unprecedented doctrine that a suit for anticipatory relief will be entertained at the instance of one who is forced to violate a statute flagrantly, but not at the urging of one who may violate it surreptitiously with a high probability of avoiding detection.
9
In this regard it is worth comparing the record of the Federal Communications Commission in enforcing its regulations by means of a threat of revocation of station licenses. The Commission has not, as is generally known, used this sanction much more readily than Connecticut has invoked criminal penalties to enforce the laws here in question, but no one would discount entirely the efficacy of the threat or suggest that open defiance of Commission regulations is without substantial risks.
10
It is suggested that prosecution is unlikely because of an interspousal testimonial privilege in Connecticut. Assuming that such a privilege exists and is applicable here, the testimony of either spouse is not necessary to a conviction. Furthermore, as will be argued, the rea incursion here inheres in the institution of a prosecution in this matter at all, with the consequent need of an opportunity for the parties—guilty or innocent—to defend themselves against the charges. See 367 U.S. at page 548, 81 S.Ct. at page 1779, infra.
11
There is a much discredited dictum in Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311, that in an injunction action there must be an allegation of threatened immediate enforcement of the statute. See 50 Yale L.J. 1278; Borchard, Challenging 'Penal' Statutes by Declaratory Action, 52 Yale L.J. 445; 62 Harv.L.Rev. 870—871. But against this dictum (which even in its context was justified only as a natural consequence of the rule of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, involving suits against state officers) one can array numerous cases in which proof of any such immediate threat was considered unnecessary and the Court proceeded to a determination of the merits. See, e.g., Commonwealth of Pennsylvania v. State of West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117; Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160; Currin v. Wallace, 30 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441.
12
The so-called Comstock Law, 17 Stat. 598, may be regarded as characteristic of the attitude of a large segment of public opinion on this matter through the end of the last century. It was only by judicial interpretation at a later date that the absolute prohibitions of the law were qualified to exclude professional medical use. Youngs Rubber Corp. v. C. I. Lee & Co., 2 Cir., 45 F.2d 103; Davis v. United States, 6 Cir., 62 F.2d 473; United States v. One Package, 2 Cir., 86 F.2d 737; 50 Harv.L.Rev. 1312. However, the Comstock Law in its original form 'started a fashion' and many States enacted similar legislation, some of which is still on the books. See Stone and Pilpel, The Social and Legal Status of Contraception, 22 N.C.L.Rev. 212; Legislation Note, 45 Harv.L.Rev. 723; Note, 6 U. of Chi.L.Rev. 260; Murray, America's Four Conspiracies, at 32—33, in Religion in America (Cogley ed.). Indeed the criticism of these measures assume that they represented general public opinion, though of a bygone day. See, e.g., Knopf, Various Aspects of Birth Control; Birth Control Clinical Research Bureau, Laws Relating to Birth Control in the United States and its Territories, foreword and introduction; Stone and Pilpel, supra; Hearings on H.R. 11082, 72d Cong., 1st Sess. See generally, Broun and Leech, Anthony Comstock; Dennett, Birth Control Laws.
13
'No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.'
14
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
15
See tabulation of statutes in Birth Control Legislation, 9 Cleveland-Marshall Law Review, 245 (1960); Legislation Note, 45 Harv.L.Rev. 723 (1932); Birth Control Clinical Research Bureau, Laws Relating to Birth Control in the United States and its Territories (1938).
16
Unqualified disapproval of contraception is implicit in the laws of Belgium, Droit Penal, § 383; France, Code Penal, Art. 317; Ireland, Censorship of Publications Act of 1929, §§ 16, 17, Criminal Law Amendment Act of 1935, § 17; Italy, Codice Penale, Arts. 553, 555; and Spain, Codigo Penal, Art. 416. Compare the more permissive legislation in Canada, Criminal Code, § 150; Germany, Strafgesetzbuch, § 184; Switzerland, Code Penal, Art. 211.
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